JUDGMENT : 1. These two appeals have been preferred against a common judgment and order dated 18th September, 2018 passed by the Additional District & Sessions Judge, Court No.2, Ghaziabad in Sessions Trial No. 787 of 2007 (State Vs. Ravindra & Nasir @ Guddu), arising out of Case Crime No. 514 of 2006, under Sections 452/34, 307/34, 302/34 and 120-B/ 34 I.P.C., Police Station-Vijaynagar, District-Ghaziabad, whereby both the appellants have been convicted and sentenced to two years rigorous imprisonment each under Section 452/34 I.P.C. with a fine of Rs. 1,000/- each and in default thereof, they have to further undergo one month additional imprisonment; ten years rigours imprisonment each under Section 307/34 I.P.C. with fine of Rs. 10,000/- each and in default thereof, they have to further undergo six months additional imprisonment each; and life imprisonment under Section 302/34 IPC, with fine of Rs. 10,000/- each and in default thereof, they have to further undergo six months additional imprisonment. Both the appeals are thus being decided by means of this common judgment and order. 2. We have heard Mr. Saghir Ahmad, learned Senior Counsel assisted by Mr. B.K. Pandey, learned counsel for the accused appellant Nasir @ Guddu and Mr. Vijay Kumar Srivatava, learned counsel for the accused appellant- Ravindra and Mr. Arunendray Singh, learned A.G.A. for the State and also perused the entire materials available on record. 3. The prosecution story is that on the basis of written report of the informant- P.W.-1 Sanjay dated 27th August, 2006 (Exhibit-Ka/1) scribed by Balveer Singh, a first information report (Exhibit-Ka/7) has been lodged on 27th August, 2006 at 2330 hrs. against the accused-appellant Ravindra and one unknown person alleging therein that Guddu used to live in the house of informant Sanjay on rent. On August 27, 2006, at around 10:00 p.m. (night), while the informant/P.W.1 was having his dinner in Guddu's room along with Guddu and his wife, Ravindra and one other person wearing a green shirt, came and Ravindra called Guddu and the informant to come out on which they came out. Ravindra said that he after dropping his companion, would come again within two minutes. After dropping his companion, Ravindra came again and called Guddu to come out from his room. The first informant however called Guddu to come back in the room. Ravindra said that he after dropping his companion, would come again within two minutes. After dropping his companion, Ravindra came again and called Guddu to come out from his room. The first informant however called Guddu to come back in the room. The companion of Ravindra immediately came on the door of the room of Guddu and with a intention to kill Guddu, fired upon him by country-made pistol (Tamancha), which was in his hand, due to which Guddu sustained three gun shots. When the informant tried to save Guddu, that unknown person i.e. companion of Ravindra with intention to kill fired upon him due to which he also sustained gun shot injuries. The people of locality had taken Guddu to MMG hospital while the first informant/P.W.-1 got himself treated at Sanjeevani hospital and then came to lodge the report. 4. After lodging of the first information report, the Investigating Officer/P.W.-12 inspected the spot and prepared the site plan (Exhibit-ka/5). He also collected the blood stained clothes and pillow cover and prepared the recovery memo of the same. He also took blood stained piece of floor (marble). He also took an empty cartridge. The Investigating Officer has also recorded the statement of the informants, scriber of the written report and other witnesses. The injured Guddu, who was admitted in G.T.B. Hospital Shahdara, Delhi on 27th August, 2006 was declared dead by the Doctor vide death report dated 28th August, 2006 (Exhibit-Ka/10). The dead body of the deceased was sealed and sent for post-mortem under the supervision of Assistant Sub-Inspector Hukum Singh/P.W.-7 after doing inquest of the body of the deceased at G.T.B. Hospital. 5. The autopsy of the deceased was conducted on the same day i.e. 28th August, 2006 at 03.00 p.m. by Dr. Barkha Gupta (P.W.-5). In the opinion of P.W.-5, the cause of death of deceased was haemorrhage shock due to Ante-mortem injury of internal abdominal organs. P.W.-5 has further opined that the injuries were antemortem and caused by projectile of a rifled firearm ammunition and injury no. 1 is sufficient to cause death in ordinary course of nature. The P.W.-5 has found following external antemortem injuries on the body of the deceased, which are as under: “1. P.W.-5 has further opined that the injuries were antemortem and caused by projectile of a rifled firearm ammunition and injury no. 1 is sufficient to cause death in ordinary course of nature. The P.W.-5 has found following external antemortem injuries on the body of the deceased, which are as under: “1. Firearm entry wound 0.5 cm x 0.5 cm surrounded abrasion collar 0.1 cm in thickness all around except on upper part where it is 0.2 cm, situated on midline at epigastria region 19.0 cm below external notch and 21.0 cm above umbilicus. On exploration track of the wound is going backward and downward and to the left entering into abdominal cavity after piercing the peritoneum going through and through from left lobe of liver than going through and through from stomach and injuring the intestine in the path of track than entering into the muscles of the anterior wall of abdomen and coming out by making an exit wound 0.5 cm x 0.5 cm with everted margins and fat protruding out situated 23.0 cm to left from midline and 3.0 cm above left anterior superior iliac spine. 1500 ml of liquid and clotted blood present in abdominal cavity. 2. Firearm entry wound 0.5 cm x 0.5 cm situated on the right shoulder top with inverted margins. 9.0 cm inside the shoulder tip and 7.0 cm outer to the right from the root of the neck. On exploration the track of the wound going medially downward in the soft tissues of the back of the chest and bullet was found lodged between vertebrae T2 and T3. Lead bullet 1.3cm in length and 0.8 cm in diameter.” 6. Medico Legal Case Report (Exhibit-Ka/15) qua the death report/certificate of the deceased has also been given by Dr. Anil Yadav (P.W.-11) on 28th August, 2006 and he has opined as follows: “1. Penetration injury below the costal angle (0.5 cm in diameter) and at the left iliac fossa ( 0.5cm in diameter) Imp- Gunshot injury could not be ruled out.” 7. The informant/P.W.1 has also been medically examined externally by Dr. Anil Prakash (P.W.-9) at District (M.M.G.) Hospital, Ghaziabad and he has found following injuries on the body of the informant: “1. Linear abrasion 8cm x 1cm due to GSW (Gun Shot Wound) on right side of chest 4.5 cm below right nipple at 7 o'clock position. The informant/P.W.1 has also been medically examined externally by Dr. Anil Prakash (P.W.-9) at District (M.M.G.) Hospital, Ghaziabad and he has found following injuries on the body of the informant: “1. Linear abrasion 8cm x 1cm due to GSW (Gun Shot Wound) on right side of chest 4.5 cm below right nipple at 7 o'clock position. Red colored medicine is present on this abrasion. Slight blackening in area of 9 cm x 1.5 cm around this wound. 2. Wound of entry of GSW (Gun Shot Wound) on front and inner aspect of upper part of left knee, its size 1 cm x 1 cm x 1.5 cm. Adv. X-ray. 3. Abrasion 1cm x 1 cm on outer aspect of middle of left knee, 3cm below and outer to injury no. 2.” P.W.-9 has opined that Injury no. 1 and 3 found on the body of informant/P.W.-1 are in simple nature. Injury no. 2 is KUO (Kept Under Observation). Injury no. 1 and 2 are caused by firearm injury. Injury no. 3 is caused by hard blunt object.” 8. The X-ray of left knee joint of the informant/P.W.1 has been conducted by Dr. Rajndra Prasad (P.W.-10) and as per the X-ray report, he has opined that a radio opaque of metallic density is found in the left knee joint of the informant. 9. The investigation proceeded and after completion of statutory investigation in terms of Chapter XII Cr.P.C., the Investigating Officer submitted the charge-sheet (Exhibit-Ka/6) dated 8th November, 2006 against the accused-appellants. The Magistrate concerned took cognizance of the offence on the charge-sheet and as the case was triable by the court of sessions, committed the case to the court of Sessions resultantly, the same was registered as Sessions Trial No. 787 of 2007 (State Vs. Ravindra & Nasir @ Guddu), arising out of Case Crime No. 514 of 2006, under Sections 452/34, 307/34, 302/34 and 120-B/34 I.P.C., Police Station-Vijaynagar, District-Ghaziabad. 10. Ravindra & Nasir @ Guddu), arising out of Case Crime No. 514 of 2006, under Sections 452/34, 307/34, 302/34 and 120-B/34 I.P.C., Police Station-Vijaynagar, District-Ghaziabad. 10. On 27th August, 2007, the learned Trial Court framed following charges against the accused-appellants for the offence under Sections 452/34, 307/34, 302/34 and 120-B/34 I.P.C.: ^^eSa nhid dqekj JhokLro] vij l= U;k;k/kh’k] dksVZ laŒ 8] xkft;kckn vki jfoUnz] ukflj mQZ xqM~Mw o gchc mQZ Hkksyk dks fuEu vkjksi ls vkjksfir djrk g¡w%& izFke&;g fd fnŒ 27-8-06 dks le; djhc jkf= ds 10 cts ds ckn LFkku ekSŒ ekrk dkykSuh esa ifjoknh ds edku fLFkr Fkkuk fot; uxj xkft;kckn esa vkius ,d jk; gksdj xqM~Mw ds Åij tku ls ekjus dh uh;r ls reaps ls Qk;j dj xaHkhj :i ls ?kk;y dj fn;k ftlls mldh e`R;q gks x;hA bl izdkj vkius /kkjk 302@34 HkkŒnŒlaŒ ds varxZr naMuh; vijk/k dkfjr fd;k tks fd bl U;k;ky; ds izlaKku esa gSA f}rh;& ;g fd mDr fnukad] le; o LFkku ij vkius tc e`rd xqM~Mw ij tku ls ekjus dh fu;r ls Qk;j fd;s rc ifjoknh xqM~Mw dks cpkus ds fy;s mBk rks vkius ifjoknh ij tku ls ekjus dh fu;r ls ml ij Qk;j fd;s vkSj vkSj ;fn bu Qk;j ds ifj.kkeLo:i mldh e`R;q gks tkrh rks vki ifjoknh lat; dh gR;k ds nks”kh gksrs vkSj bl izdkj vkius /kkjk 307@34 HkkŒnŒlaŒ ds varxZr naMuh; vijk/k dkfjr fd;k tks fd bl U;k;ky; ds izlaKku esa gSA r`rh;& ;g fd mDr fnukad] LFkku o le; ij vkius xqM~Mw dks tku ls ekjus dh fu;r ls ifjoknh ds ?kj esa vukf/kd`r izos’k dj x`g vfrpkj fd;k vkSj bl izdkj vkius /kkjk 452@34 HkkŒnŒlaŒ ds varxZr naMuh; vijk/k dkfjr fd;k tks fd bl U;k;ky; ds izlaKku esa gSA prqFkZ&;g fd vkidk e`rd xqM~Mw ls :i;ksa ds ysu nsu ij fookn Fkk vkSj e`rd xqM~Mw m/kkj ds :i;s ugha ykSVk jgk Fkk blh otg ls vkius fnŒ 27-8-06 dks jkf= 10 cts ls iwoZ fdlh le; xqM~Mw dh gR;k djus dk “kM+;a= jpk vkSj “kM+;a= ds vuqikyu esa vkius mldh gR;k dj nh vkSj bl izdkj vkius /kkjk 120ch@34 HkkŒnŒlaŒ ds varxZr naMuh; vijk/k dkfjr fd;k tks fd bl U;k;ky; ds izlaKku esa gSA ,rr~}kjk funsZ’k fn;k tkrk gS fd mDr vkjksi dk fopkj.k bl U;k;ky; }kjk fd;k tk;sA^^ 11. In order to prove its case, the prosecution relied upon documentary evidence, which were duly proved and consequently marked as Exhibits. In order to prove its case, the prosecution relied upon documentary evidence, which were duly proved and consequently marked as Exhibits. The same are catalogued herein below:- “i). Written report dated 27th August, 2006 submitted by the informant-P. W.1, which has been scribed by one Balvir Singh, which has been marked as Exhibit-Ka/1; ii). The first information report dated 27th August, 2006 has been marked as Exhibit- Ka/7; iii). Recovery memo of blood stained clothes and pillow cover dated 28th August, 2006 has been marked as Exhibit-ka/2; iv). Recovery memo of blood stained and plain marble of floor dated 28th August, 2006 has been marked as Exhibit-ka/3; v). Recovery memo of empty cartridge dated 28th August, 2006 has been marked as Exhibit-ka/4; vi). Injury report and X-ray report of the informant/P.W.-1 dated 28th August, 2006 and 4th September, 2006 respectively have been marked as Exhibit- Ka/14; vii). Death report of the deceased given by the Doctor of G.T.B. Hospital dated 28th August, 2006 has been marked as Exhibit-ka/10; viii). The post-mortem/autopsy report of the deceased dated 28th August, 2006 has been marked as Exhibit-Ka-9; ix). Site plan with index prepared by the Investigation Officer dated 28th August, 2006 has been marked as Exhibit-ka/5; x). Medical paper regarding death of the deceased issued by P.W.-11 dated 28th August, 2006 has been marked as Exhibit-ka/16; xi). Medico Legal Case Report of the informant/P.W.1 has been marked as Exhibit-ka/15; and xii). Charge-sheet dated 8th November, 2006 has been marked as Exhibit- Ka/6.” 12. The prosecution also examined total nine witnesses in the following manner:- “i). P.W.-1/Informant, namely, Sanjay, who is said to be an injured eye witness; ii). P.W.-2, namely, Chhota brother of the deceased ; iii) P.W.-3, namely, Sub-Inspector Lokendra Pal Singh, who has recorded the statements of the witnesses under Section 161 Cr.P.C.; iv) P.W.-4, namely, Constable-506 Kiran Pal Singh, who has prepared the chik first information report and has also proved the same before the Court below; v). P.W.-5, namely, Dr. Barkha Gupta, who has conducted the autopsy of the deceased and prepared the post-mortem report; vi). P.W.-6, namely, Rinku Bhati, who knew the accused-appellant Ravindra Jatav; vii). P.W.-7, namely, Assistant Sub-Inspector Hukum Singh, who has done the inquest of the body of the deceased and made a request to the Hospital for post-mortem of the deceased; viii). P.W.-5, namely, Dr. Barkha Gupta, who has conducted the autopsy of the deceased and prepared the post-mortem report; vi). P.W.-6, namely, Rinku Bhati, who knew the accused-appellant Ravindra Jatav; vii). P.W.-7, namely, Assistant Sub-Inspector Hukum Singh, who has done the inquest of the body of the deceased and made a request to the Hospital for post-mortem of the deceased; viii). P.W.-8, namely, Smt. Babita, wife of the deceased Guddu, who is said to be an eye-witness; ix). P.W.-9, namely, Dr. Anil Prakash who has medically examined the injuries of the injured Sanjay i.e. informant/P.W.-1; x). P.W.-10, namely, Dr. Rajendra Prasad, who has done the X-ray of left knee of the injured/informant/P.W.1; xi) P.W.-11, namely, Dr. Anil Yadav, who has given the Medico Legal Case report about the death of the deceased; and xii) P.W.-12, namely, Sub-Inspector Hargovind Singh, who has conducted the investigation of the case; 13. After recording of the prosecution evidence, the incriminating evidence were put to the accused-appellants for confronting with the same under Section 313 Cr.PC. In their statements recorded U/s 313 Cr.P.C. the accused appellants denied their involvement in the commissioning of the offence 452/34, 307/34, 302/34 and 120-B/34 I.P.C. The accused-appellant Ravindra has made it clear that the informant/P.W.-1 Sanjay used to park his auto in front of his house, which caused his father to repeatedly ask the informant to move the auto and he also file a complaint with the police at the Vijay Nagar police station. The informant/P.W.-1 used to harbour resentment due to the aforementioned complaint, and as a result, a false accusation has been made against him on the basis of suspicion. Ravindra, the accused-appellant, also claimed that he had been wrongfully accused of being involved in the incident. The deceased had a criminal mindset himself. The defence side has only produced one witness, D.W.-1 Akhand Singh, to prove the alibi of accused Ravindra. 14. The accused-appellant Naasir @ Guddu under Section 313 Cr.P.C. has stated that Guddu and his wife were criminals and they suspected that he is an informer of them and because of the said reason, they harbored a grudge against him and a complaint has also been made in that regard. He has further stated that he has been falsely implicated in the case. The deceased himself was a criminal. 15. He has further stated that he has been falsely implicated in the case. The deceased himself was a criminal. 15. The trial court after relying upon the evidence adduced by the prosecution and recording its finding that there is no significant contradiction between the statements of the witness and the medical evidence, nor is there any inconsistency in the statements of the witness, has come to the conclusion that the prosecution has been able to prove beyond reasonable doubt that the accused Ravindra and Nasir alias Guddu entered into the room of the deceased on 27.08.06 at about 10.00 p.m. with the common intention, in which the deceased was tenant. It has also been recorded that with the intention of killing the informant Sanjay and the deceased Guddu, accused-appellants fired and injured them, as a result Guddu died. Therefore, the accused Ravindra and Nasir alias Guddu are liable to be convicted under the charges of Section 452/34, 307/34, 302/34 IPC. The trial court has further recorded that so far as the question of allegation under Section 120B I.P.C. is concerned, the prosecution has failed to prove the same beyond reasonable doubt. Therefore, the accused Ravindra and Nasir alias Guddu deserve to be acquitted of the offence u/s 120B I.P.C. It is against this judgment and order of conviction passed by the trial court that the present jail appeal has been filed on the ground that conviction is against the weight of evidence on record and against the law and the sentence awarded to the accused-appellant is too severe. 16. Assailing the impugned judgment and order of conviction Mr. Saghir Ahmad, learned Senior Counsel assisted by Mr. B.K. Pandey, learned counsel for the accused appellant Nasir @ Guddu and Mr. Vijay Kumar Srivatava, learned counsel for the accused appellant- Ravindra submits that the first informant/P.W.-1 Sanjay has not recognized the assailants/the accused appellants. P.W.1 has turned hostile and did not support the prosecution case. Further submission is that PW-2 Chhota is the brother of the deceased but he has also not supported the prosecution case and has turned hostile. He said that he did not know about the murder of his brother deceased-Guddu. P.W.1 has turned hostile and did not support the prosecution case. Further submission is that PW-2 Chhota is the brother of the deceased but he has also not supported the prosecution case and has turned hostile. He said that he did not know about the murder of his brother deceased-Guddu. Next submission is that the murder has been committed by a rifle, as is evident from the post-mortem report, which has been marked as Exhibit ka-9, but as per the first information report, the deceased Guddu was killed by a country-made pistol (Tamancha). From the aforesaid, it is clear that there is a contradiction with regard to fire arm used in the murder of the deceased, which makes the prosecution case doubtful. 17. Learned counsel for the accused-appellants has also asserted that the deceased sustained a gunshot wound on his right side of the body. If the case of the prosecution is accepted that the accused fired on the deceased from the front side, then he would have sustained a gunshot wound on his front side rather than on his right side, which also creates doubt in the prosecution story. 18. It is further argued that as per the prosecution version, when the incident took place, wife of the deceased i.e. P.W.-8 was present at the place of occurrence, when as a matter of fact, when her husband i.e. injured (since deceased) sustained gun shots, she went to call his brother-in-law, namely, Chhota (brother of the deceased). The said conduct of P.W.-8 seems to be unnatural as if a husband due to gun shot injuries, is on the verge of his death, his wife’s major concern will be to save the life of her husband by taking him to the nearby hospital with the help of nearby available people rather than leaving him and proceeding to call her brother-in-law, who was residing at a distance of one kilometer away from the place of occurrence. Such acts of P.W.-8 creates grave doubt regarding the prosecution story. 19. Learned counsel for the appellant has next contended that it has come on evidence that when the incident occurred, there was no source of light at the place of occurrence, therefore, it is not ascertained as to how the assailants have been identified by the prosecution witnesses in the absence of light. 19. Learned counsel for the appellant has next contended that it has come on evidence that when the incident occurred, there was no source of light at the place of occurrence, therefore, it is not ascertained as to how the assailants have been identified by the prosecution witnesses in the absence of light. Since the prosecution case is completely silent on this aspect and is not supported by any evidence, the accused-appellants are not guilty of the offence under Section 452/34, 307/34, 302/34 I.P.C beyond reasonable doubt. On the cumulative strength of the aforesaid submissions, learned counsel for the appellants submits that the impugned judgment and order of conviction cannot be legally sustained and is liable to be quashed. 20. On the other hand, Sri Arunendra Singh, learned A.G.A. for the State while supporting the prosecution version submits that although P.W.-1, P.W.-2, P.W.-6 have turned hostile but they admitted that incident occurred in which the deceased died due to gun shot injuries. They have also proved the Exhibit Ka-2, Exhibit Ka-3 and Exhibit Ka-4 and PW-8/wife of the deceased Smt. Babita has fully supported the prosecution version and she is an eyewitness of the entire incident and has clearly disclosed about the commissioning the offence of murder, therefore, the trial court has not committed any error in convicting and sentencing the accused appellants to undergo life imprisonment with fine. On the basis of the aforesaid submissions learned A.G.A. submits that as this is a case of direct evidence and impugned judgment and order of conviction does not suffer from any illegality and infirmity so as to warrant any interference by this Court. As such both the appeals filed by the accused-appellants, who committed heinous crime by murdering the deceased Guddu are liable to be dismissed. 21. We have considered the submissions made by the learned counsel for the parties and have gone through the records of present appeals specially the judgment and order of conviction and evidence adduced before the Trial Court. 22. The question to be addressed and determined in these appeals is whether the accusation of guilt arrived at by the Trial Court and the sentence awarded is legal and sustainable and suffers from no infirmity and perversity. 23. 22. The question to be addressed and determined in these appeals is whether the accusation of guilt arrived at by the Trial Court and the sentence awarded is legal and sustainable and suffers from no infirmity and perversity. 23. The facts as have been noticed above clearly shows that the incident took place on 27th August, 2006 at 10:00 p.m. and the first information report qua the said incident has been lodged on the same day i.e. 27th August, 2006 at 11.30 p.m. (2330 hrs.). According to the prosecution the first information report is well within time and prompt. 24. As per the first information report, the incident took place on 27th August, 2006 at about 10:00 p.m. alleging therein that Guddu used to live in house of Sanjay on rent, when he (Sanjay) was eating food in the room of Guddu along with him and his wife, the accused-appellant Ravindra and one other person who was wearing green shirt came. The accused-appellant Ravindra called Guddu, when Guddu and informant came out, the accused-appellant Ravindra said that after dropping his companion he would come back once again, then the informant and Guddu returned to room. After dropping his companion, Ravindra came again and called Guddu to come out from his room. The first informant called Guddu to come in the room, the companion of Ravindra immediately came on the door of the room of Guddu and with intention to kill Guddu, fired thrice upon him by country-made pistol (Tamancha). When the informant tried to save Guddu that the said companion had also fired upon him due to which he also sustained gun shot injuries. The people of the locality and wife of Guddu took him to the hospital. The occurrence of this incident has been supported by P.W.-1 informant Sanjay in his examination-in-chief, but he has denied that the present accused persons have killed the deceased. This witness has also stated that two unknown persons came to the place of occurrence, one of them wore green shirt. The unknown person wearing green shirt had killed the deceased. The said statement has also been supported by the wife of the deceased I.e. P.W.-8 in her examination-in-chief and in the cross-examination. PW-8 has stated in her examination-in-chief that after selling the house, her husband (Guddu) and her Devar Chhota (brother-in-law) i.e. P.W.-2 used to live in Vijay Nagar on rent. The said statement has also been supported by the wife of the deceased I.e. P.W.-8 in her examination-in-chief and in the cross-examination. PW-8 has stated in her examination-in-chief that after selling the house, her husband (Guddu) and her Devar Chhota (brother-in-law) i.e. P.W.-2 used to live in Vijay Nagar on rent. After selling the said house, from the money of his share, which was received by the brother-in-law of P.W.-8, Chhota P.W.-2 purchased another house in Mata Colony. Rs. 1,50,000/- whichever was left to him P.W.-2 lended to Habib. When the husband of P.W.-8 demanded the money from Habib, which was lended by P.W.-2 i.e. the brother-in-law of P.W.8, some altercation took place between them and thereafter they stopped talking to each other. P.W.-8 has further stated that 20 to 25 days before the incident, when Habib, Nasir and Babban were consuming alcohol and abusing each other, there was also some altercation between Habib, Nasir, Babban, Lala and Mullad due to which Lala and Mullad attacked Habib, Nasir and Babban by knife and sword, as a result whereof Habib and Nasir sustained injuries. From that time, on the suspicion that the said attack has been made by Lala and Mullad on the instigation of the husband of P.W.-8 i.e. deceased Guddu, these persons started having a grudge against her husband. Due to the aforesaid grudge, Habib and Nasir threatened the husband of P.W.-8 i.e. deceased saying - ^^fd bls ,slk etk p[kk,axs fd ;kn j[kksxs^^ but P.W.-8 and her husband ignored the same. On the date of incident, when the first informant/P.W.1 Sanjay, who is landlord and her husband Guddu were sitting on a cot in her room and she was sitting on the floor and serving meal, there was electricity at that time. The neighbour i.e. accused-appellant Ravindra came there and he called her husband Guddu and landlord Sanjay to come out from the room and when they went outside the room, began talking to each other at the door. The accused-appellant Ravindra said that after dropping his companion, he would come back, then the informant and Guddu returned to room. After sometime the neighbour i.e. accused-appellant Ravindra came to the room of P.W.-8 once again and called the deceased Guddu to talk with him for two minutes. On calling of accused-appellant Ravindra, the husband of P.W.-8 i.e. deceased went out from the room. After sometime the neighbour i.e. accused-appellant Ravindra came to the room of P.W.-8 once again and called the deceased Guddu to talk with him for two minutes. On calling of accused-appellant Ravindra, the husband of P.W.-8 i.e. deceased went out from the room. When the deceased and the accused-appellant talked to each other, P.W.-1 i.e. first informant Sanjay called Guddu to come and eat food, which was served by P.W.-8, then the deceased Guddu came and started eating food. It is that the companion of accused-appellant Ravindra i.e. accused-appellant Nasir @ Guddu, who wore green shirt, came once again and with intention to kill, he fired indiscriminately upon her husband Guddu and P.W.1 Sanjay, while Guddu and P.W.1 were sitting on the cot. The husband of P.W.-8 Guddu sustained three gun shot injuries, whereas the informant/P.W.-1 Sanjay also sustained two gun shot injuries. P.W.-8 has further stated that the said incident was seen by her with her own eyes. In the cross-examination also this witness has supported the prosecution version. 25. In the site plan, mark “?” shows for arrival and escaping routes of accused after firing, whereas the point “(C)” shows the place from where the accused called the deceased Guddu and informant/P.W.-2 to come out from the room. Point “(B)” shows the place from where the accused fired, whereas point “(A)” shows the place where the first informant/P.W.1 and the deceased Guddu were sitting on a cot and sustained gun shot injuries. On the place between point “(A)” and point “(B)” blood stained clothes, dried blood and empty cartridge were lying. From the site plan it is apparent that on the date of incident, Sanjay and deceased Guddu were sitting on cot i.e. at point-”(A)” in the room of Guddu, whereas assailant was standing on the point “(B)”, which is the entrance point of the room. When assailant will stand on the point-”(B)” then he has to move from left side to fire at point-”(A)”. PW-8 has also stated in her cross-examination that one assailant, who was standing at the entrance of the room i.e. point “(B)”, shot fire by swinging his arm. The cot on which the deceased Guddu was sitting was on the opposite side (left side) of the entrance i.e. point “(A)”. At the time of incident the deceased Guddu was eating food. The cot on which the deceased Guddu was sitting was on the opposite side (left side) of the entrance i.e. point “(A)”. At the time of incident the deceased Guddu was eating food. P.W.-8 has also stated in her cross-examination that at the time of incident electricity was there. She has admitted that Investigating Officer has recorded her statement, within two or three days of the incident. She has next stated that assailant was wearing green shirt and she has recognized him. From the aforesaid facts, it is apparently clear that the statement of P.W.-8 fully corroborates the site plan prepared by the Investigating Officer with regard to the place and manner of incident. 26. P.W.-2 Chhota has not supported the prosecution story and he has been declared hostile. PW-3, Sub-Inspector Lokendra Pratap Singh is the Investigating Officer, who has proved the Exhibit Ka-5 and other prosecution papers. He has also admitted in his cross-examination that P.W.-8 i.e. Babita wife of deceased had told him that the assailant wore green shirt. It was also told by her that other person i.e. accused-appellant Ravindra had not fired on deceased. He further stated that P.W.-8 had also told him that the accused-appellant Nasir @ Guddu had fired thrice on the deceased. 27. P.W.-4 Constable-506 Kiran Pal Singh is the writer of chik first information report, who has proved Exhibit ka-7 and Exhibit ka-8. P.W.-5 Dr. Barkha Gupta is the autopsy surgeon and at the time of post mortem, she has opined that the cause of death was haemorrhage shock due to ante-mortem injury of internal abdominal organs. The injuries are antemortem and caused by projectile of a rifle fire arm ammunition. 28. Witness Rinku Bhati has been adduced as P.W.-6 but he too has turned hostile. Hukum Singh Assistant Sub-Inspector has been adduced as P.W.-7, who has prepared the inquest report and supported the prosecution version and has proved Exhibit Ka-10, Exhibit Ka-11 and Exhibit Ka-12. 29. P.W.-9 Dr. Anil Prakash has examined injuries of the first informant/P.W.1 Sanjay and has opined that injury no. 1 and 3 found on the body of informant/P.W.-1 were simple in nature. Injury no. 2 is KUO (Kept Under Observation). Injury no. 1 and 2 were caused by firearm. Injury no. 3 was caused by hard blunt object. 30. P.W.-10, Dr. P.W.-9 Dr. Anil Prakash has examined injuries of the first informant/P.W.1 Sanjay and has opined that injury no. 1 and 3 found on the body of informant/P.W.-1 were simple in nature. Injury no. 2 is KUO (Kept Under Observation). Injury no. 1 and 2 were caused by firearm. Injury no. 3 was caused by hard blunt object. 30. P.W.-10, Dr. Rajendra Prasad has also examined the informant/P.W.- 1 and has opined that a radio opaque of metallic density is found in the left knee joint of the informant. He has proved the X-rays (no. 3769 and 3770) material exhibits- 1 and 2 which have been done in the case of injured/first informant/ P.W.1. He found in X-ray report a radio opaque of metallic density which was caused by fire arm. 31. P.W.-11, Dr. Anil Yadav has also been adduced by prosecution who has proved Exhibit Ka-16 and other relevant papers. P.W.-12, Inspector Sri Hargovind Singh has also been examined and has proved Exhibit ka-5 and other relevant papers and objects. 32. From the perusal of the aforesaid statements of the prosecution witnesses, the prosecution has established its case beyond reasonable doubt. Defence has also adduced Akhand Veer Singh as defence witness- 1. The defence witness (DW-1) has also admitted in his examination-inchief that on 27.08.2006 he heard about occurrence of incident. 33. In the case in hand PW-8/wife of the deceased has seen the occurrence and has fully supported the prosecution story. She has recognized the accused assailant Nasir @ Guddu who wore green shirt at the time of incident which has been supported by PW-1 Sanjay/informant also in his statement before the Court. Hence there is no doubt that this offence has been committed by accused appellant Nasir @ Guddu with rifle or country-made pistol (Tamancha). 34. Learned Senior Counsel for the accused appellant has argued that the injury caused to deceased was by a rifle (fire arm) which is also opined by doctor in post mortem report. The rifle and country-made pistol (Tamancha) both adopts 315 bore cartridge, hence the argument that injured/deceased sustained injuries with rifle only and not country made pistol (tamancha), has no legs to stand. 35. The rifle and country-made pistol (Tamancha) both adopts 315 bore cartridge, hence the argument that injured/deceased sustained injuries with rifle only and not country made pistol (tamancha), has no legs to stand. 35. The argument of learned counsel for the appellant with regard to the wound on the right side of the deceased does not creates doubt in the prosecution story because as per the site plan, deceased Guddu and Sanjay were sitting on cot i.e. at point “(A)”, which is left side from the point “(B)” i.e. the place of entrance. On fire from the point “(B)” to point “(A)” the injury will most probably be caused on the right side of the body of the deceased. Hence considering these circumstances, this argument is also liable to be rejected. 36. Learned counsel for the appellant has also argued about the conduct of PW-8. He stated that when her husband got injured it was her duty to take care of him but instead she went to call her brother-in-law i.e. P.W.2 Chhota, whose house was situated 1 k.m. away from the place of occurrence as per the statement of P.W.-8. To ascertain the exact distance between the house P.W.2 to place of incident i.e. house of P.W.8, it is important for us to refer the statement of P.W.2. He has stated in his examination-in-chief that his house is situated 250 meter away from the place of incident in the same locality meaning thereby the house of P.W.-2 i.e. Dewar (brother-in-law) of P.W.8 was nearby the house of deceased. P.W.8. i.e. wife of the deceased is a women and when her husband got injured she must have got perturbed and it must have been difficult for her to decide at that point of time and was in dire need of help. P.W.-2 Chhota being in her vicinity as closest kith and kin, she went to call him for his help. This conduct of P.W.-8 very much natural. It cannot be said that such conduct of P.W.8 was unnatural and creates doubt in prosecution story. 37. Having analysed the prosecution evidence placed on record, we find that there is no specific allegation attributed to the accused-appellant Ravindra of having either fired gun shot on the deceased or in any manner committed the offence itself. It cannot be said that such conduct of P.W.8 was unnatural and creates doubt in prosecution story. 37. Having analysed the prosecution evidence placed on record, we find that there is no specific allegation attributed to the accused-appellant Ravindra of having either fired gun shot on the deceased or in any manner committed the offence itself. Although the accused-appellant initially came with the main accused i.e. the accused-appellant Nasir @ Guddu to call the deceased Guddu and again asked the deceased to come out of the room but he was not present on the spot at the time of actual commissioning of the offence nor has been participated in it. It appears that the accused-appellant Ravindra was only mediating between two parties i.e. the deceased Guddu and the accused-appellant Nasir @ Guddu for some amicable resolution of differences between the parties and lastly the offence itself was committed by the main accused-appellant Nasir @ Guddu wearing green shirt. The aforesaid facts have also been supported by Akhand Veer Singh, who has been adduced as defence witness i.e. D.W.-1. In his statement, D.W.-1 has stated that on 27th August, 2006 at 9.15 p.m. (night), when he was purchasing some goods from the grocery shop of one Khemraj, the accused-appellant Ravindra was also purchasing some goods. D.W. 1 has also stated that at the shop of Khemraj they stayed for about 15 to 20 minutes. When the accused-appellant Ravindra and D.W.-1 were purchasing goods, they heard sound of firing. On hearing the same, D.W.-1 rushed to the room of deceased Guddu and saw that first informant/P.W.1 and the deceased were shot by a firearm. 38. From the aforesaid facts, it appears that there was some dispute between the deceased Guddu and Nasir @ Guddu. Ravindra was simply mediating to resolve the dispute arose between both of the them. Neither the accused-appellant Ravindra had ever instigated to kill Guddu nor there was premeditation of mind between accused-appellants, namely, Nasir and Ravindra. There was also no common intention of the accused-appellant Ravindra in the commissioning of offence of murder of the deceased Guddu. The aforesaid facts have not been proved from any evidence available on record. Therefore, no case under Section 34 I.P.C. is made out against the accused-appellant Ravindra, as is clear from Section 34 I.P.C., which reads as follows: “34. There was also no common intention of the accused-appellant Ravindra in the commissioning of offence of murder of the deceased Guddu. The aforesaid facts have not been proved from any evidence available on record. Therefore, no case under Section 34 I.P.C. is made out against the accused-appellant Ravindra, as is clear from Section 34 I.P.C., which reads as follows: “34. Acts done by several persons in furtherance of common intention.— When a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone.” 39. It would also be worthwhile to reproduce relevant judgment of the Apex Court to come to the aforesaid conclusion: 1). In the case of Pandurang vs. State of Hyderabad reported in AIR 1955 SC 216 has held that a person cannot be held vicariously accountable for the actions of another if their purpose to commit the crime was not common. It is not a common intention if their conduct is independent of the act of another. It will be known for the same persons. Paragraph-33 of the said judgment reads as follows: “Now in the case of Section 34 we think it is well established that a common intention presupposes prior concert. It requires a prearranged plan because before a man can be vicariously convicted for the criminal act of another, the act must have been done in furtherance of the common intention of them all: Mahbub Shah v. King-Emperor(1). Accordingly there must have been a prior meeting of minds. Several persons can simultaneously attack a man and each can have the same intention, namely the intention to kill, and each can individually inflict a separate fatal blow and yet none would have the common intention required by the section because there was no prior meeting of minds to form a pre-arranged plan. In a case like that, each would be individually liable for whatever injury he caused but none could be vicariously convicted for the act of any of the others; and if the prosecution cannot prove that his separate blow was a fatal one he cannot be convicted of the murder however clearly an intention to kill could be proved in his case: Barendra Kumar Ghosh v. King-Emperior and Mahbub Shah v. King-Emperor(1). As their Lordships say in the latter case, "the partition which divides their bounds is often very thin: nevertheless, the distinction is real and substantial, and if overlooked will result in miscarriage of justice". (2) In the case of Suresh and Another v. State of Uttar Pradesh, reported in (2001) 3 SCC 673 , on the question of common intention, the Apex Court has observed: “40. Participation in the crime in furtherance of the common intention cannot conceive of some independent criminal act by all accused persons, besides the ultimate criminal act because for that individual act law takes care of making such accused responsible under the other provisions of the Code. The word “act” used in Section 34 denotes a series of acts as a single act. What is required under law is that the accused persons sharing the common intention must be physically present at the scene of occurrence and be shown not to have dissuaded themselves from the intended criminal act for which they shared the common intention. Culpability under Section 34 cannot be excluded by mere distance from the scene of occurrence. The presumption of constructive intention, however, has to be arrived at only when the court can, with judicial servitude, hold that the accused must have preconceived the result that ensued in furtherance of the common intention. A Division Bench of the Patna High Court in Satrughan Patar v. Emperor held that it is only when a court with some certainty holds that a particular accused must have preconceived or premeditated the result which ensued or acted in concert with others in order to bring about that result, that Section 34 may be applied.” 3). In the case of Balbir Singh Vs. State of Madhya Pradesh reported in (2019) 15 SCC 599 , the Apex Court has observed as follows: “33. To invoke Section 34 IPC, it must be established that the criminal act was done by more than one person in furtherance of common intention of all. It must, therefore, be proved that: (i) there was common intention on the part of several persons to commit a particular crime, and (ii) the crime was actually committed by them in furtherance of that common intention. The essence of liability under Section 34 IPC is simultaneous conscious mind of persons participating in the criminal action to bring about a particular result. The essence of liability under Section 34 IPC is simultaneous conscious mind of persons participating in the criminal action to bring about a particular result. Minds regarding sharing of common intention gets satisfied when an overt act is established qua each of the accused. Common intention implies pre-arranged plan and acting in concert pursuant to the pre-arranged plan. Criminal act mentioned in Section 34 IPC is the result of the concerted action of more than one person and if the said result was reached in furtherance of common intention, each person is liable for the offence as if he has committed the offence by himself. 34. Observing that the inference of common intention is to be drawn from the conduct of the accused, in Ramesh Singh alias Phooti Vs. State of A.P. (2004) 11 SCC 305 , the Supreme Court held as under:- “12. ……. As a general principle in a case of criminal liability it is the primary responsibility of the person who actually commits the offence and only that person who has committed the crime can be held guilty. By introducingSection34 IPC, the legislature laid down the principle of joint liability in doing a criminal act. The essence of that liability is to be found in the existence of a common intention connecting the accused leading to the doing of a criminal act in furtherance of such intention. Thus, if the act is the result of a common intention then every person who did the criminal act with that common intention would be responsible for the offence committed irrespective of the share which he had in its perpetration. Section34 IPC embodies the principle of joint liability in doing the criminal act based on a common intention. Common intention essentially being a state of mind it is very difficult to procure direct evidence to prove such intention. Therefore, in most cases it has to be inferred from the act like, the conduct of the accused or other relevant circumstances of the case. The inference can be gathered from the manner in which the accused arrived at the scene and mounted the attack, the determination and concert with which the attack was made, and from the nature of injury caused by one or some of them. The contributory acts of the persons who are not responsible for the injury can further be inferred from the subsequent conduct after the attack. The contributory acts of the persons who are not responsible for the injury can further be inferred from the subsequent conduct after the attack. In this regard even an illegal omission on the part of such accused can indicate the sharing of common intention. In other words, the totality of circumstances must be taken into consideration in arriving at the conclusion whether the accused had the common intention to commit an offence of which they could be convicted. (See Noor Mohammad Mohd. Yusuf Momin v. State of Maharashtra (1970) 1 SCC 696 )” 40. Charge was also framed under Section 120B/34 I.P.C. against the accused-appellants Ravindra and Nasir @ Guddu but this charge has not been found proved by the Court below against them. In the written report of the first informant/P.W.1 on the basis of which the first information report has been lodged, the statement of P.W.-8, solitary eye witness as also in the other evidence available on record, it is apparent that specific allegation for committing the murder of the deceased has been attributed to the accused-appellant Nasir @ Guddu and not by accused-appellant Ravindra. Therefore, no case for the offence punishable under Sections 452/34, 307/34, 302/34 are made out against the accused-appellant Ravindra. 41. In view of the above discussions we find that Trial Court was not justified in returning the finding of guilt against the accused-appellant Ravindra on the basis of evidence led by the prosecution. The finding of Court below that the guilt of the accused-appellant Ravindra has been proved beyond reasonable doubt is thus rendered unsustainable. We hold that the prosecution has failed to prove the guilt of the accused appellant- Ravindra beyond reasonable doubt. 42. So far as the conviction of the accused appellant Nasir @ Guddu is concerned, this Court may record that there is a direct evidence against the accused-appellant Nasir @ Guddu for commissioning of the offence of murder of the deceased Guddu. The accused-appellant Nasir @ Guddu has motive and intention to commit the offence of murder of the deceased. In his statement recorded under Section 313 Cr.P.C., the accused-appellant Nasir @ Guddu has stated that the deceased and P.W.-8 were criminals and they suspected that he is an informer of them and because of the said reason, they harbored a grudge against him and a complaint has also been made in that regard. In his statement recorded under Section 313 Cr.P.C., the accused-appellant Nasir @ Guddu has stated that the deceased and P.W.-8 were criminals and they suspected that he is an informer of them and because of the said reason, they harbored a grudge against him and a complaint has also been made in that regard. In her statement, P.W.-8 has stated that due to suspicion that attack on the accused-appellant Nasir and his two friends has been made by Lala and Mullad on the instigation of the husband of P.W.-8 i.e. deceased, accused-appellant Nasir and his friend Habib threatened the husband of P.W.-8 i.e. deceased to face dire consequences. It is no doubt true that P.W.-1/first informant, P.W.-2 i.e. brother of the deceased and P.W.6 who have been adduced as prosecution witnesses have turned hostile but they have admitted that the incident occurred in which the deceased sustained gun shot injuries and died. Even otherwise, there is a direct evidence of P.W.-8, who in her examination-in-chief as well as in her cross-examination fully supports the prosecution case and her statement fully corroborates with the autopsy report of the deceased and the site plan as also other documentary evidence available on record. As a general rule, the Court can and may act on the testimony of a single witness provided he/she is wholly reliable. It is settled law that it is the quality that matters and not the quantity of witness. 43. The issue, which is up for consideration before us at this stage is whether the person wearing green shirt, who fired thrice upon the deceased due to which he was done to death, is the accused-appellant Nasir @ Guddu or not. We may record that although the first informant/P.W.-1 and P.W.-2 have turned hostile but in their depositions they have clearly stated that the person who fired on the deceased was wearing green shirt. P.W.-8 in her statement has also specifically stated that the person, who fired on the deceased was wearing green shirt. The identify of the person wearing green shirt has also been disclosed by P.W.- 8 as the accused-appellant Nasir @ Guddu. 44. P.W.-3 Sub-Inspector Lokendra Singh in his cross-examination has clearly stated that during the recording of the statement under Section 161 Cr.P.C. P.W.-8 has clearly assigned the role of firing upon the deceased to the accused-appellant Nasir @ Guddu. The identify of the person wearing green shirt has also been disclosed by P.W.- 8 as the accused-appellant Nasir @ Guddu. 44. P.W.-3 Sub-Inspector Lokendra Singh in his cross-examination has clearly stated that during the recording of the statement under Section 161 Cr.P.C. P.W.-8 has clearly assigned the role of firing upon the deceased to the accused-appellant Nasir @ Guddu. She has also stated that the accused was wearing green shirt. P.W.-8 moreover has not assigned the role of firing to any other person, namely, accused-appellant Ravindra. 45. Following the case of Vadivelu Thevar & Another vs. State of Madras; AIR 1957 SC 614 , the Apex Court in the case of Prithipal Singh & Others Vs. State of Punjab & Another reported in (2012) 1 SCC 10 , has observed as follows: “45. This Court has consistently held that as a general rule the Court can and may act on the testimony of a single witness provided he is wholly reliable. There is no legal impediment in convicting a person on the sole testimony of a single witness. That is the logic of Section 134 of the Evidence Act. But if there are doubts about the testimony, the court will insist on corroboration. In fact, it is not the number or the quantity, but the quality that is material. The time-honoured principle is that evidence has to be weighed and not counted. The test is whether the evidence has a ring of truth, is cogent, credible and trustworthy or otherwise. The legal system has laid emphasis on value, weight and quality of evidence, rather than on quantity, multiplicity or plurality of witnesses. It is, therefore, open to a competent court to fully and completely rely on a solitary witness and record conviction. Conversely, it may acquit the accused in spite of testimony of several witnesses if it is not satisfied about the quality of evidence.” (Emphasis added) 46. Again in the case of Gulam Sarbar Vs. State of Bihar (Now Jharkhand) reported in (2014) 3 SCC 401 , the Apex Court has observed as follows: “19. In the matter of appreciation of evidence of witnesses, it is not the number of witnesses but quality of their evidence which is important, as there is no requirement under the Law of Evidence that any particular number of witnesses is to be examined to prove/disprove a fact. In the matter of appreciation of evidence of witnesses, it is not the number of witnesses but quality of their evidence which is important, as there is no requirement under the Law of Evidence that any particular number of witnesses is to be examined to prove/disprove a fact. It is a time- honoured principle that evidence must be weighed and not counted. The test is whether the evidence has a ring of truth, is cogent, credible and trustworthy or otherwise. The legal system has laid emphasis on value provided by each witness, rather than the multiplicity or plurality of witnesses. It is quality and not quantity, which determines the adequacy of evidence as has been provided by Section 134 of the Evidence Act. Even in Probate cases, where the law requires the examination of at least one attesting witness, it has been held that production of more witnesses does not carry any weight. Thus, conviction can even be based on the testimony of a sole eye witness, if the same inspires confidence.” (Emphasis added) 47. In view of the aforesaid facts and laws laid down by the Apex Court, we find that the finding of the Court below with regard to Nasir @ Guddu is correct and the guilt of the accused Nasir @ Guddu appellant has been proved beyond reasonable doubt by the prosecution, which is sustainable. 48. Consequently, in view of the deliberation held above this appeal succeeds and is allowed with regard to accused appellant- Ravindra. 49. The judgment and order of conviction against the accused-appellant Ravindra dated 18th September, 2018 passed by the Additional District & Sessions Judge, Court No.2, Ghaziabad in Sessions Trial No. 787 of 2007 (State Vs. Ravindra & Nasir @ Guddu), arising out of Case Crime No. 514 of 2006, under Sections 452/34, 307/34, 302/34 and 120-B/34 I.P.C., Police Station-Vijaynagar, District-Ghaziabad by the Court below cannot be legally sustained and is hereby set aside. 50. The appeal filed by the accused appellant Nasir @ Guddu is accordingly dismissed. 51. The accused-appellant Ravindra, who is in jail since 15th September, 2018, shall be released on compliance of Section 437-A Cr.P.C. unless he wanted in any other case. 52. Let a copy of this judgment be sent to the Chief Judicial Magistrate, Ghaziabad henceforth, who shall transmit the same to the Jail Superintendent concerned in terms of this judgment.