JUDGMENT : 1. The present Criminal Appeals have been filed against the Judgment and Order dated 14.1.2016 passed by the Special Judge / Additional Sessions Judge, Bijnor in Session Trial No.485-A of 2011 (State vs. Alam); Session Trial No.485 of 2011 (State vs. Noor Mohammad and Others), arising out of Case Crime No.52 of 2011, under Sections 302/34, 323/34 IPC, P.S. Mandawar, District Bijnor, whereby appellants were convicted for life imprisonment under Sections 302/34 IPC and fine of Rs.20,000/- each, in default of payment of fine, six months additional R.I. and under Section 323/34 IPC, 3 months R.I. and fine of Rs.500/- each, in default of payment of fine, one month additional R.I. with a direction that all the sentences shall run concurrently. 2. Being aggrieved therefrom, accused Alam preferred Criminal Appeal No.888 of 2016 and accused Noor Mohammad, Deen Mohammad preferred Criminal Appeal no.639 of 2016 for setting aside their conviction and passing an order of acquittal. 3. Since common issues are involved in both the appeals, both are being disposed of by a common order. The facts stated in Criminal Appeal No.888 of 2016 shall be treated as the leading appeal. 4. The brief facts relating to case are that Salamat (son of deceased) submitted a written report at Police Station with the averment that he is resident of village Khirani, P.S. Mandawar, District Bijnor. His father purchased about 18 bigha land 2 years before from Hamid, son of Jamaluddin that is why Noor Mohammad, Deen Mohammad, Alam were on enemical terms to his father. On 19.3.2011 at 7.15 PM (evening), his younger brothers Riyasat and Faizan went to purchase items from the grocery shop of Habib, at that moment, Noor Mohammad, Deen Mohammad and Alam armed with countrymade pistol, came there, abused them and started altercation with Riyasat. Faizan came back from shop and told about the incident to his father, then he and his father Aslam reached at the shop of Habib and tried to protect Riyasat, at that time, Alam fired shot from his countrymade pistol on the head of his father, who died on spot. He and Riyasat tried to catch Alam, then Noor Mohammad and Deen Mohammad with an intention to kill, fired shot from their countrymade pistol but he and Riyasat were escaped narrowly. The prayer was made to register the report and legal action be taken. He and Riyasat tried to catch Alam, then Noor Mohammad and Deen Mohammad with an intention to kill, fired shot from their countrymade pistol but he and Riyasat were escaped narrowly. The prayer was made to register the report and legal action be taken. Rafeeq son of Imam Shah and Others were mentioned as witness of the incident. 5. On the basis of written report, Case Crime No.52/2011, under Sections 302/323/307/34 IPC was registered against accused Alam, Noor Mohammad, Deen Mohammad on 19.3.2011 at 8.30 PM and investigation of the case was handed over to Station Officer Sunil Kumar Sharma who went to the place of incident where S.I. Veer Singh conducted Panchayatnama of the dead body and after completing the formalities, dead body was sent for postmortem. The spot map of the place of incident was prepared, two empty cartridges were recovered by the police from the roof of the accused, the memo was accordingly prepared. During investigation, on 22.3.2011 accused were arrested and on the pointing out of Alam, countrymade pistol 315 bore, 2 live cartridges, one empty cartridge 315 bore inside the barrel and on the pointing out of Noor Mohammad, countrymade pistol 12 bore and 2 live cartridges were recovered, the memo were accordingly prepared. FIR was lodged against Alam and Noor Mohammad under Section 25 of the Arms Act on 22.3.2011 at 12.30, the investigation of the case under the Arms Act was handed over to H.C.P. Prem Singh. Respective Investigating Officer submitted charge-sheet against accused Alam, Noor Mohammad and Deen Mohammad under Sections 302/34, 307/34, 323 IPC and against accused Alam and Noor Mohammad under Section 25 of the Arms Act. Charges were framed against Alam, Noor Mohammad, Deen Mohammad under Sections 302/34, 307/34, 323 IPC and against accused Alam and Noor Mohammad under Section 25 of the Arms Act to which they denied and claimed trial. 6. The prosecution in order to prove its case, produced as many as 12 witnesses whose particulars are as follows : P.W.1 Salamat son of Aslam (First informant and alleged eye-witness) P.W.2 Faizan son of Aslam (alleged eye-witness) P.W.3 Rafeeq son of Imaam Shah (alleged eye witness as well as independent witness) P.W.4 Dr. 6. The prosecution in order to prove its case, produced as many as 12 witnesses whose particulars are as follows : P.W.1 Salamat son of Aslam (First informant and alleged eye-witness) P.W.2 Faizan son of Aslam (alleged eye-witness) P.W.3 Rafeeq son of Imaam Shah (alleged eye witness as well as independent witness) P.W.4 Dr. R.S. Ravidas P.W.5 S.I. Veer Singh P.W.6 Constable Jaiveer Singh (witness of the inquest) P.W.7 Constable Narendra Sharma (FIR scribe of Case Crime No. 53 of 2011 and 54 of 2011) P.W. 8 HCP Prem Singh (IO of Case Crime No.53 of 2014 and 54 of 2011) P.W.9 Sub-Inspector Shishpal Singh P.W.10 HC 139 Mahak Singh Sharma (Scribe of Case Crime No.52 of 2011) P.W.11 Sunil Sharma ( IO of Case Crime No.52 of 2011) P.W.12 Shailendra Pratap (Subsequent IO of Case Crime No.52 of 2011) 7. In support of the occular testimony of the witnesses, prosecution filed following documentary evidence : 1. FIR dated 19.3.2011 (Ext. Ka 19) 2. FIR dated 22.3.2011 (Ext. Ka12) 3. Written report dated 19.3.2011 (Ext. Ka1) 4. Panchayatnama dated 19.3.2011 (Ext. Ka 3) 5. Postmortem report dated 20.3.2011 (Ext. Ka 9) 6. Site plan dated 19.3.2011 (Ext. Ka 21) 7. Site plan dated 23.3.2011 (Ext. Ka 14) 8. Site plan dated 23.3.2011 (Ext. Ka 15) 9. Charge-sheet dated 15.4.2011 (Ext. Ka 23) 10. Charge-sheet dated 23.3.2011 (Ext. Ka16) 11. Charge-sheet dated 23.3.2011 (Ext. Ka 17) 8. The accused appellants in their statements recorded under Section 313 Cr.P.C. denied the prosecution case and disputed the veracity of the evidence adduced by the prosecution. 9. P.W.1 Salamat son of deceased Aslam as well as first informant in his examination-in-chief stated that he knows accused Noor Mohammad, Deen Mohammad and Alam, they belong to his village. His father purchased about 18 bigha land 2 years before from Hamid, son of Jamaluddin that is why Noor Mohammad, Deen Mohammad, Alam were on enemical terms to his father. On 19.3.2011 at 7.15 PM (evening), his younger brothers Riyasat and Faizan went to purchase items from the shop of Habib, at that moment, Noor Mohammad, Deen Mohammad and Alam armed with countrymade pistol, came there, abusing them and started altercation with Riyasat. On 19.3.2011 at 7.15 PM (evening), his younger brothers Riyasat and Faizan went to purchase items from the shop of Habib, at that moment, Noor Mohammad, Deen Mohammad and Alam armed with countrymade pistol, came there, abusing them and started altercation with Riyasat. Faizan came back from shop and told about the incident from him and his father, then he and his father Aslam reached at the shop of Habib and tried to protect Riyasat, at that time, Alam fired shot from his country-made pistol on the head of his father, who died on spot. He and Riyasat tried to catch Alam, then Noor Mohammad and Deen Mohammad with intention to kill, fired shot from their countrymade pistol but he and Riyasat were escaped narrowly. Accused Noor Mohammad, Deen Mohammad, Alam, sons of Bundu ran away towards their house after fire shot. In cross-examination, he stated that he reached to police station at 8.30 PM by tractor. Rafeeq, Shafeeq, Anwar and Abid also accompanied him, they did not bring any written report with them and told incident to police so police came to the spot along with him. Police made necessary inquiry and told him to give written complaint / report, accordingly, he gave written report to police at the village after being written by Mahaboob Alam on his instruction at about 9.00 PM and the dead body of his father was sealed by the police, the same was kept on tractor trolley and he was also sitting on the tractor. He stated that altercation took place before the shop of Bundu. He further stated that his father received fire-shot in front of primary school. He stated that the person who fired was 7 step away from his father. He further stated that Noor Mohammad and Deen Mohammad fired from their roof, both of them were on their roof and remained there. Two fires were made from the roof and his father was standing when the fire was made. 10. P.W. 2 Faizan aged about 15 years, alleged eye-witness, in his examination-in-chief stated that incident is of about 10 months before at about 7.15 PM. He and his brother Riyasat went to shop of Habib for purchasing, at that moment, Noor Mohammad, Deen Mohammad and Alam armed with country-made pistol, came there, abusing them and started altercation with him and his elder brother Riyasat. He and his brother Riyasat went to shop of Habib for purchasing, at that moment, Noor Mohammad, Deen Mohammad and Alam armed with country-made pistol, came there, abusing them and started altercation with him and his elder brother Riyasat. He ran away to his home and told about the altercation to his father Aslam and brother Salamat. Having heard the same, his father and brother came to the shop and tried to protect Riyasat, at that time, Alam fired shot on the head of his father Aslam and he died on spot. His brother Salamat and Riyasat tried to catch Alam, then Noor Mohammad and Deen Mohammad fired shot with intention to kill Riyasat and Salamat but they were escaped narrowly. All the three accused run away to their home. About 2 years before his father Aslam purchased about 18 bigha land from Hamid due to which Bundu and his sons Noor Mohammad, Deen Mohammad and Alam were on enemeical terms to his father. In the cross-examination, he stated that his father did not receive fire-shot at the place where Riyasat was caught rather he received fire-shot at Chauraha. 11. P.W.3 Rafeeq alleged eye-witness, in his examination-in-chief stated that incident is of 10-11 months before, it was Holi festival and time was about 7 PM (evening). He was sitting with Aslam then Faizan son of Aslam came and told that Noor Mohammad, Deen Mohammad, Alam are beating him and his brother. He and Aslam went there along with Faizan, Aslam was on front side and he was on back side. They reached to the shop, Aslam tried to protect his son from accused then all the three accused persons started altercation with Aslam and after that Alam fired shot from his country-made pistol on the head of Aslam who died on spot. He did not interfere and went to his house. Deen Mohammad and Noor Mohammad fired two shots on Aslam but did not fire on Salamat and Riyasat. In his cross-examination, he stated that when he reached at the place of occurrence, Aslam was dead and Noor Mohammad, Deen Mohammad, Alam were not present at that time. He further stated that he did not go to the house of Aslam on that day. He stated that when fire shot took place, he was present in his house. In his cross-examination, he stated that when he reached at the place of occurrence, Aslam was dead and Noor Mohammad, Deen Mohammad, Alam were not present at that time. He further stated that he did not go to the house of Aslam on that day. He stated that when fire shot took place, he was present in his house. He further stated that he did not see anybody who fired shot on Aslam. 12. P.W.4 Dr. R.S. Ravidas, Community Health Centre, Laharpur, District Sitapur conducted the postmortem of the dead body of Aslam on 20.3.2011 at 2.00 PM. He has proved the postmortem report as Ext. Ka 9 and has stated that following injuries were found on the body of the deceased : 1. Fire arm wound of entry 2cm x 2cm. Cavity deep on middle forehead upto root of the nose. Blackening present in some extant. On dissection one metallic piece recovered from the right side of occipital region of brain and handed over to police. Fracture of nasal bone and forehead bone, fracture of right occipital bone, brain membrane lacerated. 13. P.W.-5, S.I. Veer Singh in his examination-in-chief stated that on 19.3.2011 he was posted on the post of Sub-Inspector at Police Station- Mandawar. He prepared the Panchayatnama of the dead body of deceased Aslam and handed over the deadbody after necessary formalities for postmortem, the other documents relating to panchayatnama were prepared. Panchayatnama (Ex-Ka-3), letter to R.I. (Ka-4), Chalan Lash (Ka-6), Photo Lash (Ka-7), letter to C.M.O. (Ka-5) were prepared by him on the spot. Ex-Ka-9 is memo of recovery of plain earth and stained earth was prepared by him. 14. PW.-6, Constable Jaiveer Singh in his examination-in-chief stated that on 19.3.2011, he was posted at Police Station- Mandawar on the same post and place. On the information of murder of deceased Aslam he reached along with force to place of incident situated in village- Khirani. After completion of proceeding of Panchayatnama, he received the dead body of Aslam in a sealed position at 22:00 hours from homeguard Ashraf and constable-Randhir Singh and kept the dead body in the morchary of district hospital, after postmortem, dead body was handed over to family members. After completion of proceeding of Panchayatnama, he received the dead body of Aslam in a sealed position at 22:00 hours from homeguard Ashraf and constable-Randhir Singh and kept the dead body in the morchary of district hospital, after postmortem, dead body was handed over to family members. In the cross-examination, he stated that dead body was given to him on 19.3.2011 at 8:00 P.M. He carried dead body from village-Khirani through tempo to hospital and 30-45 minute was taken in covering the distance from Village-Khirani to hospital. 15. P.W.-7, Constable Clerk, Narendra Sharma in his examination-in-chief stated that on 22.3.2011, he was posted as constable clerk at Police Station- Mandawar. He proved chik F.I.R. as well as Ex-Ka-12 and Ex-Ka-13. In the cross-examination, he stated that original G.D. is not on record nor he brought the same with him on that day. 16. P.W.-8, H.C.P. Prem Singh has stated in his examination-in-chief that on 22.3.2011, he was posted as H.C.P. at Police Station- Mandawar. He received investigation of Case Crime No.53 of 2011 (Alam Vs. State) and Case Crime No.54 of 2011 (Noor Mohammad Vs. State) from police station office. Necessary entry were made in the case dairy. Statement of witness, S.I., Sheeshpal Singh, Constable Tejpal Singh and Constable Sukhpal Singh were recorded in the case diary on 23.3.2011. After that on the pointing out of S.I. Shamim Haider inspected the place of incident and prepared the spot map under Section 25 of Arms Act which are Ex-Ka-14 and Ex-Ka-15, the charge-sheet was also submitted by him under Section 25 of Arms Act, which are Ex-Ka-16 and Ex-Ka-17. 17. P.W.-9, S.I., Sheeshpal Singh, has stated in his examination-in-chief that on 22.3.2011, he was posted as Sub-Inspector at Police Station- Mandawar. He arrested the accused-Noor Mohammad and Alam on 22.3.2011 at 7:45 A.M. On the pointing out of Noor Mohammad and Alam, a country made pistol as well as live and empty cartridges were recovered at 10:45 A.M. on 22.3.2011. The memo was prepared by I.O. in his presence and the same is Ex-Ka-18 which is signed by him also. In the cross-examination, he reiterated the same. 18. P.W.-10, Head Constable, Mahak Singh in his examination-in-chief stated that on 19.3.2011, he was posted on the post of Head Moharir at Police Station- Mandawar. The memo was prepared by I.O. in his presence and the same is Ex-Ka-18 which is signed by him also. In the cross-examination, he reiterated the same. 18. P.W.-10, Head Constable, Mahak Singh in his examination-in-chief stated that on 19.3.2011, he was posted on the post of Head Moharir at Police Station- Mandawar. On that day at 8:30 P.M., on the basis of report of Salamat Chik No.30/11, Case Crime No.52/11, under Sections 323/ 302/ 307/ 34 I.P.C. was registered by him against Noor Mohammad, Deen Mohammad and Alam. The same is Ex-ka-19. He mentioned about the incident on same day in G.D. through report no.39, time 8.30 PM. He brought the original G.D. with him on that day which is in his hand writing. He filed the correct and attested photo copy of the same, which is Ex-Ka-20. In the cross-examination, he stated that he sent the special report of the case through Constable, Tarachand but in G.D. time of Rawangi of Tarachand is not recorded. He sent the Tarachand on the oral instruction of station officer without recording his rawangi in the G.D. In Report No.39, there is no mention of sending special report. He further stated that there is no copy of special report on record. He further stated that he prepared seven copies of special report but nothing was kept at the police station. 19. P.W.-11, Station Officer, Sunil Sharma in his examination-in-chief stated that on 19.3.2011, he was posted as station officer at Police Station- Mandawar. He was investigating officer of Case Crime No.52/11, under Section-323, 302, 307, 34 I.P.C. which was registered in his presence. He reached to place of incident along with force, statement of first informant Salamat was recorded in case diary and on the pointing out of first informant inspected place of incident and prepared site plan (Ex-Ka-21). Two empty cartridges of 12 bore were recovered from the roof of the accused and sealed in white clothes. The memo was prepared, which is Ex-Ka-22, memo was copied in case diary. On 20.3.2011 statement of Mahak Singh scribe of first information report was recorded. On 22.3.2011 accused Noor Mohammad and Alam were arrested and their statements were recorded, at their instance country made pistol and cartridges were recovered, memo was accordingly prepared which is Ex-ka-18 statement of witnesses Riyasat, Faizan and Rafeeq were recorded. 20. On 20.3.2011 statement of Mahak Singh scribe of first information report was recorded. On 22.3.2011 accused Noor Mohammad and Alam were arrested and their statements were recorded, at their instance country made pistol and cartridges were recovered, memo was accordingly prepared which is Ex-ka-18 statement of witnesses Riyasat, Faizan and Rafeeq were recorded. 20. P.W.-12, Shailendra Pratap, Inspector In-charge stated in his examination-in-chief that from 3.4.2011 to 6.6.2011, he was posted at police station- Mandawar. He was handed over investigation of Case Crime No.52/11, under Sections 302, 307, 323, 34 I.P.C. of witnesses which was being investigated by earlier investigating officer. He started investigation on 5.4.2011 statement of witnesses of recovery, postmortem, panchayatnama were recorded on 15.4.2011, charge-sheet no.53/11 was submitted in Court which is Ex-ka-23. 21. The learned Sessions Judge, Bijnor after hearing the parties and perusal of the record, acquitted the accused-Noor Mohammad, Deen Mohammad and Alam under Section 307/34 IPC as well as acquitted accused Noor Mohammad and Alam under Section 25 of the Arms Act but convicted accused Noor Mohammad, Deen Mohammad and Alam under Section 302/34, 323/34 IPC, hence this appeal. 22. Heard Mr. Mukhtar Alam & Mr. Saquib Mukhtar, learned counsel for the appellants, Mr. A.N. Mulla, learned A.G.A. for the State and perused the record. 23. Learned counsel for the appellant submitted that following points for determination are involved in the present appeal :- 1. Whether the occurrence was occurred in presence of alleged eye-witnesses i.e. P.W.1, P.W.2 & P.W.3 and there evidence is reliable? 2. Whether prosecution has not produced the best evidence to prove its case and deliberately withheld the material witnesses and evidence without any justification? 3. Whether the postmortem report does not support the prosecution case and as per autopsy, single fire-arm has been used for the commission of an offence and the shot was fired at a close range. 4. Whether the FIR is ante-timed and absolutely there was no proper and fair investigation and the investigation of the case is defective. 5. Whether trial court has completely misread the evidence and passed the impugned judgment and order without appreciating the evidence available on record in its right perspective and the same is not sustainable in the eyes of law? 24. 5. Whether trial court has completely misread the evidence and passed the impugned judgment and order without appreciating the evidence available on record in its right perspective and the same is not sustainable in the eyes of law? 24. Learned counsel for the appellants on the points for determination no.1 submitted as follows:- P.W.-1, P.W.-2 and P.W.-3 alleged eye witnesses are unreliable witnesses as all the three were not present nor they have seen the incident. The relevant portion of examination-in-chief of P.W.-1 is as follows:- fnukad 19-3-2011 dks le; djhc 'kke lok lkr cts esjs NksVs HkkbZ fj;klr o QStku gchc dh nqdku ij lkeku ysus x;s FksA rHkh uwj eksgEen] nhu eksgEen o vkye vius gkFkksa esa reaps fy;s gq;s xkyh nsrs gq;s vk;s vkSj fj;klr dks idM+dj ekjihV djus yxs rHkh QStku tks esjk NksVk HkkbZ gS nqdku ls Hkkxkdj vk;k vkSj ?kVuk ds ckjs esa eq>s o esjs firk vlye dks crk;k eSa rFkk esjs vCck vlye] gchc dh nqdku ij igqWaps vkSj fj;klr dks cpkus yxs rHkh vkye us vius gkFk esa fy;s reaps ls esjs vCck ds ekFks ij xksyh ekj nh] ftlls mudh ekSds ij e`R;q gks x;h FkhA eSaus o esjs NksVs HkkbZ fj;klr us vkye dks idM+uk pkgkA rHkh uwj eksgEen o nh eksgEen us tku ls ekjus dh fu;r ls vius gkFkksa esa fy;s reaps ls gekjs mij Qk;j fd;s x;s ftlls ge cky cky cp x;sA eSa vius firk vlye dh yk'k dks ekSds ij NksM+dj Fkkus vk;s vkSj egewn vkye ls fjiksVZ fy[kdj Fkkus ij nh tks eSaus cksyk Fkk ogh egewn vkye us fy[kk Fkk eSus lqudj rgjhj ij viuk vaxwBk yxk;k FkkA i=koyh ij rgjhj dkxt la0 11@2 nkf[ky gS ftl ij ,Dt d&1 Mkyk x;kA eqyfteku uwj eksgEen o vkye iq=x.k cqUnw xksyh ekjdj o Qk;j djds vius ?kj dh vksj Hkkx x;s FksA 25. The relevant portion of cross-examination of P.W.-1 is as follows:- gchc dh nqdku mRrj lkeuh gSA vkSj mlds lkeus iwjc if'pe jkLrk gSA if'pe dks gekjh rjQ dks jkLrk tkrk gS vkSj iwjc dks xkao esa tkrk gSA tc esjs okfyn dks xksyh yxh rks ml le; og ÁkbZejh ikB'kkyk ds lkeus FksA ÁkbZejh ikB'kkyk ds mRrj esa vkVkk pDdh cqUnw gSA ;g ÁkbZejh ikB'kkyk bl iwjc if'pe okys jkLrs ds mRrj esa gSA ikB'kkyk dh ckm.Mjh ugha gS [kqyk gSA ikB'kkyk dh iwjc if'pe pkSM+kbZ djhc 60 QhV gSA ikB'kkyk dk tks if'pe okyk dksuk gS mlds ikl xksyh yxh Fkh vkSj nf{k.k ls pykbZ FkhA xksyh pykus okyk djhc 7 dne esjs okfyn ls nwj FkkA ikB'kkyk ds lkeus jkLrk djhc 20&22 fQV pkSM+k gSA uwj eksgEen o nhu eksgEen us Qk;j vius edku dh Nr ij ls fd;s Fks ;s nksuks yksx vius edku dh Nr ij Fks vkSj ogha jgsA Nr ij ls nks Qk;j gq;s Fks tc Qk;j gq;s Fks esjs firk ml le; [kM+s FksA cqUnw ds edku ftl dh Nr ij ls Qk;j gksuk crk jgk gwWa jkLrs ds nf{k.k esa gS vkSj mlls if'pe esa jkf'kn dh nqdku gSA jkf'kn dh nqdku ls mRrj esa eSa 5 igjs nwj FkkA budh Nr 12 fQV ÅWaph gSA 26. From the perusal of entire statement (Chief and cross) of P.W.-1, Salamat alleged eye witness, as well as son of deceased, it is established that P.W.-1 is changing his stand with respect to place of incident. In his examination-in-chief, he stated that incident has taken place before shop of Habib, where all the three accused were present and fired but in cross examination he stated that incident has taken place before primary school and Noor Mohammad and Deen Mohammad fired from the roof of their house, who remained present on their roof. These are material contradiction in the statement of P.W.-1 and has not been explained by prosecution, as such, evidence of P.W.-1 cannot be relied upon. 27. So far as P.W.-2, Faizan is concerned, he is son of deceased and minor at the time of incident, his statement is also not consistent. These are material contradiction in the statement of P.W.-1 and has not been explained by prosecution, as such, evidence of P.W.-1 cannot be relied upon. 27. So far as P.W.-2, Faizan is concerned, he is son of deceased and minor at the time of incident, his statement is also not consistent. In the cross-examination, he stated that hundred people were assembled at the place of incident, the place where Riyasat was caught hold his father, had not received fire-shot, rather at Chauraha his father received fire shot, the relevant portion of cross-examination of P.W.-2 is as follows:- eq>s vius firk o HkkbZ dks cqykdj ykus esa iUnzg chl feuV yxh gksxhA ml le; Hkh fj;klr dks eqyfteku ekjihV dj jgs FksA lSdM+ksa vkneh ogka bdÎk gks x;s FksA ?kVukLFky ij os lc vkneh fj;klr dks pkjksa vkjs gks jgs FksA mu lSdM+ksa vknfe;ksa esa ls eSa fdlh dk uke ugha crk ldrkA eq>s fn'kkvksa dk Kku ugha gS tc ge ykSVdj vk;s rks fj;klr gchc dh nqdku ls 5 igVs gekjs ?kj dh rjQ dks FkkA tgka fj;klr dks idM+ j[kk FkkA mlls cqUnw dk ?kj mRrj dh rjQ FkkA tgka fj;klr dks idM+ j[kk FkkA ogka esjs firk dks xksyh ugha yxh FkhA cfYd pkSjkgs ij yxh FkhA 28. From the perusal of examination-in-chief and cross-examination of P.W.-2 who was minor at the time of incident, it is established that statement of P.W.2 is not consistent with respect to place of incident as well as evidence of P.W.2 is not corroborated by evidence of P.W.1, thus, evidence of P.W.2 is also not reliable and trustworthy. 29. P.W.-3, Rafeeq alleged eye-witness as well as independent witness in his cross-examination clearly stated that he was at his home when firing took place. 29. P.W.-3, Rafeeq alleged eye-witness as well as independent witness in his cross-examination clearly stated that he was at his home when firing took place. He further stated that he had not seen anybody who fired shot to Aslam, the relevant portion of cross-examination of P.W.-3, Rafeeq is as follows:- tc eSa igqWapk rks vlye dks eSusa ejh gqbZ gkyr esa ns[kk lSdM+ksa vkneh bdÎk Fks lc ,d nwljs ls iwN jgs Fks fd vlye dSls ej x;k vkSj fdlus xksyh ekj nh ml le; uwj eksgEen] nhu ekSgEen] o vkye ml le; ?kVuk LFky ij ugha Fks tc eSa ogka ?kVuk LFky ij igqapk ml fnu eSa lyker ds ?kj Hkh ugha x;k Fkk tc xksyh pyh eSa vius ?kj ij FkkA lyker vius cki ds ikl gksxkA lyker dk ?kj iwjc esa gchc dh nqdku ls gSA gchc dh nqdku ls iwoZ dks jkLrk tk jgk gSA gchc dh nqdku ds ikl dksbZ pkSjkgk ugha gSA gchc dh nqdku ds iwjc esa jkLrs ds ckn bLekbZy dk ?kj gSA blds ckn iapk;r ?kj gSA ikB'kkyk gchc dh nqdku ls 50&60 dne dh nwjh ij gS tks iwjc esa gSA ;g ckr lgh gS fd vlye dks xksyh ekjrs gq,s eSaus fdlh dks ugha ns[kkA ;g dguk xyr gS fd ikB'kkyk gchc dh nqdku ls 100 xt ls vf/kd Qklys ij gksA 30. From the perusal of statement of P.W.-3, it is fully established that P.W.-3 is not eye-witness of the incident and his evidence is also not reliable and trustworthy. 31. On the point for determination no.2, learned counsel for the appellants contended that prosecution has not produced Riyasat who was alleged to be throughout present on spot and even beaten by accused but prosecution has failed to produce Riyasat which makes the prosecution case doubtful. Constable, Tarachand, special report messenger was also not produced by prosecution and copy of special report was also not on record of the case and there is no mention of sending special report of the case in report no. 39 which demonstrate that special report of the case has not been sent. Accordingly, non-production of Tarachand by prosecution makes the prosecution case doubtful. 32. 39 which demonstrate that special report of the case has not been sent. Accordingly, non-production of Tarachand by prosecution makes the prosecution case doubtful. 32. On the point for determination no.3, learned counsel for the appellants contended that according to postmortem report, blackening was present in the injuries but P.W.1 in his cross-examination stated that person who fired shot was 7 steps away from his deceased father Aslam. P.W.4 Dr. R.S. Rabidas in his cross-examination stated that deceased received fire shot from the distance of some inch. 33. On the point of blackening and charring, following judgment of the Apex Court will be relevant. Paragraph no. 12 of 2007 (57) ACC 1099, Raj Kumar Prasad Tamarkar vs. State of Bihar and Others is as follows : 12. The autopsy report shows that 'a blackening and charring' existed so far as Injury No. (i) is concerned. The blackening and charring keeping in view the nature of the firearm, which is said to have been used clearly go to show that a shot was fired from a short distance. Blackening or charring is possible when a shot is fired from a distance of about 2 feet to 3 feet. It, therefore, cannot be a case where the death might have been caused by somebody by firing a shot at the deceased from a distance of more than 6 feet. The place of injury is also important. The lacerated wound was found over grabella (middle of forehead). It goes a long way to show that the same must have been done by a person who wanted to kill the deceased from a short distance. There was, thus, a remote possibility of causation of such type of injury by any other person, who was not in the terrace. Once the prosecution has been able to show that at the relevant time, the room and terrace were in exclusive occupation of the couple, the burden of proof lay upon the respondent to show under what circumstances death was caused to his wife. The onus was on him. He failed to discharge the same. 34. Now, at this stage, we shall proceed to examine whether the medical evidence renders the ocular account completely unacceptable or improbable. The onus was on him. He failed to discharge the same. 34. Now, at this stage, we shall proceed to examine whether the medical evidence renders the ocular account completely unacceptable or improbable. In this regard, the submission of learned counsel for the appellants is that the ocular account is not acceptable because the medical evidence has ruled out possibility of the shot being fired from seven steps away from the deceased as per PW-1 in his cross-examination but the same is ruled out as per PW-4-Dr. R.S. Rabidas in his cross-examination, who stated that deceased received fire shot from the distance of some inches. There is also contradictions in the examination-in-chief and in cross examination of witnesses of fact i.e. PW-2 and PW-3 vis-a-vis in the medical evidence. 35. At this stage, we may notice few decisions of Hon'ble the Apex Court on the issue as to when a conflict between medical evidence and ocular account would render the ocular account untrustworthy and unreliable. In Thaman Kumar v. State of Union Territory of Chandigarh, (2003) 6 SCC 380 , in paragraph 16, it was observed as follows : "16. The conflict between oral testimony and medical evidence can be of varied dimensions and shapes. There may be a case where there is total absence of injuries which are normally caused by a particular weapon. There is another category where though the injuries found on the victim are of the type which are possible by the weapon of assault, but the size and dimension of the injuries do not exactly tally with the size and dimension of the weapon. The third category can be where the injuries found on the victim are such which are normally caused by the weapon of assault but they are not found on that portion of the body where they are deposed to have been caused by the eye witnesses. The same kind of inference cannot be drawn in the three categories of apparent conflict in oral and medical evidence enumerated above. In the first category, it may legitimately be inferred that the oral evidence regarding assault having been made from a particular weapon is not truthful. However, in the second and third category no such inference can straightaway be drawn. In the first category, it may legitimately be inferred that the oral evidence regarding assault having been made from a particular weapon is not truthful. However, in the second and third category no such inference can straightaway be drawn. The manner and method of assault, the position of the victim, the resistance offered by him, the opportunity available to the witnesses to see the occurrence like their distance, presence of light and many other similar factors will have to be taken into consideration in judging the reliability of ocular testimony." 36. Hon'ble the Apex Court in Punjab Singh v. State of Haryana, 1984 Supp SCC 233 and Anil Rai v. State of Bihar, (2001) 7 SCC 318 has considered in detail that (1) if direct evidence is satisfactory and reliable, the same cannot be rejected on hypothetical medical evidence, and (2) if medical evidence when properly read shows two alternative possibilities but not any inconsistency, the one consistent with the reliable and satisfactory statements of the eye witness has to be accepted. The similar view has also been taken by Hon'ble the Apex Court in Abdul Sayeed v. State of Madhya Pradesh, (2010) 10 SCC 259 . No doubt the legal principle, which has been pronounced by Hon'ble the Apex Court, is that ocular evidence has greater evidentiary value vis-a-vis medical evidence. In the present matter, we also find that there is inconsistency of the prosecution witnesses of fact and after close scrutiny of the medical evidence, we find that ocular evidence may be discarded. 37. To appreciate the submission urged by the learned counsel for the appellants that P.W.1, P.W.2 and P.W.3 are not credible and reliable, we have examined their testimony threadbare. We find that these three witnesses claim themselves to be the eye witness of the occurrence but their description of the manner of occurrence and the contradiction regarding the place of occurrence, the injury sustained by the deceased from a gun shot fired from approximately seven steps and considering the statement of PW-4 - Dr. R.S. Rabidas that the gun shot fired from very close range (few inches) are such circumstances which remain unexplained. Thus, the ocular testimony is wholly inconsistent with the circumstantial evidence as well as the medical evidence. The case in hand is based upon direct evidence. R.S. Rabidas that the gun shot fired from very close range (few inches) are such circumstances which remain unexplained. Thus, the ocular testimony is wholly inconsistent with the circumstantial evidence as well as the medical evidence. The case in hand is based upon direct evidence. Therefore, in order to award or uphold the conviction of an accused in a case based upon direct evidence, the Court has of necessity to hold that the prosecution story is probable. The prosecution witnesses of fact are credible and reliable and therefore their testimony is worthy of credit. In a case of direct evidence motive cannot be said to be of much value. Therefore, in such situation, it is imperative to the Court to go into the facts and circumstances of the case and find out as to what was the cause behind the occurrence, the motive behind the occurrence and whether it has any relation with the crime or not. On a careful scrutiny of the alleged motive assigned to the accused-appellants for the commission of crime, the Court finds, as enumerated above, that the same is too far stretched. 38. On the point of determination no.4, learned counsel for the appellants submitted that FIR is ante-timed and investigation of the case is defective. Learned counsel for the appellants further submitted that special report of the case has not been sent according to law, the reliance has been placed upon paragraph-101 of the police regulation which is as follows : "101. Special Report cases.- Whenever the occurrence of an offence of any of the following kinds is reported (1) dacoity, (2) robbery except unimportant cases such as snatching earrings, (3) torture by police, (4) escape from police custody, (5) forging of currency notes (6) manufacture of counterfeit coin, (7) serious defalcations of public money including theft of notes or hundis from letters, (8) important cases of murder, rioting, burglary and theft, breaches of the peace between different classes, communities or political groups and other cases of special interest, copies of the report will be sent immediately in red envelopes to the Superintendent, the District Magistrate, the Sub Divisional Magistrate and the Circle Inspector by post or hand whichever may be the quicker method of conveyance. The telephone or telegraph when available, and the department telegraphic code, copies of which have been supplied to all police stations near telegraph offices should also be used to give the Superintendent early news of such offences." 39. The telephone or telegraph when available, and the department telegraphic code, copies of which have been supplied to all police stations near telegraph offices should also be used to give the Superintendent early news of such offences." 39. The counsel further placed cross-examination of PW.10 Head Constable Mahak Singh in order to demonstrate that procedure for sending special report of the case has not been followed at all, the relevant portion of cross-examination of P.W.10 Mahak Singh is as follows : ^^eSaus Lis'ky fjiksVZ ftl th0Mh0 esa eqdnek dk;e gqvk mlh th0Mh0 esa Hksth eSus lh@rkjkpUnz dks ,l0 vkj0 ysdj Hkstk Fkk ijUrq th0Mh0 esa rkjkpUnz dh dksbZ jokuxh ntZ ugha gSA rkjk pUnz uD'kk utjh ds vuqlkj lqcg 6-05 feuV ij Fkkus ij ekStwn Fkk fQj 8-50 feuV ij th0Mh0 la[;k 18 ij ;s mldh jokuxh lnj fctukSj ds fy, gqbZA fQj rkjkpUnz dh okilh 17-40 ij Fkkus ij gqbZA mlds i'pkr rkjkpUnz dh jokuxh esa ntZ ugha gSA mls eSaus fcuk jokuxh ntZ djs gh Hkst fn;k Fkk ,l0 vks0 lkgc ds tqokuh vkns'k esa Hkstk FkkA eq>s ugha irk fd rkjkpUnz dk ml fnu dk ,l0vkj0 ysdj tkus dk Vh0,0Mh0,0 Hkjk x;k ;k ugha ;g lgh gS fd jiV uEcj 39 esa ,l0vkj0 Hksts tkus dk rLdjk ugha gSA jiV uEcj 39 esa ;g fy[kk gS fd ,l0 vkj0 ckn djus rS;kj jokuk dh tk;sxhA ;g lgh gS esjs ikl ml ,l0vkj0 dh dksbZ dkih gSA uk gh i=koyh esa ml ,l0vkj0 dh dksbZ udy gSA ml ,l0 vkj0 ij Hksth Fkh ml ij ,l0,p0vks0 ds gLrk{kj djk;s FksA rkjkpUnz dh dk;eh Fkkus ij dc gqbZ eSa ugha crk ldrkA rkjkpUnz vkt dy Fkkuk uthekckn esa rSukr gSA ;g dguk xyr gS fd jiV uEcj 39 ij vksoj jkbfVax dh xbZ gksA ,l0,p0vks0 eqdnek dk;eh ds le; ekStwn ugha Fks eqdnek dk;eh ls iwoZ jiV uEcj 34 16-00 cts jokuxh gks pqdh Fkh ,l0,p0vks0 dh okilh fnukad 19-3-11 dks Fkkus ij ugha gqbZ vxys fnu gqbZ gksxhA ;g dguk xyr gS fd eSaus dksbZ ,l0vkj0 jokuk uk dh gks vkSj ;g ckr eqdnesa dks cy nsus ds fy, >waB cksy jgk gwWa eSaus th0Mh0 jiV uEcj 39 esa ;g ntZ fd;k gS fd ?kVuk dh lwpuk tfj;s VsyhQksu {ks= esa ekewj jokuk LFky crk fn;k Fkk udy fpd o udy jiV mUgsa {ks= esa fHktok;h Fkh og dgkWa Fks ugh irk ;g lwpuk eSaus ,l0vkbZ0 ohj flag dks Fkkus ij cqykdj muls fHktok;h FkhA ohj flag bl eqdnes ds foospd ugha FksA ,l0vkj0 ij Øe la[;k] vijk/k la[;k] /kkjk fnukad ?kVuk le;] fnukad lwpuk le; fnukad ?kVuk LFky oknh Áfroknh uke e`rd] fofopd o vU; fooj.k fy[kk tkrk gSA ;g ,l0 vkj0 Mh0 vkbZ0 th0 egksn;] iqfyl v/kh{kd ,fM0,l0ih0] Mh0,e0 o ,l0Mh0,e0] lh0vks0 vkSj ch0,l0 vkj0ih0 dks Hksth tkrh gSA eSaus ,l0vkj0 dh lkr Áfr dkcZu yxkdj rS;kj dh Fkh ijUrq Fkkus ij muesa ls ,d Hkh ugha j[kh FkhA uk gh U;k;ky; eas Hkstus gsrq dksbZ j[khA D;ksafd U;k;ky; esa ewy ,Q0vkbZ0vkj0 vkrh gSA blfy, ge U;k;k;y; dks ,l0vkj0 dh dkih ugha HkstrsA ;g dguk xyr gS fd eSa lgh C;ku uk ns jgk gwWaA vkSj ,Q0vkbZ0vkj0 ,UVh VkbZe fy[kh xbZ gks ckn esa fy[kdj igys fn[kk nh xbZ gksA** dksVZ lfVZ0 g0 viBuh; Lis'ky tt fctukSj 8-10-13 g0 viBuh; ,p0lh0 egd flag lqudj rlnhd fd;k g0 viBuh; Lis'ky tt fctukSj 8-10-13 40. It is relevant to mention here that Constable Clerk Tarachand Special Report Messenger has not been produced by prosecution which also makes the prosecution case doubtful and strengthen the argument of learned counsel for the appellants on defective investigation. 41. It is relevant to mention here that Constable Clerk Tarachand Special Report Messenger has not been produced by prosecution which also makes the prosecution case doubtful and strengthen the argument of learned counsel for the appellants on defective investigation. 41. The learned counsel for the appellant further placed statement of P.W.1 Salamat and P.W.5 Veer Singh in order to demonstrate that FIR is ante-timed, the relevant portion of cross-examination of P.W.1 is as follows : Fkkus esa 'kke dks lkढs vkB cts igqapk Fkka egewn] vkye iq= vehj glu fuoklh ukjk;.k iqj esjs [kkyw yxrs gSA ukjk;.k iqj xkao gekjs xkao ls 22 fdyksehVj gS Fkkus ge dksbZ rgjhj ysdj ugha x;s FksA ge yksx VªSDVj ls x;s FksA esjs lkFk jQhd] 'kQhd] vuoj] vkfcn x;s FksA eSaus Fkkus tkdj fnoku th dks ?kVuk crkbZA esjs crkus ij iqfyl okys esjs lkFk ekSds ij vk;s Fks njksxk th Hkh vk;s FksA ogka mUgksaus yksxksa ls rgdhdkr dh yksxksa ls iwNrkN dh rc eq>ls dgk Fkk fd tSlk gqvk gS fy[k dj nks rc eSus egewn vkye ls rgjhj fy[kokdj njksxk th dks xkao esa gh ns nh FkhA ;g ckr djhc 9 cts dh jgh gksxh rHkh iqfyl okyksa us esjs firk th dh yk'k ogh lhy dh FkhA rHkh 9 cts tc eSus rgjhj nh FkhA iqfyl okyksa us esjs firk dh yk'k VSªDVj Vªkyh esa j[k yh vkSj eq>s Hkh cSBk fy;k FkkA fQj yk'k ysdj Fkkus x;sA Fkkus ij yk'k VªSDVj Vªkyh esa gh j[kh jgh FkhA ogka iqfyl okyks us fy[kr iढ+ dhA ogka esjs dksjs dkxtksa ij vaxwBs yxok;sA Fkkus ij ge yksx ,d ?k.Vk #ds FksA ;g ,d ?k.Vk Fkkus ij yk'k dh fy[kk iढ+h ds fy;s #ds FksA esjs firk dh yk'k lhy ?kj ls djds ys x;s FksA fy[kk iढ+h Fkkus ij dh FkhA eq>s ugha irk fd iqfyl us ftu dksjs dkxtksa ij esjs vaxwBs yxok;s Fks mu ij D;k fy[k Fkk eq>s ugha irk fd mu dkxtksa dk D;k gqvk tc yk'k ysdj vk;s Fks rks egewn vkye xkao es gh #d x;s FksA VªSDVj Vªkyh ls gekjs xkao ls Fkkus vkus esa djhc 40 feuV yxrh gSA esjs [kkyw egewn vkye esjs xkao es gh Fks fjLrsnkjh ds ukrs vk;s gq;s FksA Fkkus gSM eksgfjZj dh lwpuk ij ekSds ij x;k FkkA ;s lwpuk yxHkx 7&1@2 cts feyh FkhA lwpuk ds ckn Fkkus vk;k Fkk ml le; ,l0vks0 Fkkus ij ugha FksA dkxtkr ysus dk bUnzkr ugh djk;k FkkA ?kVuk LFky ij 20-30 cts gqvk FkkA ml le; ,l0vks0 FksA muds ikl iapk;ruek ftYn oXkSjk ugha Fkh e`rd dh gk;q vuqeku ij fy[kh xbZ Fkh Fkkus ij jkr esa 11 cts okilh gqbZ iapk;rukes es ,ld uke ckn esa cढ+k;k x;k gS 'ks"k dkfu0 igys ls ekSds ij ekStwn FksA eq>s yk'k gchc dh nqdku ds lkeus feyh FkhA ;g dguk xyr gS fd Fkkus ij cSBdj lkjs dkxtkr iwjs fd, gksA** 42. Learned counsel for the appellants placed reliance upon the case law reported in 2006 (3) ACR 2726 (SC), Jagdish Murav vs. State of U.P. and Others, the Apex Court in para no. 12 observed as hereunder : ".......FIR in a criminal case and particularly in a murder case is a vital and valuable piece of evidence for the purpose of appreciating the evidence led at the trial. The object of insisting upon prompt lodging of the FIR is to obtain the earliest information regarding the circumstance in which the crime was committed, including the names of the actual culprits and the parts played by them, the weapons, if any, used, as also the names of the eyewitnesses, if any. Delay in lodging the FIR often results in embellishment, which is a creature of an afterthought. On account of delay, the FIR not only gets bereft of the advantage of spontaneity, danger also creeps in of the introduction of a coloured version or exaggerated story. With a view to determine whether the FIR was lodged at the time it is alleged to have been recorded, the Courts generally look for certain extremal checks. One of the checks is the receipt of the copy of the FIR, called a special report in a murder case, by the local Magistrate. If this report is received by the Magistrate late, it can give rise to an inference that the FIR was not lodged at the time it is alleged to have been recorded, unless, of course the prosecution can offer a satisfactory explanation for the delay in despatching or receipt of the copy of the FIR by the local Magistrate. Prosecution has led no evidence at all in this behalf. The second external check equally important is the sending of the copy of the FIR along with the dead body and its reference in the inquest report. Even though, the inquest report, prepared under Section 174 CrPC, is aimed at serving a statutory function, to lend credence to the prosecution case, the details of the FIR and the gist of statements recorded during inquest proceedings get reflected in the report. Even though, the inquest report, prepared under Section 174 CrPC, is aimed at serving a statutory function, to lend credence to the prosecution case, the details of the FIR and the gist of statements recorded during inquest proceedings get reflected in the report. The absence of those details is indicative of the fact that the prosecution story was still in an embryo state and had not been given any shape and that the FIR came to be recorded later on after due deliberations and consultations and was then ante-timed to give it the colour of a promptly lodged FIR. In our opinion, on account of the infirmities as noticed above, the FIR has lost its value and authenticity and it appears to us that the same has been ante-timed and had not been recorded till the inquest proceedings were over at the spot by PW.8" 43. Further reliance was placed upon the judgment of this Court delivered in Criminal Appeal No.3019/1986 (Bachhi Lal and Others vs. State of U.P.) dated 24.4.2019, this Court in paragraph no. 31 observed as hereunder : "Testing the evidence on record on the touchstone of the principles enunciated hereinabove for ascertaining whether FAR. in this case is ante-timed, we find that neither the special report was sent by the Investigating Officer or the constable moharir promptly to the C.O. nor the original FI.R. accompanied the dead body when it was dispatched for post mortem examination. The deposition made by PW6 that the special report was sent on 20.03.1985 and received back on 23.03.1985 but both the entries regarding the dispatch of the special report and its receipt were made on the same day i.e. on 23.03.1985 creates a doubt about the credibility of the prosecution claim that special report was sent on 20.03.1985. The total inability of the prosecution to furnish any plausible explanation for the inordinate delay of 24 hours in delivering the body of the deceased by PW-6, constable Raspal to PW4, Dr. Keshav Gupta which was given to him by the Investigating Officer on 19.03.1985 at 11:00 a.m. for post-mortem examination gives rise to only inference that is the F.I.R. had not come into existence either at the time of the inquest or till the morning of 20.03.1985. Hence, we hold that the F.I.R. in this is ante-timed." 44. Keshav Gupta which was given to him by the Investigating Officer on 19.03.1985 at 11:00 a.m. for post-mortem examination gives rise to only inference that is the F.I.R. had not come into existence either at the time of the inquest or till the morning of 20.03.1985. Hence, we hold that the F.I.R. in this is ante-timed." 44. Thus, upon complete analysis of record, we find that special report of the case has not been sent according to rule and regulation which is proved from the statement of P.W.10 Mahak Singh Head Constable. The statement of P.W.1, PW.5 and P.W.11 further reveals that FIR in this case is ante-timed. 45. On the point for determination no.5, learned counsel for the appellants submitted that learned trial Judge misread the evidence of P.W.1, PW.2 and P.W.3 to the effect that they are not eye-witnesses of the incident. He further failed to notice that what will be result of non-production of material witness (Riyasat and Tarachand) by the prosecution, the trial court only say that it is not necessary that prosecution must produce every witness. It is also material that learned trial court while acquitting the accused under Section 307 IPC and Section 25 of the Arms Act recorded that accused Noor Mohammad and Deen Mohammad were present on the roof of their house from where they fired which is 400-500 yard away from the place of incident and there are no independent witness of the recovery, as such Section 25 of the Arms Act is also not made out but convicted the accused-appellants under Section 302/34 & 323/34 IPC. 46. On the point of eye-witness account as well as on interested and related witness, the learned counsel for the appellants placed reliance upon the case law reported in 1994 (Supp 2) SCC 289 Mani Ram vs. State of U.P. and (2018) SCC 435 Sudhakar @ Sudharasan vs. State. In the aforementioned cases, the Apex Court acquitted the accused on the ground that there exists reasonable doubt in the case as the case of prosecution is unsupported by independent witnesses and filled with suspicious circumstances. 47. Learned A.G.A., Mr. A.N. Mulla and Mr. S.N. Mishra on the other hand, supported the impugned judgment of conviction and sentence dated 14.1.2016 contending that FIR is not ante-timed and on the ground of latches in the investigation, prosecution case cannot be doubted. 47. Learned A.G.A., Mr. A.N. Mulla and Mr. S.N. Mishra on the other hand, supported the impugned judgment of conviction and sentence dated 14.1.2016 contending that FIR is not ante-timed and on the ground of latches in the investigation, prosecution case cannot be doubted. Prosecution case is fully proved from the statement of PW.1, PW.2 and PW.3. The appeals filed by accused-appellants have no merit and are liable to be dismissed. On the point of defective investigation, learned AGA has cited following case laws : (i) AIR 2019 SC 519 , Jafel Biswas and others vs. State of West Bengal (Relevant paras are paragraph nos. 20 to 23) (ii) (2013) 10 SCC 192 , Hema vs. State through Inspector of Police, Madras (Relevant paras are paragraph nos. 10 to 18) (iii) AIR 2010 SC 3718 , C. Muniappan and others vs. State of Tamilnadu (Relevant para is paragraph no. 44) (iv) 1972 (2) SCC 640 , Pala Singh and another vs. State of Punjab (Relevant paras are paragraph nos. 3 & 7). 48. This Court has considered the entire evidence on record i.e. eye-witness account, non-production of material evidence medical evidence as well as defective investigation while deciding the point for determination nos. 1 to 5 and the defective investigation. 49. In view of the above facts and circumstances of the case, it is borne out from the records that point for determination no.1 is answered in negative to the effect that P.W.-1, P.W.-2 and P.W.-3 were not eye-witness of the incident and their evidence are not reliable. Further, point for determination no.2 is answered in affirmative to the effect that prosecution has not produced the best evidence to prove its case and deliberately withheld the material witnesses without any justification. Point for determination no. 3 is also answered in affirmative to the effect that postmortem report does not support the prosecution case as P.W. 1 in his cross-examination stated that person who fired shot was 7 steps away from deceased father Aslam while in the postmortem report blackening was found in the injury. Point for determination no. 4 is answered in affirmative to the effect that FIR is ante-timed and investigation of the case is defective. The point for determination no.5 is also answered in affirmative. 50. In view of above, we find that the evidence of alleged eye witnesses produced by prosecution does not inspire confidence. Point for determination no. 4 is answered in affirmative to the effect that FIR is ante-timed and investigation of the case is defective. The point for determination no.5 is also answered in affirmative. 50. In view of above, we find that the evidence of alleged eye witnesses produced by prosecution does not inspire confidence. There exists a doubt whether they are eye-witnesses of the incident or not, the place of incident is also doubtful. Oral evidence is also not consistent with the medical evidence, FIR is ante-timed and there are no independent witness of the incident. Prosecution has failed to prove the charges against the accused-appellants beyond reasonable doubt. 51. Accordingly, the Appeals are allowed. The impugned judgment / order of conviction and sentence dated 14.1.2016 are set aside. Appellants are acquitted of the charges framed against them. The accused appellant Alam in Criminal Appeal No.888/2016 is in jail. He shall be released from jail forthwith. Accused-appellants Noor Mohammad and Deen Mohammad in Criminal Appeal No.639/2016 are on bail. Their bail bonds and sureties are discharged. Let a copy of the judgment along with the original record be sent to the court below for compliance.