JUDGMENT : Ram Manohar Narayan Mishra, J. 1. Heard learned counsel for the appellants, learned counsel for the respondent No.2 and learned AGA for the State and perused the material placed on record. 2. As all these criminal appeals have arisen out of same judgement of conviction and sentence, hence, these are being decided by this common judgement:- 3. JUDGMENT : Ram Manohar Narayan Mishra, J. 1. Heard learned counsel for the appellants, learned counsel for the respondent No.2 and learned AGA for the State and perused the material placed on record. 2. As all these criminal appeals have arisen out of same judgement of conviction and sentence, hence, these are being decided by this common judgement:- 3. Above noted Criminal appeals have been preferred by the accused appellants namely, Dhruvjeet Singh, Vimlesh Singh, Santosh Singh, Rakesh Singh and Akhilesh with a prayer to set aside the judgment and order dated 26.9.2016, passed by Additional Sessions Judge/Special Judge Gangster Act, Court No.3, Ghazipur in Sessions Trial No.256 of 2013, State of U.P. vs. Dhruvjeet Singh and others in Case Crime No.136 of 2013, under Sections 147, 148, 149, 302, 307, 323, 504, 506 IPC and Section 7 of Criminal Law Amendment Act and Section 3/25 of Arms Act, Police Station Gahmar, District Ghazipur, whereby, they have been convicted and sentenced as under:- (i) to undergo life imprisonment, with fine of Rs.10,000/-each and in default thereof they have to undergo six months additional imprisonment, under Section 302/149 IPC; (ii) to undergo ten years rigorous imprisonment, with fine of Rs.5,000/-each and in default thereof they haveto undergo six months additional imprisonment, under Section 307/149 IPC; (iii) to undergo six months imprisonment, with fine of Rs.1,000/- each and in default thereof they have to undergo two months additional imprisonment, under Section 323 IPC; (iv) to undergo one year imprisonment, with fine of Rs.1,000/-each and in default thereof they have to undergo two months additional imprisonment, under Section 504 IPC; (v) to undergo one year imprisonment, with fine of Rs.1,000/-each and in default thereof they have to undergo two months additional imprisonment, under Section 506 IPC; (vi) to undergo two years imprisonment, with fine of Rs.1,000/-each and in default thereof they have to undergo two months additional imprisonment, under Section 147 IPC; (vii) to undergo two years imprisonment, with fine of Rs.1,000/-each and in default thereof they have to undergo two months additional imprisonment, under Section 148 IPC; (viii) to undergo three months imprisonment, with fine of Rs.1,000/- each and in default thereof they have to undergo one month additional imprisonment, under Section 7 of Criminal Law Amendment Act; (ix) appellants namely, Rakesh Kumar Singh, Santosh Singh, Vimlesh Singh and Akhilesh Singh were also convicted and sentenced to undergo one year imprisonment, with fine of Rs.1,000/- each and in default thereof they have to undergo three months additional imprisonment, for charge under Section 3/25 of Arms Act. All the sentences are directed to run concurrently. 4. The prosecution case in brief is that the informant Digvijay Singh, son of Harivansh Singh, resident of Village Patti Khemanrai, Police Station Gahmar, District- Ghazipur, lodged an FIR at police station concerned on 25.4.2013, by presenting a written report (Ext.Ka1) with averment that on 25.4.2013 in the evening, his elder brother Ajay Singh, who was posted in Bengal Engineering (Army), Pune, as Hawaldar, informant, his father and uncle Shiv Shanker Singh were conversing in compound of the house, at around 20:15 hours, accused Dhruvjeet Singh arrived there with his four sons Rakesh Singh, Santosh Singh, Vimlesh Singh and Akhilesh Singh and exhorted his sons to kill informant’s side as they have increased their attitude. Thereupon, the four sons of Dhruvjeet opened fire on Ajay Singh, the elder brother of informant, indiscriminately, which hit him on chest and right hand and he fell down being seriously injured in pool of blood. The informant ran to save him but accused Vimlesh Singh hit him on his right ear by butt of his firearm. When Shiv Shanker Singh, the uncle of informant, ran to save the informant, Akhilesh Singh and Santosh Singh lifted him and dashed him on the ground. They assaulted him brutally by hockey sticks, which were lying nearby the place of incident. The assailants fled away towards east by their two motorcycles after flashing their firearms. A panic and pall of horror prevailed in the locality due to this daring act of the accused persons and the people of locality got panicked and closed the windows and doors of their house being scared by the incident. The informant rushed to police station for lodging the FIR with the injured, his elder brother namely, Ajay Singh. 5. The FIR (Ext.Ka-1) was lodged on 25.4.2013, at 20:40 hours against five named accused persons under Sections 147, 148, 149, 307, 504, 506 IPC and Section 7 of Criminal Law Amendment Act and a case was registered at police station vide relevant GD entry at the same time under said sections. S.O. Ram Nihor Singh (PW-11) took over investigation of the case himself on the date of lodging of the FIR and recorded statement of the informant and author of FIR. The injured was unconscious as he had suffered several firearm shots. S.O. Ram Nihor Singh (PW-11) took over investigation of the case himself on the date of lodging of the FIR and recorded statement of the informant and author of FIR. The injured was unconscious as he had suffered several firearm shots. The Investigating Officer rushed the injured Ajay Singh to District Hospital, Ghazipur for treatement by keeping him in his official vehicle and sent other Sub Inspector and Constables at place of incident. He produced the injured Ajay Singh at District Hospital at 21:30 hours but Doctors declared him dead. He kept the dead body in mortuary and memo of death information was sent from hospital to Police Station Ghazipur, Kotwali. The informant had also received injuries and his medico legal examination was also conducted. He had suffered three injuries. The Investigating Officer went back to police station and added Sections 302, 323 IPC due to death of the injured Ajay Singh vide GD Entry No.37, time 23:45 hours, on 25.4.2013. He visited the spot and held a spot inspection at the pointing out of informant. On 26.4.2013, he prepared site plan (Ext.Ka19). He also collected four number of empty cartridges of .32 bore, two live cartridges of .32 bore and one number of live cartridge of 12 bore from spot of the incident in presence of witnesses namely, Harihar Singh and Janardan Singh. He sealed the ammunitions and prepared a sample seal under his signature. He also prepared a recovery memo of live and empty cartridges recovered from the spot and got signature of said witnesses thereon. He proved said recovery memo as Ext.Ka-20. He also took into possession plain earth and blood stained earth from the place of occurrence and prepared its seizure memo, which was marked as Ext.Ka-21 and Ka-22 during evidence of Investigating Officer. He also collected four broken pieces of two hockeys, which was found on the place of incident and prepared its recovery memo under his signature, which is marked as Ext.Ka-23. He recorded statements of the informant and his uncle, injured Shiv Shanker Singh, who were present on the place of incident, on 27.4.2013. The Investigating Officer entered medico legal examination report of the informant and also injured Shiv Shanker Singh in case diary. He arrested accused Dhruvjeet Singh on 28.4.2013 from Railway crossing Gahmar and prepared his arrest Memo i.e. Ext.Ka-10. The Investigating Officer entered medico legal examination report of the informant and also injured Shiv Shanker Singh in case diary. He arrested accused Dhruvjeet Singh on 28.4.2013 from Railway crossing Gahmar and prepared his arrest Memo i.e. Ext.Ka-10. On 6.5.2013, an information was entered in Parcha No.10 of the case diary to the effect that accused Santosh Singh, Vimlesh Singh and Akhilesh Singh had surrendered in the Court. Investigating Officer recorded their statement in District Jail, Ghazipur after obtaining permission of the Court. Their police custody remand was obtained by Investigating Officer by orders of the Court dated 10.5.2013. Accused Rakesh Singh was arrested in New Delhi on 1.5.2013, at 13:15 hours from his place of posting and his arrest memo (Ext.Ka-7) was prepared by PW-7. He was produced before C.J.M., Ghazipur on 4.5.2013. On pointing out of accused Rakesh Kumar Singh, a TVS Apache motorcycle bearing Registration No.UP61J9907 was recovered on 7.5.2013, which was used in the offence by the accused persons, from dense shrubs which had grown around pump canal in village Gahmar, situated in the east of the village. The accused told the police team that after the incident, he fled away from the place of incident alongwith his brother Santosh Singh by this motorcycle and concealed it there. The accused Rakesh Kumar Singh also took out a country made pistol of 7.65 bore on which words ‘Automatic Pistol’ and “Made in USA” was engraved, from tool box of the motorcycle. For want of any gun number, it was treated as a countrymade pistol. The accused confessed to have shot the deceased by this pistol. Separate recovery memo was prepared in presence of witnesses namely, Sanjay Kumar Singh, Manoj Kumar Singh regarding said vehicle and firearm and Section 3/25 of Arms Act was added in penal sections on the basis of said recovery. The Investigating Officer also recovered a countrymade pistol of 12 bore on pointing out of accused Santosh Singh pursuant to police custody remand order dated 10.5.2013 on 11.5.2013 from shrubs (Toddy Palm Tree) nearby the same shrubs grown around said pump canal at 10:30 hours and recovery memo was prepared in presence of public witnesses namely Harendra Singh and Satrudhan Singh. Section 3/25 Arms Act was also added on the basis of said recovery against accused Santosh Singh. Section 3/25 Arms Act was also added on the basis of said recovery against accused Santosh Singh. On 11.5.2013, the Investigating Officer recovered a country made pistol of .315 bore at pointing out of accused Akhilesh Singh pursuant to police custody remand order dated 10.5.2013 from the vicinity of same pump canal in Village Gahmar towards south of Kulward constructed on a roadside Nala at and a case under Section 3/25 of Arms Act was added in penal sections against him on 11.5.2013. The Investigating Officer also recovered a motorcycle C.B.Z. (Black Color) bearing No.UP61M3239 and a countrymade pistol of 32 bore, which was kept in tool box of motorcycle during police custody remand of accused Vimlesh Singh and charge under Section 3/25 of Arms Act was also added against him on the basis of said recovery. The Investigating Officer (PW-11) had also prepared site plan of places of recovery of 2 vehicles and 4 firearms and proved these as Ext.Ka-24 to Ka-27. The inquest on dead body of deceased Ajay Singh was carried out on 25.4.2013 by S.I. Deena Nath Dubey. He prepared inquest report, which is proved as Ext.Ka-3. He prepared Ext.Ka-29 Photo Nash, Report R.D Ext.Ka-27, Challan Nash Ext.Ka-28, Report CMO Ext.Ka-31, sample seal dead body Ext.Ka-30 and dispatched dead body for postmortem through Constables of Police. The Investigating Officer obtained sanction for prosecution of accused Rakesh Kumar Singh, Santosh Kumar Singh, Akhilesh Kumar Singh and Vimlesh Singh for charge under Section 3/25 Arms Act from District Magistrate. He sent the ammunitions recovered from the place of occurrence and firearms recovered from the accused persons for ballistic examination at Forensic Science Laboratory, Mahanagar Lucknow. Four empty cartridges of .7.65mm were found to have matched with firearm recovered at the pointing out of from accused Rakesh Singh in ballistic examination report. Similarly, in serological examination of blood stained earth taken from the place of occurrence, stains of blood were found thereon but it could not be classified, as the same was disintigerated. The Investigating Officer submitted chargesheet against all the five named accused persons after concluding the investigation under aforesaid sections and separate chargesheet under Section 3/25 of Arms Act against accused persons namely, Rakesh, Akhilesh, Santosh and Vimlesh was filed. The Investigating Officer submitted chargesheet against all the five named accused persons after concluding the investigation under aforesaid sections and separate chargesheet under Section 3/25 of Arms Act against accused persons namely, Rakesh, Akhilesh, Santosh and Vimlesh was filed. Incharge Chief Judicial Magistrate took cognizance of the offence on 24.6.2013 and committed the case to Court of Session for trial after complying with provisions of Section 207 of Cr.P.C. 6. The learned Additional Session Judge, Court No.5, Ghazipur framed charge under Sections 147, 302/149, 307/149, 323/149, 504, 506 IPC and 7 of Criminal Law (Amendment) Act against all the five named accused persons on 10.3.2014 and also framed charge under Section 3/25 of Arms Act against Santosh Singh, Akhilesh Singh, Vimlesh Singh and Rakesh Kumar Singh on same day. The accused persons denied the charge and claimed to be tried. 7. The prosecution examined PW-1, Digvijay Singh; PW-2, Shiv Shanker Singh; PW-3 Dr. Mohd Jamil Ahmad, the author of injury reports of injured Digvijay Singh; PW-4 S.I. Deena Nath Dubey, the author of inquest report of the deceased; PW-5, Dr. Naresh Prasad Chaudhari, the author of medico legal Examination report of the injured Shiv Shanker Singh; PW-6, S.I. Rudrabhan Pandey, who arrested accused Rakesh Singh, who was posted at C.A.M.S. (Centre For Automated Military Survey) after taking necessary permissions from competent offices on 1.5.2013 at 13:15 hours from Delhi; PW- 7, Himendra Singh, the then Incharge Outpost, Sevrai, Police Station Gahmar carried out part investigation of the case and arrested accused Dhruvjeet Singh on 28.4.2013. The prosecution also examined PW-8, Dr. Pragati Kumar, who conducted postmortem examination on dead body of deceased Ajay Singh and PW-9, Constable Anand Rao, who is a witness of recovery, PW-10, Constable Muharrir Shiv Ram Tiwari, the author of chik FIR, PW-11, S.H.O. Ram Nihor Mishra. 8. Learned trial court recorded statements of accused persons under Section 313 Cr.P.C. after conclusion of prosecution evidence. They also filed their written statements under Section 233 (3) of Cr.P.C. The accused examined Nagina Singh as DW-1 in defence evidence. 9. 8. Learned trial court recorded statements of accused persons under Section 313 Cr.P.C. after conclusion of prosecution evidence. They also filed their written statements under Section 233 (3) of Cr.P.C. The accused examined Nagina Singh as DW-1 in defence evidence. 9. Learned trial court on appreciation of oral evidence and material on record, in the light of submissions of learned counsels of both the parties, recorded verdict of guilt against accused persons namely, Dhruvjeet Singh, Rakesh Singh, Santosh Singh, Vimlesh Singh and Akhilesh Singh for charge under Sections 147, 148, 149, 302, 307, 323, 504, 506 IPC and also recorded conviction of accused Rakesh Singh, Santosh Singh, Vimlesh Singh and Akhilesh Singh for charge under Section 3/25 of Arms Act and sentenced them for said charges as above. Feeling aggrieved by the impugned judgement and order, the accused persons have assailed the same in instant appeals. 10. PW-1, Digvijay Singh, is informant in the case. He stated in his evidence that on 25.4.2013, his brother Ajay Singh, who works as Engineer in Military, State of West Bengal, had gone to market in connection with some shopping with related to marriage of his cousin Archana, which was scheduled to be held on 29.4.2013. In order to travel to market, his brother Ajay Singh had borrowed motorcycle of one Arvind Singh, his co-villager. When this fact was known to accused Dhruvjeet Singh, he became angry as there was enmity between Dhruvjeet Singh and Arvind Singh for two years due to litigations. When his brother Ajay Singh came to Gahmar Bazar in the evening, Dhruvjeet Singh met him on that date and told him that he had became very familiar to his enemies and he would see him and them. He also abused him after uttering these words. When his brother objected to this, Dhruvjeet Singh engaged in brawl with him. The people who were present in the market had intervened and got them separated. His brother came to home thereafter he was talking to the informant and his uncle Shiv Shanker Singh with regard to incident which took place in the market with Dhruvjeet Singh. Suddenly, at around quarter to 8:00 PM in the evening, accused Dhruvjeet Singh, Santosh Singh, Akhilesh Singh, Rakesh Singh and Vimlesh Singh entered into the boundary of the informant and Dhruvjeet Singh exhorted his sons, the co-accused “IN SALO KA MAN BAHUT BADH GAYA HAI. Suddenly, at around quarter to 8:00 PM in the evening, accused Dhruvjeet Singh, Santosh Singh, Akhilesh Singh, Rakesh Singh and Vimlesh Singh entered into the boundary of the informant and Dhruvjeet Singh exhorted his sons, the co-accused “IN SALO KA MAN BAHUT BADH GAYA HAI. AAJ INHE JAAN SE MAR DALO”. These five persons came there in planned and consulted manner. On exhortation of Dhruvjeet Sngh, the other accused opened indiscriminate fire towards the informant and his family members, who were sitting there. His elder brother Ajay Singh sustained firearm injuries n his chest and right hand and he fell down in pool of blood on the ground having been seriously injured and started twisting and turning of body due to acute pain. The informant ran to the place to save his brother whereupon Vimlesh Singh hit him by butt of his pistol on his right ear. Thereupon his uncle Shiv Shanker Singh came forward to save the informant but Akhilesh Singh and Santosh Singh assaulted him by hockeys, which were lying there. After assaulting the informant, his brother and uncle, the accused persons fled away by their motorcycles towards east while flashing their firearms and threatening the informant’s side. The incident caused flutter and state of fear in the village and silence prevailed in the locality. The people closed windows and doors of their houses. Ajay Singh, the brother of the informant, got unconscious due to firearm injury. The informant filed a written report at police station Gahmar regarding the incident, which he proved during his evidence as Ext.Ka-1. The informant identified the accused persons namely, Santosh Singh, Akhilesh Singh, Rakesh Singh and Vimlesh Singh as assailants. The FIR was registered on his written report. The inquest on dead body of the deceased was conducted at Civil Hospital, Ghazipur by police of Police Kotwali Ghazipur. The inquest report also bears signature of Pw-1. In cross-examination, the witness has stated that Gahmar is a very large village, which consists of 200 to 224 patti. He stated that his father is retired from Army and was working at NCL, Singrauli. His brother Dhananjay and deceased Ajay were also serving in Army. He worked in Vodafone at Sultanpur. His uncle Harishanker had retired from Army and was serving at Ara (Bihar) thereafter. Injured Shiv Shanker Singh, his another uncle, was working in a transport company. He stated that his father is retired from Army and was working at NCL, Singrauli. His brother Dhananjay and deceased Ajay were also serving in Army. He worked in Vodafone at Sultanpur. His uncle Harishanker had retired from Army and was serving at Ara (Bihar) thereafter. Injured Shiv Shanker Singh, his another uncle, was working in a transport company. Arvind Singh also belongs to his patti (Khandan) and his son Kishan Singh serve in Army. A case of attempt to murder was registered against Kishan Singh and others at the instance of accused Vimlesh Singh, which was proceeding prior to two years of this incident. He came to his village two days prior to the incident on getting leave and his brother deceased Ajay Singh came to the village 4-5 days prior to the incident. There is only one exit in his house, which opens towards north. There is boundary wall, which surrounded his house, which is ten feet in height and cemented. There is one iron gate in his boundary wall towards west. There was no enmity between family of informant and accused persons prior to this incident. Accused Dhruvjeet Singh was around 50 to 55 years of age at the time of incident. The house of accused persons is 50 meters far from his house. He went to police station by motorcycle after the incident alongwith Sanjay after 5 to 7 minutes of the incident. He firstly informed Darogaji about the incident and thereafter presented a written report to him which was written by him. They reached at police station around 8:24 PM. The proceeded to Sadar Hospital, Ghazipur by vehicle arranged by Darogaji and reached there around 9:30 PM. The witnesses came there by another vehicle. They came back to police station around 1:00 hours in the night from hospital and stayed there for 20 to 25 minutes. He pointed the place of incident to Darogaji on next day at around 6:30 to 7:00 AM, who collected empty cartridges and two broken hockey sticks from the place of incident. Thereafter they came to hospital at 10:30 AM together with police personnels and stayed there up to 11:00 AM. The inquest on dead body of the deceased was conducted around 12:00 to 12:30 hours at Police Station. He also signed the inquest report alongwith other panch witnesses. Thereafter they came to hospital at 10:30 AM together with police personnels and stayed there up to 11:00 AM. The inquest on dead body of the deceased was conducted around 12:00 to 12:30 hours at Police Station. He also signed the inquest report alongwith other panch witnesses. The witness further stated that he is not able to explain as to why he failed to divulge the previous altercation which took place in Gahmar Market between deceased and accused Dhruvjeet Singh in his written report. He further stated that his statement was recorded by Investigating Officer thrice during investigation, in which he told him about the altercation which took place between Ajay Singh and Dhruvjeet Singh in the market on the date of incident. He had seen pistols/countrymade pistols in the hands of accused persons during the incident. Six cartridges are loaded in pistol and one or two in countrymade pistol. He has not divulged in his report that which of the accused persons was armed with which type of firearm. He could not recollect as to how many shots were fired on the spot as accused were firing indiscriminately. Blood fell on the spot. He stated to Investigating Officer that Akhilesh and Santosh assaulted his uncle by hockey sticks. 11. PW-2, Shiv Shanker Singh is injured and uncle of the informant and deceased. He has stated in his sworn testimony before the Court that on 29.4.2013 marriage of his daughter Archana Singh was fixed and he had gone to Ghazipur to purchase a motorcycle for giving in the marriage. On 25.4.2013, he came back to home in the evening and was conversing with his brother Harivansh Singh and nephews namely, Digvijay Singh and Ajay Singh regarding preparations of the marriage. They also discussed the incident of the day in which Dhruvjeet Singh had threatened Ajay Singh and engaged in some brawl with him earlier on that date. Ajay Singh was narrating this incident to them. In the meanwhile, accused Dhruvjeet Singh emerged there alongwith his sons namely Vimlesh Singh, Rakesh Singh, Santosh Singh and Akhilesh Singh and entered into the boundary of the witness. He challenged the witnesses stating that “IN SALO KA MAN BAHUT BADH GAYA HAI. AAJ INHE JAAN SE MAR DALO”. Ajay Singh was narrating this incident to them. In the meanwhile, accused Dhruvjeet Singh emerged there alongwith his sons namely Vimlesh Singh, Rakesh Singh, Santosh Singh and Akhilesh Singh and entered into the boundary of the witness. He challenged the witnesses stating that “IN SALO KA MAN BAHUT BADH GAYA HAI. AAJ INHE JAAN SE MAR DALO”. Thereupon, the four sons of Dhruvjeet Singh opened fire by their respective firearms indiscriminately on informant’s side, in which Ajay Singh sustained firearm injuries and he fell down and was squirming. When Digvijay Singh, the nephew of the witness, rushed to save Ajay Singh, Vimlesh Singh hit him by butt of his firearm on his ear. Thereafter, the witness ran to rescue Digvijay Singh but Santosh Singh and Akhilesh Singh threw him and assaulted him by hockey sticks in which he suffered much injuries. The accused fled away from the spot after threatening the witnesses of life towards east. Pall of terror prevailed in the locality due to this incident and people closed the door and windows of their house. The witness sent injured Ajay Singh to police station Gahmar by a motorcycle driven by PW-1, Digvijay Singh. Digvijay Singh filed a written report at police station on the basis of which the case was registered at police station concerned. His medical examination was carried out at Government Hospital Bhadaura. He pointed out the place of incident to Darogaji. In cross-examination, the witness stated that on fateful day, he had gone to Ghazipur in day hours by motorcycle, which was driven by Dharamraj Singh, his brother-in- law. After performing the work in Ghazipur in connection with purchase of motorcycle, he came back to his place in the evening. The main exit of his house is towards west. His house is surrounded with cemented boundary wall, which is ten feet in height. When he reached in his boundary, his elder brother Harivansh and nephews Digvijay Singh and Ajay Singh were present there and they were talking together. The assailants stood about two paces away from them. Nobody received pellet injuries except the deceased Ajay Singh in the incident. Ajay Singh fell down after receiving firearm injuries. He sustained three firearm shots in standing position and he fell down on the ground. The shots were fired by pistols and countrymade pistols. His medical examination was conducted on next date at around 9:00-10:00 AM. Nobody received pellet injuries except the deceased Ajay Singh in the incident. Ajay Singh fell down after receiving firearm injuries. He sustained three firearm shots in standing position and he fell down on the ground. The shots were fired by pistols and countrymade pistols. His medical examination was conducted on next date at around 9:00-10:00 AM. Ajay Singh had told him regarding the altercation and scuffle with Dhruvjeet Singh in the market in the evening. He told the Investigating Officer that his brother Harivansh Singh could hardly perform his daily routine and lack of mobility. The house of Dhruvjeet Singh situates eastward of his house after two houses. He pointed out the place of occurrence to Darogaji. 12. PW-3, Dr. Mohd. Jamil Ahmad conducted medico legal examination of the injured Digvijay Singh on 25.4.2013, at 10:40 hours and proved his injury report as Ext.Ka-2 in his evidence. At the time of examination, the Doctor noted following injuries on his person:- (i) lacerated wound of 1cm X 0.2cm X skin deep, right side of back of ear pinna, which middle side; (ii) lacerated wound of 1.5cm X 0.2cm X skin deep, right ear pinna just back side of injury No.1; (iii) lacerated wound of 0.5cm X 0.2cm X skin deep, back side of just root of right ear pinna. In the opinion of Doctor injury Nos.1 to 3 were caused by hard and blunt object and were simple in nature. Duration was fresh. 13. PW-4, S.I. Deena Nath Dubey conducted inquest on dead body of the deceased on 26.4.2013 and prepared inquest report in his hand writing and proved the same as Ext.Ka-3. He stated that the deceased Ajay Singh died due to firearm injuries. He conducted inquest proceeding at Sadar Civil Hospital, Ghazipur. He received information of death of Ajay Singh and it was entered vide Report No.54, time 22:10, GD dated 25.4.2013, Police Station Kotwali Sadar, District Ghazipur. The dead body was kept in mortuary of the hospital. He handed over the body to constables at 12:30 hours after the inquest. He was not aware of registration of any case at police station concerned regarding this incident so long as he carried out inquest proceeding. He did not find any police staff of police station Gahmar during inquest. 14. PW-5, Dr. He handed over the body to constables at 12:30 hours after the inquest. He was not aware of registration of any case at police station concerned regarding this incident so long as he carried out inquest proceeding. He did not find any police staff of police station Gahmar during inquest. 14. PW-5, Dr. Naresh Prasad Chaudhari conducted medico legal examination of injured Shiv Shanker Singh on 26.4.2013, at CSC, Bhadaura, District Ghazipur at 10:00 AM and proved the same as Ext.Ka-4 by his evidence. According to the PW-5 following injuries were found on the person of the injured: (i) contusion and swelling of 3cm X 2cm left side of face; (ii) contusion and swelling of 3cm X 2cm in the left side of frontal head; (iii) contusion and swelling of 2cm X 2cm on the left shoulder; (iv) contusion and swelling of 2cm X 2cm on the forearm. In the opinion of the Doctor, all the injuries were simple in nature and caused by hard and blunt object. Duration was about one day. The medico legal examination of both the injured namely, Digvijay Singh and Shiv Shanker Singh was conducted on letter ofS.O. Gahmar as police case. 15. PW-8, Dr. Pragati Kumar conducted the post mortem examination on the person of deceased Ajay Singh on 26.4.2013 and prepared the postmortem examination report in his hand writing and signature and proved the same as Ext.Ka-11 by his evidence during trial. He stated that on 26.4.2013, he was posted as Medical Officer at Police Hospital, Police Line, Ghazipur. The dead body of Ajay Singh was brought for postmortem by two constables namely, Raghunath Singh and Homeguard Laxman Pal of police station Gahmar. The deceased was aged around 38 years. Rigor mortis was present in both the upper and lower extremities. *Antemortem Injuries:- (1) firearm injury 1cm X 1cm, circular in shape and 6 cm middle to right nipple. Inverted margins. Collar of abrasion is present. Profused bleeding present i.e. wound of entry; (2) wound of exit is 2 cm X 2.1cm at left side of back of chest (lateral side) 25cm above left iliac crest. Profused bleeding present. Margins everted. After probing, it was found that this injury was exit wound of injury No.1. Both the lungs, muscles and heart of the deceased got lacerated due to this injury. (3) firearm injury of 1.2cm X 1.1cm, 8 cm below right nipple. Profused bleeding present. Margins everted. After probing, it was found that this injury was exit wound of injury No.1. Both the lungs, muscles and heart of the deceased got lacerated due to this injury. (3) firearm injury of 1.2cm X 1.1cm, 8 cm below right nipple. Margins inverted. Collar of abrasion present i.e. wound of entry. Track is towards abdomen. One metallic bullet 1cm X 1cm cylindrical in shape was recovered and two wad piece recovered from the injury. (4) firearm injury of 0.9cm X 0.9cm at right arm, above elbow. Margin inverted i.e. entry wound. 1.2cm X 1.2cm at front of right elbow. The projectile tract fractured in elbow bone. * Internal Examination:- pleura lacerated. Syngenesis in walls and ribs. Right and left lungs lacerated. Heart lacerated and empty. Pericardium lacerated. There is wads and one metallic cylindrical bullet recovered from lower part of abdomen, sent to S.P. Ghazipur through constables, who brought the dead body for postmortem. Semi digested food was found in stomach. Gases and liquid were found in small intestine. Gases and faecal matter detected in large intestine. Kidney and pancreas were lacerated. Bladder was empty. Time of death was about one day. In the opinion of Doctor, cause of death was haemorrhagic shock as a result of antemortem firearm injuries. 16. In cross-examination, Dr. Pragati Kumar stated that all the antemortem wounds of entry were in right side of the body. The directions of wound No.3 was from upper to lower side. He has noted direction of Injury No.4. Injury No.5 is its exit wound. Injury Nos.1 and 3 were caused from a distance of more than 5 feet, which implies that the distance of weapon of assailant and the deceased was more than five feet. He could not say that injury no.1 and 4 were pellet injuries or caused by bullet. Injury No.2 and 5 are exit wounds of injury no.1 and 4 and, therefore, he did not find any residue of ammunitions therein. The state of stomach reveals that the deceased had taken meal five hours earlier. He could not tell with certainty that deceased had eased himself prior to the incident. The bullet recovered from the dead body was not produced before him at the time of evidence. The duration of death from postmortem noted in PM report implies that he died 18 to 24 hours earlier to the postmortem. 17. He could not tell with certainty that deceased had eased himself prior to the incident. The bullet recovered from the dead body was not produced before him at the time of evidence. The duration of death from postmortem noted in PM report implies that he died 18 to 24 hours earlier to the postmortem. 17. PW-5, S.I. Rudrabhan Pandey conducted part investigation of the case in absence of PW-10, Ram Nihor Mishra and visited place of posting of accused Rakesh Singh in C.A.M.S. (Army) New Delhi and after completing necessary formalities arrested him on 1.5.2013 on being handed over by his Officers and produced him before C.J.M., Ghazipur on 3.5.2013, from where he was remanded to judicial custody. 18. PW-7, S.I. Himendra Singh carried only one day’s investigation on 28.4.2013 and arrested accused Dhruvjeet Singh at 21:00 hours. 19. PW-9, Constable Anand Rao stated that on 7.5.2013, he was posted as constable at Police Station Gahmar. On that date, accused Rakesh Kumar Singh was brought out from District Jail, Ghazipur for recovery of weapon of offence and he alongwith police team proceeded by official Bolero Jeep in search of the weapon. On that date, on pointing out of Rakesh Singh, a motorcycle used by accused persons for fleeing away from the place of incident after offence and one countrymade pistol of 7.65 bore, which was in serviceable condition, in which magazine was loaded, was recovered by police team near eastern pump canal at Gahmar. The recovered firearm was sealed on the spot at around 11.30 hours and a copy of recovery memo was given to the accused. In cross-examination, the witness stated that the recovery memo was signed by S.O. Ram Nihor Mishra, the police witnesses and public witnesses. On that date, at pointing out of accused Akhilesh Singh, a countrymade pistol of .315 bore, which was used in the commission of offence of murder of Ajay Singh was recovered in presence of public witnesses Harendra Singh and Satrudhan Singh. The weapon was sealed on the spot and accused was taken into custody for charge under Section 3/25 of Arms Act, at 11:30 AM. On the same date, accused Vimlesh Kumar Singh got a motorcycle CBZ recovered on his pointing out, which was used by him and co-accused Akhilesh Singh for fleeing away from the place of occurrence after commission of murder of Ajay Singh. On the same date, accused Vimlesh Kumar Singh got a motorcycle CBZ recovered on his pointing out, which was used by him and co-accused Akhilesh Singh for fleeing away from the place of occurrence after commission of murder of Ajay Singh. A countrymade pistol .32 bore was also recovered at pointing out of accused Vimlesh, which was sealed on the spot and its recovery memo was signed by S.O. Ram Nihor Mishra, police personnel and public witnesses. It was 12:30 hours of day. He proved the recovery of four firearms as Ext.Ka-12, Ka-13, Ka-14 and Ka-15 by his evidence. In cross-examination, the witness has stated that he proceeded from police station on 7.5.2013, at 6:00 AM alongwith S.O. Ram Nihor Mishra and two constables. They reached District Jail, Ghazipur at 7:30 AM and got their entry made in jail register. They reached place of recovery at around 9:00 AM alongwith accused persons. Motorcycle was lying in open and in unclaimed position. There were 8-9 people on the spot at the time of recovery. No statement of accused was taken during their journey from place of incident. Their Government vehicle was parked 100 meters away from the place of recovery. He signed recovery memos on asking of S.O. Ram Nihor Mishra. He was not acquainted with the accused. They brought back the accused to jail at 3:00 PM. They made entry of firearms at police station at 8:00 PM. On 11.5.2013, his departure from police station occurred at 6:00 AM. S.O. Ram Nihor Mishra and three constables were along side him. They came to District Jail, Ghazipur at 7:30 AM and S.O. Ram Nihor Mishra made his entry in the jail register. He brought out three accused persons from jail within 10 to 15 minutes and proceeded to Gahmar alongwith them at around 8:00 AM. The three accused persons were taken to probable places of recovery. The place of recovery was 30 to 35 kms. away from District Jail, Ghazipur. It took one and half hours in reaching the place of recovery form district jail. The country made pistol, which was recovered on the pointing out of accused Akhilesh was kept in open and was not brought out from dickey of the motorcycle. The weapons recovered on the pointing out of the accused persons were deposited at police station at 10:00 PM. The country made pistol, which was recovered on the pointing out of accused Akhilesh was kept in open and was not brought out from dickey of the motorcycle. The weapons recovered on the pointing out of the accused persons were deposited at police station at 10:00 PM. He had not signed on sealed covers of firearms recovered at the pointing out of the concerned accused persons. 20. PW-10, Shiv Ram Tiwari, the then Constable Muharrir of Police Station Gahmar, stated in his evidence that he was posted as constable muharrir at police station Gahmar on 25.4.2013 and on that day on the basis of written report produced by Digvijay Singh, son of Harivansh Singh; he registered a case vide Crime No.136 of 2013, under Sections 147, 148, 149, 307, 504, 506 IPC and Section 7 of Criminal Law Amendment Act vide chik No.30 of 2013, at 20:40 hours against accused persons named in the written report. He proved the chik FIR as Ext.Ka-16 by his evidence. He proved extracts of GD of registration of case Report No.32, time 20:40 hours dated 25.4.2013, on which Ext.Ka-17 was marked. He also proved extracts of amended GD dated 25.4.2013, Report No.37, time 23:45 hours whereby Section 302/323 IPC was added. He proved these extracts of GD by producing original GD from police office before the Court. In cross-examination, he stated that in chik FIR, endorsement of Chief Judicial Magistrate is made on 7.5.2013. He stated that he is unable to explain the delay occurred in production of chik FIR before the Chief Judicial Magistrate after 12 days of its lodging. He further stated that in original GD, there is no mention of dispatch of special report to senior officers with regard to present case. The signature of C.O. on original GD is undated. He further stated that on 25.4.2013, the injury memo of injured Digvijay Singh was prepared and on 26.4.2013 injury memo of injured Shiv Shanker Singh was prepared. Prior to registration of this case vide crime No.136 of 2013, a case was registered vide Crime No.135 of 2013 at 9:15 hours on 25.4.2013. In between these two cases, no other case was registered on that date. 21. PW-11, S.H.O. Ram Nihor Mishra is the Investigating Officer of the case. He proved steps taken towards investigation of the case. Prior to registration of this case vide crime No.136 of 2013, a case was registered vide Crime No.135 of 2013 at 9:15 hours on 25.4.2013. In between these two cases, no other case was registered on that date. 21. PW-11, S.H.O. Ram Nihor Mishra is the Investigating Officer of the case. He proved steps taken towards investigation of the case. He has stated in his evidence that this case was registered vide Crime No.136 of 2013 in his presence on written report produced by injured informant Digvijay Singh at Police Station Gahmar. The chik FIR was prepared on the basis of this written report by Constable Muharrir Shiv Ram Tiwari (PW-10). After registration of case, the witness signed chik FIR. He took over the investigation of the case just after its registration. He recorded statement of the informant on same day. The injured Ajay Singh was unconscious due to firearm injuries. He rushed immediately to hospital by Government vehicle alongwith informant to District Hospital, Ghazipur and sent other sub-inspectors and constables to place of occurrence. He admitted the injured to District Hospital, Ghazipur at 21:30 hours in the night but Doctors declared him dead. He got the dead body kept in the mortuary of the hospital from where death memo was sent to police station Kotwali. He also got medico legal examination of the informant conducted and mention its description in case diary. He sustained three injuries. He came back to police station and on account of death of the injured Ajay Singh and simple injuries of the witnesses, Section 302 and 323 IPC were added vide GD Report No.37, time 23:45 hours, dated 25.4.2013. He visited the place of incident alongwith the informant on 26.4.2013 and conducted spot inspection at the pointing out of the informant. He prepared site plan of the place of incident on which Ext.Ka-19 is marked. 22. He further stated that he had taken into possession four number of empty cartridges of .32 bore, two live cartridges of .32 bore, one live cartridge of 12 bore related to present case from the place of occurrence, in presence of witnesses Harihar Singh and Janardan Singh. He sealed the cartridges on the spot after preparing the specimen seal. 22. He further stated that he had taken into possession four number of empty cartridges of .32 bore, two live cartridges of .32 bore, one live cartridge of 12 bore related to present case from the place of occurrence, in presence of witnesses Harihar Singh and Janardan Singh. He sealed the cartridges on the spot after preparing the specimen seal. He has also prepared a recovery memo of these empty and live cartridges in presence of the witnesses in his hand writing and signature and also obtained signature of witnesses thereon. He proved the recovery meme as Ext.Ka20 by his evidence. He also prepared an inventory of blood stained and plain earth taken from the place of occurrence, which bears his signature as well as signature of witnesses on which Ext.Ka21 and Ka-22 is marked. The witness also proved seizure memo of two broken hockey sticks, total in four number of pieces, which bears signature of the witness and other witnesses, on which Ext.Ka-23 has been marked. The witness has also stated that on 28.4.2013, the investigation was taken over by S.I. Himendra Singh, due to his proceeding on leave. He tried to arrest accused Rakesh Singh from Delhi as he was posted there in Army. He again resumed investigation of the case after his arrival from leave on 6.5.2013. He received an information regarding surrender of accused Santosh Singh, Vimlesh Singh and Akhilesh Singh in the Court as accused Rakesh Singh had already been arrested. He recorded statement of these three accused persons at District Jail, Ghazipur with permission of the Court. On 6.5.2013, he obtained police custody remand of accused Rakesh Singh and on 7.5.2013, at his pointing out during police custody remand a motorcycle TVS Apache (Black Color), bearing Registration No. UP61J-9907 and one countrymade pistol of 7.65 bore was recovered in the vicinity of pump canal situated eastward of village Gahmar in presence of witnesses Sanjay Singh and Manoj Kumar. He prepared recovery memo under his hand writing and signature and obtained signature of witnesses thereon, Ext.Ka-12 is marked on this paper. He sealed this countrymade pistol in a clothe and prepared sample seal thereof. He prepared site plan of place of recovery of 7.65 bore firearm, which is marked as Ext.Ka-24. He also recorded statement of accused Rakesh Singh in Parcha No.11-A of case diary on same day. He sealed this countrymade pistol in a clothe and prepared sample seal thereof. He prepared site plan of place of recovery of 7.65 bore firearm, which is marked as Ext.Ka-24. He also recorded statement of accused Rakesh Singh in Parcha No.11-A of case diary on same day. On 1.5.2013, he obtained police custody remand of accused Vimlesh Singh, Santosh Singh and Akhilesh Singh and took them out from the jail for effecting the recoveries. On that day, one countrymade pistol of 0.12 bore was recovered on pointing out of accused Santosh Singh and he prepared its recovery memo under his writing and signature, on which Ext.Ka-13 is marked. This recovery was effected 100 meters eastward of said pump canal in Village Gahmar in presence of public witnesses namely Harendra and Satrudhan. He sealed the recovered firearm on the spot and prepared its specimen seal. He also prepared site plan of place of recovery on which Ext.Ka-25 is marked. He recovered a countrymade pistol of 0.32 bore used in the offence at the instance of accused Vimlesh Singh and prepared its recovery memo in his signature and writing in present of same witnesses on which Ext.Ka-15 is marked. He prepared site plan of place of recovery as one countrymade pistol was recovered at pointing out of accused Vimlesh on which Ext.Ka-26 is marked. Thereafter, he recovered one countrymade pistol of .315 bore in the vicinity of said pump canal on pointing out of accused Akhilesh Singh and took the same in his possession and prepared it recovery memo and sealed the firearm on the spot after preparing sample seal, Ext.Ka14 is marked on said recovery memo. The witness proved site plan of recovery memo of this firearm as Ext.Ka27 during his evidence. After effecting the recoveries, he produced three accused persons before jail and they were again taken into jail custody. He recorded statement of panch witnesses and other witnesses on 16.5.2013, 28.5.2013, 10.6.2013 and after finding sufficient evidence against accused persons for their prosecution, filed a chargesheet against all the four named accused persons under Sections 147, 148, 149, 302, 307, 504, 506 IPC and Section 7 of Criminal Law Amendment Act, on which Ext.Ka-28 is marked. The witness produced two small boxes containing blood stained and plain soil collected from place of incident before the Court on which material Ext.1, 2 and 3 was marked. The witness produced two small boxes containing blood stained and plain soil collected from place of incident before the Court on which material Ext.1, 2 and 3 was marked. He produced firearms allegedly recovered at the pointing out of accused persons separately before the Court, which was kept in sealed cover and were received back after ballistic examination, which are described as .12 bore countrymade pistol (ME-6), one countrymade pistol 7.65 mm (.32 bore) (ME-7), one pistol of 7.65 mm (ME-8) and one countrymade pistol (katta) (ME-9) .315 bore before the Court. He also produced two empty cartridges of .12 bore recovered from the place of incident, on which Material Ext.10 was marked. He also produced two empty cartridges and two bullets on which T.C.-5 and T.C.-6 was marked and proved the same as ME-11 and ME-12 was marked on the envelop. He produced two bullets and two empty cartridges kept in another envelop as ME-13 and ME-14. He produced one live cartridge of .12 bore Shaktiman before the Court recovered from the place of incident as ME-15 and four empty cartridges recovered from the spot and kept in an envelope on which E.C.-1, 2, 3 and 4 was marked and proved the same as ME-17 and ME-18 was marked on envelope. He also produced one lead slug and two wads (plastic) recovered from the dead body as ME-23 and two wad pieces as ME-24. He also proved extracts of G.D. dated 27.4.2013, report No. 9 time 7:15 AM, being in his hand writing and signature by comparing the same with the original as Ext.Ka-26. He proved inquest report of deceased Ajay Singh, authored by S.I. Deena Nath Dubey, as secondary evidence, on which Ext.Ka-3 is marked. The witness proved report of forensic science laboratory with regard to ballistic examination of firearms recovered in the case as Ext.Ka-33, Ka-34, Ka-35 and Ka-36 by his evidence. The witness stated that during spot inspection of place of incident he had not found any motorcycle or bicycle. He proved the police forms prepared by S.I. Deenanath Dubey, the author of inquest report in his absence as Ext.Ka-27 to Ka-30, regarding whom he stated that he had worked with him at police Station Gahmar at the time of incident and was acquainted with his writing and signature. In inquest report (Ext.Ka-3), no crime number is mentioned. He proved the police forms prepared by S.I. Deenanath Dubey, the author of inquest report in his absence as Ext.Ka-27 to Ka-30, regarding whom he stated that he had worked with him at police Station Gahmar at the time of incident and was acquainted with his writing and signature. In inquest report (Ext.Ka-3), no crime number is mentioned. In inquest report, it is not shown as to with which police station the case relates. There is overwriting at the beginning of the inquest proceeding in regard to date. The author of inquest report had not stated that any report was lodged at any police station with regard to said dead body. He prepared site plan at the pointing out of informant. House of informant is one storey, which is surrounded by a boundary wall towards north and westwards. A pitch road situates in the eastern and northern side of this boundary and is adjacent to the boundary wall. The accused were about two meters away from the deceased at the time of incident. Apart from the body of the deceased, he had not found any sign of firearm shot at any place during investigation. He was not apprised of the source of light during the incident. He had shown an electric poll in site plan but there is no mention of installation of any bulb or burning of light on the said place. He had not mention number of empty and live cartridges found on the place of incident in description of inspection of place of incident. He prepare site plan firstly and then recovery memo of cartridges. This case was registered in his presence. On the basis of recovery of an empty cartridge and live cartridges, he believes that the cartridges of 32 bore and 12 bore were used in the offence. He received bullet recovered from the body of the deceased in sealed cover and had not inspected the same by opening the seal. He sent the same for ballistic examination to Forensic Science Laboratory in sealed cover. He effected recovery of firearms from four accused persons namely Rakesh Kumar Singh, Santosh Singh, Vimlesh Singh and Akhilesh Singh by obtaining police custody remand from the Court. The witness denied the defence suggestion that in tool box of the motorcycle recovered at the pointing out of accused, it was not possible to keep firearm (ME-8). He effected recovery of firearms from four accused persons namely Rakesh Kumar Singh, Santosh Singh, Vimlesh Singh and Akhilesh Singh by obtaining police custody remand from the Court. The witness denied the defence suggestion that in tool box of the motorcycle recovered at the pointing out of accused, it was not possible to keep firearm (ME-8). He did not find any cartridge or empty at the time of recovery of ME-8 and a motorcycle was also recovered at the pointing out of accused Vimlesh and from its tool box, a countrymade pistol of 32 bore was recovered. The lock of motorcycle as well as of its tool box were found opened. There also is overwriting in timing of recovery on Ext.Ka-14 and Ka-15. He deposited the motorcycles and firearms recovered at the pointing out of accused persons at the police station. Section 302 and 323 IPC were added in penal sections vide GD report No.37, time 23:45 hours, dated 25.4.2013, after death of injured Ajay Singh because there were injured persons also and Section 323 IPC was left in chik FIR due to inadvertence. According to GD report No.9, time 17:15 AM, dated 27.4.2013, he recovered four empty cartridges and three live cartridges from the place of occurrence, as shown in the recovery memo. The case property produced before the Court does not consist of broken pieces of hockey sticks. He has proved two live and two empty cartridges and one bullet by his evidence, which are marked as Material Ext.10 to 17. He was not present at the time of inquest proceeding. 23. After conclusion of prosecution evidence, statement of accused persons have been recorded under Section 313 Cr.P.C., in which they have stated that the witnesses have falsely testified against them and the FIR is ante timed. PW-2, Shiv Shanker Singh also testified falsely as he is uncle of the informant. PW-3, Doctor Mohd. Jamil Ahmad, has prepared false injury report of Digvijay Singh and PW-5 has also prepared false injury report of Shiv Shanker Singh. PW-8, Dr. Pragati Kumar, who is also author of postmortem report, has also give false statement. PW-9, Constable Anand Rao has given false evidence under influence of his higher officers. All the police actions are wrongly carried out under influence of the informant. The witnesses have testified falsely against them. The investigation is tainted and result of undue influence of the informant. Pragati Kumar, who is also author of postmortem report, has also give false statement. PW-9, Constable Anand Rao has given false evidence under influence of his higher officers. All the police actions are wrongly carried out under influence of the informant. The witnesses have testified falsely against them. The investigation is tainted and result of undue influence of the informant. 24. Accused persons filed their written statement under Section 233 (2) Cr.P.C., wherein the accused Dhruvjeet Singh has stated that the injury reports of informant Digvijay Singh and his uncle Shiv Shanker Singh are fake and forged. In fact, they had not received any injury in the incident. The deceased was shot at by unknown persons and the witnesses were not present at that time. The accused and his sons are wrongly implicated in the case due to enmity and village partibandi. He had not met the deceased in the market on the fateful day, in fact, the accused and his sons are implicated in the case at the behest of Arvind Singh and his son Amrendra Singh @ Kishan Singh, who is posted in Army in view of his enmity with the accused persons on account of a case under Section 307 IPC instituted by accused Vimlesh Singh. Kishan Singh was companion and helper of deceased Ajay Singh. The informant, deceased and Kishan Singh were exerting pressure on accused persons to strike a compromise in said case of Section 307 IPC and on refusal of accused side to compromise that case, they harboured animosity with the accused persons and when Ajay Singh was shot at by unknown persons, the accused and his sons were roped in the case falsely. Similar written statements have been given by the other accused persons. Accused Vimlesh Singh has stated that Ajay Singh was killed in the darkness of night and the informant and Shiv Shanker Singh have assumed themselves as witness by procuring the injury reports, in which fake injuries are shown. All the four accused persons have denied to have made any recovery of vehicle or weapon of offence on their pointing out. Accused Rakesh Singh also stated that the weapon attributed to him cannot fit in the tool box of the motorcycle alleged to have been recovered on his pointing out. 25. The accused persons examined D.W.-1, Nagina Singh, in defence evidence, who stated that informant Digvijay Singh is his neighbour. Accused Rakesh Singh also stated that the weapon attributed to him cannot fit in the tool box of the motorcycle alleged to have been recovered on his pointing out. 25. The accused persons examined D.W.-1, Nagina Singh, in defence evidence, who stated that informant Digvijay Singh is his neighbour. He heard sound of firing in his shahen three years prior to his evidence before the Court. He rushed to the spot. It was 8:00 PM and there was no light in the village at that time. There was darkness. When he reached there, other people had also arrived there. He had seen Dhruvjeet Singh and his sons there. Ajay Singh was lying on the ground and had sustained firearm injury. He had not seen any other person present there having received firearm shot. He had not seen the persons who had shot the deceased as the assailants as they had already left the place. People who were there could not see the assailants. In cross-examination by the informant, this witness has stated that when he reached on the spot some people told him that Harihar and Ramveer Singh had shot the injured. He had not conversed with Dhruvjeet Singh and his sons in this matter. When he reached the spot, he had seen Dhruvjeet Singh and his four sons standing there. Uma Shanker Singh his a relative of Dhruvjeet Singh but he is not of same lineage, to which Dhruvjeet Singh belong. He entered in the hatha (compound) of Digvijay Singh from northern gate. This is wrong to say that he has falsely testified in the Court being cousin of Dhruvjeet Singh. 26. Feeling aggrieved by the judgement and order of learned trial court, by which the appellants have been convicted for said charges and sentenced, as stated herein above, filed present criminal appeal under Section 374 Cr.P.C. before this Court. 27. Learned counsel for the appellants submitted that the judgement and order passed by the learned trial court is illegal and bad in the eye of law. Learned trial court has miserably failed to appreciate the evidence on record in proper perspective and in fact has misread the evidence appearing on record. Thus, the learned trial court has recorded conviction of the appellants and sentenced them without considering the full facts and circumstances of the case. Learned trial court has miserably failed to appreciate the evidence on record in proper perspective and in fact has misread the evidence appearing on record. Thus, the learned trial court has recorded conviction of the appellants and sentenced them without considering the full facts and circumstances of the case. The weapon of offence allegedly recovered at the pointing out of accused persons during their police custody remand did not match with the empty cartridges allegedly recovered by the Investigating Officer from the place of incident, which also belies the complicity of accused persons in the offence. No specific role has been attributed to accused Dhruvjeet Singh in the offence except the allegation of exhorting his sons to attack the informant’s side. Nevertheless, he has also been convicted and sentenced in the same manner like his sons, who are attributed role of firing. In fact, entire prosecution version is manufactured and none of the accused persons have been involved in present murder case. The investigation is perfunctory and full of discrepancies. There is no consistency in the version of alleged eye-witnesses. In FIR no motive has been attributed to accused persons for committing the offence. However, in evidence this fact is developed in statement of witnesses that some altercation took place on the fateful day between accused Dhruvjeet Singh and the deceased in Gahmar market as the deceased had borrowed the motorcycle of his co-vi Arvind Singh, for visiting the marked in connection with some necessary purchasing as marriage of his cousin Archana Singh was scheduled on 29.4.2013 and Tilak Ceremony had already been performed. Dhruvjeet Singh got furious to this and he met the deceased in Gahmar market on that day in the evening and abused as well as threatened because he was inimical to Arvind Singh from whom deceased had borrowed motorcycle. This is hardly believable that a person would get the other, who is his co-villager, killed only on account of this weak motive that the deceased had borrowed motorcycle for carrying out some purchasing from a person with whom the accused side was inimical. 28. Learned counsel for the appellants submitted that the learned trial court failed to consider many anomalies in prosecution evidence. 28. Learned counsel for the appellants submitted that the learned trial court failed to consider many anomalies in prosecution evidence. As per the prosecution story, a countrymade pistol of .315 bore has been recovered from the pointing out of appellant No.2 Akhilesh Singh but the empty cartridge of .315 bore has not been recovered from the place of occurrence and as per the recovery memo dated 26.4.2013, prepared by Investigating Officer (Ext.Ka- 20), the empty cartridge of .32 bore had been found at the place of occurrence alongwith two live cartridge of .32 bore and one live cartridge of 12 bore. The appellants are not having any prior criminal history. They have been falsely implicated in the case. The appellant Rakesh Kumar Singh and Akhilesh Singh have undergone about 11 years of actual imprisonment in this case and appellant Vimlesh and Santosh have undergone about 8 years of actual imprisonment in this case. 29. Per contra, learned AGA appearing for the State submitted that the appellants have been convicted and sentenced by learned trial court on the basis of credible, cogent and ample evidence, which appeared on the record. All the facts, circumstances and evidence produced before the Court below were duly considered by the learned trial court while passing the impugned order, which is just, legal and proper and has been passed strictly in accordance with law after coming to the conclusion that the accused appellants committed the offence in question and which is proved beyond all reasonable doubt. This is a case of gruesome murder of an Army personnel who had visited his native place on leave to participate in marriage ceremony of his cousin. There was enmity between Kishan Singh and his father Arvind Singh and accused Vimlesh Singh. Accused Vimlesh Singh had lodged an FIR under Section 307 IPC against Kishan Singh and others and due to this criminal litigation, the accused side got enraged to find out the proximity of deceased with Arvind Singh and Kishan Singh. The appeals are devoid of merits and deserves to be dismissed. 30. Accused Vimlesh Singh had lodged an FIR under Section 307 IPC against Kishan Singh and others and due to this criminal litigation, the accused side got enraged to find out the proximity of deceased with Arvind Singh and Kishan Singh. The appeals are devoid of merits and deserves to be dismissed. 30. The prosecution case in nutshell which prosecution side claims to have proved on the basis of oral evidence, medical evidence and also by scientific evidence produced from Forensic Science Laboratory is that the informant Digvijay Singh (PW-1) lodged an FIR at police station Gahmar on 25.4.2013 at 20:40 hours by producing a written report (Ext.Ka-1) with averment that his elder brother Ajay Singh works in Bengal Engineering (Army), Pune on the post of Hawaldar. On 25.4.2013, the informant, his father Harivansh Singh, his uncle Shiv Shanker Singh (PW-2) and his brother Ajay Singh were talking together in the boundary of their house at 8:15 PM, the accused Dhruvjeet Singh appeared alongwith his four sons namely Rakesh Singh, Vimlesh Singh, Santosh Singh and Akhilesh Singh and exhorted his sons to kill informant’s side whereupon his sons opened fire indiscriminately on informant’s side wherein his elder brother Ajay Singh suffered firearm injuries on his chest and right hand he fell down in pool of blood. The informant ran to save him but Vimlesh Singh attacked him by butt of his firearm on his right ear which caused him injury. His uncle Shiv Shanker Singh also ran to save him but Akhilesh Singh and Santosh Singh, threw him on the ground and assaulted him by hockey sticks, which were lying nearby, badly. Thereafter, assailants fled away by two motorcycles towards east. The incident caused panic and terror in the locality (mohalla) and people shut their windows and doors having been scared. The informant stated during trial as PW-1 that after happening of the incident, he carried injured Ajay Singh to police Station by a motorcycle from the place of incident, which was driven by him and his brother Sanjay Singh was sitting on back side of the motorcycle. He moved for police station just after the 5 to 7 minutes of the incident. Any other person had not accompanied them. They stayed at police station for 10 minutes and they narrated the incident to Darogaji and thereafter they filed a written report of the incident. He moved for police station just after the 5 to 7 minutes of the incident. Any other person had not accompanied them. They stayed at police station for 10 minutes and they narrated the incident to Darogaji and thereafter they filed a written report of the incident. The reached police station at around 8:24 hours. They moved to District Hospital, Ghazipur alongwith injured Ajay Singh by a vehicle arranged by Darogaji and reached hospital at about 9:30 PM. They were also accompanied by Darogaji and two constables. His brother Sanjay Singh and some other persons also reached at District Hospital by another vehicle. Injured Ajay Singh died during journey or on his arrival at hospital in the night. This death is recorded in Police Station Kotwali Ghazipur on 22:10 hours (10:10 PM) on 25.4.2013. The case was initially lodged under Sections 147, 148, 149, 307, 504, 506 IPC and Section 7 of Criminal Law Amendment Act and after receiving death memo from the hospital, Section 302/323 IPC was added in penal section vide GD No.37, time 23:45 hours on 25.4.2013. The inquest on dead body of deceased was carried out by Kotwali police on 26.4.2013 between 11:00 AM to 12:13 PM and postmortem examination was done on same day at 2:00 PM, wherein five firearm injuries were detected, out of which two injuries were wound of entry and two injuries were wound of exit and one firearm injury on chest was not having corresponding exit wound. One metallic bullet 1cm X 1cm cylindrical in shape and 2 wads piece was recovered, which was stucked between intestine. PW-8, Dr. Pragat Kumar, who is author of postmortem report opined the cause of death as haemorrhagic shock as a result of antemortem firearm injuries. Medico legal examination of injuries of informant Digvijay Singh (PW-1) was conducted at District Hospital, Ghazipur on 25.4.2013, at 10:40 PM, in which three lacerated wound were detected on different parts of right ear, which were found fresh in duration and were of simple nature. Injury report of injured Shiv Shaker Singh (Ext.Ka-4) reveals that his medico legal examination was conducted on 26.4.2013 at CSC, Bhadaura, Ghazipur at 10:00 AM and four contusions were found on head, shoulder, forearm and face. These injuries were also found simple and their duration was one day old. Injury report of injured Shiv Shaker Singh (Ext.Ka-4) reveals that his medico legal examination was conducted on 26.4.2013 at CSC, Bhadaura, Ghazipur at 10:00 AM and four contusions were found on head, shoulder, forearm and face. These injuries were also found simple and their duration was one day old. Thus, the injury reports of injured Digvijay and Shiv Shanker Singh correspond to the date and time of death of deceased propounded in prosecution version. 31. Prosecution has examined the aforesaid injured witnesses namely Digvijay Singh and Shiv Shanker Singh, who are brother and uncle of the deceased in support of prosecution version as eye- witnesses. We are not inclined to subscribe the defence suggestion that as the injuries of PW-1 and PW-2 were found simple in their medico legal examination, these could be manufactured or manipulated in injury report. This fact is noticeable that medico legal examination of Digvijay Singh (PW-1) and Shiv Shanker Singh (PW- 2) has been conducted on injured memo (chitthi majroobi) issued by Ram Nihor Mishra (PW-11) under his signature, in which injuries of these injured are also corroborated the injuries mentioned in medico legal injury report prepared by Dr. Jamil Ahmad (PW3) and Dr. Naresh Prashad Chaudhari (PW-5), respectively. Although, no independent witness has been produced in support of prosecution version, yet the place of occurrence is established by evidence of eye-witnesses as Investigating Officer as compound of the house of the informant and deceased. The family members are inmates of the house and being injured witness also could be the natural witnesses and their presence cannot be doubted. This fact has also emerged during evidence that on fateful day deceased Ajay Singh had visited market for purchasing some goods as marriage of his cousin Archna Singh, who is daughter of his uncle and injured Shiv Shanker Singh, was fixed on 29.4.2013. He had borrowed motorcycle of one Arvind Singh of his mohalla for this purpose and this infuriated Dhruvjeet Singh as he thought that he was increasing proximity with Arvind Singh, to whom latter was having enmity due to previous litigation. The witnesses have also deposed that prior to the incident on same day Dhruvjeet Singh abused and assaulted the deceased in Gahmar market being enraged due to the fact that the deceased had borrowed motorcycle of his enemy (Arvind Singh). The witnesses have also deposed that prior to the incident on same day Dhruvjeet Singh abused and assaulted the deceased in Gahmar market being enraged due to the fact that the deceased had borrowed motorcycle of his enemy (Arvind Singh). Although, this fact has not been mentioned in FIR and has surfaced in sworn testimony of the witnesses before the Court yet the case being based on direct evidence of eye-witnesses, non introduction of motive in FIR itself will not be damaging to prosecution case, as the defence has nowhere suggested that there were no inimical relations between Arvind Singh and accused side. This fact has also emerged during evidence and has not been denied by defence that Kishan Singh, who is also a defence personnel, was accused in a criminal case lodged against him at the instance of accused Vimlesh Singh for attempt to commit murder. Kishan Singh had also come on leave at the time of this incident. Kishan Singh belong to caste of the informant and he admitted that they were having normal relationship. The PW-1 has also stated that he was four brothers in all, out of whom one Sanjay Singh had died during trial and the other Ajay Singh is deceased in this case. He has only one surviving brother namely Dhananjay Singh. Deceased visited his native place by taking leave of 4-5 days prior to the incident. Dhananjay Singh was also working somewhere else and he was not present on the date of incident. Informant has stated that he was working in Vodafone at Sultanpur at the time of incident and he came to his village two days prior to the incident. His father Harivansh Singh was also an ex-serviceman, who worked for sometime after retirement in Power House, Singrauli. There was only one motorcycle in his house, which was taken in the name of his brother Dhananjay Singh. Deceased went back to home on fateful day around 8:00 PM. The informant also came back to home at around 7:45 PM. He had gone on feet in the village and came back to home. The main exit of his house is towards north and a pathway is adjacent to his exit. The accused Dhruvjeet Singh was blessed with five sons, out of whom four are accused in the case and fifth is Toofani. He had gone on feet in the village and came back to home. The main exit of his house is towards north and a pathway is adjacent to his exit. The accused Dhruvjeet Singh was blessed with five sons, out of whom four are accused in the case and fifth is Toofani. Accused Rakesh was also serving in Army and come to his native place on leave. Toofani was on his duty at the time of incident. Thus, the investigation in the case was carried out by PW-11, S.H.O. Ram Nihor Mishra. The witnesses have also stated that Harivansh Singh, the father of deceased, was present on the spot but he was physically invalid and could hardly pursue his daily chores. 32. So far as the sufficiency of motive is concerned, there may be force in defence argument that the motive introduced in prosecution evidence is not so strong as to drive the accused persons to commit a heinous offence like murder. Learned counsel for the appellant contended that only due to the fact that the deceased had borrowed motorcycle of a person with whom accused side was on inimical terms will not be a driving force for the accused side to kill the deceased. The law is well settled that in a case based on direct evidence of eye-witnesses, absence or insufficiency of motive loses its significance to much extent. Hon’ble Apex Court in recent judgement of Shankar vs. State of Maharashtra, passed on 15.3.2023 in Criminal Appeal No.954 of 2011, observed that is is also settled law that the motive loses all its importance in a case where direct evidence of eye-witnesses is available. 33. In Shivaji Chintappa Patil vs The State Of Maharashtra also Apex Court held that “Though in a case of direct evidence, motive would not be relevant, in a case of circumstantial evidence, motive plays an important link to complete the chain of circumstances. In the present case, the motive introduced in evidence of witnesses has been proved by evidence and the case being based on direct evidence, we are not inclined to explore the sufficiency of motive introduced and proved in prosecution evidence.” 34. In the present case, the motive introduced in evidence of witnesses has been proved by evidence and the case being based on direct evidence, we are not inclined to explore the sufficiency of motive introduced and proved in prosecution evidence.” 34. FIR in present case has been lodged with utmost promptitude as the date and time of occurrence shown in FIR as well as in evidence of prosecution witnesses is shown as 25.4.2013, at 20:15 hours and the FIR has been lodged within half an hour of the incident. In Chik FIR (Ext.Ka-4), the distance of police station from place of occurrence is shown as 1 kms only due to the fact that FIR has been lodged with utmost promptness, it cannot be treated as ante time as contended during submissions of appellant’s counsel. There is nothing on record which could form basis to arrive at an inference that the FIR is ante time. There is an endorsement in heading of original copy of FIR (Ext.Ka-4) that vide GD report No.37, time 23:45 hours, dated 25.4.2013, Section 302/323 IPC is added. Therefore, we do no interpolation in FIR. The prosecution case can not be doubted only due to the certain facts which are later on introduced in evidence of eye-witnesses are missing in FIR. These facts does not form part of the incident as such. Hon’ble Supreme Court in Ashabai Machindra Adhagale vs State Of Maharashtra & Ors, AIR 2009 SC 1973 , held that it is well settled that a first information report is not an encyclopaedia which must disclose all facts and details relating to the offence reported. 35. So far as the place of occurrence is concerned, in FIR itself, it is stated that the occurrence took place within the four corners of the house of the informant where he was sitting with his brother deceased Ajay Singh, uncle Shiv Shankar Singh and father Harivansh Singh and accused persons arrived there suddenly, who are appellants before this Court, opened fire causing fatal injuries to deceased Ajay Singh at 8:15 PM, who later succumbed to injuries within few hours of the incident at District Hospital, Ghazipur for his hospitalization. The place of occurrence is also proved by evidence of PW-11, S.H.O. Ram Nihor Mishra, who has proved site plan/sketch map of the place of occurrence prepared on pointing out of the informant and marked as Ext.Ka-19 by the evidence of Investigating Officer. The place of occurrence is shown in the site plan as ‘sehan’ of the informant where injured was shot at. The Investigating Officer also took into possession four pieces of two hockey sticks from the place of occurrence and collected four empty cartridge shells and one .12 bore live cartridge, two live cartridges .32 bore and took these in his possession. The suggestion has been given to PW-2 from defence side during cross-examination that Ajay Singh was shot at in the darkness of night by some unknown person and no such occurrence as propounded by prosecution occurred. Eye-witnesses have stated in their evidence that deceased sustained three firearm shots in the incident. PW-2 has clarified during cross-examination that the deceased suffered firearm shots while standing and thereafter he fell down. He was east facing when the occurrence took place. He was shot at by the pistol and katta (countrymade pistol). The place of occurrence shown and proved by prosecution in the case also finds support from evidence of DW-1, Nagina Singh, who stated in his examination-in-chief that firearm was shot in the sehan of Digvijay Singh (PW-1). He rushed to the place on hearing sound of firearm shot at that time. It was 8:00 PM. There was no light in the village. Some other persons also reached there. Dhruvjeet Singh and his all the sons present there. Ajay Singh was lying on the ground having suffered firearm shot. He could not see the assailants as they had run away. In cross- examination on behalf of the informant, he stated that deceased was carried to hospital by a Bolero Jeep on arrival of police. He heard that Harihar Singh and Ram Briksh Singh had shot the deceased on the place of incident. Had some other persons would have shot the deceased, the informant, who is real brother, must have named them in his written report (Ext.Ka-1). Hon’ble Supreme Court in State of U.P. v. Naresh, reported in (2011) 4 SCC 324 , held as under:- “The evidence of an injured witness must be given due weightage being a stamped witness, thus, his presence cannot be doubted. Hon’ble Supreme Court in State of U.P. v. Naresh, reported in (2011) 4 SCC 324 , held as under:- “The evidence of an injured witness must be given due weightage being a stamped witness, thus, his presence cannot be doubted. Thus, the testimony of an injured witness is accorded a special status in law. The witness would not like or want to let his actual assailant go unpunished merely to implicate a third person falsely for the commission of the offence.” 36. Hon’ble Supreme Court in Dalip Singh And Others vs State Of Punjab, AIR 1953 SUPREME COURT 364, held as under: “A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity against the accused, to wish to implicate him falsely. Ordinarily, a close relative would be the last to screen the real culprit and falsely implicate an innocent person. It is true, when feelings run high and there is personal cause' for enmity, that there is a tendency to drag in an innocent person against whom a witness has a grudge along with the guilty, but foundation must be laid for such a criticism and the mere fact of relationship far from being a foundation is often a sure guarantee of truth. However, we are not attempting any sweeping generalisation. Each case must be judged on its own facts. Our observations are only made to combat what is so often put forward in cases before us as a general rule of prudence. There is no such general rule. Each case must be limited to and be governed by its own facts.” The aforesaid dictum of Supreme Court was followed in case of Bur Singh vs. State of Punjab, AIR 2009 SC 157 . 37. Even from evidence of DW-1, the place of occurrence is proved and statement of DW-1 lends support to prosecution case to some extent as he stated that he found accused persons on place of incident soon after the incident. 37. Even from evidence of DW-1, the place of occurrence is proved and statement of DW-1 lends support to prosecution case to some extent as he stated that he found accused persons on place of incident soon after the incident. Thus, in present case of direct evidence based on eye-witnesses examined on behalf of the prosecution, the evidence of defence witness can be used for limited purpose only for lending assurance to the conclusion already drawn on the basis of evidence of eye-witnesses regarding presence of all the accused persons on the place at the time of incident. Even DW-1 has stated that he visited the sehan of the informant at around 8:00 PM, which is the time of incident in prosecution version. 38. Hon’ble Apex Court in Jarnail Singh vs. State of Punjab, (1996) 1 SCC 527 , observed that in “criminal cases the burden of proving the guilt of the accused beyond all reasonable doubts always rests on the prosecution and, therefore, if it fails to adduce satisfactory and reliable evidence to discharge that burden it cannot fall back upon the evidence adduced by the accused persons in support of their defence to rest its case solely thereupon. In the instant case, however, we find that the learned Courts below made use of the evidence of D.W.5 only for lending assurance to the conclusions already drawn by the learned Courts on the basis of the evidence of P.Ws 4 and 6. Such a course is legally and legitimately permissible, for D.W.5 was subjected to cross-examination - and in fact cross-examined - at the instance of the appellants after being cross examined by the Public Prosecutor. That the appellant could not elicit any answer in his favour thereby would not alter the position as regards the admissibility. relevancy or worth of the evidence of the above witness.” 39. We find no force in submissions of learned counsel for the appellants that as the injuries of PW-1 and PW-2 were of simple in nature and they did not suffer any firearm injury during the incident, their presence on the spot is doubted. The witnesses have stated that prior to some time of the incident, some altercation took place between accused Dhruvjeet Singh and deceased in the market with regard to borrowing of motorcycle by the deceased from his enemy namely, Arvind Singh. The witnesses have stated that prior to some time of the incident, some altercation took place between accused Dhruvjeet Singh and deceased in the market with regard to borrowing of motorcycle by the deceased from his enemy namely, Arvind Singh. The indignation of the accused side was on account of conduct of the deceased and this could have driven them to target the deceased and the informant and his uncle were assaulted only when they intervened to save the deceased. There was no intention of the accused persons to kill or cause fatal injuries to witnesses, thus, only due to the fact that the witnesses have not sustained any serious injury which would dangerous to life or some firearm injury, it cannot be inferred that they were not present on the spot and they had not seen the occurrence. 40. From perusal of record and evidence of PW-11, the Investigating Officer of the case, it appears that named accused Rakesh Singh was arrested in New Delhi from his place of posting as he was also an Army personnel. The Investigating Officer filed a report before his Superior Officer for seeking permission to arrest him and after completion of formalities, he was arrested on 1.5.2013 and was produced before the Court from where he was remanded to custody in present case on 3.5.2013. After his arrest, the Investigating Officer sought the police custody remand for recovery of motorcycle and pistol used in commission of the offence. Similarly, other accused persons, who are projected as assailants in the case namely, Vimlesh Singh, Akhilesh Singh and Santosh Singh surrendered before the Court. The Investigating Officer recorded their statement under Section 161 Cr.P.C. in jail and sought their police custody remand for recovery of weapon used in the commission of offence, which was allowed by the court of CJM, Ghazipur vide order dated 10.5.2013. The Investigating Officer recovered one motorcycle TVS Apache (black color), by which the appellant Rakesh Singh and his brother Santosh Singh fled after commission of the offence and concealed the same in dense shrubs lying nearby pump canal towards east of village Gahmar and one country made pistol of 7.65 bore used in the commission of offence was recovered from its tool box in presence of public witnesses namely Sanjay Singh and Manoj Kumar Singh. The Investigating Officer has proved the recovery memo of this motorcycle and firearm by his evidence on which Ext.Ka-12 has been marked. Similarly, the Investigating Officer recovered a motorcycle CBZ during police custody remand of accused Vimlesh Kumar Singh at the pointing out of said Vimlesh Kumar Singh, which was also concealed in the same locality from where the weapon of offence and one motorcycle used in the commission of offence was recovered at the instance of accused Rakesh Singh on 7.5.2013. Accused Vimlesh Kumar Singh inserted his right hand in the tool box of said motorcycle and took out a countrymade pistol of 32 bore and handed over the same to the Investigating Officer. This motorcycle is alleged to have been used by Vimlesh Kumar Singh and his brother Akhilesh Singh while fleeing away from the village after commission of the offence. The Investigating Officer proved this recovery memo as Ext.Ka-15. The Investigating Officer also recovered a countrymade pistol of 315 bore on pointing out of accused Akhilesh Singh after obtaining his police custody remand vide order dated 10.5.2013 of learned CJM, Ghazipur, on 11.5.2013, which was also recovered from the same locality. Thus, one TVS Apache motorcycle and pistol of 7.65 mm bore, which is said to be countrymade has been recovered on the pointing out of accused Rakesh Singh on 7.5.2013 and three firearms are recovered on 11.5.2013 at the pointing out of other accused persons on 11.5.2013 during their police custody remand. The recovery memos are proved by the Investigating Officer during his evidence before the Court. These recoveries are preceded by the statement of concerned accused persons recorded in case diary under Section 161 Cr.P.C. However, the Investigating Officer has admitted that he has not recorded separate disclosure statements of the accused persons for effecting recovery of the weapons of offence and the vehicles used by the accused persons for making good their escape after commission of offence. The Investigating Officer has also proved the seizure memo of four empty cartridges of 32 bore and two live cartridges of 32 bore and one live cartridge of 12 bore from the place of occurrence at the time of his local inspection in the morning of 26.5.2013 as Ext.Ka-20. The Investigating Officer has also proved the memo of taking into possession of four pieces of hockey sticks recovered from the place of occurrence as Ext.Ka-23. 41. The Investigating Officer has also proved the memo of taking into possession of four pieces of hockey sticks recovered from the place of occurrence as Ext.Ka-23. 41. If we look into postmortem report of the deceased, we find that deceased suffered five firearm injuries on his person, out of which injury No.2 is exit wound of injury no.1 and injury no.5 is exit wound of injury no.4. Injury No.3, which is detected on chest of the deceased is not having any corresponding exit wound and for that reason, one cylindrical metallic bullet of 1cm X 1cm was recovered between his intestine during postmortem examination on dead body of the deceased. This was wound of entry of 1.2cm X 1.1cm. Its margin was inverted. This injury caused damage to intestine and kidney of the deceased. Injury no.1, which is firearm injury 1cm X 1cm in circular shape on chest of the deceased and Injury No.2 is wound of exit of 2.0cm X 2.1cm at left side of back of chest. Injury no.4 is firearm injury of 09cm X 09.cm on right arm and injury no.5 was found on knee of right arm, which is wound of exit. Thus, this fact has been proved by evidence of eye-witnesses and medical evidence that the deceased had received three firearm injuries in the incident, which proved fatal and he succumbed to the injuries within few hours of receiving the same. This fact also emerged in evidence that profuse bleeding occurred from the wounds which expedited the death. 42. The prosecution evidence with regard to place of occurrence is also fortified by the report of forensic science laboratory dated 8.7.2013, in which it is stated that in sealed boxes having plain earth and blood stained earth, large part of Item No.1 (mitti khoonaluda) blood stains were found. Four pistols purportedly recovered from accused persons on their pointing out alongwith four number of empty cartridges of 7.65 mm KF, two live cartridges of 7.65 mm KF and one live cartridge of .12 bore, shown in recovery memo Ext.Ka- 20 and one led slug (ball shot), and two number of wads (plastic) were sent for ballistic examination through Cricle Officer, Zamania, District Ghazipur to forensic science laboratory, Mahanagar Lucknow. The ballistic expert in his report (Ext.Ka-33) dated 27.5.2017 has stated that the disputed 7.65 mm cartridges marked as EC-1 to EC-4 (recovered from place of occurrence as empty cartridges) were found to have been shot by pistol marked as 3/25 of 2015. This pistol is shown to have been recovered from accused Rakesh Singh. Let slug (ball shot) marked as B-1 connected with PM No.186/2013 was used in 12 bore standard cartridge used in smooth barrel firearm and wads (tikli) marked as W-1 and W-2 are part of .12 bore cartridge. This shows that all the four used cartridges recovered from place of occurrence by Investigating Officer on 26.4.2013 got matched with firearm of 7.65 mm pistol, which is alleged to have been recovered from accused Rakesh Singh. One led slug (ball shot) recovered during post mortem examination of deceased from seat of his injury No.3 was part of standard cartridge of 12 bore. Similarly. The plastic wads recovered from seat of injury No.2 were also part of 12 bore cartridge as shown in ballistic expert’s report. As no other empty cartridge was recovered from place of occurrence during investigation and all the empties recovered there from matched with the gun recovered on pointing out of accused Rakesh Singh, the firearms recovered on pointing out of other accused persons could not be matched by any empty cartridge shells. However, one metallic bullet of 1cm X 1cm cylindrical in shape, mentioned in postmortem report and having been recovered from seat of injury No.3 of the deceased, which was found stucked in between intestines, is found to have been used in standard cartridge of .12 bore. If we go through the recovery memos of firearms, which were recovered at the pointing out of accused persons, we find that one .12 bore country made pistol was recovered from accused Santosh Singh during his police custody remand on his pointing out, thus, on the basis of the scientific evidence emerging from report of ballistic expert, this lead slug which is shown as metallic bullet in postmortem examination report can safely be attributed to accused Santosh Singh, which would have been emitted from the firearm of 12 bore recovered from his pointing out during his police custody remand on 11.5.2013. His active participation in the offence is also fortified with the fact that in FIR version as well as in statement of the witnesses namely, PW-1 Digvijay Singh and PW-2 Shiv Shanker Singh, this fact emerged that Akhilesh Singh and Santosh Singh lifted and dashed PW-2 Shiv Shanker Singh on ground when he tried to save the informant while being assaulted by accused Vimlesh Singh by butt of his weapon and thereafter both accused Akhilesh and Santosh Singh gave beating to him by hockey sticks which were lying nearby the place of incident. In ballistic examiner’s report (Ext.Ka-33), it is stated that one piece of lead slug (ball shot) marked by B-1 was made of lead metal and it was partially disfigured. Its diameter was 17mm and signs of collision/striation, tiny parallel grooves were visible. Thus, on the basis of recovery of 12 bore firearm at the pointing out of accused Santosh Singh, injury No.3 of the deceased, as appearing in postmortem report, appears to have been caused by accused Santosh Singh by his 12 bore katta (country made firearm) on the basis of recovery of partially disfigured lead slug from the seat of injury No.3 during postmortem examination. In recovery memo of firearms Ext.Ka-13 (at the instance of accused Santosh Singh), Ext.Ka-14 (at the instance of accused Akhilesh Singh, Ext.Ka-15 (at the instance of accused Vimlesh Singh, two public witnesses namely Satrudhan Singh and Harendra Singh are enjoined as witnesses of recovery and in recovery memo of accused Rakesh Singh (Ext.Ka-12) public witnesses namely, Manoj Kumar Singh and Sanjay Kumar Singh are enjoined. Although, they were not produced during trial to prove these recovery memos and same are proved by evidence of PW-9 Anand Rao and are exhibited by his evidence. Subsequently, this recovery memos are also proved by evidence of Investigating Officer, S.H.O. Ram Nihor Mishra, who has given details of the process of recovery of these firearms by police team headed by him. These recoveries are preceded by recording of statements of four accused persons under Section 161 Cr.P.C. by the Investigating Officer during their custody. 43. Subsequently, this recovery memos are also proved by evidence of Investigating Officer, S.H.O. Ram Nihor Mishra, who has given details of the process of recovery of these firearms by police team headed by him. These recoveries are preceded by recording of statements of four accused persons under Section 161 Cr.P.C. by the Investigating Officer during their custody. 43. Statement of PW-2, Shiv Shanker Singh during trial to the effect that just after the incident, informant Digvijay Singh carried the deceased to police station on motorcycle, which he drove himself and deceased was got seated behind him and he was held by Sanjay Singh, this statement was corroborated by extracts of GD of registration of case at police station vide report No.32, time 20:40 hours, dated 25.4.2013, Police Station Gahmar, which is proved by PW-10, the author of this GD entry as Ext.Ka-17 and in this extract of GD, it is mentioned that at 20:40 hours, dated 25.4.2013, Digvijay Singh, son of Harivansh Singh, resident of Village- Gahmar Patti Khemanrai, Police Station Gahmar, District- Ghazipur, appeared alongwith injured Ajay Singh, who is his brother and produced one written report under his hand writing and signature, on the basis of which chik FIR has been registered vide Crime No.136 of 2013, under Sections 147, 148, 148, 307, 504, 506 IPC and Section 7 of Criminal Law (Amendment) Act. Time of occurrence is 20:15 hours, dated 25.4.2013 and place of occurrence is Village- Patti Khemanrai, which is one kilometre far from Police Station Gahmar. In this GD entry (Ext.Ka-17), injuries of injured Ajay Singh and informant Digvijay Singh are mentioned. In Ext.Ka18, which is extract of GD report No.37, time 23:45 hours, dated 25.4.2013, S.O. Ram Nihor Mishra (PW-11) has mentioned that he was taking injured Ajay Singh to district hospital, Ghazipur for treatment but he died on way due to injuries suffered and he placed the dead body in mortuary and came back to police station alongwith informant Digvijay Singh. He also mentioned therein that Section 302 and 323 IPC is added in penal sections mentioned in chik FIR. 44. In present criminal appeals, only appellant Dhruvjeet Singh has been enlarged on bail by orders of this Court and other convicts/appellant are held in jail custody and undergoing sentence awarded in impugned judgement. He also mentioned therein that Section 302 and 323 IPC is added in penal sections mentioned in chik FIR. 44. In present criminal appeals, only appellant Dhruvjeet Singh has been enlarged on bail by orders of this Court and other convicts/appellant are held in jail custody and undergoing sentence awarded in impugned judgement. In FIR itself, the informant has stated that he has come to police station to lodge the FIR together with his elder brother Ajay Singh, who is injured. There is some inconsistency in the statement of PW-1 and PW-2 regarding mode and manner in which the deceased was taken to police station after the incident. PW-1 has stated in his cross-examination that after the incident he rushed to the police station alongwith Sanjay Singh by motorcycle driven by him. They stayed at police station for ten minutes whereas PW-2 has stated that the deceased was taken to police station in injured condition by laying him on motorcycle driven by PW-1 and Sanjay Singh, who appears to be brother of the informant and deceased, who was pillion rider but this fact is proved by documentary evidence that deceased was produced at police station at the time of lodging of FIR. This fact is also proved by ocular testimony of PW-1 and PW-2 as well as antemortem injuries of the deceased that he sustained three firearm shots and total five antemortem injuries as two wounds of entry were coupled with wounds of exit, as discussed above. This fact also appeared in evidence that blood oozed out from the injuries and it was found on the spot. PW-1 clarified in his evidence that his clothes got smeared with blood of his brother and he had shown his blood stained clothes to Darogaji but he could not tell as to whether any documentation thereof was made by him. In any manner this may be a specie of faulty investigation. A suggestion has been given by learned counsel for the defence during cross-examination of both the witnesses of fact that the deceased was killed in darkness of night by unknown person and accused persons are roped in due to village partibandi at the behest of Kishan Singh against whom accused side is litigant. Witnesses have denied this suggestion outrightly. A suggestion has been given by learned counsel for the defence during cross-examination of both the witnesses of fact that the deceased was killed in darkness of night by unknown person and accused persons are roped in due to village partibandi at the behest of Kishan Singh against whom accused side is litigant. Witnesses have denied this suggestion outrightly. PW-1 has admitted in cross-examination that his statement was taken by Investigating Officer thrice and some contradiction are bound to occur yet no material contradiction could be noticed by us in the sworn testimony of the witnesses and their previous statement recorded by Investigating Officer. The informant Digvijay Singh (PW-1) has stated in FIR as well as in his evidence before the Court that accused Vimlesh Sing assaulted him by butt of his weapon on his ear due to which he got injured and when his uncle Shiv Shanker Singh came to his rescue, Akhilesh Singh and Santosh Singh thrown him on ground and assaulted him by hockey sticks. Thus, the witness has been confronted with wrong question during cross-examination that he had not stated in his FIR that Shiv Shanker Singh was assaulted by accused persons by hockey sticks and he has stated that his fact is narrated by him in Ext.Ka-1. Statement of PW-1 that he was assaulted by accused Vimlesh by butt of his weapon remained intact for want of cross-examination on this score from accused side. He has also stated that he had seen pistol/katta in the hands of accused persons. However, he had used word ‘weapon’ in his FIR. From perusal of FIR itself, it appears that the informant meant for firearms where he used words ‘illegal weapons’ because he has stated therein that on exhortation of Dhruvjeet Singh his four sons engaged in indiscriminate firing by their weapons on informant’s side in which his elder brother Ajay Singh received serious injuries. Thus, there is no doubt that the informant meant firearms where he used word ‘weapon’ in FIR and he has clarified this in his evidence during trial. Thus, there is no doubt that the informant meant firearms where he used word ‘weapon’ in FIR and he has clarified this in his evidence during trial. Hon’ble Apex Court in Mukesh and Another vs. State for NCT of Delhi and others, AIR 2017 SC 2161 (Three Judge Bench) (Nirbhaya rape and murder case) observed that if there are no material discrepancies and contradiction in the testimony of a witness, his evidence cannot be disbelieved merely on the basis of some normal, natural or minor contradictions, inconsistencies, exaggerations, embellishment etc. The distinction between material discrepancies and normal discrepancies are that the minor discrepancies do not corrode the credibility of a party’s case but material discrepancies doe so. In present case, the contradictions and discrepancies pointed out in the statement of the witnesses of fact by defence side are not of such nature that it could be termed as material contradictions or discrepancies in their statements. This is settled law that testimony of a witness before the Court can be contradicted by his own previous statement and not by the previous statement of another witness. 45. So far as the allegations and proof of recovery of firearms during police custody remand of accused Rakesh Singh, Santosh Singh, Akhilesh Singh and Vimlesh Singh, who are real brothers at their pointing out, is concerned, the recoveries are effect by PW-11, the Investigating Officer and police team in presence of public witnesses as stated in his evidence as well as in recovery memo but it appears that the public witnesses were not forthcoming to testify the factum of recovery of firearms at pointing out of the accused persons and, therefore, the recovery has been proved by the evidence of police witnesses in the case. There is no legal mandate that in absence of the testimony of public witnesses of recovery or discovery of fact effected during police custody at the instance of accused on the basis of his disclosure statement under Section 27 of Evidence Act, the testimony of police witnesses which is otherwise not disbelievable will not be considered. In Mukesh Singh and Another vs. State For NCT of Delhi (supra), Hon’ble Apex Court observed as under:- 83. In this context, we may fruitfully reproduce a passage from State of U.P. v. M.K. Anthony:- “10. In Mukesh Singh and Another vs. State For NCT of Delhi (supra), Hon’ble Apex Court observed as under:- 83. In this context, we may fruitfully reproduce a passage from State of U.P. v. M.K. Anthony:- “10. While appreciating the evidence of a witness, the approach must be whether the evidence of the witness read as a whole appears to have a ring of truth. Once that impression is formed, it is undoubtedly necessary for the court to scrutinise the evidence more particularly keeping in view the deficiencies, drawbacks and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence given by the witness and whether the earlier evaluation of the evidence is shaken as to render it unworthy of belief. Minor discrepancies on trivial matters not touching the core of the case, hyper- technical approach by taking sentences torn out of context here or there from the evidence, attaching importance to some technical error committed by the investigating officer not going to the root of the matter would not ordinarily permit rejection of the evidence as a whole. …” 84. In Harijana Thirupala v. Public Prosecutor, High Court of A.P., it has been ruled that: “11. …. In appreciating the evidence the approach of the court must be integrated not truncated or isolated. In other words, the impact of the evidence in totality on the prosecution case or innocence of the accused has to be kept in mind in coming to the conclusion as to the guilt or otherwise of the accused. In reaching a conclusion about the guilt of the accused, the court has to appreciate, analyse and assess the evidence placed before it by the yardstick of probabilities, its intrinsic value and the animus of witnesses.” 85. In Ugar Ahir v. State of Bihar, a three-Judge Bench held: “7. The maxim falsus in uno, falsu in omnibus (false in one thing, false in everything) is neither a sound rule of law nor a rule of practice. Hardly one comes across a witness whose evidence does not contain a grain of untruth or at any rate exaggerations, embroideries or embellishments. It is, therefore, the duty of the court to scrutinise the evidence carefully and, in terms of the felicitous metaphor, separate the grain from the chaff. Hardly one comes across a witness whose evidence does not contain a grain of untruth or at any rate exaggerations, embroideries or embellishments. It is, therefore, the duty of the court to scrutinise the evidence carefully and, in terms of the felicitous metaphor, separate the grain from the chaff. But, it cannot obviously disbelieve the substratum of the prosecution case or the material parts of the evidence and reconstruct a story of its own out of the rest.” 46. Hon’ble Supreme Court in State of Maharashtra vs. Bharat Fakira Dhiwar (Criminal Appeal No.1246 of 1997), placed reliance on a case of State of H.P. vs. Jeet Singh, reported in (1999) 4 SCC 370 , wherein held as under:- "26. There is nothing in Section 27 of the Evidence Act which renders the statement of the accused inadmissible if recovery of the articles was made from any place which is "open or accessible to others". It is a fallacious notion that when recovery of any incriminating article was made from a place which is open or accessible to others, it would vitiate the evidence under Section 27 of the Evidence Act. Any object can be concealed in places which are open or accessible to others. For example, if the article is buried in the main roadside or if it is concealed beneath dry leaves lying on public places or kept hidden in a public office, the article would remain out of the visibility of others in normal circumstances. Until such article is disinterred, its hidden state would remain unhampered. The person who hid it alone knows where it is until he discloses that fact to any other person. Hence, the crucial question is not whether the place was accessible to others or not but whether it was ordinarily visible to others. If it is not, then it is immaterial that the concealed place is accessible to others. 27. It is now well settled that the discovery of fact referred to in Section 27 of the Evidence Act is not the object recovered but the fact embraces the place from which the object is recovered and the knowledge of the accused as to it. The said ratio has received unreserved approval of this Court in successive decisions. 27. It is now well settled that the discovery of fact referred to in Section 27 of the Evidence Act is not the object recovered but the fact embraces the place from which the object is recovered and the knowledge of the accused as to it. The said ratio has received unreserved approval of this Court in successive decisions. (Jaffar Hussain Dastagir v. State of Maharashtra [ (1969) 2 SCC 872 ], K. Chinnaswamy Reddy v. State of A.P. [ AIR 1962 SC 1788 ], Earabhadrappa v. State of Karnataka [ (1983) 2 SCC 330 ], Shamshul Kanwar v. State of U.P. [ (1995) 4 SCC 430 ], State of Rajasthan v. Bhup Singh [ (1997) 10 SCC 675 ])." 47. Charges were framed by learned trial court on 10.3.2014 in Hindi in following manner:- 48. From a bare perusal of charge No.4th, it appears that the learned trial court framed that charge under impression that the informant was assaulted by the accused persons in prosecution of common object on his right ear with intention and knowledge to cause his death and if by that injury, he would have died, they would be guilty of charge of murder. Learned trial court has not discussed in impugned judgement as to how the said charge has been proved in the case. The injuries of informant (PW-1) Digvijay Singh are found to be simple in his injury report by its author Dr. M.J. Anwar (PW-3), who proved this injury report as Ext.Ka-2 by his evidence. He categorically stated in his evidence that the injury was of simple nature. It was caused by hard and blunt object. All the three injuries were found on same place of right ear. The injuries were not bone deep. He has not mentioned oozing of blood from the injury on ear of the injured. It has come in evidence of the injured PW-1 that when he rushed to save his brother Ajay Singh when he fell down on being shot by the accused persons, accused Vimlesh Singh hit him on his right ear by the butt of his pistol. The butt of a pistol is a hard and blunt object. It has come in evidence of the injured PW-1 that when he rushed to save his brother Ajay Singh when he fell down on being shot by the accused persons, accused Vimlesh Singh hit him on his right ear by the butt of his pistol. The butt of a pistol is a hard and blunt object. Thus, neither the nature of injury nor the impact of injury suggests that accused Vimlesh Singh had assaulted PW-1 by the butt of his pistol by knowledge to kill him and had it been so, he would tried to fire a shot at him and would not use the blunt portion of the firearm to hit PW-1, that too by solitary impact. The charge under Section 307/149 IPC is neither made out nor proved in the case. However, keeping in view the recovery evidence of firearms, which is preceded by disclosure statement of four accused persons namely, Rakesh Kumar Singh, Vimlesh Singh, Santosh Singh and Akhilesh Singh, in this regard, is found to be corroborated by Investigating Officer under Section 161 Cr.P.C. during their police custody remand and sanction for prosecution granted by District Magistrate in exercise of powers under Section 39 of Arms Act vide order dated 10.6.2013, which is proved by evidence of Investigating Officer, Ram Nihor Mishra (PW-11); Charge under Section 25 of Arms Act is proved beyond reasonable doubt against all the four accused persons. There is evidence to the effect that on their pointing out a TVS Apache motorcycle used in escaping of accused Rakesh Kumar Singh and Santosh Singh after this incident and recovery of a pistol of 7.65 mm bore, on which ‘MADE IN USA’ was written and this pistol matched with four empty cartridges recovered from place of occurred by Investigating Officer. Charge under Section 25 of Arms Act has been proved against accused Rakesh Kumar Singh. Similarly, charge under Section 25 Arms Act has been proved against accused Santosh Singh, Akhilesh Singh and Vimlesh Singh on account of proof of recovery of one country made pistol of 12 bore on pointing out of accused Santosh Singh, one countrymade pistol of .315 bore on pointing out of accused Akhilesh Singh and one CBZ motorcycle used in abscondance of accused Vimlesh Singh and Akhilesh Singh after the incident and one country made pistol of 32 bore recovered on1 1.5.2013, on pointing out of accused Vimlesh Singh. 49. 49. In present case, five accused persons who include Dhruvjeet Singh, the father and his four sons are attributed role of causing murder of deceased Ajay Singh, who was brother of the informant by creating riot by forming unlawful assembly on the date, time and place of incident having armed with firearms. This is evident on the basis of evidence on record that deceased received three firearm shots at the time of incident. Four used cartridges were collected from the spot by Investigating Officer on next day of the incident, when he visited the spot and prepared the sketch map of the place of incident. All these four cartridges of 7.65 mm (.32 bore) matched with firearm recovered on 7.5.2013 on pointing out of the accused/convict Rakesh Kumar Singh, who was posted in Army in New Delhi at that time. Deceased was also posted in military. As all the four empty cartridges matched with firearm recovered on pointing out of Rakesh Kumar Singh, the firearm recovered on pointing out of other accused persons namely, Santosh Singh, Vimlesh Singh and Akhilesh Singh could not be matched with any empty cartridge as per the report of FSL dated 27.5.2015 on which Ext.Ka-34 and Ka-35 has been marked. However, one lead metal slug (partially disfigured) which was found stucked in between intestines of the deceased in his injury No.3, was found to have belonged to standard cartridge of 12 bore and on the basis of this recovery of lead slug, the direct evidence of involvement of accused Santosh Singh causing firearm injury to deceased by his weapon is corroborated. The firearm recovered from accused Vimlesh Singh could also not be matched with any of the empty cartridges in FSL Report but the evidence of eye-witnesses i.e. PW-1 and PW-2 makes it manifestly evident that he assaulted the informant on his ear by butt of his pistol resulting in three lacerated wounds on a particular place behind his right ear. This is another thing that the injuries were found to be simple. Thus, accused Vimlesh Singh appears to have used blunt side of his firearm causing injuries to the informant when he rushed to save the deceased when he fell down after being seriously injured by assailants. This is another thing that the injuries were found to be simple. Thus, accused Vimlesh Singh appears to have used blunt side of his firearm causing injuries to the informant when he rushed to save the deceased when he fell down after being seriously injured by assailants. The fourth accused namely, Akhilesh Singh has been assigned specific role together with Santosh Singh to have caused simple injuries to PW-2 Shiv Shanker Singh, the uncle of the informant, when he tried to rescue the informant from being assaulted by accused. In FIR as well as in evidence of PW-2, this fact emerged that accused Akhilesh Singh and Santosh Singh assaulted PW-2 by hockey sticks, which were lying nearby and the Investigating Officer collected four pieces of hockey sticks on 26.4.2013 at the time of spot inspection. Due to slackness of prosecution, the hockey sticks could not be produced during evidence of PW-11 but on perusal of evidence of eye-witnesses, this fact is established that PW-2 was assaulted by these two accused persons by hockey sticks. This is not the case of prosecution that the accused persons were armed with hockey sticks and the prosecution is specific that the hockey sticks were lying in the vicinity of place of incident. Accused Dhruvjeet Singh, the father of other accused persons, is attributed role of exhorting co-accused, who are his sons to kill informant’s side and co-accused persons are alleged to have acted upon this and opened indiscriminate fires on informant’s side, which resulted in causing of fatal injuries to the deceased with whom Dhruvjeet Singh had picket up quarrel in Gahmar market on the same date earlier as he borrowed motorcycle of one Arvind Singh with whom accused side was inimical. Except the deceased none of the witnesses or family members of the deceased have sustained any firearm injuries but only due to this fact, the eye-witnesses account could not be disbelieved or faulted with keeping in view the back ground of the incident. Although, PW-1 and PW-2 have given eye- witness account of the commission of offence and have attributed role of indiscriminate firing on deceased to all the four sons of accused Dhruvjeet Singh yet the injuries of the deceased can be connected with accused Rakesh Kumar Singh and Santosh Singh. Although, PW-1 and PW-2 have given eye- witness account of the commission of offence and have attributed role of indiscriminate firing on deceased to all the four sons of accused Dhruvjeet Singh yet the injuries of the deceased can be connected with accused Rakesh Kumar Singh and Santosh Singh. No firearm injury can be connected with weapon/firearm recovered at the instance of accused Vimlesh Singh and Akhilesh Singh, although the recovery of one firearm each has been proved in the case at the instance of four accused persons. 50. So far as the role of Dhruvjeet Singh is concerned, he is father of alleged assailants. He has been attributed role of exhorting his sons to kill the informant’s side whereupon co-accused are alleged to have fired upon the deceased. This is admitted fact that Dhruvjeet Singh was bare arm. He was not wielding any weapon in his hand when his sons were armed with firearms. The question of exhorting his sons to kill the informant’s side looses its significance as some of the co-accused were already prepared to kill the deceased and PW-1 and PW-2 are assaulted by Vimlesh Singh, Santosh Singh and Akhilesh Singh, only when they intervened. 51. In case of Jainul Haque vs State Of Bihar, AIR 1974 SC 1651, Hon'ble Supreme Court in para 8 of its judgment has held as under: "The evidence of exhortation is, in the very nature of things, a weak piece of evidence. There is quite often a tendency to implicate some person, in addition to the actual assailant by attributing to that person an exhortation to the assailant to assault the victim. Unless the evidence in this respect be clear, cogent and reliable, no conviction for abetment can be recorded against the person alleged to have exhorted the actual assailant." 52. In Suresh and another vs State Of U.P. 2001 3 SCC 673 , Hon'ble Supreme Court in para 24 of its judgment has held as under: "24. Looking at the first postulate pointed out above, the accused who is to be fastened with liability on the strength of Section 34, IPC should have done some act which has nexus with the offence. Such act need not be very substantial, it is enough that the act is only for guarding the scene for facilitating the crime. Looking at the first postulate pointed out above, the accused who is to be fastened with liability on the strength of Section 34, IPC should have done some act which has nexus with the offence. Such act need not be very substantial, it is enough that the act is only for guarding the scene for facilitating the crime. The act need not necessarily be overt, even if it is only a covert act it is enough, provided such a covert act is proved to have been done by the co-accused in furtherance of the common intention. Even an omission can, in certain circumstances, amount to an act. This is the purport of Section 32, IPC. So the act mentioned in Section 34, IPC need not be an overt act, even an illegal omission to do a certain act in a certain situation can amount to an act, e. g. a co- accused, standing near the victim face to face saw an armed assailant nearing the victim from behind with a weapon to inflict a blow. The co-accused, who could have alerted the victim to move away to escape from the onslaught deliberately refrained from doing so with the idea that the blow should fall on the victim. Such omission can also be termed as an act in a given situation. Hence an act, whether overt or covert, is indispensable to be done by a co-accused to be fastened with the liability under the section. But if no such act is done by a person, even if he has common intention with the others for the accomplishment of the crime, Section 34, IPC cannot be invoked for convicting that person. In other words, the accused who only keeps the common intention in his mind, but does not do any act at the scene, cannot be convicted with the aid of Section 34, IPC. " 53. In Surendra Chauhan VS State Of M. P. , 2000 4 SCC 110 , Hon'ble Supreme Court in para 11 of its judgment has held as under: "11. Under Section 34 a person must be physically present at the actual commission of the crime for the purpose of facilitating or promoting the offence, the commission of which is the aim of the joint criminal venture. Under Section 34 a person must be physically present at the actual commission of the crime for the purpose of facilitating or promoting the offence, the commission of which is the aim of the joint criminal venture. Such presence of those who in one way or the other facilitate the execution of the common design is itself tantamount to actual participation in the criminal act. The essence of Section 34 is simultaneous consensus of the minds of persons participating in the criminal action to bring about a particular result. Such consensus can be developed at the spot and thereby intended by all of them. Ramaswami Ayhangar & Ors. v. State of Tamil Nadu. The existence of common intention can be inferred from the attending circumstances of the case and the conduct of the parties. No direct evidence of common intention is necessary. For the purpose of common intention even the participation in the commission of the offence need not be proved in all cases. The common intention can develop even during the course of an occurrence. Rajesh Govind Jagesha v. State of Maharashtra. To apply Section 34 IPC apart from the fact that there should be two or more accused, two factors must be established : (i) common intention and (ii) participation of the accused in the commission of an offence. If a common intention is proved but no overt act is attributed to the individual accused, Section 34 will be attracted as essentially it involves vicarious liability but if participation of the accused in the crime is proved and a common intention is absent, Section 34 cannot be invoked. In every case, it is not possible to have direct evidence of a common intention. It has to be inferred from the facts and circumstances of each case." 54. From the law laid down in the above referred cases it can be deduced that evidence of exhortation is a weak piece of evidence. There is quite often a tendency to implicate some person, in addition to the actual assailant by ascribing to that person role of an exhortation to the assailant to assault the victim. Unless the evidence in this respect is clear, cogent and reliable, no conviction can be recorded against the person alleged to have exhorted the actual assailant. 55. There is quite often a tendency to implicate some person, in addition to the actual assailant by ascribing to that person role of an exhortation to the assailant to assault the victim. Unless the evidence in this respect is clear, cogent and reliable, no conviction can be recorded against the person alleged to have exhorted the actual assailant. 55. Thus, in the light of legal proposition cited above and on facts of the case, the complicity of accused Dhruvjeet Singh in the offence and his implication in the case in view of the fact that he exhorted his sons to kill the informants side on date, time and place of occurrence does not inspire confidence and his involvement in the offence appears to be doubtful. He deserves to be accorded benefit of doubt, in respect of all charges. This is also noteworthy that except alleged exhortation, no overtact has been attributed to him in the evidence of witnesses of fact. 56. In view of finding complicity of accused Dhruvjeet Singh in the offence doubtful and not believable in ordinary course of nature, the charges under Sections 147, 148 IPC fails in respect of accused persons. Keeping in view facts and circumstances of the case, the conviction and sentence of the appellant for charge under Sections 147 and 148 IPC is set aside. 57. Consequently, we are of the considered opinion on the basis of eye-witness account as well as recovery, the evidence adduced by police witnesses in the case that the accused persons namely, Rakesh Kumar Singh and Santosh Singh in furtherance of common intention committed murder of deceased Ajay Singh by causing injuries to him by opening firearm shots at him with intention to kill him on the date, time and place of incident. Thus, the charge under Section 302/34 IPC is proved against them beyond reasonable doubt. Conviction of accused Dhruvjeet Singh, Rakesh Kumar Singh, Vimlesh Singh, Santosh Singh and Akhilesh Singh recorded by learned trial court for charge under Section 323 IPC for causing simple injuries to injured namely, Digvijay Singh and Shiv Shanker Singh is partly affirmed in respect of accused Vimlesh Singh, Santosh Singh and Akhilesh Singh as charge under Section 323 is not proved beyond reasonable doubt against accused Dhruvjeet Singh and Rakesh Kumar Singh. There is specific allegation against accused Vimlesh Singh, Santosh Singh and Akhilesh Singh for causing injuries to PW-1 and PW-2 by hard and blunt object. 58. On the basis of discussion herein above, the conviction and sentence of appellants for charge under Section 307 IPC read with Section 149 IPC is set aside. 59. One abusive word has been attributed to accused appellant Dhruvjeet Singh in FIR as well as in evidence of witnesses regarding his exhortation to co-accused but none of the co-accused are alleged to have intentionally insulted or provoked the informant's side to commit breach of peace and complicity of appellant Dhruvjeet Singh has not been found to be proved in the offence beyond reasonable doubt, therefore, the charge under Section 504 IPC fails and the conviction and sentence for charge under Section 504 IPC is accordingly, set aside. 60. There is no specific averment against the appellants that they threatened the informant, deceased or any of their family members with life at the time of the incident, therefore, due to lack of specific allegation and evidence in respect thereof, charge under Section 506 IPC has not been proved against the appellants beyond reasonable doubt and hence, conviction and sentence recorded by the trial court against the appellants is consequently set aside. 61. This fact finds place in FIR as well as in sworn testimony of eye-witness that due to daring act of accused persons by which the deceased Ajay Singh was shot dead in the late evening on the date of the incident, a panic created in the locality and people shut the doors of their houses and started running here and there to find safe place, thus, we find no factual or legal error in recording of conviction and sentence awarded by learned trial court in respect of appellants Rakesh Kumar Singh, Santosh Singh, Vimlesh Singh and Akhilesh Singh for charge under Section Section 7 of Criminal Law (Amendment) Act. 62. With above findings and conclusions drawn after re- appreciation and re-scrutinization of evidence on record, we direct as follows:- (1) Conviction and sentence recorded against accused Dhruvjeet Singh for charge under Sections 147, 148, 302/149, 307/149, 323, 504, 506 IPC and Section 7 of Criminal Law Amendment Act is set aside and he is acquitted of all the charges by this modified order. (2) Conviction and sentence of appellants namely Rakesh Kumar Singh, Vimlesh Singh, Santosh Singh and Akhilesh Singh for charge under Section 307 read with Section 149 IPC is set aside and they are acquitted of this charge. (3) Conviction and sentence of appellants namely, Vimlesh Singh, Santosh Singh and Akhilesh Singh for charge under Section 323 IPC is affirmed. Appellant Rakesh Kumar Singh is acquitted of charge under Section 323 IPC. (4) Conviction of appellants namely, Rakesh Kumar Singh, Vimlesh Singh, Santosh Singh and Akhilesh Singh for charge under Section 302/149 IPC is modified and altered to the extent that the appellants Vimlesh Singh and Akhilesh Singh are acquitted of charge under Section 302/149 IPC and appellants Rakesh Kumar Singh and Santosh Singh are instead convicted of charge under Section 302/34 IPC but their sentence of life imprisonment and fine of Rs.10,000/- payable by each in impugned order is affirmed. (5) Appellants namely, Rakesh Kumar Singh, Vimlesh Singh, Santosh Singh and Akhilesh Singh are acquitted of charge under Sections 504 and 506 IPC and their conviction and sentence recorded by the learned trial court for these charges is hereby set aside. (6) The conviction and sentence of appellants namely, Rakesh Kumar Singh, Vimlesh Singh, Santosh Singh and Akhilesh Singh for charge under Sections 147 and 148 IPC recorded by the learned trial court is hereby set aside and they are acquitted of these charges. (7) The conviction and sentence of appellants namely, Rakesh Kumar Singh, Vimlesh Singh, Santosh Singh and Akhilesh Singh for charge under Section 7 of Criminal Law (Amendment) Act is affirmed. (8) The conviction and sentence of appellants namely, Rakesh Kumar Singh, Vimlesh Singh, Santosh Singh and Akhilesh Singh for charge under Section 3/25 of Arms Act is affirmed. (9) The period undergone by the convicts/appellants shall be liable to be set off/adjusted to sentence of term imposed against them by this modified order. (10) All the sentences shall run concurrently. 63. Accordingly, present Criminal Appeal No.5218 of 2016 is allowed and Criminal Appeal Nos.5501 of 2016, 5502 of 2016 and 5649 of 2016 are partly allowed and the impugned order assailed in these criminal appeals stand modified/altered to the extent stated as above. 64. (10) All the sentences shall run concurrently. 63. Accordingly, present Criminal Appeal No.5218 of 2016 is allowed and Criminal Appeal Nos.5501 of 2016, 5502 of 2016 and 5649 of 2016 are partly allowed and the impugned order assailed in these criminal appeals stand modified/altered to the extent stated as above. 64. Appellants Dhruvjeet Singh, Vimlesh Singh and Akhilesh Singh are directed to furnish a personal bond, each and two sureties each in the likeamount to the satisfaction of the learned trial court/Session Judge, Ghazipur as the case may be, in compliance of Section 437-A of Cr.P.C. within seven days of their release from jail pursuant to this modified order as they have already undergone the modified sentence as awarded in present judgement. Appellants Rakesh Kumar Singh and Santosh Singh will serve out the sentence as modified in present judgement in accordance with law, as they are stated to be in jail custody in present offence. 65. Let a certified copy of this judgement and lower court record be sent back forthwith to Session Judge, Ghazipur for compliance.