JUDGMENT : (Arvind Singh Sangwan, J.) : 1. Present appeal is filed challenging the judgment of conviction dated 3.12.1988 vide which accused-Subedar and Buddhu were convicted for offence punishable under Section 302/34 of IPC and the order of sentence dated 5.12.1988, vide which they were sentenced to life imprisonment. 2. It is worth noticing that this Court vide judgment dated 6.4.2017 dismissed the appeal of appellant-Subedar noticing that appellant-Buddhu had died somewhere in the year 1999 and no one represented appellant-Subedar. The appeal was heard without affording opportunity of hearing to the appellant. Thereafter, appellant-Subedar filed SLP (Criminal ) No.6684 of 2020 which was later on converted into Criminal Appeal No.886 of 2020 in which, noticing the fact that the appellant was not afforded opportunity, the case was remanded back to this Court by the Supreme Court with a direction to dispose of the appeal expeditiously. 3. Heard Sri Shravan Kumar Yadav, learned Amicus Curiae for the appellant and learned A.G.A. for the State-respondent. 4. With the assistance of learned counsel for the parties, the entire evidence is re-scrutinized and re-appreciated. 5. The facts as stated by the informant in the complaint given on 4.4.1987 are as under: “In the night, I along with my wife-Roopdevi and children was sleeping in the house. At about 2.00 am, on hearing the voice of barking dog, I woke up and found that from the side of a broken door, 3-4 persons were standing. When in the light of the torch, I asked them, one Buddhu resident of Kasumara and Subedar resident of Murab were seen. They were carrying country made pistol. Buddhu fired upon me which hit on my stomach and other accused gave me lathi blows. On raising voice, my neighbour Rameshwar Singh and Kallu Singh came and on seeing them, these persons ran away by challenging me.” 6. On the basis this complaint, Chik F.I.R. was registered by Head Moharrir-Israr Ali at Case Crime No.80, under Section 307 IPC at Police Station- Aonla, District-Bareilly on 04.04.1987 at 04.30 A.M. The chik report is Ex.Ka.7. On the basis of chik report, a case was registered at G.D. No.3 on 04.04.1987 against the accused. Copy of GD entry is Exhibit Ka-8. 7. The case was initially registered under Section 307 I.P.C. The injured was sent to Primary Health Centre at Aonla for treatment and medical examination. Dr. On the basis of chik report, a case was registered at G.D. No.3 on 04.04.1987 against the accused. Copy of GD entry is Exhibit Ka-8. 7. The case was initially registered under Section 307 I.P.C. The injured was sent to Primary Health Centre at Aonla for treatment and medical examination. Dr. Raj Kumar P.W.4 M.O. examined the injuries of Vedpal Singh on 4.4.1987 at 5.45 A.M. and prepared his injury Ex.Ka.4 The doctor found the following injuries on the person of the injured:- 1. A gunshot wound 1 cm x 1 cm x cavity deep left side of chest 14 cm below left nipple. This wound is surrounded by gunshot burns in an area of 5 cm x 4 cm. This injury is kept under observation and x-ray advised. 2. Lacerated wound 1.5 cm x 0.1 cm x muscle deep left side forehead 5 cm above left eyebrow. 3. Contusion 1 cm x 1 cm on right side skull 6 cm above right ear. 4. No any other visible injury seen but only complaint of pain all over the body. 8. In the opinion of the doctor, Injury no.1, could be caused by firearm, was kept under observation. X-ray was advised. The injury nos.2 and 3 were simple and could be caused by blunt weapon. 9. The injured Vedpal Singh was referred to District Hospital, Bareilly for conducting x-ray of his injury no.1 and further treatment where Dr. S.P. Singh M.O. District Hospital, Bareilly P.W.6 attended to him. But in the meantime, Vedpal Singh succumbed to his injuries on 4.4.1987 at 8.45 A.M. in the District Hospital, Bareilly. 10. The postmortem on the dead body of the deceased was conducted by Dr. S.P. Singh P.W.6 vide postmortem report Ex.Ka.6 The Doctor found the following ante-mortem injuries on the dead body of the deceased:- 1. Lacerated wound 1 cm x 1 cm x scalp left side forehead 8 cm above eyebrow. 2. Three abrasions in an area of 8 cm x 6 cm on the back of left shoulder joint upper part. 3. Abrasion 3 cm x ½ cm on the top of the right shoulder joint. 4. Gunshot wound 2 cm x 1 cm x chest cavity deep left side chest 13 cm below and lateral to left nipple-margins inverted, blackening, tattooing and scorching present. 5. Circular interpeded abrasion left arm 3 cm in size. 11. 3. Abrasion 3 cm x ½ cm on the top of the right shoulder joint. 4. Gunshot wound 2 cm x 1 cm x chest cavity deep left side chest 13 cm below and lateral to left nipple-margins inverted, blackening, tattooing and scorching present. 5. Circular interpeded abrasion left arm 3 cm in size. 11. In the opinion of the Doctor death was caused due to shock and haemorrhage on account of injury no.4. 12. The information regarding death of Vedpal Singh was sent to Police Station-Kotwali, District-Bareilly vide Ex.I on 4.4.1987 at 10.20 P.M. which was recorded in G.D., carbon copy of which is Ex. Ka-14. Inspector S.K. Sharma P.W.8 of Police Station-Kotwali was conducting inquest proceedings on the dead body of the deceased. After completing the inquest, he prepared photograph Ex.Ka.16, challan-report vide Ex.Ka.17, specimen seal Ex.Ka.18 and inquest report Ex. Ka.15. Later on, the case was converted under Section 302 I.P.C. vide G.D. entry Ex. Ka.13 and the investigation of the case was entrusted to S.I. Gandharv Singh Badhoria P.W.7 who recorded the statement of the informant, which is Ex.Ka.10. The I.O. also visited the place of occurrence and took possession of blood-stained dhoti vide memo Ex.Ka.1, torch vide memo Ex.Ka.2, two empty cell vide memo Ex.Ka.4. Then he also prepared site plan vide Ex.Ka.13. Thereafter, the investigation of the case was transferred to Senior Sub-Inspector police Sri O.P. Tyagi P.W.5 on 28.4.1987, who after usual investigation, submitted charge-sheet against the accused vide Ex.Ka.5. 13. Thereafter, Chalan was presented. The charges were framed under Section 302 read with Section 34 of IPC. In prosecution evidence, Roopwati (PW-1) stated on the line of the version given in the F.I.R. that out of four persons, Buddhu and Subedar were standing and she identified them. She further stated that Buddhu fired a gunshot onto her husband and other three accused gave lathi blows. In the meantime, Kallu Singh and Rameshwar Singh came and accused persons ran away. While leaving they fired second gunshot. Her husband got the complaint scribed through one Madan Pal Singh and gave it to the police which was exhibited as Ex.Ka-1. The F.I.R. was registered. The torch which was recovered was handed over to her and supurdginama was exhibited as Ex.Ka-2. In cross examination, this witness stated that Kallu Singh is nephew of her husband and he is indulged in the business of cultivation of opium. The F.I.R. was registered. The torch which was recovered was handed over to her and supurdginama was exhibited as Ex.Ka-2. In cross examination, this witness stated that Kallu Singh is nephew of her husband and he is indulged in the business of cultivation of opium. 14. Kallu Singh (PW-2) also stated on similar line that when his uncle, deceased-Vedpal was looking in the light of the torch, accused-Subedar and Buddhu were standing. They were carrying country made pistol and total four persons were there. He identified the accused persons when his uncle asked, the accused fired upon his uncle which hit on him and other accused gave him lathi blows. In the meantime, his brother-in-law, Rameshwar Singh also reached there. 15. In cross examination, this witness admitted that he is indulged in the business of cultivation of opium but he did not do the sale or purchase of the same. He denied that deceased-Vedpal was helping him in his business. Vedpal was having small tea shop at Railway Station. He denied the suggestion that he had any enmity with Subedar or Buddhu. He also denied that Subedar is having his agricultural land abutting the land of this witness. 16. Madan Pal Singh (PW-3) stated that he scribed the complaint on the asking of Vedpal which is Ex.Ka-3. He stated that Vedpal was daily wager. He denied the suggestion that Kallu was doing cultivation of opium and Vedpal was working with him. 17. In cross examination, he stated that the field of Kallu was abutting his field and Kallu’s field was also abutting the field of Subedar and one litigation is pending between Kallu and Subedar. 18. Dr. Raj Kumar (PW-4) stated that he has conducted the MLR of the victim. The injuries are already reported above. 19. O.P. Tyagi (SIS) (PW-5) stated that vide memo Ex.Ka-5, he had taken the dead body after postmortem. 20. Dr. S.P. Singh (PW-6) who conducted the postmortem stated about the injuries as reproduced above. In cross examination, this witness stated that injury No.4 alone is sufficient to cause the death which is a gunshot injury. However, injury No.1 to 3 & 5 alone in the absence of injury No.4 are not sufficient to cause the death. 21. 20. Dr. S.P. Singh (PW-6) who conducted the postmortem stated about the injuries as reproduced above. In cross examination, this witness stated that injury No.4 alone is sufficient to cause the death which is a gunshot injury. However, injury No.1 to 3 & 5 alone in the absence of injury No.4 are not sufficient to cause the death. 21. S.H.O. Gandharv Singh, (PW-7) stated that he was the Investigating Officer and a report Ex.Ka-3 was submitted in the police station on which, Chik report was prepared vide Report No.3. The Chik Report was Ex.Ka-7 and report No.3 was Ex.Ka-8. This witness stated that vide letter (Ex.Ka-9), the injured was sent to the hospital and entry was made in the Case Diary (Ex.Ka-10). He recorded statement of Smt. Roop Devi, the eye witness and widow of deceased, who handed over her bloodstained dhoti which was tied around the body of her husband at the time of incident vide recovery memo Ex.Ka-1. The torch was recovered vide recovery memo Ex.Ka-2. One empty cartridge of 12 bore and one empty cartridge of 315 bore were recovered vide recovery memo Ex.Ka-11. Statement of eyewitness, Kallu Singh, was recorded and Naksha Nazri was also prepared which is Ex.Ka-12. Statement of Rameshwar Singh was also recorded. After the death of Vedpal, Section 302 of I.P.C. was added in G.D. (Ex.Ka-13). Accused-Subedar surrendered before the C.J.M., Bareilly on 16.4.1987. In cross examination, this witness further stated about the investigation carried by him. 22. Sub Inspector S.K. Sharma (PW-8) stated that he prepared the Panchayatnama/Inquest Report (Ex-1). Copy of which is Ex.Ka-14. He proved the photograph of the dead body (Ex.Ka-16), Chalan as Ex.Ka-17 and Sample Seal as Ex.Ka-18. 23. Sadat Ali (PW-9), Chief Pharmacist, proved the Bed head ticket of deceased regarding his admission in District Hospital, Bareilly vide Ex.1. In cross examination, he stated that when accused was admitted, he was in garping stage and was unconscious and, therefore, no dying declaration was recorded. 24. On conclusion of the prosecution evidence, statement of the accused under Section 313 of Cr.P.C. was recorded in which, all the incriminating evidence was put to him. In all the questions, the accused gave reply that he do not know about the offence. 24. On conclusion of the prosecution evidence, statement of the accused under Section 313 of Cr.P.C. was recorded in which, all the incriminating evidence was put to him. In all the questions, the accused gave reply that he do not know about the offence. Regarding Question No.4 that the Investigating Officer has submitted the Charge-sheet against him, accused-Buddhu replied that it is incorrect as all the witnesses are relative and gave false statements. In reply to Question No.16 why he has been nominated as an accused, he has stated that he has enmity with the police and even previously he was nominated in two cases. However, he was acquitted. He further stated that he want to lead defence evidence. 25. Similar is the statement of accused-Subedar who replied all the questions as having no knowledge and stated that he has been nominated because of enmity with Kallu Singh. 26. Thereafter, one Gyan Singh (DW-1) was produced who stated that on hearing noise, he had gone to the house of Vedpal. He was lying unconscious on a cot and his wife told him that someone has fired upon him but did not disclose the name. Thereafter, he accompanied Vedpal on a bullock cart to the Police Station from where, he was sent to the hospital. He stated that Subedar comes to my village, however, Buddhu never comes. 27. Thereafter, Trial Court, vide impugned judgment of conviction and order of sentence convicted the accused, Buddhu and Subedar, and sentenced them to life imprisonment under Section 302/34 of IPC. 28. As noticed above, one of the accused namely Buddhu has already died in 1999 and appeal qua him stands abated. 29. Counsel for the appellant submits that presence of the PW-1 at the spot is highly doubtful. It is doubtful that at about 2.00 AM in the morning, the victim had seen Buddhu and Subedar in torch light. 30. It is next argued that firearm injury was attributed to Buddhu which proved fatal whereas rest three persons were attributed lathi injuries. Counsel has referred to the statement of Dr.S.P. Singh (PW-6) who conducted the postmortem wherein he has admitted that injury No.4 which is a firearm injury attributed to Buddhu was alone sufficient to cause death. He further stated that injury Nos. Counsel has referred to the statement of Dr.S.P. Singh (PW-6) who conducted the postmortem wherein he has admitted that injury No.4 which is a firearm injury attributed to Buddhu was alone sufficient to cause death. He further stated that injury Nos. 1 to 3 & 5, which are abrasions and lacerated wounds caused by a blunt weapon, independently are not sufficient to cause death as these are on non vital part of the body. 31. Counsel submits that injury attributed to the appellant-Subedar is only a lathi injury that too with other persons whose identity was never proved and, therefore, the appellant is not attributed the fatal injury. 32. It is next argued that the police investigation is highly unreliable as police never tried to identify the two other persons who were present at the spot as per the deceased-Vedpal, PW-1 or PW-2. 33. It is next argued that motive to commit the offence is not proved and there is no enmity with the deceased. 34. It is submitted that PW-2-Kallu Singh has denied that he was having any dispute with appellant -Subedar regarding their abutting land. It is submitted that in the absence of any motive, the Trial Court has wrongly convicted the appellant. 35. Learned counsel for the appellant further submits that PW-1-Roopwati has stated that after Buddhu has fired on her deceased husband which hit him on his stomach, another fire was made at the door of the house but it is not so mentioned in the FIR (Exhibit-Ka-13). It is also not mentioned in the statement under Section 161 Cr.P.C. It is next argued that as per PW-1, both Buddhu and Subedar were carrying country-made pistol however, no such recovery of pistol was effected from the appellant-Subedar and rather no such pistol attributed to the appellant was ever used in the commission of crime. It is submitted that false story has been cooked up as the deceased was murdered by some known persons and the petitioner has been falsely implicated. 36. Counsel further submits that Trial Court has not considered the statement of defence witness i.e. DW-1 who stated that when he heard the noise of firearm, he reached the house of Vedpal who was lying in an unconscious condition on a cot and his wife stated him that some unknown persons had fired upon him and she did not disclose anybody’s name. 37. 37. In reply, learned AGA for State submits that both the eye witnesses i.e. PW-1 and PW-2 have duly supported the prosecution version and the medical evidence of the deceased also corroborate the prosecution version. 38. It is next argued by learned A.G.A. that the matter was reported to the police without any delay. It is submitted that the initial complaint was given by deceased-Vedpal himself which was scribed by one Madan Pal Singh upon which Chik F.I.R. was registered and the deceased himself had stated that he had seen both appellant-Subedar and Buddhu at the spot and Buddhu had fired upon him. 39. Learned A.G.A. has further submitted that there was sufficient light as deceased was carrying a torch and the version given in the F.I.R. by the deceased himself is corroborated by both PW-1 (Roopwati-wife of deceased) and PW-2, Kallu Singh (an eye-witness). 40. Learned A.G.A. submits that PW-4 has stated that the deceased died of firearm injury No.4 which was sufficient to cause death. Counsel submits that even at the first instance, when deceased-Vedpal was brought to primary health centre, PW-4 conducted the medico legal examination and reported that Vedpal had suffered one firearm injury along with three other injuries and after the death of Vedpal, the same injuries were reported in the Postmortem report by PW-6. Therefore, the ocular version is duly supported by the medical version. 41. After hearing counsel for the parties and on re-appreciation of entire evidence, the Court finds no merit in the present case for the following reasons : (a) The F.I.R. was registered by Vedpal (deceased) himself in injured condition. He had clearly named Buddhu (since deceased) and appellant-Subedar Singh along with two other unknown persons as the assailants. Therefore, neither there was any delay in reporting the matter to the police nor there is any discrepancy in the prosecution version. (b) The case of the prosecution is duly proved by two eye-witnesses namely PW-1 and PW-2. PW-1, Roopwati (wife of the deceased), being an eye witness, duly corroborated the version given in the F.I.R. that in torch light, she had seen that accused-Buddhu had fired upon her husband-Vedpal Singh and appellant-Subedar along with two other persons gave him injuries with lathies. The testimony of this witness could not shattered by the defence. PW-1, Roopwati (wife of the deceased), being an eye witness, duly corroborated the version given in the F.I.R. that in torch light, she had seen that accused-Buddhu had fired upon her husband-Vedpal Singh and appellant-Subedar along with two other persons gave him injuries with lathies. The testimony of this witness could not shattered by the defence. Similarly, even the second eye-witness namely PW-2 (Kallu Singh-nephew of deceased) has also supported the prosecution version as stated by Vedpal in the F.I.R. Even in lengthy cross examination by the defence, his testimony could not be shattered. (c) Madan Pal Singh (PW-3) who scribed the complaint forming basis of the Chik F.I.R. has also stated that Vedpal, in an injured condition, came to him and on his asking, he had scribed the complaint which was read over to him and then he put his thumb impression. Statement of this witness shows that complaint was given to the police promptly. Therefore, the version given in the F.I.R. is duly corroborated by the statement of PW-1, PW-2 & PW-3. (d) Even statement of Vedpal (Ex.Ka-10) recorded under Section 161 of Cr.P.C. is also consistent regarding narration of the facts as per the written report scribed by PW-3 (Ex.Ka-3) (e) Vedpal was medico legally examined at the first instance by PW-4 who had stated that he had suffered firearm injury and after his death PW6, who conducted the postmortem of the deceased also had stated that injury No.4 was a firearm injury which was sufficient to cause death. Both PW-4 and PW-6, the two doctors, who conducted the medico legal examination and postmortem of the deceased-Vedpal are consistent with regard to a firearm injury sustained by Vedpal which proved to be fatal. Therefore, ocular version given by PW-1 & PW-2 is duly corroborated by the medical evidence. (f) Statement of Gyan Singh (DW-1) more or less is a hearsay as he stated that when he reached at the spot, Vedpal was lying in unconscious condition on a cot and his wife (PW-1) told him that some unknown persons had fired upon him. Therefore, ocular version given by PW-1 & PW-2 is duly corroborated by the medical evidence. (f) Statement of Gyan Singh (DW-1) more or less is a hearsay as he stated that when he reached at the spot, Vedpal was lying in unconscious condition on a cot and his wife (PW-1) told him that some unknown persons had fired upon him. DW-1 is suppressing the correct fact, as contrary to his version, Vedpal was taken to the Police Station and in between he got the complaint scribed by Madan Pal Singh (PW-3) and, therefore, he was conscious till the time the complaint was scribed by PW-3 which falsified the version given by DW-3 that immediately after the incident when he reached the spot, Vedpal was lying in unconscious condition on a cot. Therefore, statement of DW-1 is not natural and trustworthy. (g) The suggestion given to PW-2 that his land is abutting the field of accused-Subedar was denied and in defence neither any Sajra Map of the land nor the Khasra number was proved by way of leading any evidence. 42. From the evidence led by the prosecution, it is proved that both accused-Buddhu (since deceased) and Subedar had premeditated meeting of mind to commit the murder of Vedpal. Therefore, appellant-Subedar Singh, who has caused injuries on person of the deceased by using a lathi, and accused-Buddhu who has fired upon a gun shot injury which was sufficient to cause death in ordinary course, are responsible for committing the murder of Vedpal in view of the provisions of Section 34 of IPC. Accused-Subedar Singh has taken active part in commission of crime and the Trial Court has rightly held him guilty of offence punishable under Section 302/34 of IPC. 43. As no other point was raised from either side, we find that the Trial Court has passed the judgment in accordance with law while awarding imprisonment for life to both the accused under Section 302/34 of IPC. 44. Therefore, finding no merits in the present appeal, the same is dismissed. The impugned judgment of conviction and order of sentence are upheld. As noticed in the order dated 18.12.2020 passed by the Supreme Court in Criminal Appeal No. 886 of 2020 while remanding the case back to this Court for fresh decision that appellant-Subedar Singh has since been taken in custody, the appellant-Subedar will undergo the remaining part of the sentence. 45. As noticed in the order dated 18.12.2020 passed by the Supreme Court in Criminal Appeal No. 886 of 2020 while remanding the case back to this Court for fresh decision that appellant-Subedar Singh has since been taken in custody, the appellant-Subedar will undergo the remaining part of the sentence. 45. Copy of this order along with record be transmitted to the Trial Court forthwith.