JUDGMENT : 1. At the very outset, for the sake of precision, it is pertinent to mention that, as the record transpires, initially the present appeal is preferred by five appellants. Out of these appellant no. (1)-Krishna Kant, (2)-Sheo Roop, (4) Anant Saran have expired, during the pendency of the appeal and as such, the appeal in relation to them, stood abated, vide orders dated 9.4.2014, 1.3.2017 and 31.8.2022, passed by this Court. Thus, the present appeal, in relation to surviving appellant no. (3) Farnesh Kumar Singh and no. (5) Ram Nath alias Bhola Lodh, is before us, for judicial scrutiny. 2. We have heard, Sri Sheshadri Trivedi, learned Counsel appearing on behalf of the appellant no.3 Farnesh Kumar Singh, and Sri Sheo Roop Yadav, Advocate holding brief of Sri Kunwar Mayank Singh, learned counsel appearing on behalf of appellant no.5 Ram Nath alias Bhola Lodh and Sri Jitendra Kumar Jaiswal, learned Additional Government Advocate, representing the State, in extenso and have been taken through the entire material on record. 3. The instant criminal appeal has been preferred invoking the powers of this Court u/s 374(2) Cr.PC. assailing the legality and validity of the judgment and order dated 13.12.1982 passed by the then, VIIth Additional Sessions Judge Fatehpur, while deciding Sessions Trial No. 191 of 1978 (State v/s Krishna Kant and others) and in Sessions Trial No. 136 of 1979 (State Versus Ram Nath alias Bhola Lodh), whereby all the accused/ appellants were convicted under Sections 147, 148, 307/149 and 302 read with 149 IPC, and were sentenced for the offence (charge) under Section 147 for 18 months R.1., for Section 148 two years R.I., under Section 302/149 life imprisonment and under Section 307/149 IPC to undergo seven years R.L. All the sentences were directed to run concurrently. 4. In a short conspectus, the genesis of the prosecution case, as culled out from FIR, and undisputed facts, is that on 20.11.1977 at about 9.05 a.m., a report purported to have been lodged by Sant Kumar Upadhyay at Police Station Kotwali, District-Fatehpur with regard to an occurrence said to have happened on the same day at about 8.30 a.m., divulging therein that he had purchased half portion of plot no. 2103 from one Prem Shanker Shukla on 17.9.1977, through a registered sale deed. In pursuance of the sale deed, he had taken over possession of the purchased plot. 2103 from one Prem Shanker Shukla on 17.9.1977, through a registered sale deed. In pursuance of the sale deed, he had taken over possession of the purchased plot. The said plot is situated in front of the house of accused Krishna Kant Singh Gautam, abutting public road, known as Station Road, is running in between the house of the accused Krishna Kant Gautam and the plot no. 2103, of which the complainant has become the owner. The complainant commenced construction of the boundary wall around the purchased plot. The complainant got erected boundary-wall in frontier portion of his plot during deewali holidays and the rest of the portion of the boundary was being erected on the fateful day, i.e. on 20.11.1977. He purchased bricks, cement etc. for the purpose. The complainant, accompanied with his uncle Nanku Prasad, cousin Ganga Prasad and his kith and kin Durga Krishna alias Babbu, and two masons with six labourers reached on the plot at about 8.30 a.m. and started erecting the boundary wall. At this accused persons namely Krishna Kant. Sheo Roop Singh, Farnesh Kumar Singh, Anant Saran and Ram Nath alias Bhola Lodh, became highly infuriated and enraged, came out from the house of Krishna Kant Singh Gautam. Accutsed Krinsha Kant, Sheo Roop Singh and Farnesh Kumar Singh were equipped with guns and two accused persons namely Ram Nath alias Bhola Lodh and Anant Kumar were armed with Lathi and dandas. All the accused persons started to demolish the boundary wall, erected by the complainant. The accused persons do not want complainant to raise constructions over the plot, for they were intending to purchase and grab the said plot. The complainant and his family members raised remonstration against demolition of the boundary wall. At this the accused persons lost their temper and consciousness and started to hurl abusive and vituperative words, undermining their image. The accused persons could not squeeze ire and irate and took ugly turn. Accused appellant Farnesh Kumar Singh shot at Nanku Prasad, which hit at his chest, with the intention of killing, as a result of which he fell down. Ganga Prasad and Durga Krishna, who were present on the spot rushed to help Nanku Prasad. The accused persons could not squeeze ire and irate and took ugly turn. Accused appellant Farnesh Kumar Singh shot at Nanku Prasad, which hit at his chest, with the intention of killing, as a result of which he fell down. Ganga Prasad and Durga Krishna, who were present on the spot rushed to help Nanku Prasad. The other two accused persons Krishna Kant Singh and Sheo Roop Singh also shot from their respective guns at Ganga Prasad and Durga Krishna, with the intention of eliminating them, as a result of which they sustained fatal gun shot injuries. Looking to the uproarious and horrendous scene and also having regard to the lamentation and shrieks, a number of the persons of the locality inclusive of Sada Sheo Pandey, Raj Narain Bajpayee, Babu Lal and Raj Kujmar gathered at the place of occurrence and witnessed the incident. The accused persons after unleashing an inflow of terror by making indiscriminate firing entered in the house of accused Krishna Kant Singh Gautam. The complainant was highly terrified and afraid because of precarious and serious conditions of injured persons. He brought three injured in two Rickshaws at his house and from there he took prompt step of informing the said incident at the police station concerned by taking them to the police station. 5. The complainant gave a tehrir (Ext. Ka-2) about the incident, at the police station concerned, at about 9.05 a.m. on the same day. On the basis of tehrir enteries were made in chik FIR, Ext. Ka-14, and in kaimi G.D. Ext. Ka-15 and Case Crime No. 712 of 1977, under Sections 147/148/149/307 IPC was registered against the accused Krishna Kant Singh Gautam, Sheo Roop Singh, Farnesh Kumar singh, Ram Nath alias Bhola Lodh and Anant Kumar. 6. Injured Nanku Prasad as well as other injured were immediately sent to the hospital, in a precarious condition for medical examination and treatment, with majrubi chitthi. 7. Since the condition of injured Nanku Prasad was very precarious and critical, his dying declaration was recorded at the hospital by the Tehsildar B. C. Dixit (P.W.-9) at 10.40 a.m. on 20.11.1977. It was also certified by P.W.7 Dr. B. R.Bajpai that the mental condition of injured Nanku Prasad was fit to make statement and the injured Nanku Prasad was conscious and sensible during the period of recording of his statement. It was also certified by P.W.7 Dr. B. R.Bajpai that the mental condition of injured Nanku Prasad was fit to make statement and the injured Nanku Prasad was conscious and sensible during the period of recording of his statement. The certificates given by him on the dying declaration is marked as Ext. Ka.-19 and Ext. Ka-20. Injured Nanku Prasad succumbed to injuries at 11.45 a.m. on the same day i.e. 20.11.1977. On the death of Nanku Prasad, the medical officer posted at the hospital sent a written information to the kotwali concerned. On receiving information with respect to death of Nanku Prasad, the case was converted in to u/s 302 IPC and an entry to this effect was made in the G.D. no. 28 at 12.15 p.m. The initial investigation was entrusted to Pw-10 S.I. Gadadhar Prasad Sharma. 8. Thus, investigating was set in to motion I.O. PW-10 Gadadhar Prasad Sharma and raiding police personnel arrested five accused persons who had been present in the house of accused/appellant Krishna Kant Gautam. He also recovered one D.B.B.L. licensed Gun bearing no. 54891 along with 14 cartridges in one belt and nine cartridges in another belt. I.O. prepared the recovery memo, Ext. Ka-21 of recovered incriminating articles. I.O. also recorded the statement of all the accused persons and sent them to the Kotwali, in the vigil and supervision of S.I. Dost Mohammad. The accused persons were brought at the Kotwali at about 11.30 a.m. and a report to this effect was entered in G.D. no.22. S.I. Gajadhar Prasad Sharma, investigating officer in association with police personnel inspected the place of occurrence and prepared the site plan Ext. Ka-22 etc. He found some pieces of bricks saturated with blood. He collected blood stained and plain pieces of bricks and soil from the place of occurrence. He kept these articles in a sealed bundle and prepared a memo of recovery Ext. Ka. 23. He also recovered four small pellets and two ticklies from the spot and prepared a memo of recovery Ext. Ka.24. He also collected five empty cartridges from the place of occurrence, which from their smell appeared to have been fired recently. He took them into possession and put in a sealed cover and prepared duly recovery memo Ext. Ka-25. He also found three spades, three shallow-pan (taslas) (material Ext. 5, 6 & 7) and five buckets, material Exts. Ka.24. He also collected five empty cartridges from the place of occurrence, which from their smell appeared to have been fired recently. He took them into possession and put in a sealed cover and prepared duly recovery memo Ext. Ka-25. He also found three spades, three shallow-pan (taslas) (material Ext. 5, 6 & 7) and five buckets, material Exts. 8, 9, 10, 11 & 12. a lathi, material Ext. 16, were also recovered from the spot and recovery memo of the same, marked as Ext. Ka.26 was also duly prepared. He also collected five used cartridges near the place of occurrence and prepared a duly memo of recovery, Ext. Ka-27 in this behalf also. He kept all these articles at the police station concerned on 21.11.77 at 6.35 a.m. duly entered in G.D. No.6. 9. Subsequent to the conversion of the case in to section 302 IPC, the investigation was taken up by Om Prakash Yadav, the Station House Officer. Inquest of the corpse of deceased Nanku Prasad was carried out on 20.11.1977 in the hospital between 12.30 p.m. to 1.30 p.m. in the presence of appointed witnesses and inquest report Ext Ka-10 was duly prepared by PW-6 Guru Prasad. 10. The Station House Officer G.P. Yadav took up requisite steps for the autopsy of Nanku Prasad (deceased), He prepared the Challani Report of corpse photo lash, relevant papers in the prescribe proforma which were duly marked as Ext.Ka 28 and Ext.Ka-29. 11. Dr. Som Sharma (P.W.3), who was posted at District Hospital Fatehpur, received the requisite papers in respect to autopsy of deceased Nanku Prasad on 21.11.1977 and conducted the autopsy on the same day at 11.00 am. and prepared autopsy report Ext Ka-3. 12. During investigation cartridges recovered from the accused and the empty cartridges and pellets recovered from the place of occurrence were sent to FSL, for forensic examination to the Ballistic Expert, Lucknow along with D.B.B.L Gun no. 54891 recovered Krishna Kant Singh Gautam. B. D. Rai (P.W.-11) Ballistic Expert conducted the examination of these articles. He was of the opinion that some of the spent cartridges fired from some other gun besides the gun of this accused. He gave his report which was marked as Ext. Ka-35A. 54891 recovered Krishna Kant Singh Gautam. B. D. Rai (P.W.-11) Ballistic Expert conducted the examination of these articles. He was of the opinion that some of the spent cartridges fired from some other gun besides the gun of this accused. He gave his report which was marked as Ext. Ka-35A. The blood saturated cloths of Nanku Prasad and also blood stained and ordinary pieces of bricks recovered from the place of occurrence were also sent for chemical examination to the Examiner at Agra and also government serologist. The report of the chemical examiner confirmed presence of human blood stains on the bricks and clothes. 13. After collecting sufficient materials and evidence, showing the complicity of accused persons 1.0. submitted the charge-sheet Ext. Ka-34 against all the five accused persons under Section 147/148/149/307/302 IPC in the court of CJM, Fatehpur, who took the cognizance of the case. Finding the case being exclusively triable by the court of sessions, learned CJM committed it to the court of Sessions vide his order dated 26.07.1978, where it was registered as S.T. Nos. 191 of 1978 and 136 of 1979 and later transferred it to the court of VII-Additional Sessions Judge, Fatehpur for trial. 14. The learned trial Sessions Judge framed charges against the accused/ appellants under sections 147, 148, 149, 307, 302 IPC. The accused appellants abjured the charges. pleaded not guilty and claimed to be tried. 15. The prosecution, in order to bring charges home, against accused/ appellants, examined following witnesses in ocular evidence- Sl. No. Name of witnesses PW Nos. Remarks 1. Sant Kumar Upadhyay P.W.-1 Nephew of the deceased/Complainant of the case 2. Durga Krishna alias Babbu P.W.-2 Cusion of deceased (Eye Witness) 3. Dr. Som Sharma P.W.-3 Conducted Post Mortem 4. Sada Shiv P.W.-4 Witness 5. Dr. T.N. Bajpai surgeon P.W.-5 Doctor- X-rays 6. Guru Prasad P.W.-6 Eye Witness 7. Dr. B.R. Bajpai P.W.-7 Doctor 8. Jagdish Prasad Tiwari P.W.-8 Constable Moharrir 9. B.C Dixit P.W.-9 Tehsildar / M agistrate 10. S.I. G. P. Sharma P.W.-10 I.O. 11. B.D. Rai P.W.-11 Ballistic Expert 16. In order to substantiate the charges leveled against the appellant, prosecution has also adduced the documentary evidence as under:- Sl. No. Particulars of Documents Proved by Ext Nos. 1. Sale Deed P.W.-1 Ext. Ka.-1 2. Tehrir P.W.-1 Ext. Ka.-2 3. FIR and Dying Declaration P.W.-1 Ext. Kha.-1 &Kha-1 4. Post Mortem Report P.W.-3 Ext. Ka.-3 5. In order to substantiate the charges leveled against the appellant, prosecution has also adduced the documentary evidence as under:- Sl. No. Particulars of Documents Proved by Ext Nos. 1. Sale Deed P.W.-1 Ext. Ka.-1 2. Tehrir P.W.-1 Ext. Ka.-2 3. FIR and Dying Declaration P.W.-1 Ext. Kha.-1 &Kha-1 4. Post Mortem Report P.W.-3 Ext. Ka.-3 5. X-Ray Reports Durga Krishna P.W.-5 Ext. Ka.-4 to Ka.-7 6. X-Ray Report of Ganga Prasad P.W.-5 Ext. Ka.-8 to Ka.-9 7. Inquest P.W.-5 Ext. Ka.-10 8. Injury Report Nanku P.W.-7 Ext. Ka.-11 9. Injury Report of Ganga Parsad P.W.-7 Ext. Ka.-12 10. Injury Report of Durga Krishna P.W.-7 Ext. Ka.-13 11. Chik FIR P.W.-8 Ext. Ka.-14 12. G.D. Reports P.W.-8 Ext. Ka.-15 to Ka-18 13. Dying Deceleration Certificate P.W.-9 Ext. Ka.-19 14. Dying Deceleration P.W.-9 Ext. Ka.-20 15. Recovery Memo Gun and Cartridges P.W.-10 Ext. Ka.-21 16. Site Plan P.W.-10 Ext. Ka.-22 17. Recovery Memo Blood Stained, plain earth P.W.-10 Ext. Ka.-23 18. Recovery Memo of Pellet &Tiklis P.W.-10 Ext. Ka.24 19. Recovery Memo of Empties P.W.-10 Ext. Ka.-25 20. Recovery Memo sand Spades etc. P.W.-10 Ext. Ka.-26 21. Recovery Memo Empty Cartridge P.W.-10 Ext. Ka.-27 22. Challani Report of Corpse P.W.-10 Ext. Ka.-28 23. The Picture of Corpse Nanku P.W.-10 Ext. Ka.-29 24. Recovery Memo Blood Stained cloths P.W.-10 Ext. Ka.-31 25. Recovery Memo Pellet & Tiklis P.W.-10 Ext. Ka.-33 26. Charge sheet P.W.-10 Ext. Ka.-34 27. FSL Report P.W.-11 Ext. Ka.35, Ka 35-A 28. Report of Chemical Examiner P.W.-10 Ext. Ka.-37 29. Report of Chemical Serologist P.W.-10 Ext. Ka.-38 30. Intekhab Plot No. 2104 banjar land ------ Ext. Ka.-39 31. Intekhab Plot No.2104 allotted to Smt. Kalpana ------ Ext. Ka.-40 32. Intekhab Plot No 2103 allotted Prem Shankar ------ Ext. Ka.-41 33. Bricks Purchased Receipts P.W.-1 Ext.-I to IV 17. Apart from the above, the prosecution has also filed various revenue documents such as C.H. akarpatra Intekhab, and khasra pertaining to land in dispute plot nos. 2103, 2104, 2105 (Ext. Ka-39 to Ext. Ka-43). 18. Besides, prosecution has also exhibited material objects, collected as evidence during investigation, as follows- Sl. No. Exhibits Proved by Ext Nos. 1. 03 Scuttle (Taslas) P.W.-1 Ext 1 to 7 2. 05 Buckets P.W.-1 Ext.-8, 9, 10, 11, 12 3. 03 Spades (Fabras) P.W-1 Ext.-13, 14 & 15 4. Lathi P.W-1 Ext 16 19. Ka-39 to Ext. Ka-43). 18. Besides, prosecution has also exhibited material objects, collected as evidence during investigation, as follows- Sl. No. Exhibits Proved by Ext Nos. 1. 03 Scuttle (Taslas) P.W.-1 Ext 1 to 7 2. 05 Buckets P.W.-1 Ext.-8, 9, 10, 11, 12 3. 03 Spades (Fabras) P.W-1 Ext.-13, 14 & 15 4. Lathi P.W-1 Ext 16 19. After conclusion of the prosecution evidence accused/ appellants were afforded an opportunity under section 313 Cr.P.C. for offering explanation/ rebuttal of prosecution evidence/, charges against them. The appellant Fanesh Kumar Singh Gautam averred that they have been falsely implicated in the present case due to enmity, and personal grudge. He denied the prosecution allegations and charges that they had formed as unlawful assembly or had killed Nanku or injured two other persons namely Durga Krishna and Ganga Prasad. He averred the defence version that on 20.11.2017 complainant and the deceased nanku Prasad, along with their one relative Dr. Naval kishor and several Other person, themselves had come to the plot of the accused appellant Krishna Kant Gautam and started remonstration of the boundary wall which was constructed by appellants. They have also stated that only Krishna Kant Gautam had fired with his licensed Gun in self defence of his property, boundary wall and also to save their life and lives of other family members. They have lodged FIR against the complainant side of the incident. Present prosecution case is a counter blast / cross case against complainant side, to shield themselves against their cross case. He is innocent. Accused Appellants Farnesh Kumar has made a long statement narrating defence version. In his additional statement under Section 313 Cr.P.C. as under:- Accused Farnesh Kumar has further stated that the copies of revenue papers Ext. Ka-39 to Ka-43, furnished to him by the prosecution, are not correct. However, he refused to make any comment on these papers. 20. Accused/ appellant Ram Nath alias Bhola Lodh has stated that on the day of incident complainant Sant Kumar etc. equipped with gun and revolvers remonstrated the boundary-wall, made by Krishna Kant, regarding which they have lodged cross FIR. He also expressed his ignorance about the revenue papers Ext. Ka-39 to Ka-43 filed by the prosecution. 21. The accused / appellants did not adduced any oral evidence. However they adduced some judgment, copy of the GD, Intekhabat and Khsras etc. equipped with gun and revolvers remonstrated the boundary-wall, made by Krishna Kant, regarding which they have lodged cross FIR. He also expressed his ignorance about the revenue papers Ext. Ka-39 to Ka-43 filed by the prosecution. 21. The accused / appellants did not adduced any oral evidence. However they adduced some judgment, copy of the GD, Intekhabat and Khsras etc. to depict ownership on some plot of land in the form of documentary evidence, to substantiate their defence. 22. The learned trial court, after examining the entire material on record, testimony of the prosecution witnesses and also evaluating the oral and documentary evidence, came to the conclusion that there is a complete chain of evidence showing the complicity of the accused appellant in the commission of said crime and the prosecution has proved its case beyond reasonable doubts, pointing the guilts against the accused persons and convicted, accused/ appellant Farnesh Kumar and Ram Nath alias Bhola Lodh under Sections 147, 148, 307/149 I.P.C, and 302/149 IPC and sentenced them for the charge u/s 147 for 18 months R.I., for charge u/s 148 2 years R.I., u/s 302/149 I.P.C. R.I. for life and for charge u/s 307/149 for seven years R.I. All the sentences were directed to run concurrently. Ld. counsel for the appellants assailed the conviction and sentence passed in impugned judgement dated 13.12.1982, on various grounds and advanced several arguments in this behalf. Let us test, examine, scrutinize and analyze the contentions advanced by the learned counsels for the parties, on the touchstone of the evidence adduced, undisputed facts and circumstances of the case. 23. The prosecution had examined P.W.1 Sant Kumar Upadhya is the complainant, who had lodged the first information report. He had made his attempt to corroborate the prosecution version in the toe of first information report. In his statement it has come out that he had been a practicing lawyer at District Fatehpur for the last five to six years to the happening of said occurrence. He had been residing in a Mohalla Piranpur in District Fatehpur. The said village was situated at a distance of 50 kilometres from District Fatehpur. His father had died about 30 years back to the said occurrence. His real uncle Nanku Prasad (since deceased) was head of the family. He had been residing in a Mohalla Piranpur in District Fatehpur. The said village was situated at a distance of 50 kilometres from District Fatehpur. His father had died about 30 years back to the said occurrence. His real uncle Nanku Prasad (since deceased) was head of the family. It was also averred by him that Injured Ganga Prasad was his cousin and Durga Krishna alias Babbu was brother of wife of his cousin Jamuna Prasad. Whenever they used to come to Fatehpur, they were staying with him. On the fateful day of occurrence they were staying in his house. It was also stated by him that accused Krishna kant Singh Gautam used to have his seat in the Collectorate Kutchery at a distance of about 20 to 22 paces. He was well familiar with all the accused persons much earlier to the said incident. It was also stated by him that he had purchased half portion of plot no. 2103 by means of registered sale deed, Ext. Ka-1 dated 17.9.77, from Prem Shanker Gupta. Since this land was situated in front of the house of Krishna Kant Gautam, he was in possession over it. After purchasing the said land, the complainant took over the possession of the said land. On account of purchasing of the said land, Krishna Kant Gautam used to nurture animus and grudge against him. When initially the complainant went to get the boundary wall erected on the said land, Krishna Kant Gautam unfolded that he had not done good, as he wanted to purchase it (plot no.2103). A public path of Nagar Palika Fatehpur towards west was carved out abutting to the said plot. The house of Krishna Kant Gautam is situated towards west, back to the said path. P.W.1 Sant Kumar Upadhyay had started to get his boundary wall constructed in a half portion of said plot 8 to 10 days prior to the said occurrence. He had purchased the bricks for constructing the boundary wall on the said land from the brick kiln of Babu Lal Rastogi. He further stated that the incident occurred on 20.11.1977. On 20.11.1977 at about 8.00 a.m. he in association with his uncle Nanku Prasad (since deceased), his cousin brothers Ganga Prasad and Durga Krishna alias Babbu, had reached at the said plot with the object of getting the boundary wall erected at upside. He further stated that the incident occurred on 20.11.1977. On 20.11.1977 at about 8.00 a.m. he in association with his uncle Nanku Prasad (since deceased), his cousin brothers Ganga Prasad and Durga Krishna alias Babbu, had reached at the said plot with the object of getting the boundary wall erected at upside. The accused persons appeared there armed with lathi, pistols and guns. They first began to pull down the boundary wall built by the complainant and subsequent thereto developed an uproarious and terrified scene hurling vituperative and hurtful words. The complainant and his associates tried to pacify the ire and anger of accused persons but the accused persons took ugly turn and Farnesh Kumar fired at Nanku Prasad from his gun which hit to his chest as a result of which he rolled down on the ground. Thereafter Krishna Kant Singh and Sheo Roop Singh fired towards Ganga Prasad and Durga Krishna who also sustained injuries and stumbled down. The accused persons created horrific and dreadful scene while fleeing away from the place of occurrence and entering in the house of Krishna Kant Singh (accused). The witness had supported the prosecution case. Since the condition of injured Nanku Prasad was deteriorating rapidly on account of gun shot injury and the condition of other two injured who had also sustained gun shot injuries was also worsening, they were taken at the police station concerned and the first information report was lodged immediately. The statement of Nanku Prasad was recorded at the police station by the Station Officer and all the three injured were sent to the hospital for treatment. The statement of the complainant was also recorded at the police station concerned. The injured Nanku Prasad succumbed to injuries in the noon on the fateful day of occurrence. The complainant was put to a number of question during cross examination but nothing could be elicited belying the prosecution version. 24. In order to corroborate the prosecution case, P.W.2 Durga Krishna alias Babbu who is an eye witness of the incident, had supported the story in toto. It was averred by him that other injured Ganga Prasad is the real brother of Jamuna Prasad, to whom his sister was married. He had deposed that he had come at the house of the complainant in the evening, earlier to the date of incident and was stayed there at night. It was averred by him that other injured Ganga Prasad is the real brother of Jamuna Prasad, to whom his sister was married. He had deposed that he had come at the house of the complainant in the evening, earlier to the date of incident and was stayed there at night. He had come to Fatehpur in association with Ganga Prasad for purchasing she-buffalo. He went to visit the place of occurrence next morning along with complainant, when the incident occurred. It is averred unfolded by him that accused persons began to pull down the boundary wall of the complainant. Three accused persons who were equipped with fire arms opened firing from their respective guns targetting to Nanku Prasad and other persons. The injured Nanku Prasad, had sustained fatal gun shot injuries in the said incident caused by accused persons. He stated that he had sustained injuries in the said incident and was taken to the police station and subsequent thereto hospital for treatment. The P.W.2 Durga Krishna alias Babbu had fully supported to the prosecution version and nothing could be elicited to discredit his version from his testimony. 25. At this stage it seems pertinent to discuss the medical evidence on record. On receiving majrubi chitthi from the P.S. concerned injured were brought to the District Hospital. P.W.7 Dr. B.R. Bajpai, who was posted as Medical Officer there, on 20.11.1977 had medico legally examined the three injured persons on the letter handed over to him by the police personnel. (i) The doctor examined injured Nanku Prasad, at about 9.15 a.m. He found following injuries on his person- One gun shot wound of entry 1/10" x 1/10" x chest cavity deep on the left side of the chest upper part, 4" above nipple at 11 O' clock position. Margins are inverted and lacerated. No blackening and tattooing present (bleeding). The injury was kept under observation. Doctor has opined that the injury was caused by some fire-arm. The duration of injury was found to be fresh. He prepared the injury report, in his hand-writing and signature and proved it as Ext. Ka-11. (ii) During the course of medical examination of injured Ganga Prasad, at 10.15 a.m. the doctor found the following injuries on his person- (i) One gunshot wound of entry 1/10" x 1/10" x muscle deep on the middle of left temporal region (bleeding). He prepared the injury report, in his hand-writing and signature and proved it as Ext. Ka-11. (ii) During the course of medical examination of injured Ganga Prasad, at 10.15 a.m. the doctor found the following injuries on his person- (i) One gunshot wound of entry 1/10" x 1/10" x muscle deep on the middle of left temporal region (bleeding). (ii) One gunshot wound of entry 1/10" x 1/10" x muscle deep on the middle of left eye brow echymosis around the wound (bleeding). (iii) One gunshot wound of entry 1/10" x 1/10" x muscle deep on the right side chin (bleeding). (iv) One gunshot wound of entry 1/10" x 1/10" x muscle deep on the right side chest upper part 21/2"away from nipple at 1 O'clock position (Bleeding) Doctor has averred that margins of all wounds were inverted and lacerated. No blackening and tattooing around these wounds were found. He kept injury no.1 and 4 under observation and found the rest injuries to be simple. All injuries were caused by some fire arm and the duration was fresh. He proved the injury report as Ext. Ka-12. (iii) Pw-7 Dr. B.R. Bajpayee, also examined injured Durga Krishna alias Babbu on 21.11.1977 at about 9.45 a.m. and found following injuries on his body- (i) Multiple gunshot wound of entry in an area of 6'' x 5'' on the right side head 2" above ear each measuring 1/10" x 1/10" x muscle deep. (ii) Two One gunshot wound of entry 1.50" each measuring 1/10" x 1/10" x musele deep. (iii) Three gunshot wounds of entry in an area of 3" x 1" on the right side of chest upper part, each measuring 1/10 " x 1/10" x muscle deep. (iv) Three gunshot wound of entry in an area of 4'' x 1'' on the inner aspect of right arm, each measuring 1/10" x 1/10" x muscle deep. (v) Three gunshot wound of entry in an area of 3''x1.5'' on the inner aspect of right arm each measuring 1/10" x 1/10" x muscle deep. (vi) Multiple gunshot wound of entry in an area of 12'' x 4'' prime prime on the right outer aspect of left arm and forearm each measuring 1 /10'' x 1 /10'' x muscle deep. (vii) One gunshot wound of entry 1/10" x 1/10" x muscle deep on the front and upper part of left side abdomen. (vi) Multiple gunshot wound of entry in an area of 12'' x 4'' prime prime on the right outer aspect of left arm and forearm each measuring 1 /10'' x 1 /10'' x muscle deep. (vii) One gunshot wound of entry 1/10" x 1/10" x muscle deep on the front and upper part of left side abdomen. According to the Doctor B.R. Bajpayi injury no. 1, 3, 8 & 7 under observation and found the rest to have been simple. According to doctor, all the injuries were caused by some fire-arm. The injuries were fresh in duration. The margins of the injuries were inverted and lacerated. No blackening and tattooing was present around all these wounds. He also prepared and proved the injury report, Ext. ka-13. The doctor had deposed that the injuries sustained by the injured were gunshot wounds. He opined that these injuries could be caused by the gunshot pellets. 26. In his cross-examination doctor PW-7 has deposed that Tehsildar B.C. Dixit recorded dying declaration of injured Nanku on 20.11.1977 at 10.40 A.M. in his presence. At that time Nanku was in a fit mental state and he remained fully conscious while his dying declaration was recorded. He further stated that he gave certificate in his own hand-writing and signature about mental fitness of the injured. The witness proved it as Ext. Ka-20. 27. PW-3 Dr. Som Sharma has stated on oath that on 21.11.1977, he was posted as Medical Officer District Hospital Fatehpur. He had conducted the autopsy of the corpse Nanku Prasad on 21.11.1977. The corpse of Nanku Prasad was received on 20.11.1977 at 3.50 p.m. The requisite papers were received on 21.11.1977 at 10.00 a.m. In the course of postmortem, the doctor noticed the following facts:- Ante-mortem injuries:-Doctor found the following ante mortem injuries on the person of the deceased Nanku Prasad- (i) One gun shot wound of entry 1/10" x 1/10" x chest cavity deep on the left side of the chest upper part 4" above nipple at 11 O' clock position. Margins are inverted and lacerated. No blackening and tattooing present (bleeding). The doctor also noticed that one small size gun shot 1/10" x 1/10" recovered from the body of Nanku Prasad (deceased) lying in the posterior pericardium On internal examination he found pericardium perforated and a big hematoma present above the pericardium. Margins are inverted and lacerated. No blackening and tattooing present (bleeding). The doctor also noticed that one small size gun shot 1/10" x 1/10" recovered from the body of Nanku Prasad (deceased) lying in the posterior pericardium On internal examination he found pericardium perforated and a big hematoma present above the pericardium. He also found the aorta perforated through and through and about 1'1/2 lb. of blood present in thoracio cavity. Cause of death:-The doctor opined that the death of the deceased Nanku Prasad has been caused due to shock and hemorrhage, as a result of injury found on the chest. He prepared the post mortem report and proved it as Ext.Ka.3. 28. Since Durga Krishna and Ganga Prasad had also sustained injuries, their X-rays were also done by Dr. T.N. Bajpayi (P.W.5) on 21.11.1977. The aforesaid doctor took X-ray-photo graph of the abdomen, chest, skull, left arm elbow and forearm of Durga Krishna. In the X-ray of abdomen he found multiple homogeneous radio opaque shadows ranging 1/2 cm in diameter in the right pelvic region. One shadow of same diameter was present concerning to 11th rib of left side. He prepared the X-ray report exhibit Ka.-4 to Ka.-9 for the same. In the X-ray of chest three homogeneous radio opaque shadows seen 0.5 cm in diameter concerning to medical end of right clavicle and twp near first rib of right side. He prepared the X-ray report Ext. Ka-6 of the same. The X-ray of left arm elbow and forearm, showed multiple circular homogeneous radio opaque shadow seen scattered in parietal and also in relation to mandible of right side. He prepared the X-ray report Ext., Ka.6 of the same. The X-ray of left arm elbow and forearm showed multiple circular homogeneous radio opaque 0.5 cm in diameter both in relation to arm and forearm. No fracture or dislocation or any other radiological abnormality was seen. He prepared X-ray report Ex.Ka.7 of the same. In the X-ray of chest of Ganga Prasad did not find any traumatic pathology of bone cage and prepared X-ray report as Ex.Ka.8. In the X-ray of Ganga Prasad, he found three homogeneous radio opaque shadows 0.4 cm in diameter, one in left temporal region and one in left orbital region and third in right angle of mandible. In the X-ray of chest of Ganga Prasad did not find any traumatic pathology of bone cage and prepared X-ray report as Ex.Ka.8. In the X-ray of Ganga Prasad, he found three homogeneous radio opaque shadows 0.4 cm in diameter, one in left temporal region and one in left orbital region and third in right angle of mandible. In the lateral view of skull nearly circular homogeneous radio opaque shadows 0.4 cm diameter one orbital region and the other on temporal region. He prepared the report Ex.Ka.9 of it. He handed over to the police personnel blood saturated clothes of Ganga Prasad and Durga Krishna which were entered in the G.D. report no.15. the copy of which was marked as Ext. Ka.32. PW-5 has deposed in his cross examination that there appears Radis opaque shadous in the injury of both the injured in X-rays. In his opinion they were of metallic substances which may include gun pellets also. The defence could not draw anything to disprove his validation. 29. The prosecution in order to buttress its stand examined PW-4 Sada Shiv. He deposed that he was well knowing to both the parties from much earlier, to this incident. He stated that he was going from Mohalla Amar Jai to his house at Ismailganj at about 8.30 a.m. and when passed through the station road near the house of Dr. Nawal Kishor, he saw the said incident. He proved that accused Krishna Kant Gautam, Sheo Roop Singh and Farnesh Kumar equipped with firearms and Bhola and Anant Saran having lathi, were pulling down the boundary-wall of Sant Kumar Upadhyay. Nanku Prasad, and Ganga Prasad and were obstructing. At this the accused persons were highly infuriated and enraged creating an ugly scene. Nanku Prasad (since deceased) raised objection on hurling abuses and filthy words, but accused paid no heed to his words, and open fire as a result of which Nanku Prasad, Durga Krishan alias Babbo and Ganga Prasad sustained fatal injuries. P.W.4 Sadashiv had supported the prosecution story and nothing could be drawn to cast any shadow on his veracity and verity in his cross. 30. The prosecution has also examined P.W.-6 C-Guru Prasad. He has proved that on 20.11.1977 the Panchayatnama of the corpse of Nanku Prasad was done before him. He unfolded that Ganga Prasad had old animosity on account of police case registered between him and Nanku Prasad. 30. The prosecution has also examined P.W.-6 C-Guru Prasad. He has proved that on 20.11.1977 the Panchayatnama of the corpse of Nanku Prasad was done before him. He unfolded that Ganga Prasad had old animosity on account of police case registered between him and Nanku Prasad. He is reeling under the influence and pressure of the accused persons, so he is retracting to narrate the correct facts. 31. The prosecution has also examined PW-8 Constable Moharrir Jagdish Prasad Tiwari. He deposed that he was posted, as Constable Moharrir at Police Station Kotwali District Fatehpur, on the fateful day of occurrence. He had prepared the chik FIR and proved it as Ext. Ka.14. He also sent all the three injured to sadar hospital for treatment with majrubi chitthis. On the basis of contents of tehrir Ext. Ka-2, entries were made into in the chik FIR and kaimi G.D. The G.D. report was duly marked as Ext.Ka. 15. The information with respect to the death of Nanku Prasad was given on 20.11.1977 at 12.15 (noon), on the basis of which the case was converted to section 302 IPC. The said conversion of the case was entered in the G.D. by him. 32. In order to Further, substantiate prosecution version, the prosecution had examined PW.9 B.C. Dixit, Tehsildar / Magistrate Fatehpur. He deposed that he was posted at Tehsildar / Magistrate at Fatehpur on 20.11.1977. He testified that he had recorded the dying declaration of injured Nanku Prasad on 20.11.1977 at 10.40 am. Injured Nanku was in a conscious state of mind, as evident from the certificate marked as Ka-19 to this effect, is given by the doctor. The dying declaration Ext. Ka-19 was recorded in Sadar Hospital Fatehpur. The dying declaration of injured Nanku was authenticated by the Magistrate which has been made part of case diary by IO. 33. During the course of examination nothing could be elicited from P.W.-8. H.M. Jagdish Prasad Tiwari and PW-9 B.C. Dixit to cast doubt about veracity and probity of prosecution version, rather the prosecution version stood fortified and strengthened by cross examination as the defence had balled to bring routh any material to throw the prosecution case overboard. 34. The prosecution examined P.W.-10 S.1. Gadadhar Prasad Sharma. He deposed that on 20.11.1977, he was posted at Police Station Kotwali Fatehpur as Station House Officer. The present case was registered in his presence. 34. The prosecution examined P.W.-10 S.1. Gadadhar Prasad Sharma. He deposed that on 20.11.1977, he was posted at Police Station Kotwali Fatehpur as Station House Officer. The present case was registered in his presence. The investigation of this case was entrusted to him. He proved that he had recorded the statement of Sant kumar (complainant), Injured Nanku Prasad, who later on succumbed to his injuries. The dying declaration of Nanku Prasad was duly entered in the case diary by him. The said statement was marked as Ext. Ka.-20. He had also recorded the statement of two other injured, he also visited the place of occurrence. On the way, he met Raj Kumar, whose statement was also recorded. On the tip off of police sympathizer, he raided the house of the accused persons and apprehended Krishna Kant, Sheo Ram, Farnesh Kumar, Ram Nath alias Bhola Lodh and Anant Saran. He had also recovered one D.B.B.L. gun bearing no. 54891 with a belt of fourteen cartridges and another belt of nine cartridges. He prepared the recovery memo which was duly signed by the witnesses and was marked as Ext.Ka.29. He had also recorded the statement of the accused persons. The accused persons were sent to Kotwali Fatehpur under the supervision and vigil of Dost Mohammad S.1. He prepared the site plan and collected plain and blood stained oil as well as piece of brick. He had also prepared the memo of plain and blood stained earth and piece of brick which was marked as Ext.Ka.23. He had also recovered empty cartridges and pellets. He had also recovered the empty cartridges from the place of occurrence from which smell of recent firing was coming out. All the incriminating articles recovered from the place of occurrence, were duly identified by him. The defence could not elicit any deviation in his examination. 35. The prosecution has also examined P.W.-11 B.D. Rai, Ballistic Expert. He stated that the cartridges recovered from the place of occurrence and the D.B.B.L. gun recovered from the accused persons, did not tally. The cartridges recovered from the place of occurrence were fired by another gun, but it could not be elicited that the said cartridges were not used in that firing. It is clear from the oral evidence and FSL report Ext. Ka-35 and chemical report of Serologist Ext. The cartridges recovered from the place of occurrence were fired by another gun, but it could not be elicited that the said cartridges were not used in that firing. It is clear from the oral evidence and FSL report Ext. Ka-35 and chemical report of Serologist Ext. Ka-38, and recovered pellets and tiklis of the cartridges, that more than one weapon was used by different appellants. Even if weapon of assault has not been recovered, it does not adversely affect the prosecution case. 36. The prosecution had also brought on record revenue papers relating to plot no. 2103 and 2104 to depict that plot no. 2103 was previously entered in the name of Prem Shanker and was also in his possession in the year 1936 Fasli. The said land was purchased by the complainant Sant Kumar Upadhyay from Prem Shanker by means of a registered sale deed Ka-1. Simultaneously plot no. 2104 was recorded as barren land. The said plot was allotted to Smt. Kalpana Shukla W/o Prem Shanker Shukla. In case of any dispute over the property in question, both the parties have option of approaching to the competent court which can take notice of all the papers and would decide the same on the basis of the documents produced by them. The criminal court does not have any jurisdiction to enter into the disputed question of properties, as the criminal court has different parameters for deciding the case. 37. Learned counsel for the appellants assailed the evidence of the prosecution on various grounds and advanced several arguments in this behalf. Learned counsel for the appellants submitted that the appellants have been falsely roped in the present case, on account of enmity, animus and grudge, as complainant wanted to purchase the disputed land. Learned AGA refuted the argument. He urged that complainant/ deceased had no enmity against the appellants, rather appellants grudge animosity against the complainant on account purchase of the disputed plot and raising construction over it. It is axiomatic that enmity is a double edged weapon. On the one hand it may be a cause to falsely implicate the accused, where as it may be the real cause of the incident, on the other hand too. So, benefit of enmity may go to either side, depending upon the facts and the circumstances of the case. 38. It is axiomatic that enmity is a double edged weapon. On the one hand it may be a cause to falsely implicate the accused, where as it may be the real cause of the incident, on the other hand too. So, benefit of enmity may go to either side, depending upon the facts and the circumstances of the case. 38. The learned counsel for the appellants submits that the FIR in this case is ante timed, delayed and is the result of embellishment, which is a creature of afterthought. It is pertinent to discuss, in brief, the legal scenario in this behalf. 39. A division Bench of Allahabad High Court in Bhurey Singh Vs. State of Uttar Pradesh 2008 (4) ALJ 772 Alld. has referred the Apex Court in Maharaj Singh Vs. State of Uttar Pradesh (1994) 5 SCC 188 some checks about the ante timed FIR. One of the checks pointed out is regarding the receipt of the copy of FIR by the local Magistrate. If it is sent late it will give rise to an inference that FIR is not lodged within reasonable time. Further if sending FIR with the dead body, its inference in the inquest report will lead that FIR is in time. The absence of those details indicating the facts that the prosecution story was still in an embryo state and it has come to be recorded later on, after due deliberation and consultation. Maharaj Singh (Supra) has been followed by the Apex Court in Mohammad Muslim Vs. State of Uttar Pradesh 2023 Live Law (SC) 489 also. 40. In the present case, it is contended by the learned counsel for the appellants that undisputedly the incident have occurred on 20.11.1977 at about 8.30 a.m. The distance of police station from the place of occurrence is about six furlongs. The first information report is lodged by complainant at about 9.05 a.m. During this time span the possibility to break and twist the real facts of the case, cannot be ruled out. It is also argued that the registration of the first information report at about 9.05 a.m. itself creates doubt about the verity and veracity of the prosecution version. Learned A.G.A. refuted the argument and submitted that in view of the facts and circumstances of the case the FIR is promptly lodged, leaving no time and opportunity to twist the real facts in the FIR. Learned A.G.A. refuted the argument and submitted that in view of the facts and circumstances of the case the FIR is promptly lodged, leaving no time and opportunity to twist the real facts in the FIR. It may be mentioned that in the present case admittedly three persons are alleged to have been caused injuries by accused appellants with guns and lathi and one of them scummed to his injuries. After the incident complainant (PW-1) took all the three injured on two rikshaws, to his house, situated at about three furlongs from the place of occurrence and on the way to police station. There he Scribed tehriri report, Ext. Ka-2, managed some money and thereafter carried the injured to the police station on the same rikshaws, where he gave the scribe and got FIR lodged at 9.05 a.m. All this took about ten to twenty minutes and reaching police station. According to PW-8 Majrubi chitthi of all the three injured was prepared at the police station by the munshi under dictation of SI Dost Mohammad. Since the condition of the injured was serious and precarious, they were in need of prompt medical aid so in a hurry inadvertently crime no. and the sections could not be mentioned in these letter. It may also be added that after registration of the case injured reached the district hospital where medico legal was done and report in this regard was prepared mentioning the time of their examination (Ext Ka-11 to Ext Ka-13). On 20.11.1977 at 9.15 a.m. injured Nanku Prasad was examined, who’s injury report has been proved by PW-7 B. R. Bajpai as Ext Ka-11. Injured Ganga prasad was examined at 10.15 a.m. on 20.11.1977 by the doctor, who's injury report is Ext Ka12 is on record. Similarly injured Durga Krishna was medico legally examined on 20.11.1977 at 09.45 a.m. by the doctor, his injury report is on record as Ext Ka-13. Thus, it is clear that after registration of the case, mjrubi chitthi were prepared, and after receiving the same injured were brought to the hospital, where they were medically examined 9.15 a.m. to 10.15 a.m. In these circumstances not mentioning of the crime no on the majrubi chitthis does not mean that the FIR was not registered at 09.05 a.m. on the fateful day. Beside, crime no and other particulars are mentioned in the inquest report Ext ka-10, proved by PW-5. It is natural that all this process took sometime to lodge the FIR. It has been lodged within a period of half an hour as is evident from the chik FIR Ext. Ka-14 and kaimi G.D. Ext. Ka-15. This in itself indicates that FIR was lodged promptly and it was not ante timed, as there was no time to delibareted to twist the facts. He further argued that as a matter of fact complainant side itself came on the spot along with their aids and demolished the boundary-wall of the appellants made earlier in nearby plot no. 2005. Caused injuries to the appellants regarding which they have launched cross FIR at about 11.30 hours. It is thereafter the complainant after collecting some companions, including friend lawyers reached at P.S. and in defence, under pressure, lodged the present FIR. In the circumstances, FIR cannot be said to be delayed and afterthought providing time to twist and concealing the real facts, and arguments, putforth by the learned counsel for the appellant, is not tenable. 41. Learned counsel for the appellant audaciously argued that witnesses produced by the prosecution are partisan, inimical to the appellants and interested witnesses and not independent witness. They are unreliable witnesses and as such no credence can be attached to their testimony and their deposition is not reliable and to be discarded. Learned A.G.A. refuted the contention of the learned counsel for the appellants. He submitted that ordinarily a closed relative would not spare the real culprit who has caused the death and implicate and innocent person. It will be beneficial to discuss law on the interested witnesses and evaluation of their testimonies. 42. The above submission was thoroughly considered by the Hon'ble Apex Court in case of Daleep Singh Vs. State of Punjab, AIR 1953 SC 364 and enunciated the following principles:- "26. 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." 43. In a three Judges Bench of the Supreme Court of India in Hari Obula Reddy Vs. State of A.P. (1981) 3 SCC 675 observed as under:- "13. ...it is well settled that interested evidence is not necessarily unreliable evidence. Even partisanship by itself is not a valid ground for discrediting or rejecting sworn testimony. Nor can it be laid down as an invariable rule that interested evidence can never form the basis of conviction unless corroborated to a material extent in material particulars by independent evidence. All that is necessary is that the evidence of interested witnesses should be subjected to careful scrutiny and accepted with caution. If on such scrutiny, the interested testimony is found to be intrinsically reliable or inherently probable, it may, by itself, be sufficient, in the circumstances of the particular case, to base a conviction thereon." 44. Again, in S. Sudershan Reddy and others Vs. State of A.P. (2006) 10 SCC 163, the Hon'ble Supreme Court has held as under:- "12. We shall first deal with the contention regarding interests of the witnesses for furthering the prosecution version. Relationship is not a factor to affect the credibility of a witness. It is more often than not that a relation would not conceal the actual culprit and make allegations against an innocent person. Foundation has to be laid if plea of false implication is made. In such cases, the court has to adopt a careful approach and analyze evidence to find out whether it is cogent and credible. 15. We may also observe that the ground that the witness being a close relative and consequently being a partisan witness, should not be relied upon, has no substance. This theory was repelled by this Court as early as in Dilip Singh case in which surprise was expressed over the impression which prevailed in the minds of the Members of the Bar that relatives were not independent witnesses." 45. This theory was repelled by this Court as early as in Dilip Singh case in which surprise was expressed over the impression which prevailed in the minds of the Members of the Bar that relatives were not independent witnesses." 45. Thus, we find that Hon'ble Apex Court in its enumerable decisions has categorically held that evidence of eye-witness, if found truthful, can not be discarded simply because the witnesses were relatives of the deceased. The only caveat is that the evidence of interested witnesses should be subjected to careful scrutiny and accepted with caution. 46. The testimony of a reliable witness must be of sterling quality on which implicit reliance can be placed for convicting the appellants. The Apex Court in Rai Sandeep v. State (NCT of Delhi), (2012) 8 SCC 21 has very vividly describe the characteristics of a sterling witness as under. "22. In our considered opinion, the “sterling witness” should be of a very high quality and calibre whose version should, therefore, be unassailable. The court considering the version of such witness should be in a position to accept it for its face value without any hesitation. To test the quality of such a witness, the status of the witness would be immaterial and what would be relevant is the truthfulness of the statement made by such a witness. What would be more relevant would be the consistency of the statement right from the starting point till the end, namely, at the time when the witness makes the initial statement and ultimately before the court. It should be natural and consistent with the case of the prosecution qua the accused. There should not be any prevarication in the version of such a witness. The witness should be in a position to withstand the cross-examination of any length and howsoever strenuous it may be and under no circumstance should give room for any doubt as to the factum of the occurrence, the persons involved, as well as the sequence of it. Such a version should have co-relation with each and every one of other supporting material such as the recoveries made, the weapons used, the manner of offence committed, the scientific evidence and the expert opinion. The said version should consistently match with the version of every other witness. Such a version should have co-relation with each and every one of other supporting material such as the recoveries made, the weapons used, the manner of offence committed, the scientific evidence and the expert opinion. The said version should consistently match with the version of every other witness. It can even be stated that it should be akin to the test applied in the case of circumstantial evidence where there should not be any missing link in the chain of circumstances to hold the accused guilty of the offence alleged against him. Only if the version of such a witness qualifies the above test as well as all other such similar tests to be applied, can it be held that such a witness can be called as a “sterling witness” whose version can be accepted by the court without any corroboration and based on which the guilty can be punished. To be more precise, the version of the said witness on the core spectrum of the crime should remain intact while all other attendant materials, namely, oral, documentary and material objects should match the said version in material particulars in order to enable the court trying the offence to rely on the core version to sieve the other supporting materials for holding the offender guilty of the charge alleged." 47. It is germane to point out here that prosecution in the present case has examined as many as 11 witnesses in support of its version. Out of which four are the witnesses of facts and rest are formal witnesses. PW-1 Sant Kumar Upadhya is the complainant of the incident and nephew of the deceased Nanku. PW-2 Durga Krishna alias Babbu, is the cousin of the deceased and are injured witness also. Thus, they appears to be relative of the injured. PW-4 Sadashiv and PW-6 Guru Prasad are eye witnesses. It may be reiterated that PW-1 Sant Kumar is the complainant, Appellants in their statement under Section 313 Cr.P.C. have themselves admitted his presence at the place of occurrence. PW2 Durga Krishna alias Babbu is the injured witness. While PW-4 Sadashiv is an independent eye witness, who has narrated the prosecution story is a very intrinsic and a natural way and nothing was elicited from his examination which could beneficial the appellants version of the deffence. Therefore, the presence of these witnesses on the place of occurrence cannot be doubted. While PW-4 Sadashiv is an independent eye witness, who has narrated the prosecution story is a very intrinsic and a natural way and nothing was elicited from his examination which could beneficial the appellants version of the deffence. Therefore, the presence of these witnesses on the place of occurrence cannot be doubted. PW-6 Guru Prasad is a formal witness of panchayatnama. As discussed above, a close scrutiny of testimonies of these witnesses reveal that they have narrated the entire incident in a very intrinsic and natural way. Therefore, their testimony cannot be discarded. 48. The learned counsel for the appellants urged that there is no independent public witness to support the prosecution version. Which creates serious doubt about the truthfulness and probity of the prosecution version. The accused appellants have been assigned specific role of causing injuries but the manner of assault shown by the prosecution indicates serious lacunae creating a dent of doubt. There is serious and material inconsistency and discrepancy in respect of the place of occurrence, weapon used and the blows inflicted upon the injured. The witnesses produced were already nurturing animus and grudge against the accused persons. The investigation has also been done in a pedantic and lackadaisical manner with the oblique motive of implicating the accused appellants There is no material from the side of the prosecution to evince that the accused persons had harbored vengeance on the issue of paltry boundary wall. Solitary material was elicited from the evidence of the prosecution witnesses in cross examination by which their testimony was found to be unbelievable and untrustworthy. The chain of evidence and circumstances is not complete to conclusively establish that the accused appellants are the only perpetrator of dreadful crime. The learned trial judge misread, misevaluated and appreciated the entire evidence in convicting and sentencing the accused appellants in the aforesaid crime. The circumstances from which the conclusion of guilt is to be drawn is not fully established. The prosecution has failed to show that in all human probability the act must have been done by the accused appellants. The conviction and sentence awarded to the accused appellants by the learned trial court is not sustainable and the impugned order dated 13.12.1982 may be quashed and the accused appellants may be set at liberty. Learned A.G.A. refuted these arguments advanced by the learned counsel. 49. The conviction and sentence awarded to the accused appellants by the learned trial court is not sustainable and the impugned order dated 13.12.1982 may be quashed and the accused appellants may be set at liberty. Learned A.G.A. refuted these arguments advanced by the learned counsel. 49. Learned counsel for the appellants has also argued that three persons had sustained injuries in such a nature that Nanku Prasad succumbed on account of his ante-mortem injuries, but complainant even did not receive any abrasion or contusion in the said tussle. In this regard it may be mentioned that appellants in their statement under section 313 Cr. P. C. has admitted the presence of the complainant Sant Kumar Upadhyay, at the place of occurrence, at the time of incident. Therefore, it could not be presumed that PW-1 was not present at the scene of occurrence and he has not witnessed the incident. It is next submitted by learned counsel for appellant that Ganga Prasad has been named as a injured witness, but he has not been the examined, for the reasons best known to prosecution. In this regard the statement of the PW-2 Durga Krishna is worth mentioning that Ganga Prasad is reeling under pressure of the appellants so he would not come to record the statement in the court. In such a situation if for the same of argument it is accepted that he would have deposed against the prosecution, it would have been an exercise in vein to examine him by the prosecution, however, it is established that he had received injuries in the incident by the deposition of other prosecution witnesses so he would have strengthened the prosecution version and would have explain the injuries sustained by him. However, his non examination did not adversely affect the prosecution case. It has been also argued by the learned counsel for the appellant that no independent witness has been produced by the prosecution while admittedly several persons were present at the occurrence during incident. In this behalf it may be mentioned that it is established cannon of law of evidence that it is quality not the quantity of evidence, which matters to prove a case. However, prosecution has examined PW-4 Sada Shiv who is an independent eye witness, who has supported the prosecution version. In this behalf it may be mentioned that it is established cannon of law of evidence that it is quality not the quantity of evidence, which matters to prove a case. However, prosecution has examined PW-4 Sada Shiv who is an independent eye witness, who has supported the prosecution version. The motive delineated by the complainant also does not instill such feeling that the accused appellants will attack upon the victims to take away their life. In the facts and circumstances it is vividly clear that injured/ complainant had no animosity with the appellants, however, in view of the possession over the disputed plot and demolish the boundary-wall on it reveal that appellants had vengeance and grudge and enmity against the complainant side, which prompted them to commit the gruesome murder of Nanku Prasad. 50. Learned counsel for the appellants has urged that it is a case of day light occurrence. The incident has taken place in an open place, in the presence of injured witnesses who supported prosecution in their examination. A complete chain of evidence to demonstrate that injured person were inflicted serious injuries with respective weapon held by the accused appellants in execution of common objects to restrain complainant from raising of the boundary-wall. There is other material evidence on record also which corroborated the testimonies of the other prosecution witnesses. 51. According to prosecution case after the incident injured including Nanku Prasad were admitted in the district hospital Nanku’s condition was serious and precarious. So they called the Magistrate to record his Dying Declaration. Tehsildar/ Magistrate B. C. Dixit recorded his dying declaration on 20.11.1977 at 10.40 a.m. in the presence of PW-7 Dr. B.R. Bajpai. Injured Naku Prasad was in a fit mental state and fully conscious during the record of his dying declaration. Such a facts has been certified by PW-7 Dr. B.R. Bajpai which is in his hand writing and signature. He proved it as Ext Kha-1. PW-9 tehsildar/ Magistrate B.C. Dikshit has recorded dying declaration of injured Nanku Prasad in his own hand writing and signature on 20.11.1977 at 10.40 a.m. and obtained his signature on it. He proved the dying declaration as Ext Ka.19. B.R. Bajpai which is in his hand writing and signature. He proved it as Ext Kha-1. PW-9 tehsildar/ Magistrate B.C. Dikshit has recorded dying declaration of injured Nanku Prasad in his own hand writing and signature on 20.11.1977 at 10.40 a.m. and obtained his signature on it. He proved the dying declaration as Ext Ka.19. Learned counsel for appellants has contended that in the dying declaration the only role of firing has been assigned to Krishna Kant Gautam with his son, brother and other persons has been assigned, the role of exhortation in chorus, nor they have not been assigned any role of assaulting any one. 52. Learned AGA has relied upon a judgment of Hon'ble Apex Court in Bhayani Luhana Radhabi Versus State of Gujarat 1977 CAR 49 (SC) where in Apex court in held that a dying declaration stood on the same footing as any other evidence and it was to be judged in the surrounding circumstances and with reference to the principles governing the weighing of evidence. The apex court has laid down certain circumstances which had to be kept in view while testing the reliability of a dying declaration. These circumstances include ability of the man to remember to the facts and whether the statement has been consistent thereabout. If he had several opportunities of making a dying declaration and whether the statement has been made at the earliest opportunity and not the result of the tutoring by interested persons. The present dying declaration is free from all such vices. In Kusa and others Versus State of Orisha 1980 C.A.R. 66 (SC). the Apex court held that the truth sits upon the lip of a dying man. In State of Maharashtra Versus Krishnamurthy Laxmipati Naidu (1980) Supp. SCC 455 it has been held that merely because a dying declaration does not contain the details as to the occurrence, it is not to be rejected. Further reliance has also been placed upon the judgment of Hon'ble Apex Court in re Surajdeo Ojha Versus State of Bihar 1980 Supp. SCC 769 wherein it has been held that merely because the dying declaration is a brief statement, it is not to be discarded. On the contrary the shortness of the statement itself guarantees truth. Thus the dying declaration of Nanku Prasad (deceased) is to be acted upon with corroborative evidence. 53. SCC 769 wherein it has been held that merely because the dying declaration is a brief statement, it is not to be discarded. On the contrary the shortness of the statement itself guarantees truth. Thus the dying declaration of Nanku Prasad (deceased) is to be acted upon with corroborative evidence. 53. In the present case dying declaration Ext Ka-19 is a brief statement of the injured Nanku, wherein he stated that all the accused including surviving appellants, were present on the scene of occurrence. He further stated that Krishna kant Gautam fired upon him. The ocular evidence, discussed herein above establishes that Farnesh Kumar, who opened fire which hit Nanku Prasad on the upper part of his chest. There were gunshot wound also sustained by Durga Krishan alias Babbu and Ganga Prasad. The medical evidence has fully supported the injuries. In these circumstances it may safely been inferred that these fires were made by more then one fire arm. It has occurred in evidence that after hit the Nanku Prasad rolled on the ground. It diminished the possibility that he was able to see as to who fired upon the injured persons. It may also be mentioned that it was a case of indiscriminate firing, so the roll of hitting any injured to particular accused can not be assigned. Presence of the appellants Ram Nath Lodh alias Bhola Lodh is well established on the place of occurrence. He is set to be servant of Krishan Kant Gautam. The motive on the part of the accused is also well established. There was a dispute of the landed property between the complainant and the accused. Accused/appellants want to grab the land purchased by the complainant, of Khasra no. 2103 and was raising boundary wall on the fateful day. This land is situated in front of the house of the Krishna Kant Gautam and he wanted to purchase the said land. Accused prevented the complainant side and remonstrated to demolish the boundary-wall already raised earlier by the complainant side. Thus, the motive to commit the crime by the appellants is clear, and when complainant reached at the plot for raising for the boundary-wall, all the accused came out with guns and Lathies and started demolishing the wall in execution of common object. 54. Thus, the motive to commit the crime by the appellants is clear, and when complainant reached at the plot for raising for the boundary-wall, all the accused came out with guns and Lathies and started demolishing the wall in execution of common object. 54. Having regard to the overall facts and circumstances of the case and also from the aforesaid discussions of the evidence on record, there is no manner of doubt about the complicity of the accused appellants in inflicting fatal and grave injuries on Nanku Prasad (deceased) and two injured. Though the witnesses were cross examined by the defence but no contradiction could be elicited so as to discard the version regarding the involvement of the accused appellants in committing ghastly crime as a result of which Nanku Prasad died on the same day of incident. The medical evidence adduced by prosecution relating to injuries caused to Nanku Prasad (deceased) and other two injured stood fully proved. The prosecution story will not stand demolished for any fault of the investigating officer. The trial court had sifted and analysed the entire prosecution version and defence of the accused appellants on the yardstick of its reliability and trustworthiness and has rightly reached at the conclusion that it is the accused appellants who are the real perpetrator of the crime, inflicting fatal and blatant injuries to Nanku Prasad (deceased) and two others. The complainant Sant Kumar Upadhayay (P.W.1) has supported the first information report and narrated the incident in vivid manner in his evidence before the trial court. P.W.2 Durga Krishna alias Babbu who has been eye witness of the incident has also supported the prosecution case in a natural manner. Dr. Som Sharma (P.W.3) who had conducted the post mortem has also certified the post mortem report and the injuries. P.W-4 Sada Shiv had been an eye witness of the said incident narrated the prosecution case in an explicit way depicting barbarous and gruesome manner of causing injuries to Nanku Prasad (deceased) and two others by the accused appellants. P.W.5 Dr. T.N. Bajpayee had proved the X.ray and photographs of the injured. P.W.6 Guru Prasad who had been a witness of Panchayatnama had also supported the prosecution case. P.W.7 Dr. B.R. Bajpai had authenticated the dying declaration of Nanku Prasad (deceased) recorded by Tehsildar Magistrate. P.W.5 Dr. T.N. Bajpayee had proved the X.ray and photographs of the injured. P.W.6 Guru Prasad who had been a witness of Panchayatnama had also supported the prosecution case. P.W.7 Dr. B.R. Bajpai had authenticated the dying declaration of Nanku Prasad (deceased) recorded by Tehsildar Magistrate. P.W.8 Constable Moharrir Jagdish Prasad Tiwari had proved the various reports recorded and lodged at the police station concerned. P.W.9 B.C. Dixit Tehsildar Magistrate who had recorded the dying declaration of Nanku Prasad (injured) had proved vide Ext.Ka.19. P.W.10. It is canon of cardinal principle of law that truth sits upon the lip of a dying man. Gadadhar Prasad Sharma S.I. who had visited the place of occurrence and arrested the accused persons and recovered the incriminating articles had certified the same. P.W.11 B.D. Rai Ballistic Expert had also given his opinion. The cumulative effect of entire evidence and circumstances shows that all links in the chain of the prosecution case are complete. The accused appellants had formed an unlawful assembly and had taken undue advantages of the deceased and injured by causing them fatal injuries with gun shot and lathi, danda. There is clear intent and knowledge to cause murder and severe bodily injuries. There is clear and categorical evidence to prove the accusations of causing serious injuries to Nanku Prasad who succumbed to his injuries, on the same day and two others namely, Ganga Prasad and Durga Krishna alias Babu were inflicted fatal grievous multiple gunshot injuries with the intent and knowledge that they might be lost their lives by the surviving appellants Farnesh Kumar Singh and Ram Nath alias Bhola. Thus surviving accused appellants cannot escape from the punishment for the offence committed by them. 55. In the light of prolix and verbose discussions made herein above and also regard being had to the entire facts and circumstances of the case and re-appreciation of the entire evidence, we are of the opinion that the prosecution has proved its allegations beyond reasonable doubts, pointing unerringly guilt of the accused including surviving appellants. The trial court has rightly held that the accused / appellants, formed unlawful assembly with arms and deadly weapons and committed murder of an innocent person and attempted to murder two other injured in execution of their common object. Thus, surviving appellants are also guilty for the offence punishable under section 147, 148, 307/149, 302/149 IPC. The trial court has rightly held that the accused / appellants, formed unlawful assembly with arms and deadly weapons and committed murder of an innocent person and attempted to murder two other injured in execution of their common object. Thus, surviving appellants are also guilty for the offence punishable under section 147, 148, 307/149, 302/149 IPC. Consequentially, in our considered opinion, the accused appellants are guilty of the charges leveled against them, in execution of their common object. Thus, evidence adduce by the prosecution, motive of the incident coupled with the dying declaration establishes the prosecution case beyond doubts. 56. The Learned counsel for the appellant has submitted that the FIR in the present case is a counter blast of a case lodged by the accused side against the complainant. According to the defence version on 20.11.1977 at about 08.30 Complainant Krishna Kant Gautam was sitting in his room. His brother Shivroop Singh Son Farnesh Kumar Servent Ram Ntah alias Bhola Lodh and Anant Saran were also with him. Meanwhile Sant Kumar Upadhyay, Naval Kishor(since deceased) along with ten other persons armed with guns and pistols and came and started demolishing his boundary-wall constructed in plot no. 2105 on hearing the shrill and sherik Krishna Kant Gautam and his associates came out of his house and remonstrated them. These people were standing in court yard of the complainant Krishna Kant Gautam. Several trees were standing there. Some banana trees were also there. Seeing them accused started hurling abuses. When he asked them not to abuse them Nanku Prasad fired with his gun at them. However they escaped the fire, which missed. The fire did not hit any one of them and hit the bananas plant. At this complainant and his companions went in side the house. There after police came there and a criminal case against the accused persons (complainant of the present case) lodged an FIR against the Sant Kumar and Naval Kisore at about 09.05 a.m. under sections 148, 304/149, and 427 IPC and after due investigation the charge sheet was filed by the IO against the Sant Kumar and Naval Kishor. Learned trial judge after scrutinizing the evidence on record acquitted all the accused by the impugned judgment dated 10.12.1982. 57. Learned Counsel for the appellants has contended that present is the cross case of the above stated case. Learned trial judge after scrutinizing the evidence on record acquitted all the accused by the impugned judgment dated 10.12.1982. 57. Learned Counsel for the appellants has contended that present is the cross case of the above stated case. Being a cross case complainant Sant Kumar Upadhyay and party is the aggressor as they were equipped with deadly weapons and attacked them. Appellants only acted in private self defence of their life and property. The learned AGA disputed the above defence case and argued that it was Krishan Kant and party who attacked Sant Kumar Upadhyay etc with deadly weapons and killed Nanku Prasad in execution of their common object and forming unlawful assembly with arms. It may be noted that no one has received any injury of any kind from the side of Krishna Kant Gautam if Sant Kumar Upadhyay etc were aggressor, they would have sustained injuries, particularly when accused were equipped with arms while Nanku Prasad killed from the side of Sant Kumar Upadhyay and two other persons were also received gun shot injuries. Thus, by no stretch of imagination the complainant Sant Kumar Upadhyay is the aggressor. So far right of private defence go, for the sake of arguements if it is accepted that Sant Kumar Upadhyay etc. were the aggressor, Krishna Kant Gautam etc. has exceeded the limits of private defence. Thus, the plea of aggressor and exercise of the private defence, can not be accepted. 58. Resultantly, this Court find no compelling and substantial reasons to interfere with the judgment with regard to conviction of the appellants Farnesh Kumar under Sections 148, 302/149, 307/149 I.P.C. and Ram Nath alias Bhola Lodh under Sections 147, 302/149, 307/149 I.P.C. The learned trial court has sentenced Furnish Kumar for the charge under Section 148 I.P.C. for R.I. of two years, for the charge under Section 302 read with 149 I.P.C. for the life imprisonment and for charge under Section 307 read with 149 I.P.C. for R.I. of seven years. The learned trial court has sentenced the accused appellants Ram Nath alias Bhola Lodh for the charge under Section 147 for a terms of 18 months R.I., for charge under Section 302/149 I.P.C. life imprisonment and for the charge under Section 307/149 I.P.C. for a term of seven years R.I. 59. The learned trial court has sentenced the accused appellants Ram Nath alias Bhola Lodh for the charge under Section 147 for a terms of 18 months R.I., for charge under Section 302/149 I.P.C. life imprisonment and for the charge under Section 307/149 I.P.C. for a term of seven years R.I. 59. Learned AGA has pointed out that with respect to sentence section 302 and 307 I.P.C. enjoin that apart from the imprisonment fine should also be imposed upon the convicts. The law of sentencing consider it mandatory and imposition of fine forms the integral component of punishment under these sections. However in this case learned trial court has not imposed any fine as punishment, for the offence under Sections 302 and 307 I.P.C. and it should be corrected. Learned counsel for the appellant did not disputed this legal position of sentencing. Keeping in view the aforesaid legal aspect of sentencing, it appears to be an inadvertent omission and error in the sentencing by the trial court. Therefore it deserves to be corrected and sentence be modified accordingly by addition of fine for the offence under section 302/ 149 and 307/ 149 IPC. The ends of justice will be served by adding a fine of Rs.20000/- to the term of imprisonment already awarded to each surviving accused / appellants under section 302/ 149 IPC and in default both of them will under go to an additional imprisonment for six months. Each of the surviving appellants is imposed fine of Rs.10000/- in addition to imprisonment already awarded under section 307/ 149 IPC and in case of default both of them will under go to an additional imprisonment for three months. The judgment and order dated 13.12.1982 passed by the trial court is affirmed accordingly. The appeal sans merit and is accordingly dismissed. 60. Copy of the judgment be sent to the trial court to ensure necessary compliance in one months. The compliance report be communicated to this court within two weeks thereafter. 61. Trial court record be sent back immediately.