JUDGMENT : Ram Manohar Narayan Mishra, J. 1. This criminal appeal has been filed against the judgment and order of conviction dated 09.12.1983, passed by learned III Additional Sessions Judge, Muzaffarnagar, in Sessions Trial No.381 of 1982, whereby the learned III Additional Sessions Judge, Muzaffarnagar (hereinafter referred as ‘trial court’) has convicted the appellants namely, Rohtash, Vija alias Vijaipal, Dileep, Mughal and King Kong under Section 302/149 IPC for life imprisonment, while appellant Rohtash was further convicted under Section 148 IPC and sentenced to undergo two years imprisonment and the remaining appellants are convicted under Section 147 IPC and sentenced to undergo one year rigorous imprisonment. All the sentences were directed to run concurrently. 2. Factual matrix of the case in brief are that the informant Vishambher, son of Natthu, lodged an FIR orally at police station Purkaji, District Muzaffar Nagar stating that he is resident of village Khedaki, Police Station Purkaji, District Muzaffar Nagar. In last winter, his co-villager Bhopal, son of Mama and others had committed murder of Samay, son of Chohal. On account of the enmity of said murder case, on 6.8.1982, at 5/6:00 PM when he was coming from his agricultural field alongwith his bullock, he found that said Bhopal was fishing while sitting on slope of southwards to the river bank. Suddenly, his co-villager Rohtash armed with a countrymade pistol, Vijayee @ Vijja and his father Mughal wielding lathis in their hands, Dileep and King Kong, sons of Chohal having lathies in their hands appeared and accused Vijayee @ Vijja, Mugal, Dalip and King Kong started assaulting Bhopal by lathies. Rohtash fired two shots at Bhopal in the meanwhile and due to injuries suffered in the incident, Bhopal died on the spot. The occurrence was also witnessed by Rajpal, son of Atar Sing. He left villagers near the dead body and came at the police station to lodge the report. The delay while reaching police station occurred due to non availability of conveyance and pathway becoming muddy. The report was lodged on same day i.e. 6.8.1982, at 23:30 hours, vide Crime No.128 of 1982, under Sections 147, 148, 149, 302 IPC by Head Muharrir Satyapal Sharma on the basis of oral account of Vishambhar. The delay while reaching police station occurred due to non availability of conveyance and pathway becoming muddy. The report was lodged on same day i.e. 6.8.1982, at 23:30 hours, vide Crime No.128 of 1982, under Sections 147, 148, 149, 302 IPC by Head Muharrir Satyapal Sharma on the basis of oral account of Vishambhar. He also made entry of lodging of this FIR vide report No.28, time 23:30 hours dated 6.8.1982, in which it is stated that Vishambher @ Banda, Son of Nathhu Harijan, resident of village Khedaki, Police Station Purkaji, accompanied with Rishi, resident of Gram Khedaki appeared at police station and gave oral information regarding the incident against five named accused namely, Rohtash, Vijja, Mughal, Dileep and King Kong. After lodging of FIR and registration of case vide said GD entry, S.O. Shiv Raj Singh Tyagi (PW-4) rushed to the spot where dead body was lying together with S.I. Jagdamba Prasad and two constables Surendra Singh and Dhanpal Singh alongwith necessary papers and after appointing Panch witnesses, commenced inquest on dead body of deceased Bhopal on 7.8.1982, at 6:00 AM, which concluded at 7:30 AM on same day i.e. 7.8.1982. The inquest was conducted on place of incident where the dead body was lying. It was stucked in between water and mud and was found in supine position. In the opinion of Panch witnesses, the deceased Bhopal died due to firearm and lathi injuries received during the incident. The deceased was wearing a 'kameej' and white underwear, which were blood stained. The inquest Officer (S.O. concerned) entrusted the dead body alongwith copy of inquest report, copy of FIR, copy of GD Entry and photo lash, challan lash, report R.I., Report CMO and sample seal prepared by him to two Constables namely, Balveer Singh and Surendra Singh, who were posted at police station concerned for transporting the dead body to Headquarter at mortuary for postmortem. The Investigating Officer took into possession one cartridge shell 12 bore, one empty cartridge 12 bore without bottom and one refilled cartridge from place of incident on 7.8.1982 and prepared its inventory as Ext.Ka-9. He also collected plain earth and blood stained earth from place of occurrence and prepared its inventory as Ext.Ka-10. 3. The postmortem examination on the body of the deceased Bhopal was carried out by Dr. Satish Kumar Sharma (PW-1) on 7. He also collected plain earth and blood stained earth from place of occurrence and prepared its inventory as Ext.Ka-10. 3. The postmortem examination on the body of the deceased Bhopal was carried out by Dr. Satish Kumar Sharma (PW-1) on 7. 8.1982, at 4:15 PM, which was sent by S.O. Purkaji (Muzaffar Nagar) through Constables Balveer Singh and Surendra Singh. Rigor mortis was present over the lower extremities and going from upper limbs. Body was covered with sand and mud. Approximate time of death was one day before the postmortem. Following antemortem injuries were found on the person of the deceased:- (i) Lacerated wound 2 X 1/2 inch X scalp over left side head, 4 inch above left ear; (ii) Lacerated wound 2 and 1/4 inch X 1/4 inch scalp over right side of head, 3 and half inch above right ear; (iii) Lacerated wound 2 and half inch X 1/4 inch X scalp over right side head, 2 inch behind right ear; (iv) Lacerated wound 2 X 1/4 Inch X scalp over right side back against head, 1-1/2 inch behind injury No.3; (v) Gunshot wound of entry 1 inch X 1/2 inch X cavity deep over left side back chest, lateral to spine at the level of interior angle of left scapula. Tattooing and blackening present. Margins inverted and lacerated; (vi) Gunshot wound of exit 3 inch X 2 inch over left side chest, 2 and 3/4 inch from left nipple at 7 to 8'O clock position. Margins averted, corresponding to injury No.5. (vii) Gunshot wound of entry 1/2 inch X 1/4 inch X cavity deep over right side chest just lateral to sternum, 3 inch from right nipple at 2:00'O clock position. Tattooing and blacking were present. Margins inverted. This one entered between 3rd and 4th ribs and was directed medially and downwards. On dissecting path, which was found to cross over to left side anterior media sternum and from there to left side chest lacerating left lung; (viii) Incised wound 3 X 1 inch X abdominal cavity deep over right side chest in anterior auxiliary line just above costal margin. Margins clean cut, angles angular. On internal examination, it was found that right 8th, 5th and 11th ribs were cut laterally. Lower lobe of right lung was cut under injury No.8. Left lung was lacerated in both lobes. Left pleura was lacerated under injury No.5 and 8. Margins clean cut, angles angular. On internal examination, it was found that right 8th, 5th and 11th ribs were cut laterally. Lower lobe of right lung was cut under injury No.8. Left lung was lacerated in both lobes. Left pleura was lacerated under injury No.5 and 8. Left 6th, 7th and 8th ribs were fractured anteriorly. Stomach was empty. Abdominal membranes were cut under injuy No.8. Small intestine was half full and large intestine was half full. 8 metallic pellets and 2 wadding pieces were recovered from dead body during postmortem and were handed over to the Constables, who had carried the dead body to mortuary. Cause of death was due to shock and haemorrhage as a result of antemortem injuries noted. In the opinion of PW-1 injury No.5-7 were possibly caused by firearm and injury No.4 might have been caused by lathi. Injury No.8 was caused by some sharp edged weapon. 4. PW-4, S.O. Shiv Raj Singh Tyagi conducted investigation of the case, recorded statements of witnesses, collected two empty and one refilled live cartridge 12 bore KF Special from place of incident and prepared its seizure memo (Ext.Ka-9). He also collected plain and blood stained earth from the place of incident and prepared its seizure memo as Ext.Ka-10. He prepared site plan of place of incident and proved the same by his evidence as Ext.Ka-11. After completing investigation, he submitted chargesheet against all the five named accused persons for charge under Sections 147, 148, 302 IPC with prayer to prosecute them in the Court. 5. Learned Chief Judicial Magistrate committed the case to Session Court for trial as offence was exclusively triable by Court of Session. 6. On commencement of trial at Court of Session, learned 3rd Additional Session Judge framed charge under Section 148 IPC against accused Rohtash, Charge under Section 147 IPC against Vijayee @ Vijja, Mughal, Dileep and King Kong. Charge under Section 302/149 IPC against Rohtash, Vijayee @ Vijja, Mughal, Dileep and King Kong. The accused persons denied the charge, pleaded not guilty to it and claimed to be tried. 7. Prosecution examined Dr. S.K. Sharma, the author of postmortem report as PW-1; Vishambher, the informant as PW-2; Rajpal as eye-witness as PW-3, S.O. Shiv Raj Singh Tyagi, the Investigating Officer as PW-4 and Surendra Singh, Police Constable who carried the dead body to mortuary for postmortem as PW-5. 8. 7. Prosecution examined Dr. S.K. Sharma, the author of postmortem report as PW-1; Vishambher, the informant as PW-2; Rajpal as eye-witness as PW-3, S.O. Shiv Raj Singh Tyagi, the Investigating Officer as PW-4 and Surendra Singh, Police Constable who carried the dead body to mortuary for postmortem as PW-5. 8. On closure of prosecution evidence, statement of accused persons was recorded by learned trial court under Section 313 Cr.P.C., in which they stated that the witnesses have deposed against them due to enmity. The FIR has also been lodged against them due to enmity. They have admitted enmity as deceased Bhopal had killed Samay, prior to the incident, who was brother of accused Dilip and King Kong and cousin of accused Rohtash and Vijaypal alias Vijja. However, they denied that they killed Bhopal due to enmity. They also stated that both the witnesses belonged to clan of deceased and deposed falsely against the accused persons. Accused Dileep stated that deceased Bhopal was a man of criminal antecedents and was inimical to many persons. Informant side was exerting pressure on accused Mughal to desist from deposing in the murder case of Samay. 9. The accused persons were given opportunity of adducing defence evidence but they did not tender any evidence in defence. Their defence is that of denial. 10. Learned trial court after appreciation of evidence on record and considering the submissions made at Bar from both sides, recorded vedict of guilt against accused appellants and convicted them for charge under sections 302/149, 147, 148 IPC and appellants were sentenced to life imprisonment for charge under Section 302/149 IPC. Accused Rohtash was sentenced to two years rigorous imprisonment for charge under Section 148 IPC and other accused persons were sentenced to one year rigorous imprisonment for charge under Section 147 IPC. 11. Feeling aggrieved by the impugned judgement and order, the convicts/appellants preferred present appeal before this Court under Section 374(2) Cr.P.C. 12. Heard learned counsel for the appellants, learned AGA for the State and perused the material placed on record. 13. Prosecution examined two witnesses of fact in support of its case namely, Vishambhar (PW-2) and Rajpal (PW-3), who supported prosecution version in their testimony before the Court. PW-2 stated that accused Rohtash and Vijay @ Vijja are sons of accused Mughal. Accused Dilip and King Kong are real brothers and sons of Chohal. Deceased Bhopal belong to his village. 13. Prosecution examined two witnesses of fact in support of its case namely, Vishambhar (PW-2) and Rajpal (PW-3), who supported prosecution version in their testimony before the Court. PW-2 stated that accused Rohtash and Vijay @ Vijja are sons of accused Mughal. Accused Dilip and King Kong are real brothers and sons of Chohal. Deceased Bhopal belong to his village. Case of murder of Samay, son of Chohal was litigated in which deceased Bhopal and Raghuveer were accused. The incident occurred on fateful day at around 5-6 PM. He was returning to his home from his field. When he reached near the river bank, he saw Bhopal engaged in fishing. Accused Rohtash shot at Bhopal from behind. Rohtash fired two shots at him by countrymade pistol and at the same time, Dilip, King Kong, Vijja and Mughal emerged from nearby ‘chari field’. The accused persons also hit Bhopal by lathies and he died on the spot on account of injuries suffered. He had seen the incident together with witness Rajpal, who was also present there. The witnesses namely, Vishambhar (PW-2) and Rajpal (PW-3) tried to stop the accused persons, who in turn walked away towards Pava. He straight way rushed to police station and lodged the FIR. Rajpal also accompanied him up to police station. He dictated the written report to Head Muharrir who transcribed the same as per his dictation. He appended his thumb impression thereon after being read over by the scribe, Ext.Ka-2 was marked thereon. A long iron nail was fixed in lathi of Vijaypal. In cross-examination, the witness stated that Bhopal was sitting on the bank of river. The witness was sitting in other side of river. A distance of 30 paces was lying between two banks. The four accused persons assaulted Bhopal by the lathies. He met Station Officer of police station when he visited the police station and got the report lodged by Head Constable. He is not aware as to whether thumb impression of Rajpal was taken on FIR. He travelled the police station from the ghat (Place of occurrence) on feet. Two Sub Inspectors and three Constables left for place of occurrence after lodging of FIR. He had not conversed with police officials on way to place of occurrence. They went to place of occurrence from police station by a horse cart at around 3:00 AM (night). He travelled the police station from the ghat (Place of occurrence) on feet. Two Sub Inspectors and three Constables left for place of occurrence after lodging of FIR. He had not conversed with police officials on way to place of occurrence. They went to place of occurrence from police station by a horse cart at around 3:00 AM (night). The Sub Inspector sealed the dead body on the next date at 8:00 AM and did writing work with regard to dead body. The dead body was taken by police constables after paper work. Co-accused Dilip and King Kong are brothers of Samay, who was killed prior to this incident. The witness denied defence suggestion that the witness and his family members were exerting pressure on accused Mughal to desist to depose in murder case of Samay. They never exerted pressure on accused Dilip and King Kong. He had dictated in written report the fact that the lathi wielded by accused Vijaypal @ Vijja was consisting of a long nail. He had also dictated this fact in written report that at the time of incident, he was standing with his bullock on second side of the river. He had also got this fact written in his report that accused persons emerged from ‘chari field’ of Fullu and also reiterated this fact to Darogaji. He cannot explain as to why this fact has not been stated in his statement recorded by Darogaji. Bhopal had hunted three fishes, which he had kept in a bag. He was fishing by fishing hook. 14. PW-2 Rajpal has also deposed that he witnessed the incident as he was present near the place of occurrence at around 5:30 PM as he was easing himself and after getting eased, he went to river to wash his hands. He saw Bhopal engaged in fishing and suddenly accused Rohtash having a countrymade pistol in his hand and accused Dilip, Vijja, Mughal and King Kong armed with lathi reached there from the side of hillock and they fired at Bhopal. The accused, who were wielding lathi also assaulted him by their lathies. Bhopal died on the spot having been injured. A witness Vishambhar was also present there as he was offering water to cattle for drinking. The lathi which accused Vijja was wielding consisted an iron nail fixed therein. There is a hillock near the place of incident. The accused, who were wielding lathi also assaulted him by their lathies. Bhopal died on the spot having been injured. A witness Vishambhar was also present there as he was offering water to cattle for drinking. The lathi which accused Vijja was wielding consisted an iron nail fixed therein. There is a hillock near the place of incident. In cross-examination, the witness stated that the accused persons fled away towards hillock after the incident. He witnessed the incident from a distance of 50-60 paces. Bhopal was fishing by fish hook. He had hunted three fishes. The fishes and fish hook was lying on the spot after the incident. Bhopal was sitting towards Pawa. The witness denied the defence suggestion that he had not seen any occurrence and he was not present in the village at the time of incident. He stated that the accused persons were 50-60 paces away from him when fire was shot. 15. PW-1 Dr. S.K. Sharma is author of postmortem report of the deceased who proved the same by his sworn testimony before the court on which Ext.Ka-1 has been marked. He stated that he prepared the postmortem report in his writing and signature. 16. PW-4 Shiv Raj Singh Tyagi was examined as Investigating Officer of the case who stated in his evidence that the case was registered in his presence on 6.8.1982. He was posted as Station Officer at police station concerned. The chik FIR was scribed by Head Muharrir Satyapal Sharma, who was posted at his police station. The FIR was drawn as per oral version of the informant. In chik FIR Ext.Ka-2 has been marked. He also stated that this police case was registered vide GD No.28, dated 6.8.1982, time 23:30 hours by Head Muharrir Satyapal Sharma. He is acquainted with his signature. The witness proved extracts of GD entries. The witness proved extracts of GD entries filed on record by producing the original before the court and accordingly Ext.Ka-3 has been marked on Paper No.6/1. He stated that he conducted investigation of the case on the same day on which day report was lodged. He started for placed of occurrence on same day and reached there at 3:00 AM as the place of occurrence was lying in a jungle, no proceeding could be done due to onset of darkness of night. He stated that he conducted investigation of the case on the same day on which day report was lodged. He started for placed of occurrence on same day and reached there at 3:00 AM as the place of occurrence was lying in a jungle, no proceeding could be done due to onset of darkness of night. He carried out inquest of deceased Bhopal on next day in the morning at 6:00 AM on 7.8.1982 and got the inquest report prepared by dictating the same through S.I. J.P. Thapaliar. The inquest report was in the hand writing of J.P. Thapaliar, which also bear signature of the witness (PW-4), on which Ext.Ka-4 has been marked. The police papers like Letter to CMO, Letter to R.I., Challan Lash, Photo Lash were prepared by S.I. J.P. Thapalial, which also bears signature of the witness on which Ext.Ka-5 to Ka-8 have been marked. He further stated that he dispatched dead body of Bhopal in sealed cover through Constable Balvir and Surendra Singh alongwith necessary enclosures after finishing inquest proceeding. He collected two empty cartridge shells and one refilled live cartridge and kept the same in his possession. He sealed the same. The ammunitions were produced before him during his evidence in sealed cover which bears signature of PW-4 and witnesses which is marked as Ext.Ka-9. He also prepared panchnama of blood stained and plain earth collected from place of occurrence and got it sealed. He proved the inventory of same on which Ext.Ka-10 has been marked. The witness also stated that he conducted spot inspection and recorded statement of the witnesses. He prepared site plan of the place of occurrence in his hand writing and signature on which Ext.Ka-11 has been marked. He filed chargehseet of the case after concluding the investigation in his hand writing and signature, on which Ext.Ka-12 has been marked. He reached the place of occurrence on 3:00 AM which was in jungle and for that reason he could not do any proceeding immediately. He carried out investigation proceeding since 5:15 AM on 7.8.1982. He recorded statement of the informant at police station. The place of occurrence situates 1 furlong away from the village. He conducted inquest at 6:00 AM and got dead body sealed at 7:30 AM. The witness corrected certain clerical errors which occurred in statement of witness Vishambhar recorded by him during his cross-examination. 17. He recorded statement of the informant at police station. The place of occurrence situates 1 furlong away from the village. He conducted inquest at 6:00 AM and got dead body sealed at 7:30 AM. The witness corrected certain clerical errors which occurred in statement of witness Vishambhar recorded by him during his cross-examination. 17. PW-5 Constable Surendra Singh testified that he carried the dead body from the place of occurrence to head quarter on 7.8.1982 alongwith Constable Balvir. The dead body of Bhopal was kept in sealed cover. The GD entry of arrival of dead body at Police Lines is report No.31, time 14:13 hours. He produced the GD of receiving of dead body at Police Line before the Court. In cross-examination, the witness stated that they carried the dead body from place of occurrence by a Jeep, in which S.I. S.S. Tyagi, J.P. Thapalial and Constable Dharampal and Balvir were also sitting. They reached the place of occurrence at 12:30:00 hours in the night. It takes two and half hours in reaching Muzaffar Nagar from the place of occurrence. The police personnel were carrying torches in their hands at the scene of occurrence. 18. Learned counsel for the appellants submitted that the appellants have been implicated in the case due to old enmity between deceased and appellants. Deceased Bhopal was accused in murder case of Samay, son of Chohal. Appellants Dilip and King Kong were real brothers of deceased Samay. Accused appellant Mughal and his sons Rohtash and Vijaypal @ Vija belong to the clan (khandan) of Samay. All the appellants derived their origin from common ancestor Jagan. A genealogical table of the appellants has been given in paragtah No.9 of the impugned judgement as the appellants were witnesses in murder case of Samay in which deceased Bhopal was a potential accused. The informant’s side was exerting pressure on the appellants to desist from deposing against Bhopal but the appellants did not oblige them, as a result of which when Bhopal was killed by some unknown person on a secluded place, the appellants have been falsely implicated in the case to settle the score by informant’s side. He next submitted that no recovery of any firearm or ammunitions used in the offence has been effected from the appellant by the Investigating Officer, which creates a doubt on authenticity of prosecution version regarding complicity of appellants in the offence. He next submitted that no recovery of any firearm or ammunitions used in the offence has been effected from the appellant by the Investigating Officer, which creates a doubt on authenticity of prosecution version regarding complicity of appellants in the offence. The witnesses of fact i.e. PW-2 Vishambhar and PW-3 Rajpal are chance witnesses and their presence on the spot cannot be held to be natural. The Investigating Officer had not found or collected the fishing hook allegedly used by the deceased at the time of offence or fished hunted by him. The main role has been attributed to accused appellant Rohtash, who is said to have fired a shot at the deceased which proved fatal. Other appellants are attributed the role of causing injuries to deceased by lathi blow in FIR as well as in statements of the witnesses under Section 161 Cr.P.C., however, during investigation, a case has been developed with a view to create consistency with postmortem report that the lathi wielded and used by appellant Vijaypal @ Vija was having a long nail fixed therein. In postmortem report of the appellant as many as 8 antemortem injuries are shown on the person of the deceased out of which injury No.8 is incised wound of 3 inch X 1 inch X abdominal cavity deep over right side of chest and this injury can only be caused by sharp edged weapon. Such type of injury cannot be caused by lathi or even by a lathi fixed with a nail as deposed by witnesses of fact i.e. PW-2 and PW-3. Therefore, injury No.8 of the deceased remained unexplained in prosecution evidence. This depicts that the witnesses had not seen the occurrence and they are got up witnesses. The general role has been assigned to surviving appellant Vijaypal @ Vija that he had assaulted the deceased by lathi together with other appellants namely, Mughal, Dilip and King Kong. The presence and complicity of surviving appellant Vijaypal @ Vija is highly doubtful in view of the fact that the weapon (lathi fixed with iron nail) could have hardly caused injury No.8 as shown in postmortem report of the deceased. PW-3 has falsely stated that there was lying his agricultural field in the vicinity of place of occurrence on way. No agricultural field of Rajpal (PW-3) is shown in site plan. 19. PW-3 has falsely stated that there was lying his agricultural field in the vicinity of place of occurrence on way. No agricultural field of Rajpal (PW-3) is shown in site plan. 19. With above submissions and contentions, learned counsel for the appellants prayed for acquittal of surviving appellant Vijaypal @ Vija in present appeal. 20. Per contra, learned AGA strongly supported the impugned judgement and order passed by learned trial court by which the appellant has been convicted and sentenced for charges under Sections 302/149, 147, 148 IPC. He submitted that the case is based on eye-witness account of witnesses i.e. PW-2 Vishambhar and PW-3 Rajpal. There was no occasion on the part of the witnesses to falsely implicate the appellants. They had no grudge or enmity with the appellants. The mode and manner of assault and the nature and number of injuries suffered by the deceased are duly proved by ocular testimony and medical evidence adduced during trial. There is consistency between medical and ocular testimony on point that deceased suffered two firearm injuries in the incident on his chest and back. The appellants nurtured strong motive against the deceased Bhopal as he was accused in murder case of Samay, who was real brother of appellants King Kong and Dilip and son of the real sister of accused Mughal and cousin of Rohtash and Vijaypal @ Vijja. The appellants committed murder of Bhopal to retaliate murder of their relative Samay. The eye-witnesses are natural witnesses of the incident as they are resident of same village where deceased and accused appellants were residing and their presence on the spot is duly explained in their testimony before the court and their presence cannot be doubted. FIR in the present case was lodged with promptness, keeping in view the distance of police station from place of incident as shown in chik FIR (Ext.ka-2). Nothing can be elicited by defence in evidence of prosecution witnesses of fact which could suggest reasonable doubt in testimony of the witnesses. The FIR in the case was lodged by the PW-2 Vishambhar, who is unconcerned with either of the parties. He narrated the sequence of events to Head Muharrir at police station orally and on his oral information, chik FIR (Ext.Ka-2) was drawn. There is no infirmity or misappreciation of evidence on the part of the learned trial court. Appeal deserves to be dismissed. 21. He narrated the sequence of events to Head Muharrir at police station orally and on his oral information, chik FIR (Ext.Ka-2) was drawn. There is no infirmity or misappreciation of evidence on the part of the learned trial court. Appeal deserves to be dismissed. 21. We re-appreciated the evidence on record in the light of submissions and contentions made by learned counsel for the parties to determine the question as to whether there is any factual or legal error in impugned judgement and order passed by learned trial court. So far as the motive of commission of the alleged offence is concerned, the motive has been introduced in FIR itself by the informant Vishambhar, who is also an eye-witness who stated that prior to nine months of the date of incident in present case which is 6.8.1982, murder of Samay, son of Chohal and brother of co-appellants Dilip and King Kong took place. This murder was committed by his co-villagers namely, Bhopal and others and for this enmity, on 6.8.1982 at around 5:30 to 6:00 PM, when the informant was coming back to home after taking his bullocks from his agricultural field, he found deceased Bhopal sitting on the slope of hillock on southwards of river bank. Suddenly, his co-villagers namely, Rohtash, Vijaypal @ Vijja, sons of Mughal, Mughal son of Ragsi, Dilip and King Kong, sons of Chohal emerged there. Rohtash was having a countrymade pistol and other miscreants were having lathies in their hands. Rohtash fired two shots at Bhopal and other accused persons assaulted him with lathi. Bhopal died on the spot due to injuries received in the incident. The informant witnesses the incident, left the dead body in supervision of villagers and reached police station anyhow with some delay on account of non availability of transport and the road becoming muddy. The FIR was lodged at around 23:30 hours. The FIR bears thumb impression of informant Vishambhar, which has been proved by informant in his evidence before the Court on which Ext.Ka-2 has been marked. The FIR in the case was drawn against five named accused persons on the basis of oral information given by PW-2. The witnesses of fact namely, PW-2 Vishambhar and PW-3 Rajpal have duly proved the motive introduced in FIR in their evidence during trial. The FIR in the case was drawn against five named accused persons on the basis of oral information given by PW-2. The witnesses of fact namely, PW-2 Vishambhar and PW-3 Rajpal have duly proved the motive introduced in FIR in their evidence during trial. PW-1 Vishambhar stated on oath as PW-2 that deceased Bhopal was his co-villager, who was an accused in murder case of Samay, the brother of accused Dilip and King Kong. Accused Mughal and his sons Rohtash and Vijaypal belong to branch of Ransi and King Kong, Dilip and deceased Samay are sons of Chohal, who was husband of Chhoti, sister of Ransi. Thus, all the accused persons belongs to same clan. PW-2 stated that he had seen accused Rohtash firing two shots at deceased Bhopal from behind. Thereafter, accused Dilip, King Kong and Mughal also came out from their place of hiding and assaulted the injured by their lathis resulting his death. This incident was also seen by witness Rajpal when the witnesses tried to intervene, the accused persons went towards Pawa. He went straight to police station for lodging the FIR and got the same lodged on the basis of his oral information. The lathi wielded by Vijaypal @ Vijja was fixed a long nail. There was distance of 30 paces between the banks of the river. 22. In site plan the river on which on which bank the deceased was sitting and fishing by fishing hook is shown to have 8 to 10 feet water. The dead body was found at place ‘A’ in supine position where the deceased Bhopal was fishing. Accused ran away after committing the crime towards east. Two empty cartridge shells and one cartridge was found at place ‘D’ and ‘E’ lying near the place where the dead body was found and same was taken into possession by the Investigating Officer. The legs of deceased were turned from knees and found hanging in river water. The Investigating Officer took into possession blood stained and plain soil found on place of incident. A ‘chari’ field of Phool Singh, who is resident of jungle village Khedaki is shown lying north westwards of the place of incident. The legs of deceased were turned from knees and found hanging in river water. The Investigating Officer took into possession blood stained and plain soil found on place of incident. A ‘chari’ field of Phool Singh, who is resident of jungle village Khedaki is shown lying north westwards of the place of incident. PW-3, Rajpal stated that at the time of incident, he had gone to river bank for easing (answering call of nature) at around 5:00 to 5:30 PM and when he was washing his hands, he saw deceased Bhopal fishing on the bank side of river and suddenly accused persons came from the side of hillock. Rohtash fired shots at Bhopal and the accused persons who were wielding lathi assaulted him by their respective lathies. Bhopal fell down after being injured. The lathi wielded by accused Vijja was fixed with an iron nail. The witness Vishambhar was also present when fire was shot. Both the witnesses have stated that Vishambhar was present on sought bank of river and Rajpal was present on north bank of river. Their village lies towards hillock situated near the river. Some agricultural fields intervene between the place of incident and the river on which incident occurred. Investigating Officer (PW-4) clarified in his evidence that due to heavy footfall at the place of incident, the fishing hook and fishes hunted by the deceased could not be found and same might have been removed by someone. 23. Learned counsel for the appellant forcefully contended that both the witnesses are chance witnesses and no reliance can be place on their statement. We are not ready to subscribe this contention as both the witnesses are co-villagers of the deceased and accused persons. The incident occurred at the outskirts of the village at the bank of local river adjacent to their village. Both the witnesses have explained the reasons for their presence. The accused persons failed to establish their contention that they are interested witnesses. A suggestion has been made to them on behalf of the defence counsel that they belong to clan of deceased Bhopal but no such evidence could be led in support of this. There is no evidence that the witnesses were inimical towards the appellants for any reason whatsoever. It could not be established in evidence during trial that the witnesses had any direct relationship with the deceased. There is no evidence that the witnesses were inimical towards the appellants for any reason whatsoever. It could not be established in evidence during trial that the witnesses had any direct relationship with the deceased. Therefore, there was no occasion for them to falsely implicate the accused persons in the case. PW-2 Vishambhar has explained the delay of few hours in lodging of FIR in FIR itself and nothing can be illicited in his cross-examination which could suggest that the FIR was ante timed or the delay in lodging of FIR remained unexplained. As many as 8 injuries were found on the person of deceased in his postmortem, which is duly proved by its author Dr. S.K. Sharma during his evidence as PW-1 before the Court. One firearm injury over left side of back and one firearm wound of exit on left side of chest corresponding to back injury and one gunshot wound on right side of chest just lateral to sternum are shown in postmortem examination report, which substantially corroborate the eye-witness account given by PW-2 and PW-3 that accused Rohtash fired two shots at Bhopal by his countrymade pistol. Three injuries found on the person of deceased reveal that these were caused by two firearm shots. The enmity between accused persons and deceased also finds support from documents filed on record with regard to S.T. No.30/1982, which relates murder trial of Samay, son of Chohal and in that case, deceased Bhopal, Bhansingh and Raghuveer were tried. Appellant Mughal had testified as prosecution witness in earlier murder case against deceased Bhopal and others in said criminal trial. 24. On a meticulous appreciation of evidence on record, we find no infirmity or discrepancy in approach and finding of learned trial court while recording the verdict of guilt against co-appellants namely, Rohtash, Mughal, Dilip and King Kong for charge under Section 302/34 IPC. The evidence of witnesses is found reliable so far as these appellants (since deceased) are concerned and learned trial court has rightly recorded verdict of guilt against them for alleged offence under Section 302/34 IPC. However, we cannot lost sight of a crucial fact found in post mortem report of deceased Bhopal (Ext.Ka-1) which reveals that in antemortem injury No.8 of Bhopal “incised wound 3 X 1 inch X abdominal cavity deep over right side chest in anterior auxiliary line just above costal margin. However, we cannot lost sight of a crucial fact found in post mortem report of deceased Bhopal (Ext.Ka-1) which reveals that in antemortem injury No.8 of Bhopal “incised wound 3 X 1 inch X abdominal cavity deep over right side chest in anterior auxiliary line just above costal margin. Margins clean cut, angles angular” is described whereas in FIR or even in statement of witnesses, it is nowhere stated that any of the accused persons were armed with a sharp edged weapon, by which injury No.8 of deceased could have been caused. PW-2 and PW-3 has made an improvement in their evidence before the Court from their earlier version in the FIR/statement under Section 161 Cr.P.C. where they stated that the lathi wielded by accused Vijaypal @ Vija was fixed with an iron nail probably with a view to explain this injury No.8 of deceased Bhopal as stated above. 25. If we go through the evidence of PW-1 Dr. S.K. Sharma on this score, this is noticeable that he categorically stated in his cross-examination that injury No.8 of Bhopal as shown in postmortem examination report may not have been caused by a nail fixed in the lathi. This injury could only be caused by a sharp edged weapon. This injury could not have been caused by a pointed weapon. This injury must have been caused by a sharp edged weapon. If a small ‘gadasa’ had been fixed in a lathi in that case, such injury might have been caused. Such injury could also have been caused by some flat sharp edged weapon. Thus, the weapon assigned to surviving appellant Vijaypal @ Vija in evidence of witnesses of fact i.e. a lathi fixed with a nail is not found as weapon of offence in medical evidence which might have been caused injury No.8 of the deceased. Thus, injury No.8 of deceased Bhopal has not been duly explained in ocular testimony of the witnesses. Thus, the weapon assigned to surviving appellant Vijaypal @ Vija in evidence of witnesses of fact i.e. a lathi fixed with a nail is not found as weapon of offence in medical evidence which might have been caused injury No.8 of the deceased. Thus, injury No.8 of deceased Bhopal has not been duly explained in ocular testimony of the witnesses. Although, they had tried to explain the same by some improvement in their earlier version during investigation, as the injury attributed to appellant Vijaypal @ Vija with regard to injury No.8 of the deceased is not found to have been caused by the weapon assigned to the appellant in the light of medical evidence and there is apparent inconsistency between ocular and medical evidence in this regard and the evidence on this score cannot be relied upon also due to the fact that in FIR, the informant Vishambhar (PW-2) has nowhere stated that an iron nail was fixed in lathi wielded by appellant Vijaypal @ Vija. From perusal of statement of Investigating Officer, it appears that in statement of witness Vishambhar under Section 161 Cr.P.C., the word ‘keelwali’ was added above word ‘lathi’ after completion of his statement. Similarly, the Investigating Officer (PW-4) admitted that the words “Vija ki lathi me keel lagi thi” was included in statement of Rajpal under Section 161 Cr.P.C. in the last line of his statement and a suggestion has been given to the PW-4 by defence during cross- examination that this sentence has been added subsequently in his statement after recording the same. 26. Hon’ble Supreme Court in a recent judgement of Darshan Singh vs. State of Punjab, (2024) 1 SCR 248 , dated 4.1.2024 observed in paragraph No.26 as under:- “26. If the PWs had failed to mention in their statements u/s 161 CrPC about the involvement of an accused, their subsequent statement before court during trial regarding involvement of that particular accused cannot be relied upon. Prosecution cannot seek to prove a fact during trial through a witness which such witness had not stated to police during investigation. The evidence of that witness regarding the said improved fact is of no significance. [See : (i) Rohtash Vs. State of Haryana, (2012) 6 SCC 589 (ii) Sunil Kumar Shambhu Dayal Gupta Vs. State of Maharashtra, 2011 (72) ACC 699 (SC). (iii) Rudrappa Ramappa Jainpur Vs. The evidence of that witness regarding the said improved fact is of no significance. [See : (i) Rohtash Vs. State of Haryana, (2012) 6 SCC 589 (ii) Sunil Kumar Shambhu Dayal Gupta Vs. State of Maharashtra, 2011 (72) ACC 699 (SC). (iii) Rudrappa Ramappa Jainpur Vs. State of Karnataka, (2004) 7 SCC 422 (iv) Vimal Suresh Kamble Vs. Chaluverapinake, (2003) 3 SCC 175 ].” 27. In the light of foregoing discussion, we are of the considered opinion that complicity of surviving appellant namely, Vijaypal @ Vija in the offence has not been found to be proved on re-appreciation of evidence on record in present appeal in the light of submissions made by learned counsel for the parties and the impugned judgement and order cannot be countenanced as regards surviving appellant Vijaypal @ Vija is concerned. The charges under Sections 302/149 and 147 IPC are not found to be proved against against appellant Vija alias Vijaipal beyond reasonable doubt and the judgement of learned trial court deserves to be set aside qua surviving appellant Vija alias Vijaipal. 28. The appeal stands partly allowed qua appellant Vija alias Vijaipal and his conviction and sentence for charges under Sections 302/149 and 147 IPC in S.T. No.381 of 1982 by court below vide impugned judgement and order dated 9.12.1983 are set aside. He is acquitted of all charges. He has been enlarged on bail in present appeal by orders of this Court. He need not to surrender. His bail bonds are cancelled and sureties are discharged. 29. Let a copy of this judgement be forwarded to learned trial court for necessary compliance and further action together with record of trial court, immediately.