JUDGMENT : 1. The present criminal appeals have been preferred against the judgement and order dated 25.9.2000 passed by learned IIIrd Additional Sessions Judge, Banda, convicting and sentencing the appellants to undergo life imprisonment with a fine of Rs. 10,000/-under Section 302 IPC read with Section 34 of IPC and in case of default of the payment, they were directed to undergo further six months of Rigorous Imprisonment and further they were sentenced to undergo one year of rigorous imprisonment along with a fine of Rs. 2,000/-under Section 25 of the Arms Act and in case of default of payment, they were directed to undergo further two months of rigorous imprisonment. 2. The alleged incident, as reported by the First Information Report dated 09.07.1993, had occurred on 08.07.1993 at 11.00 PM, while the deceased Ajit Narayan @ Badshah Pathak along with his wife Urmila and his son Pankaj Kumar Pathak was going back after seeing a cinema show. In the First Information Report, it was stated that the deceased, along with his wife, after having seen the cinema show from 6.00 to 9.00 PM and after having distributed the tickets for the last cinema show, had started homewards on his bicycle. It was stated that he also worked in the cinema hall and sold tickets there. In the First Information Report, it had been stated that while the first informant and the deceased were on their feet, the son Pankaj was made to sit on the bicycle, and when they reached near the railway overbridge, which was near a private bus-stand, then from the side of the bus-stand, the elder brother of the deceased known by the name of Malka and one more person whom the first informant had not known, came towards them. The two, i.e., the elder brother of the husband of the first informant and the unknown person, surrounded the husband of the first informant near the building of Bajrang Vidyalaya. It was stated in the FIR that the informant heard the elder brother of the deceased sarcastically uttering that he would now see that the property is partitioned. Thereafter, the elder brother of the deceased and the unknown person dragged the husband of the first informant towards the parked buses and also gave him a beating. When this was happening, the first informant raised a hue and cry. Thereafter, the elder brother of the deceased and the unknown person dragged the husband of the first informant towards the parked buses and also gave him a beating. When this was happening, the first informant raised a hue and cry. The husband, when was being beaten, implored that his brother may not beat him and that all the land which was of the deceased may be taken by him. Because of the hue and cry raised by the first informant and the deceased, Har Prasad, Ansar Khan and Vijendra reached the spot. However at around 11.00 PM in the night, the elder brother of the first informant shot at the husband of the first informant with his country-made pistol. Upon being fired, the husband of the first informant was grievously injured. It has been stated in the First Information Report that at that point of time a policeman came on the spot and the first informant, along with the policeman and her husband, reached the government hospital on a Rickshaw. She pleaded in the First Information Report that on her information action be taken by the police and the guilty be brought to book. This First Information Report was scribed on the dictation of the first informant by one Sri Girish Dutt Dwivedi, the husband of the sister of the deceased. After the First Information Report was lodged, the police had got into action, and the First Information Report, which was lodged under Section 307 of the IPC, was converted under Section 302 of the IPC as the husband of the first informant died during the course of treatment. The case crime number of the criminal case came to be given as Case Crime No. 862 of 1993. When the two accused were arrested an arrest memo was prepared on 10.07.1993. Also while they were arrested, a country-made pistol of 315 bore and bullets of 315 bore were also recovered. The recovery memo and the arrest memo were compositely prepared on July 10, 1993. The first informant had also handed over a note to the police, which was given to her by her husband, indicating that the husband had apprehended a fatal attack at the hands of his own elder brother. This document was Exhibited as Ex ka-3. The recovery memo and the arrest memo were compositely prepared on July 10, 1993. The first informant had also handed over a note to the police, which was given to her by her husband, indicating that the husband had apprehended a fatal attack at the hands of his own elder brother. This document was Exhibited as Ex ka-3. The police during the investigation had also recovered an empty cartridge of 315 bore at the spot where allegedly the deceased was fired upon. This was Exhibited as Ex ka-4. The plain soil and the soil that had blood were also collected by the police from the place of the incident, and this was marked and Exhibited as Ex ka-5. The cycle which the deceased had and on which the son of the deceased was sitting at the time of the incident was also recovered by the police and the recovery memo in that regard was prepared and Exhibited as Ex ka-6. The deceased was shot at and when was injured was taken to the District Hospital at Banda. The injury report prepared by the emergency medical officer was also brought on record, and this was Exhibited as Ex. ka-7. In the injury report, it was specifically stated that the patient was brought by C.P. 630, Shailendra Kumar, Police Station, Kotwali. Also from the medical report, it was evident that the doctor had examined someone who was not known to the constable who had brought the patient. 3. Still further from the injury report, it appears that the injured, i.e., the husband of the first informant, was first brought by the constable, and, thereafter, when the first informant later on reached the spot, the name of the injured was incorporated in the injury report. After deleting the words by which there was a description of an unknown patient, the injured was described as a person not known to the constable who had brought him, and therefore everywhere it was written that the name of the patient was unknown and that whose son he was also was not known. Further in the medical report, two injuries were mentioned, but they did not mention any gunshot injuries, and in fact, the opinion of the doctor was that the injury had occurred because of a blunt object. 4. Further in the medical report, two injuries were mentioned, but they did not mention any gunshot injuries, and in fact, the opinion of the doctor was that the injury had occurred because of a blunt object. 4. However, thereafter, when the injured died, a postmortem was conducted on the dead body of the deceased on 09.07.1993 at 3.45 PM. In that postmortem, there were four injuries given. Injuries No. 1 & 2 were about abrasions, injury No. 3 was about a gunshot entry wound, and injury No. 4 was an exit wound. Prior to the postmortem being done, a panchayatnama was also prepared. Thereafter the police submitted its charge sheet and the Court, thereafter, framed charges on 3.6.1994. The charges were read over to the two accused, i.e., Malka @ Krishna Narayan (elder brother of the deceased) and Shrawan Kumar. When the accused denied charges and claimed a trial, the Court put the case to trial. 5. From the side of the prosecution, as many as nine witnesses were produced. 6. P.W.1 was the first informant, who had stated that she was staying at the time of recording of her statement at Parsaniya Thana Laudi, District Chatarpur (M.P.). In her statement in chief, she had stated that the facts, as were stated in the F.I.R. She had stated that she had identified the elder brother of her husband and had also identified the other accused. She had stated that with the help of a policeman, she had taken her husband on a rickshaw to the hospital. After the news had spread, her relatives had also reached the hospital; she had stated that she had got the FIR written on her dictation by Sri Girish Dutt Dwivedi and had thereafter put her thumb impression on it. She has proven the FIR also. She has stated in the examination in chief that before the incident had occurred there was a dispute between her husband and his elder brother and that the elder brother had threatened that he would kill the husband of the first informant. She has stated that she recognized her husband's hand writing. She has proven the FIR also. She has stated in the examination in chief that before the incident had occurred there was a dispute between her husband and his elder brother and that the elder brother had threatened that he would kill the husband of the first informant. She has stated that she recognized her husband's hand writing. She has stated that the husband had suspected that his elder brother would get him killed and, therefore, two days prior to the incident he had given in writing about what he thought of his brother and as to what he pleased to do and she further states that the letter which her husband had given to her, she had given it to the policeman. She has stated that her husband was selling tickets in Malhar Talkies and that on the fateful day from 6.30PM to 9.30PM, she along with her husband and her son had seen a cinema show; thereafter, her husband had sold the tickets for the next show, and after he had counted the money, etc., he had started homewards. She had stated that she could identify the other accused, and, thereafter, she pointed towards the accused, Shrawan Kumar, and told the Court that he was the other accused person who was present at the time of the incident, along with Malka, the brother of her husband. She has categorically stated that Malka had killed her husband because he was greedy about his property. 7. The P.W. -1 was thereafter put to cross-examination and she has very categorically stated that Raghunandan Prasad the father of the deceased was her father-in-law. She has stated that Raghunandan had three sons, namely, Jagat Narayan, Malka urf Krishna Narayan and Ajeet Narayan urf Badshah. Ajeet Narayan urf Badshah was her husband and he was the person who had been killed. Malka urf Krishna Narayan was the accused. She has stated that the family was a resident of village -Khalikhera, District -Hamirpur and that in the name of her father-in-law there was 150 bighas of land. She was well aware of the fact that the entire land was in the name of her father-in-law and that there was no land in the name of her brother-in-law(jeth) and her husband. She has stated that in the district of Banda, her husband had his own house. She was well aware of the fact that the entire land was in the name of her father-in-law and that there was no land in the name of her brother-in-law(jeth) and her husband. She has stated that in the district of Banda, her husband had his own house. Upon being questioned as to whether the brother-in-law (jeth) had also a house in Banda, she gave a reply that he also had his separate house in Banda and that there was no jointness between her husband and the elder brother, the accused. She, however, was not aware that there was any land which was commonly owned by her husband and her jeth. She has stated that she had a sister Ramrati who had died at the time of the giving of evidence. She was married to Ramswaroop and that Ramrati had died about 2 to 3 months after the incident. She has stated that while her sister was staying with her, her husband was not staying with her. She has also stated that to get her treated the husband and her sister Ramrati had taken her to Gwalior. 8. Upon being questioned as to whether her husband was ever on any earlier occasion attacked, she replied that she was not aware of that fact. She was also not aware as to who was the owner of the cinema talkies where her husband was working as a booking clerk. 9. Upon being asked at to how long she was staying in the house of her sister's husband, she had answered that she used to occasionally go there. She had stated that her husband never wanted anything from his brother Malka. However, there was a dispute of land. When she had got married, the entire family was staying together. She was not aware as to how much land her father-in-law had given to her husband in partition. However, she was aware of the fact that her father-in-law had given his sons equal shares of property. Her husband and his brothers used to give their lands to others for doing the farming work (batai). She has further stated that her husband and all his brothers used to give money to her father-in-law. She has stated that before the incident had occurred, her husband and the accused Malka had some fight over some property and that Malka had threatened him with dire consequences. She has further stated that her husband and all his brothers used to give money to her father-in-law. She has stated that before the incident had occurred, her husband and the accused Malka had some fight over some property and that Malka had threatened him with dire consequences. She has then given the description of the place where the incident had occurred namely the Bajrang Vidhyalay School. She has stated that she knew where the Birrakh village was. She has stated that she knew the brother-in-law(husband of the sister of the deceased) Girish Datt and his son Shrikant and they were staying in village Birrakh. She has stated that she was not remembering as to whether blood was oozing out from the injuries which her husband had sustained. However, where there were bullet injuries, blood was flowing out. She has stated that she was aware of the fact that blood was flowing out from other injuries. She has stated that when she sat on the Rikshaw, she had given rest to her husband's head on her lap and at that time also blood was flowing out from his injuries and that on her Saadi and blouse there was blood. However, there was no blood on the Rikshaw and that her hands were also coloured with her husband's blood. She did not remember as to whether blood had fallen down on the ground. She had stated that she remembered that the police personnel had helped her to keep her husband on the Rikshaw. She has stated that when she saw the Darogaji, she had indicated that the blood on her clothes was that of her husband’s. She did not remember as to when her husband's dead body was sent for post mortem. She has stated that for the treatment of her husband she had accompanied the police personnel to the hospital. However she did not remember if any money had been paid or if any medication had been done. She had stated that when she was returning from the Cinema hall, her husband and she herself were walking while her son was sitting on the rod of the bicycle and her husband was pulling the bicycle. She has stated that at the time of the incident, She and her husband were accompanied by her son and a girl child who was about 4-5 months old. The son was 8 years old. She has stated that at the time of the incident, She and her husband were accompanied by her son and a girl child who was about 4-5 months old. The son was 8 years old. When the incident had occurred, she had not sent the son to her residence but he had also accompanied her. She has stated that when they went to the hospital, on one Rikshaw, she along with her husband was sitting and on the other Rikshaw, the police personnel was sitting. However, she did not remember as to whether the son was sitting on her Rikshaw or was with the police personnel. She was also not aware if the son wept on the body of the her husband but she was well aware that he had cried the whole night. She had stated that the Riskshaw was arranged by the police personnel. After the incident had occurred, she had stated that she had immediately started off from the place of the incident. She was not aware as to which police station, the police personnel was of. She had also stated that she was not aware as to whether he was wearing a uniform or was in plain clothes. Definitely she has stated that he was not wearing kurta payajama. She had stated that it was not her case that her husband and the police personnel had gone on one Riksha. She states that if her statement under Section 161 Cr.P.C. was stating so then it was wrongly recorded. She had in fact in her statement under Section 161 Cr.P.C. stated that in one Rikshaw she was sitting along with her husband and on the other Rikshaw the police personnel was sitting. She had stated that in the first information report also, she had stated about there being two Rikshaws. However, if that fact had not been mentioned in the first information report, she did not know the reason as to why it was missed out. 10. On further cross-examination, she had stated that her husband used to leave her house at 11:00am every day and after finishing the selling of the tickets used to come back at 11:00pm in the night. She has stated that on various occasions, she used to see cinemas in various cinema talkies. 10. On further cross-examination, she had stated that her husband used to leave her house at 11:00am every day and after finishing the selling of the tickets used to come back at 11:00pm in the night. She has stated that on various occasions, she used to see cinemas in various cinema talkies. On the date of the incident, she has stated that she had gone to the cinema hall at 6:00pm along with her son. She has then stated that she was not remembering if on the date of the incident she had gone to the cinema hall along with her son or whether her husband was also accompanying her. On the date of the incident, she said that she had remembered that she had met her husband at the talkies. She has again stated that everyday when her husband used to go for work, he used to go at 10:00am and that she did not remember that on that date what food she had served her husband at 10:00am. However, she remembered that she had given Roti and Sabzi to him. She has also stated that routinely her husband used to come at around 4:00pm to have food again and that on that day also her husband had come at 4:00pm to have food and she had served him Dal-Roti. She had stated that her husband never used to have food in the night. She has again stated that she did not remember if during the cinema her husband had any food. She has stated that after the cinema was over, she sat at the place where her husband was sitting and doing the work of selling of tickets. She has stated that she was not aware as to when her husband had died. However she knew that he had died in the night in her presence after 2 or 3 hours of the incident. She has stated that the bus stand was behind the Bajrang School building. She has very categorically stated that at the first instance when the accused had got hold of her husband, he had beaten him with his hand and had also fisted him. She said that she only shouted for help and did not intervene between her husband and the accused. Upon her shouting how many people had come, she was not aware. She said that she only shouted for help and did not intervene between her husband and the accused. Upon her shouting how many people had come, she was not aware. She has also stated that she was not aware as to whether there was any bus parked at the place where her husband was dragged to. She very categorically states that the hands of her husband were held by the accused and he was dragged to another place. When the husband was being taken away then on the spot Ansar, Vijendra and Hari Prasad had come. This she states that in fact they had come after the bullet was fired on him. She has stated that her husband was in a standing position when he was fired upon and that the accused and her husband were standing face to face. In the Court, she had stated that the accused had fired from a distance which could be measured from the place where the Almirah/rack was placed and she was standing and the distance when was measured came to around 6 feet. When the bullet was fired upon her husband, the other co-accused person was standing at a distance of one hand. She had stated that while the incident occurred, she was standing on the Ghura (mound of waste). She had stated that she had seen empty cartridges lying near the Ghura. She however did not remember as to what distance the empty cartridges were lying from where her husband had fallen after he was fired upon. This much she did remember that when her husband was fired upon he was lying on his back. She remembered that her son Pankaj was standing besides her. She had stated that before the firing was done and her husband was dragged away his feet were being dragged against the ground. Then she states that prior to the firing, Ansar, Vijendra and Hariprasad had come on the spot. At the hospital she had stated that she had met the Doctor and thereafter had got the first information report written and after the doctor had started off with the medication she had gone to lodge the first information report. She had stated that her brother-in-law (Nandoi) had reached the hospital along with a paper and a pen and at the hospital itself, the first information report was written. She had stated that her brother-in-law (Nandoi) had reached the hospital along with a paper and a pen and at the hospital itself, the first information report was written. She had stated that she had accompanied her nandoi to the Kotwali Banda. 11. Upon being questioned as to whether, she knew the meaning of Prarthiya, she stated that she did not know the meaning of the word Prarthiya. She has also stated that she did not know the meaning of Urf. She however states that the words used in the first information report were translated by her Nandoi and she had, in fact, narrated the incident in her own language. She had put her thumb impression on the paper on which the first information report had already been scribed. After having lodged the first information report, she has stated that she went to the hospital at Banda and till the time her husband was alive, she had remained in the hospital. However, after he had died, she left the place. She has stated that she was present at the time of the Panchayatnama. She has categorically denied the question which was put to her with regard to the fact as to whether she had not accompanied her husband to the hospital. She has stated that her sister had throughout been in the hospital in the night. She has stated that the firing was done at the Ghura and if that had not been mentioned in the first information report, she did not know why. With regard to a letter which was placed before the prosecution and which was provided by her, she had stated that she did not exactly remembered where the letter had been kept. She has stated that the letter was written by her husband in her presence. What was written in the letter, she did not remember but this much she remember that there was danger to his life from his brother. She had then stated that she was not aware as to where the accused had run away after he had killed her husband. Whether she had described the person who was not known in the first information report, she had stated that she did not remember that fact. She has absolutely denied the fact that the police constable had taken her husband to the hospital and she had not taken him there. 12. Whether she had described the person who was not known in the first information report, she had stated that she did not remember that fact. She has absolutely denied the fact that the police constable had taken her husband to the hospital and she had not taken him there. 12. P.W.-2 is the son of the first informant and the deceased. He, at the time of the testimony, before the Court was 12 years of age. The court had after putting certain question examined as to whether he was capable of understanding the the Court proceedings and thereafter had taken the evidence of P.W.-2. He had stated that his father had died around 2 years earlier. It was dark at the time when the incident had occurred and that he along with his parents was coming back after watching a film from the Malhar talkies in the 6 to 9 show. He, however, has stated that he did not remember the name of the movie. The film had got over at 9:00pm. After that the P.W.-2 and his mother had stayed back in the cinema hall as his father was busy with the distribution/sale of the tickets for the last show. He has stated that his father was taking him home on the bicycle while he was sitting on the rod of the bicycle, his father was walking and so was his mother. He then describes the place where the incident had occurred and states that his uncle Malka alongwith another person whom he recognized were responsible for the murder of his father. They had accosted them near the Bajrang School and had taken away his father. He had stated that he jumped from bicycle when his father was dragged away from the road to the place where he was given a beating and thereafter was fired upon. He has, thereafter, stated that his mother had raised a hue and cry after the firing was done. He has thereafter stated that a certain policeman come on the spot and took his mother and his injured father on the Rikshaw and the policemen had taken the P.W.-2 on his bicycle to the hospital. He has, thereafter, stated that his mother had raised a hue and cry after the firing was done. He has thereafter stated that a certain policeman come on the spot and took his mother and his injured father on the Rikshaw and the policemen had taken the P.W.-2 on his bicycle to the hospital. In the hospital on the dictation of his mother, the first information report was scribed and he thereafter states that he had also accompanied his mother to the police station to lodge the first information report and at the police station itself his statement was also recorded. He has stated that the Daroga had thereafter brought his mother and him to the place of incident on a jeep. Thereafter, when he reached the hospital, his father had already died. He has stated that at the place of incident there was an electricity pole which had light on it. In the court itself, the P.W.-2 had recognized his uncle and the person and who had accompanied him, namely, the co-accused Shrawan Kumar. He has stated that when, he along with his parent, was returning from the Malhar talkies there was no other person accompanying them. Then thereafter he has stated that when the firing took place various persons collected at the place including one Master Saheb. He had been, thereafter, stated that he has taken to the hospital by the police constable on his bicycle. He denied the fact that on one Rikshaw his parents were sitting and on the other he along with constable was sitting. He has stated that throughout the blood was flowing out from his father's body. However, he states that there was no blood on his hands or clothes despite the fact that he had grasped his father. He has thereafter again stated as to how the two accused had beaten his father and had categorically stated that he was beaten by the accused with an iron rod which was about two feet long. The other accused person was carrying a danda which was not sharp. He has then stated that for 6 to 7 minutes his father was beaten by the iron rod on the back. He was also thereafter beaten by the Danda which was carried by the other accused person. The other accused person was carrying a danda which was not sharp. He has then stated that for 6 to 7 minutes his father was beaten by the iron rod on the back. He was also thereafter beaten by the Danda which was carried by the other accused person. He has, thereafter, again stated that before the three persons namely the P.W.3 4 and 5 appeared, the uncle had fired upon his father. He has thereafter stated that the firing was done from a close range (one bitta) and upon a specific question being asked as to from what distance his uncle had fired at his father, he again said that it was 1 and a 1/2 feet away and before firing was done his uncle had put his pistol on the eyes of his father. 13. Upon a question being asked as to what was the length of the country made pistol, he had replied that the country made pistol was not as long as the person who was asking the question had suggested. He has however stated that when the firing was done, he was by the side of the bridge which was at the site of the incident and that they was not on the ghura i.e. at the waste mound. He has stated that his father was lying on his back after having been fired and the bicycle was lying besides the bridge which was there on the spot. Who took the bicycle, he was not aware. He was not aware as to when his father died. He only remembered that to begin with his fufa, who was the scribe of the first information report, had reached the hospital and thereafter his Mausi had come. When the Fufa had arrived, his father was alive or not, he did not remember. In the early hours of the day, he has stated that he alongwith his mother came to their house and he then states that when they had gone to the cinema hall he had gone along with his parents and his father was very much there with him and that in the cinema hall his parents had not eaten anything. When the cinema was over then he and his mother had Samosa but his father did not have anything. Before going to the cinema at around 4:00pm his father ate his food. When the cinema was over then he and his mother had Samosa but his father did not have anything. Before going to the cinema at around 4:00pm his father ate his food. He has denied the suggestion that he was not there on the spot itself. 14. P.W.-3 Shiv Shankar Dwivedi, was the witness of the memo from which the letter/slip was given by the first informant to the prosecution. This letter had been allegedly written by the deceased and had been handed over to the first informant stating that he had danger from own brother and it had also stated as to what were the various assets of the deceased. This witness was, however, declared hostile. 15. P.W.-4 is the alleged eye-witness of the incident which had occurred on the 8th of July 1993 and he had also stated that he had not seen anything as had been stated by the first informant. He has even though stated that in paragraph 8 of the statement that he had seen the dead body and the blood was flowing from it and that at the spot the wife and son of the deceased were there, in paragraph no. 9 of the statement he had stated that he had not known the names of the wife and the son of the deceased and therefore he was also declared hostile. He was even though cross-examined but nothing of any importance was mentioned in the cross-examination. 16. P.W.-5, Ansar Khan, was also an alleged eye-witness. He has denied the motive as was taken by the first informant wherein she had stated that there was a dispute with regard to land etc. between her husband and the accused but since this witness had denied all that had been stated by the first informant, he was also declared hostile on account of the fact that he had not heard the first informant mentioning the name of Malka the accused. In the cross-examination, he has mentioned many other things which were quiet different from the case as had been put forth by the first informant and nothing much, therefore, was stated by him even in his cross-examination. 17. P.W.-6 is, Dr. Ajeet Singh, who had done the medical examination when the injured had been brought to the hospital. Dr. Ajeet Singh described the injuries as were found on the date the injured was brought. 17. P.W.-6 is, Dr. Ajeet Singh, who had done the medical examination when the injured had been brought to the hospital. Dr. Ajeet Singh described the injuries as were found on the date the injured was brought. He had also stated that the patient was in a very bad stage. He has thereafter stated categorically that the injured was brought to the hospital by a constable C.P. No. 630 Shailendra Kumar. He however also stated that the injuries could have been by a firing from a country made pistol. In the cross-examination, he has stated that the injury was because of the blows of a blunt object. He had also stated that he very well knew the characteristic of an injury which was caused by a gun shot. He has stated that in the injury there was no blacking, tattooing or charring. He has also categorically stated that in the injury report, he had not mentioned any possibility of the injury caused by firearm. He has then in paragraph no. 9 of his statement staid that the injury no. 2 which was a contusion could have been possible by firearm shots. He has also admitted that in the injury report he had done a lot of cutting and what he had cut he could not read now. However, he states that he very well remembered that when the injured had been brought and the medical report was written by him the patient was not known and, therefore, “unknown” was written throughout in the injury report and that word unknown had been cut subsequently. He has stated that the injuries were so grave that they were sufficient for immediate death. 18. P.W.-7, Mata Prasad, who is the constable C/352, had proved the chik of the first information report and had stated that he was posted on 9.7.1993 at Maithana Kotwali Nagar, District Banda. He had stated that on that date, along with him, Sub-Inspector Sujan Singh and Sub-inspector Siroti Prasad and other police personnel in a jeep had gone for investigating of the instant crime. Upon getting an information from Mukhbir Khas that two persons were sitting on a certain puliya they had reached that place and thereafter had arrested them. From Malka, the accused it was alleged, that they had recovered 3.15bore country made pistol alongwith 4 live cartridges. Upon getting an information from Mukhbir Khas that two persons were sitting on a certain puliya they had reached that place and thereafter had arrested them. From Malka, the accused it was alleged, that they had recovered 3.15bore country made pistol alongwith 4 live cartridges. In the cross-examination, he had stood firm with what he had stated in the examination in chief. He has admitted in the cross-examination that during the arrest and the recovery of the firearm there was no public witness. 19. P.W. 8 is Dr. M.P. Mittal, the Medical Officer Sadar who was on 9.7.1993 posted at the hospital at Banda and had conducted the post-mortem at 3.45pm. He has given the details of the injuries in his examination-in-chief. While being cross-examined, he has mentioned about the injury no. 1 could have been because of the strangulation of the neck. The injury no. 2 was on the cheek and that could have happened because the injured had fallen down. He has specifically stated that on the body of the deceased there was no sign of any injury which could indicate that the deceased had been dragged. Injuries no. 3 and 4, he states, were both on the left side of the face. While describing the injuries, the injury no. 3 was said to be an entry wound whereas injury no. 4 was said to be an exit wound. Injuries no. 3 and 4 both were on the left side. The entry wound was on the left side of the face near the eyes and the exit wound was also on the left side of the face near the ear. However corresponding to the exit wound at serial no. 4, there was no entry wound on the face of the dead body. 20. P.W.-9, Ram Gopal Singh, is the Sub-inspector, who has been examined and he has stated in his examination in chief that he was in district Banda in the year 1992 and was posted as Head Constable. He has stated that on the basis of exhibit ka-8 i.e. the recovery memo of the firearm and the live cartridges, he had prepared the first information report no. 487 of 1993 and this had given rise to Case Crime No. 869 of 1993 under Section 25/27 of the Arms Act. He has stated that on the basis of exhibit ka-8 i.e. the recovery memo of the firearm and the live cartridges, he had prepared the first information report no. 487 of 1993 and this had given rise to Case Crime No. 869 of 1993 under Section 25/27 of the Arms Act. Upon seeing the site plan, this witness had stated that the site plan was prepared by S.S.I. Santbaksh Singh and he recognized his signatures on it. He has also proved the chik of the first information report. In the cross-examination, he has categorically stated that he was nowhere a part of the investigating team. 21. Thereafter, the statements of the two accused, namely, Malka @ Krishna Narayan and of Shrawan Kumar were recorded under Section 313 Cr.P.C. 22. When the judgement and order in the case was passed by the learned 3rd Additional Sessions Judge, Banda, on 28.9.2000, two criminal appeals were filed. One being Criminal Appeal No. 2678 of 2000 (Malka alias Krishna Narain) and the other being Criminal Appeal No. 2703 of 2000 (Shrawan Kumar vs. State of U.P.). 23. Sri I.K. Chaturvedi, learned Senior Advocate assisted by Sri Saurabh Chaturvedi, learned counsel for the appellant in Criminal Appeal No. 2678 of 2000 (Malka @ Krishna Narain vs. State of U.P.) and Sri Raj Karan Yadav, learned counsel for the appellant in Criminal Appeal No. 2703 of 2000 (Shrawan Kumar vs. State of U.P.) have submitted that the appellants in both the Criminal Appeals were innocent and have been falsely implicated. They have made the following submissions :- (i) The PW-1, Urmila, who alleges to be an eye-witness and was the widow of the deceased, was not there on the spot at all. Learned counsel for the appellants have argued that in fact if the statement of the PW-1 is seen, it becomes absolutely crystal clear that she is not a reliable witness at all. She comes up with a case that she was having a family wherein she was there, her husband was there and they had two children, a son of eight years by the name of ‘Pankaj’ and a daughter of 4-5 months of age. She comes up with a case that she was having a family wherein she was there, her husband was there and they had two children, a son of eight years by the name of ‘Pankaj’ and a daughter of 4-5 months of age. She has mentioned that on the fateful day she alongwith her husband and her son had gone to see a movie in the Malhar Talkies in the district of Banda and she had gone to see the show from 06:30 PM to 09:30 PM. She had stated in the first information report and also stated in her statement-in-chief that her husband was an employee in Malhar Talkies and used to sell tickets for the various shows of the cinema hall. Still further her case is that she alongwith her husband and her children had seen the show and thereafter when the show had got over at 09:30 PM, the husband had started off to the duty of selling tickets for the next show which was to commence at 09:30 PM. Learned counsel for the appellants states that this was an absolute improbability as when the show had to begin at 09:30 PM, it was in the fitness of things that the tickets ought to have been sold at least one hour prior to the commencement of the show. Still further learned counsel for the appellants state that for the deceased to have remained in the cinema hall till 11:00 PM, was not a natural thing to happen. From 09:00 PM to 11:00 PM there was no reason why the husband should have been at the cinema hall as all the tickets would have been sold by 09:30 PM and even if any accounting etc. had to be done, it would not take two long hours time. Be that as it may, learned counsel for the appellants state that it was an absolute improbability that a child of 45 months old was left behind at a place which has never been mentioned throughout in the case of the prosecution. The further case of the learned counsel for the appellants is that after the first informant alongwith her husband had started their journey homewards, the husband of the first informant and she herself were walking while the son was sitting on the rod of the bicycle which was being pulled by the husband. The further case of the learned counsel for the appellants is that after the first informant alongwith her husband had started their journey homewards, the husband of the first informant and she herself were walking while the son was sitting on the rod of the bicycle which was being pulled by the husband. Learned counsel for the appellants herein state that in the district of Banda which is famous for notorious dacoities, it was not reasonable for a family of three person wherein the informant was a young lady, to have walked down from the cinema hall to their house at 11:00 PM in the night. Learned counsel for the appellants, therefore, state that in fact the PW-1 was not there at the spot at all and she had been planted by the prosecution to prove the case against the appellants. Still further learned counsel for the appellants state that the first informant in her examination-in-chief and in her cross-examination has stated that after the deceased was surrounded by her jeth and one other unknown person then she had raised a hue and cry and because of that the witnesses Shiv Shnakar Dwivedi, Hariprasad and Ansar Khan had come on the spot. She is, if the statement is perused, not sure whether they appeared on the spot before the bullet was fired or whether they appeared after the bullet was fired. Learned counsel for the appellants have drawn the attention of the Court to page no. 43 of the paper book wherein it has been stated that after the incident had occurred she had informed the Police that she had gone on one rickshaw alongwith her husband and in another rikshaw the son of the first informant alongwith another constable had followed them. She had categorically stated that in the first information report also she had desired to say that there were two rickshaws which had gone to the hospital. Learned counsel for the appellants have stated that quite contrary to this statement of the PW-1, the PW-2 who was tested by the Court for being capable of giving his statement in Court has stated in page no. 59 of the paper book that in fact he had gone on a cycle alongwith the police personnel to the hospital. Learned counsel for the appellants have stated that quite contrary to this statement of the PW-1, the PW-2 who was tested by the Court for being capable of giving his statement in Court has stated in page no. 59 of the paper book that in fact he had gone on a cycle alongwith the police personnel to the hospital. He has stated that this constable had arranged for a rickshaw for his parents and in fact he had categorically stated that if anywhere in the statement under Section 161 of Cr.P.C. it had been stated that there were two rickshaws then it was a wrong statement which had been noted by the police. Since the statement is absolutely contradictory, the statements made by mother, the PW-1, son of the deceased PW-2 are being reproduced here as under :- Learned counsel for the appellants further state that even this story was not very believable as in the year 1993 in the district of Banda at 11:00 PM there was difficulty in getting rickshaws in the night. (ii) Learned counsel for the appellants have thereafter stated that the version of the PW-1 also becomes doubtful on account of fact that if the medical report of the injured which is Exhibit Ka-7 (annexed at page 18 of the paper book) is seen, it becomes clear that the injured was brought by a constable who has been described as “CP 630 Shailendra Kumar Police Station -Kotwali” and in that medical report there were cuttings under the name of the injured Ajeet Narayan alias Badshah Pathak and at the place where his parentage and residence were written. The name if is strenuously read under the cutting then it appears “unknown” was written. Learned counsel for the appellants state that if the wife had accompanied the injured, it was the most natural thing to mention the name of the wife who had brought the injured as it was she who would have given the proper name, address and the parentage of the injured. In the instant case, learned counsel for the appellants states that the fact that the name of the injured was initially not given, makes the story of the PW-1 absolutely doubtful. In the instant case, learned counsel for the appellants states that the fact that the name of the injured was initially not given, makes the story of the PW-1 absolutely doubtful. (iii) Still further learned counsel for the appellants state that the opinion of the doctor at Exhibit Ka-7 if is seen it shows that he had opined that all the injuries were caused by a blunt object. Whereas quite contrary to this injury report when the postmortem was conducted by the doctor, PW-8 Dr. M.P. Mittal, it was mentioned that the injury no. 3 was a gunshot injury of entry and the injury no. 4 was a gunshot injury of exit. Learned counsel for the appellants states that when doctors give their opinions, there could be slight errors in them but in the instant case the first doctor had simply opined that the injuries were caused by a blunt object and he has not given any doubt with regard to the fact that the injuries could have also been caused by firearm. In the statement of the PW-6, Dr. Ajeet Singh who had given the medical report earlier, in his cross-examination though he had stated that these injuries could have also been caused by firearm, but his statement cannot be at all relied upon. Learned counsel for the appellants further states that even if the statement of the doctor, who had conducted the postmortem report i.e. PW-8, is seen then it becomes clear that the injury no. 3 and injury no. 4 though they were of entry and exit wounds they were both on the left side of the face. Learned counsel for the appellants state that the entry wound vis-a-vis the injury no. 4 was not to be found and had not been mentioned even in the postmortem report. Learned counsel for the appellants states that the doctors had not even tried to explain this anomaly. Learned counsel for the appellants, therefore, states that the evidence as was brought forth by the doctors are not reliable and, therefore, it was for the Court to assess as to which of the two reports i.e. the medical report and the postmortem report was correct. Learned counsel for the appellants has stated the law in the manner in which such reports had to be dealt with. Learned counsel for the appellants has stated the law in the manner in which such reports had to be dealt with. He has argued that such reports which were in consonance with the ocular evidences had to be accepted. He has thereafter stated that if this proposition of law is taken to be correct, in the instant case the ocular report had in a strange manner mentioned the entire incident. PW-1 had stated that the deceased was beaten by hand and fist and thereafter he was shot at. Where he was shot at was also a question which had to be looked into. He states that both the brothers were standing face to face and if the injury at all had to be there then it ought to be in the front of the face and not on the left side of the face, specially when the firing was being done from a very short range. Learned counsel for the appellants further states that the ocular evidence was further as after the PW-1 had completed with her testimony, the PW-2 was virtually tutored to say that the accused Shravan Kumar had wielded strokes on the head of the injured by an iron rod. This beating by rod was not mentioned by the P.W.-1 at all. Learned counsel for the appellants states that this evidence was brought in only to explain the opinion as had been given by the doctor, PW-6, that there was a blunt object which was responsible for the head injuries of the deceased. Learned counsel for the appellants, therefore, states that when ocular evidence becomes unbelievable the postmortem report and the injury report also cannot be relied upon and the prosecution case therefore utterly fails to prove that the accused persons were actually involved in the incident. Still further learned counsel for the appellants states that to strengthen the case of the prosecution, the PW-1 had come up with a certain document which she had stated was a slip which was written by her husband two days prior to his death stating that he had danger to his life from his elder brother and that he might be killed by him. This document was an absolutely unreliable piece of evidence as it was never put to evidence and none of the prosecution witnesses tried to get it proved either by any expert or by even a bare comparison of it by any admitted hand writing of the deceased. (iv) Learned counsel for the appellants thereafter stated that even no motive was there for having killed the deceased as the P.W.-1 states in her examination-in-chief and in the cross-examination that there was no common property between the two brothers. All the property which was to the extent of 120 bighas belonged to the father of the deceased and the accused Malka at the time when the incident had occurred. (v) Learned counsel for the appellants states that even though the PW-1 has throughout stated that she had hugged and cried on the body of the deceased and that she had bloodstains on her blouse and on her saree but those clothes were never kept in custody and were never brought before the Court. (vi) Learned counsel for the appellants states that even PW-2, his son, had cried but there was no bloodstain to be found on his clothes etc. (vii) Learned counsel for the appellants has stated that all the injuries by the firearm were said to have been caused from a close range but there were no blackening or tattooing or scorching. (viii) Learned counsel for the appellants has thereafter stated that in the case though the Investigating Officer was very much available, his evidence had not been recorded and that, he submits, makes the entire prosecution case absolutely unreliable. To bolster his arguments, he relied upon a judgment of Supreme Court dated 10.04.2017 reported in 2007 (13) SCC 18 : Rattanlal vs. State of Jammu & Kashmir. Still further to stress on this point, learned counsel for the appellants relied upon a judgment of Supreme Court reported in 2001 (6) SCC 407 : Arvind Singh vs State of Bihar and have argued that non-examination of the Investigating Officer when he was available prejudices the case of the prosecution. (ix) Learned counsel for the appellants have submitted that the prosecution witnesses specifically PW-1 and PW-2 had identified Shravan Kumar for the first time in the Court. (ix) Learned counsel for the appellants have submitted that the prosecution witnesses specifically PW-1 and PW-2 had identified Shravan Kumar for the first time in the Court. Learned counsel for the appellants state that undoubtedly a dock identification is possible but it becomes a weak piece of evidence in view of the fact that no peculiarities of the accused had been given in the first information report and also no test identification parade was conducted during investigation of the accused who was identified in the Court. In this regard, learned counsel for the appellants relied upon a judgment of Supreme Court reported in (2009) 15 SCC 35 : Ramesh vs. State of Karnataka and he specifically in this regard relied upon paragraph 19 of it which is being reproduced hereas under : 19. Judged by the aforementioned legal principles laid down therein, in our opinion, the identification of appellant PW3 in court cannot be held to be trustworthy. Reliance has also been placed by Mr. Chaudhary on a judgment of this Court in Asharfi & Ors. V. The State [ AIR 1961 All. 153 ], wherein it was held that identification by only one person may not be relied upon stating: "Hence, only one identification cannot eliminate the possibility of the pointing out being purely through chance and for this reason is insufficient to establish the charge." In Heera & Anr. V. State of Rajasthan [ (2007) 10 SCC 175 ], a test identification had been held in presence of a Civil Judge and a Judicial Magistrate. The said decision, therefore, is not applicable. In Ravindra Laxman Mahadik v. State of Maharashtra [(1997 Criminal Law Journal 3833) in a case involving Section 395 of the Code of Criminal Procedure, it was opined: "I find merit in Mr. Mooman's submission that it would not be safe to accept the identification evidence of Manda Sahani. Manda Sahani in her examination-in-chief stated that on the place of the incident, there was no light. In her cross-examination (para 6) she stated that it was dark at the place of the incident but, slight light was emanating from the building situate on the shore. The distance between the building and the place where Manda Sahani and her husband were looted has not been unfolded in the evidence. In her cross-examination (para 6) she stated that it was dark at the place of the incident but, slight light was emanating from the building situate on the shore. The distance between the building and the place where Manda Sahani and her husband were looted has not been unfolded in the evidence. The learned trial Judge has observed that the evidence of Vinod Sahani is that the incident took place at a distance of about 100 ft. from the Gandhi statute, where the meeting was held. What he wanted to convey was that hence there must have been light at the place of incident in my view, on the face of the definite statement of Manda that it was dark as there was only slight light, and bearing in mind that the incident took place at 9.30 p.m. in the month of February, 1992, it would not be safe to conclude that there was sufficient light on the place of the incident enabling Manda Sahani to identify the appellant." The decision of the Allahabad High Court in Asharfi lal (supra) was followed therein. In Kanan & Ors. V. State of Kerala [ AIR 1979 SC 1127 ], this Court held: "It is well settled that where a witness Identifies an accused who is not known to him in the Court for the first time, his evidence Is absolutely valueless unless there has been a previous T. I. parade to test his powers of observations. The Idea of holding T.I. parade under Section 9 of the Evidence Act is to test the veracity of the witness on the question of his capability to identify an unknown person whom the witness may have seen only once. If no T. I. parade is held then it will be wholly unsafe to rely on his bare testimony regarding the identification of an accused for the first time in Court." In this regard, learned counsel for the appellants further relied upon a decision of the Supreme Court reported in (2022) 9 SCC 402 : Amrik Singh vs. State of Punjab and submitted that it would be unsafe to convict an accused solely on the basis of his identification for the first time in the Court. Learned counsel for the appellant further to bolster his case with regard to the fact that the identification of the accused for the first time in Court was a weak piece of evidence, relied upon (1979) 3 SCC 319 : Kanan and others vs. State of Kerala and submitted that identification by a witness of the accused in Court raises a serious doubt and his testimony must be excluded. Still further he relied upon (1971) 2 SCC 715 : Rameshwar Singh vs. State of Jammu and Kashmir and submitted that if the accused was not previously known to the witness then an identification parade ought to have preceded the dock identification. Learned counsel for the appellant stated that though as per the decision of the Supreme Court in (2003) 5 SCC 746 : Malkhan Singh and Ors. vs. State of Madhya Pradesh evidence in Court was a substantive evidence but he submits, relying on the very same case law that if the recognition in the Court by the prosecution witness of the accused was not preceded by a test identification then the evidence would be categorized as a weak evidence. No or little weight should be attached to the evidence of identification in Court, which is not preceded by a test identification. (x) Learned counsel for the appellants further submitted that the independent public eye-witnesses who were alleged to have reached on the spot namely Hari Prashad Singh, Ansar Khan and Brijendra Pal were not reliable. Though Hari Prasad Singh and Ansar Khan had appeared in the witness box, they had turned hostile. Bijendra Pal had never come into the witness box. Even the witness who was a witness of the recovery of the slip which was handed over by the deceased to his wife, namely, Sri Shiv Shankar Dwivedi, had turned hostile. Also learned counsel for the appellants submitted that the relevant questions which were to be put to the accused persons under Section 313 of Cr.P.C. were not put to them and, therefore, the case of the prosecution becomes unreliable. In this regard, learned counsel for the appellants relied upon a judgment of Supreme Court in Arvind Singh (Supra). Also learned counsel for the appellants submitted that the relevant questions which were to be put to the accused persons under Section 313 of Cr.P.C. were not put to them and, therefore, the case of the prosecution becomes unreliable. In this regard, learned counsel for the appellants relied upon a judgment of Supreme Court in Arvind Singh (Supra). He further relied upon the judgments of Supreme Court dated 11.05.2023 reported in Criminal Appeal No. 1471 of 2023 Raj Kumar @ Suman vs. State (NCT of Delhi) and also dated 08.07.2024 reported in Criminal Appeal No. 1751 of 2017 Naresh Kumar vs State of Delhi. (xi) Still further learned counsel for the appellants has stated that there is no F.S.L. report with regard to the blood stained soil and the plain soil and this definitely jeopardise the case of the prosecution inasmuch as it was difficult to fix the place of the incident. (xii) Learned counsel for the appellants have also submitted that even the firearm which was recovered was never sent to any ballistic expert for its examination. (xiii) The very natural witnesses who ought to have been summoned by the prosecution, namely, the scribe of the first information report and the constable who had taken the injured to the hospital which were not produced, again jeopardize the case of the prosecution. If the prosecution had failed to get those witnesses to the Court, then the Court itself should have summoned them. Learned counsel for the appellants, therefore, states that their absence makes the case again very doubtful. 24. Ms. Mayuri Mehrotra, learned State Law Officer and Sri Shivakant, learned counsel appearing for the first informant have argued that the case of the prosecution as was brought forth had absolutely no loopholes at all. They have submitted that the versions of the PW-1 and PW-2 were very natural, specially when they had stated that they had gone alongwith the deceased to see the show in the cinema hall. Learned counsel for the State and learned counsel for the informant have stated that if there were minor discrepancies in the versions of the PW-1 and the PW-2 then it did not mean that the entire prosecution case could have been thrown away. Learned counsel for the State and learned counsel for the informant have stated that if there were minor discrepancies in the versions of the PW-1 and the PW-2 then it did not mean that the entire prosecution case could have been thrown away. The PW-1 and the PW-2 had given their eye-witness accounts and the eye-witness accounts could not be brushed aside simply on the basis of the fact that there were contradictions in the statements of the witnesses. They have stated that the presence of the PW-1 and the PW-2 cannot be doubted as their statements are very natural and that they are also supported even by the statements of the hostile witnesses. 25. Having heard Sri I.K. Chaturvedi, learned Senior Advocate assisted by Sri Saurabh Chaturvedi, learned counsel for the appellant in Criminal Appeal No. 2678 of 2000 (Malka @ Krishna Narain vs. State of U.P.); Sri Raj Karan Yadav, learned counsel for the appellant in Criminal Appeal No. 2703 of 2000 (Shrawan Kumar vs. State of U.P.), Ms. Mayuri Mehrotra, learned State Law Officer and Sri Shivakant, learned counsel appearing for the first informant, we find that the PW-1 and the PW-2 who have alleged themselves to be eye-witnesses have come up with the case that they had seen the entire incident. There are certain anomalies in their versions as to how they saw the incident. We also find that the PW-1 and the PW-2 have miserably failed to show that they had accompanied the injured to the hospital. The prosecution version that the P.W. 1 and the P.W.-2 had accompanied the injured to the hospital though appears to be a very natural version is fraught with contradictions. How the first informant went to the hospital had any number of contradictions. Whether the three went on two separate rikshaws along with the constable who had appeared on the scene or whether the couple went on the rikshaws and the son came on the bicycle was not clear at all. Also, where the girl child of 4-5 months was, was not clear. Therefore, when different versions were being given by the P.W.-1 and P.W.-2 a difinite doubt arises in the minds of the Court. Also, where the girl child of 4-5 months was, was not clear. Therefore, when different versions were being given by the P.W.-1 and P.W.-2 a difinite doubt arises in the minds of the Court. When a person accompanied the injured, he goes to the hospital in a certain manner and how he goes to the hospital would get etched in the mind of that person for his/her whole life. When a small child who was eight years of age at the time of the incident mentions a different method by which he went to the hospital from the method which was mentioned by his mother then, definitely a doubt is raised in the mind of the Court. Still further, the Court finds it very unnatural that when the wife had gone to the hospital and the scribe was the behnoi of the accused then why the name of the injured was shown as “unknown”. Still further when the medical report and the postmortem drastically differed from the ocular evidence, then it made the PW-1 and the PW-2 unreliable witnesses, specially when they were actually not aware as to how things had happened. It would thus be highly dangerous to rely on such witnesses who had not been able to give any consistent version of the event as it had happened on the date of occurrence. 26. Still further we are of the view that when the Investigating Officer was very much available on the date of the testimony of the PW-9, who had virtually testified on his behalf, the Court gets convinced that the case of the prosecution was a weak one. The judgements cited by the learned counsel definitely apply to the facts of the instant case. The Court also finds that Shravan Kumar, was there in the custody of the Police when the investigation was going on and when there were two eyewitnesses who could have identified him then the case of prosecution becomes doubtful when no test identification parade was conducted. Still further we find that the recording of the statement of the accused under Section 313 of Cr.P.C. was a mere formality and such questions which could have been relevant for the purposes of the decision of the case were not put to them altogether. 27. Still further we find that the recording of the statement of the accused under Section 313 of Cr.P.C. was a mere formality and such questions which could have been relevant for the purposes of the decision of the case were not put to them altogether. 27. Under such circumstances, the entire case of the prosecution becomes doubtful and we have no hesitation in holding that the appellants are entitled for a clear acquittal. 28. The instant Criminal Appeal is therefore, allowed. The impugned judgement and order dated 25.9.2000 passed by the IIIrd Additional Sessions Judge, Banda, is set aside. The appellants, namely, Malka alias Krishna Narain and Shrawan Kumar are acquitted of all the charges under which they were tried. The appellants are already on bail and they need not surrender. The sureties and bail bonds are discharged.