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2024 DIGILAW 678 (ALL)

Pravesh v. State of U. P.

2024-03-04

ANISH KUMAR GUPTA, SIDDHARTHA VARMA

body2024
JUDGMENT : Anish Kumar Gupta, J. 1. Upon an incident having taken place on 26.07.2007 at around 6:30 P.M., wherein three persons, namely Ram Murti, s/o Mohkam Singh, Malkhan Singh, s/o Ratan Singh and Pappu, s/o Mohkam Singh, had died, a First Information Report was got lodged at 8:15 P.M. (20:15 P.M.) by one Sri Shyam Singh (PW1), s/o Mohkam Singh. Upon the First Information Report being lodged, the Police got into action and thereafter recoveries of the dead bodies was done. Thereafter, the inquest report was prepared by Sri R.D. Gautam (PW-3). The investigation, thereafter, ensued and a charge-sheet was submitted against five accused persons namely Kishan Singh, Vipin, Pravesh, Manoj and Rajveer. At the time of submission of the charge-sheet, initially on 17.10.2007, the accused Pravesh and Manoj were absconding. Subsequently, when they were found out the Police submitted its charge-sheet. Initially charges were framed against Kishan Singh, Vipin and Rajveer on 21.04.2008 u/S 147, 148, 149, 302 and 504 I.P.C in Case Crime No. 412 of 2007. The sessions trial was numbered as 112 of 2008. Upon taking cognizance by the Magistrate and thereafter after the trial being placed before the Sessions Court, the latter initially framed charges against Vipin in Sessions Trial No. 112 of 2008 under sections 147, 148, 302, 504 I.P.C. and thereafter charges were framed against Kishan Singh and Rajveer in the same session trial under sections 147, 148, 149, 302 and 504 I.P.C. Subsequently the charges were framed against the accused Pravesh and Manoj under sections 302/149, 148, 147, 504 IPC in Sessions Trial No.538 of 2008. Against the accused Vipin, separate charge under section 25 of the Arms Act was also framed in Sessions Trial No.113 of 2008. The accused persons were read over the charges and they denied the charges and claimed trial. 2. From the side of the prosecution, there were five prosecution witnesses who were examined. Shyam Singh, s/o Mokam Singh was produced as PW-1; Rakesh Kumar, s/o Om Prakash was produced as PW-2; Sub-Inspector R.D. Gautam, who had prepared the inquest report, was examined as PW-3 and the Doctor Ajay Agarwal, who had conducted the postmortem and had proved the postmortem report, was examined as PW-4. The Inspector Rakesh Sharma, who was the Investigating Officer of the case, was examined as PW-5. 3. The Inspector Rakesh Sharma, who was the Investigating Officer of the case, was examined as PW-5. 3. The PW-1, Shyam Singh, who appeared in the witness box and gave his examination-in-chief on 15.09.2008 stated that on 26.07.2007, his cousin Rakesh Kumar alongwith him was going on a tractor trolley of one Harprasad, from Sadabad to Rasgawan. Alongwith them, three persons, it has been stated, namely his uncle Malkhan Singh and his brothers Ram Murti and Pappu, were also travelling on the tractor. When the tractor trolley reached near the field of Chandrapal, then Kishan Singh, Manoj, Vipin Pravesh and Rajveer accosted the tractor on two motorcycles and got the tractor trolley stopped. He states that from the tractor trolley, uncle Malkhan Singh and his own brothers Ram Murti and Pappu, were pulled down by the three accused namely Vipin, Pravesh and Manoj and Kishan Singh and Rajveer exhorted the accused Vipin, Pravesh and Manoj that the three may not go alive. At this exhortation, Vipin, Pravesh and Manoj, took out their country made pistols from their belts, which they were wearing at their waist and shot at uncle Malkhan, brothers Ram Murti and Pappu, as a result of which the three died on the spot. He has stated that he himself alongwith Rakesh ran towards the fields and they raised a hue and cry, as a result of which a lot many people from the Village- Rasgawan came on the spot. He has further stated that upon the crime having been committed, the accused persons ran away firing in the air on their motorcycles. He has specifically stated that the incident occurred at 6:30 P.M. He has further stated that there was a legal case with regard to their agricultural fields, which was going on in the Court and after attending the case they were returning home. He has stated that because of this case the accused persons had enmity with them. He has proved the first information report and had stated that he had himself lodged the same at the police station. The written report, which he had proved, was marked as Exhibit 4&v@3- He has further stated on 26.07.2007, the panchayatnama of the dead-bodies of Ram Murti, Malkhan Singh and Pappu, were prepared in his presence. He has stated that when the panchayatnama was prepared, he was a witness therein. The written report, which he had proved, was marked as Exhibit 4&v@3- He has further stated on 26.07.2007, the panchayatnama of the dead-bodies of Ram Murti, Malkhan Singh and Pappu, were prepared in his presence. He has stated that when the panchayatnama was prepared, he was a witness therein. The Inspector had also got his signature on the panchayatnama and had also got his views about the incident and the panchayatnama was exhibited as d&2] d&3] d&4- 4. In his cross-examination, however, the PW-1 has stated that the written report (Tehrir) was written while he was sitting at the Roadways Bus Stand. He specifically states that the report was not written at the Police Station. He then states that the report was written while sitting in a shop and when he was sitting in the shop, the time was 9:15 P.M. and then he clarifies that the shop was of STD/PCO. He states that the paper on which the report was written was brought by his cousin (bua's son). He further states that the cousin had come to his village one day prior to the incident. He clarifies that he had not gone to his village after the incident. He further states that when the cousin (bua's son) had come to him, the Police had also reached the place of incident. The police had, thereafter, alongwith his cousin, brought the first informant and other persons to the Police Station. He states that the cousin had come from Agra. He further states that the information was scribed by PW-1 himself. It was not written on the dictation of anybody. Upon being asked as to how the cousin had reached him, he states that probably the villagers had phoned him up. He specifically stated that at that point of time, the dead bodies were in the premises of the Bus Stand, in a Police Van, at the time when the information was being written down. He then reiterates that the writing of the information took place at around 9:15 P.M. He specifically states that at 9:15 P.M., the dead bodies were not lying at the Bahardoi Crossing (Teeraha). He, thereafter, specifically states that the dead bodies were sealed at the place of incident at around 8:30 P.M. He further states that the Thana-Hasanpur was around 20 Kilometres from Sadabad. He, thereafter, specifically states that the dead bodies were sealed at the place of incident at around 8:30 P.M. He further states that the Thana-Hasanpur was around 20 Kilometres from Sadabad. Upon being probably asked as to whether the case in the District Court of Hathras was in the Lower Court or the Appellate Court, he states that he was not aware whether the case was in the Lower Court or the Appellate Court. He, however, states that his counsel at Sadabad was one Mahesh Chand Sharma. He then further states that he had, in fact, not gone to the courts. The uncle Malkhan, brother Ram Murti and Pappu alone had gone to the court. He still further states that Rakesh (PW-2), who was his uncle's son had also gone to the Court. He states that it was wrong to say that there was no date fixed in the case on the date of incident. In the further cross-examination, which was done on 22.09.2008, the PW-1 states that he was not aware as to whether on the date of incident any case was fixed in Sadabad. He states that as a routine he used to go to Sadabad everyday. Then, he states that he used to go to Sadabad on tractor as he was employed by someone at Sadabad. Then, he further states that in Kukargawan, one Rohitash Singh had employed him in a dairy. Then, he states that he was commuting daily between Kukargawan and Sadabad and he rarely went to his village. He further states that on the date of incident, he was returning from Kukargawan. He states that the milk, which he was carrying, was being transported by a tanker and that he used to drive the tanker. He further states that the accused persons had come on two separate motorcycles. Pravesh, Kishan and Rajveer were on one motorcycle whereas Manoj and Vipin were on the other motorcycle. One motorcycle was being driven by Manoj and the other motorcycle was being driven by Pravesh. He, however, had stated that he was not aware about the name and number of the motorcycle. 5. Pravesh, Kishan and Rajveer were on one motorcycle whereas Manoj and Vipin were on the other motorcycle. One motorcycle was being driven by Manoj and the other motorcycle was being driven by Pravesh. He, however, had stated that he was not aware about the name and number of the motorcycle. 5. In his further cross-examination, the PW-1 states that when the accused persons had come near the tractor, they were having their country made pistol in their hands and when they had pulled down the deceased persons then also they were having their country made pistols in their hands. He specifically states that throughout the fire arms were never in the belt, which they were wearing and he states that it was such a fact which he had also got stated in the first information report. Upon being confronted with the F.I.R. he states that he did not know as to how in the F.I.R., it had been stated that the accused persons had taken out the fire arms from their belts. He states that when the incident occurred, he was sitting in the trolley attached to the tractor and when the accused persons were around 10 to 12 yards away, he had already seen them. He states that the deceased persons were sitting on the tractor and they were not sitting in the trolley. He specifically states that he knew the difference between a tractor and a trolley. He states that the accused persons had pulled down the deceased from the tractor and they were not taken out from the trolley. He states that if he had stated in the first information report that they were pulled out from the trolley, then it was a wrong fact. He also states that if he had stated in the examination-in-chief that they were pulled out from the trolley, then also it was stated inadvertently. He states that he had told the Investigating Officer also that the deceased were pulled down from the tractor and if the Investigating Officer had not written about the fact that the deceased had been pulled out from the tractor then he did not know why that statement had been written and in fact he states that if the Investigating Officer had written that the deceased were pulled out from the trolley then it was a wrong fact. He further states that in the tractor and on the trolley there were 8 to 10 people. He specifically states that he had not got their names recorded in the complaint despite the fact that he knew the names of those persons. He states that he had not given names of the persons present in the trolley as they were not ready to be the witnesses in the case. He states that the tractor belonged to one Har Prasad, who was a resident of his village and he states that the tractor was being driven by his son. He further states that the moment he had seen the accused persons, he had jumped out from the trolley and had run away and that before the incident had actually occurred, he had run across 2 to 4 fields. He specifically states that Rakesh had also jumped out and run away in the same direction i.e., towards the village-Rasgawan. He specifically states that what happened after they had run away was not known to him. However, he was not aware as to how many rounds of firings he had heard. He states that he had run towards the village for help. He further states that when people from the village reached the spot, then he had come thereafter. The three deceased had died on the spot. He states that village-Rasgawan was one kilometre away from the place of incident and when he came back, the motorcycles were not there. The tractor trolley had also gone to the village. He states that he had seen that the accused persons had run away from Bahardoi. Probably, there was no mention about the presence of food in the dead body at the time of postmortem and when the question was put, then, PW1 states that he did not know as to whether the deceased had taken food when they left their homes. He further states that when the spot was shown to the Police, it was around 9 or quarter to 9 and this showing of the spot was done after the First Information Report was got lodged. He further states that when the spot was shown to the Police, it was around 9 or quarter to 9 and this showing of the spot was done after the First Information Report was got lodged. To show that the PW-1 was in the tractor, the PW-1 states that even though routinely the PW-1 used to go on bus or tempo, he had traveled by tractor on that day as he had got the tractor as a means of travel on that day incidentally. 6. When the accused Pravesh and Manoj were apprehended, the court framed charges against them on 01.04.2009, the PW-1 was again brought in for his statement-in-chief and cross-examination on 09.07.2010. Here again, he reiterates what he had stated in the examination-in-chief, earlier. He reiterates that the first information was actually written down by him at around 9:15 P.M. He states in his cross-examination that the panchnama of the dead bodies was done prior to his getting the First Information Report lodged and he states that the Police had reached the spot on the information given by someone else. He states that on the date of incident at around 3:00 P.M., he had returned from Kukargawan and that thereafter he had stayed there and at around 6:30 P.M. he was still at the village-Kukargawan and he had received information at Kukargawan itself about the incident and upon getting the information, he came to village Rasgawan. He states that when he had reached the place of incident, the Police had already reached before him and the primary investigations were going on. He further states that from Kukargawan, he had come on a motorcycle to the place of incident. He states that he had neither seen any motorcycle nor any tractor trolley. He also states that he was not aware as to who was present in the tractor. He further states that he was not aware as to who had called Rakesh (PW-2) at the place of incident. From where Rakesh had appeared, he had no knowledge. He states that the distance between Kukargawan and Rasgawan was two and a half to three kilometres and that as soon as he has heard about the incident at Kukargawan, he reached the spot. He further states that when he reached the place of incident, quite a few people had collected at the spot and that the three deceased had already died. He further states that when he reached the place of incident, quite a few people had collected at the spot and that the three deceased had already died. 7. The PW-2, Rakesh Kumar, s/o Om Prakash, on 21.10.2008, appeared in the witness box and gave his statement-in-chief and stated that the incident was of 26.07.2007 and the PW-2 and Shyam Singh were on the tractor of Harprasad. He further states that Kishan, Rajveer, Pravesh, Vipin and Manoj, came on motorcycles. They got down from the motorcycles, came to the tractor trolley which they had stopped and thereafter fired. From the tractor Malkhan, Ram Murti and Pappu, were pulled out by Vipin, Manoj, Kishan, Pravesh and Rajveer, wherein Kishan and Rajveer had exhorted the other three that the deceased may not escape alive. At the exhortation, Manoj, Pravesh and Vipin took out their country made pistols from their belts, which they had tied on their waists and fired on Malkhan Singh, Ram Murti and Pappu and upon being shot at they immediately fell down on the spot. He further states that Shyam Singh (PW-1) and he himself had seen whole incident with their own eyes. However, upon the firing having taken place, the two had jumped out from the trolley and had run away towards Bardohi. He further states that in the trolley there were many other persons sitting. 8. In the cross-examination, the PW-2 has stated that on the date of incident at around 12:00 P.M., the PW-2 had started from Sadabad. He had stated that there were many cases pending against Malkhan Singh. However, he states that he had not gone to the courts on the date of the incident alongwith the deceased. He states that even though there were 15 to 20 cases against Malkhan Singh, there was only one case in between Malkhan Singh and the accused persons. He specifically states that Malkhan Singh, Ram Murti and Pappu, were sitting in the trolley attached to the tractor and that he too was also sitting in the trolley. He states that Shyam Singh (PW-1) had gone to Sadabad in connection with the delivery of milk and that Shyam Singh had, in fact, come to the spot on a milk tanker. He states that Shyam Singh had driven the tanker and at that time he was accompanied by one more boy, whose name he did not remember. He states that Shyam Singh (PW-1) had gone to Sadabad in connection with the delivery of milk and that Shyam Singh had, in fact, come to the spot on a milk tanker. He states that Shyam Singh had driven the tanker and at that time he was accompanied by one more boy, whose name he did not remember. He states that Shyam Singh and the boy, who accompanied him, had come from Kukargawan. He states that Shyam Singh had gone from the village-Rasgawan to Kukargawan and from Kukargawan, he had taken milk and had gone to Sadabad. He states Shyam Singh had stayed in his village-Rasgawan, for about an hour, after the incident. He states that the fact that Shyam Singh had stayed at his village for an hour, after the incident, was not told to him by anybody but it was from his personal knowledge that he was stating this fact. He also states, as has been stated by PW-1, that in the tractor trolley, there were 10 to 12 people sitting and they were all from his village and he also knew them. However, he did not know the women sitting in the tractor. He states that the panchnama of the dead bodies took place between the 8:30 P.M. and 9:00 P.M. He further states that apart from him, the witnesses of the panchnama were Jaswant (Pradhan), Ram Gopal and Neetu. He states that the Police had reached the spot one and a half hour after the incident and they were called by the villagers of some other village on the phone. He states that the Police had reached the spot even before he had reached. He states that nobody had called him on the spot but because the other villagers were going, he had accompanied them upon hearing the hue and cry. 9. PW-2 further states that the accused persons had fired in the air and had stopped the tractor. He further states that when the firing took place, Shyam Singh ran away towards Bardohi. He states that he also ran towards Bardohi. Still further, he states that at the time when the accused pulled out the deceased, the two i.e. Shyam Singh and Rakesh had already jumped out from the trolley and had run away. He further states that when the firing took place, Shyam Singh ran away towards Bardohi. He states that he also ran towards Bardohi. Still further, he states that at the time when the accused pulled out the deceased, the two i.e. Shyam Singh and Rakesh had already jumped out from the trolley and had run away. He specifically states that Pappu had been pulled out by Manoj, Malkhan had been pulled out from the trolley by Vipin and Pravesh had been pulled out by Ram Murti and these three the persons (deceased) were sitting by the side of the trolley attached to the tractor. He states that the accused persons had pulled out the deceased victims from the trolley. 10. PW-2 further stated that the accused persons had also tried to catch hold of him and PW-1 Shyam Singh but they could not do so as they had already run away by that time. He further states that at the time when the accused had gone into the trolley, they were empty handed. The accused had got into the trolley and after that they had pulled out the three deceased and before they pulled them out from the trolley, there was some physical altercation also. He states that the accused persons had fired on the deceased after two or three minutes when they had pulled the victims out from the trolley. 11. The PW-3 Ram Dev Gautam (Sub-Inspector) who had prepared the inquest gave his statement on 14.1.2011 and had proved the inquest reports Exhibit Ka-2, Ka-3 and Ka-4. He had also proved the related documents being Exhibit Ka-9, Ka-10, Ka-11 and Ka-12. He has stated in his cross examination that he had reached the spot and had prepared Exhibit K-2 on the spot at 23.00 hours (11.00 PM) and had prepared Exhibit Ka-4 at 2200 hours (10.00 PM) and Ka-3 at 2400 hours (12.00 PM) and then all the three dead bodies were sent for post-mortem. He has also stated that the three dead-bodies, before being sent for the post mortem, were lying at the spot till 12.00 PM. Upon being confronted by the statements of Shyam Singh PW-1 with regard to the dead bodies being sealed at 8.30 PM, he had stated that he was telling the truth and that the statement of Shyam Singh was a wrong one. Upon being confronted by the statements of Shyam Singh PW-1 with regard to the dead bodies being sealed at 8.30 PM, he had stated that he was telling the truth and that the statement of Shyam Singh was a wrong one. He has throughout through his statements stated that the statements of the witness Shyam Singh were irrelevant and wrong. 12. PW-4 Dr. Ajay Agarwal who had conducted the postmortem had stated that on 27.7.2007, he had conducted the postmortem and had proved the post mortem reports and had given his opinion that the death had occurred because of the injuries caused by firing. He had also stated that he did not mention the fact as to whether there was food in the stomach and in the intestines of the dead-bodies and he had still further stated that it was wrong to state that he had not mentioned about the food in the dead bodies of the deceased because this fact gives the probability to ascertain the right time of death. He specifically had stated that on the dead bodies of the deceased, there were no physical injuries other than the injuries caused by firing. 13. PW-5 is the Investigating Officer Sub-Inspector Rakesh Sharma. He has proved the site plan and the recovery of the country made pistol. He has stated that upon the recovery being made of the firearms at the behest of the accused Vipin, the firearms and the bullets etc. were sent to the ballistic expert on 12.3.2008. He states that the delay had occurred despite the fact that the District Magistrate had given the permission on 9.10.2007. He had stated that in between 9.10.2007 and 12.3.2008 the firearm and the bullets samples etc. could not be sent as there were other businesses to perform and, therefore, he could not send the samples expeditiously. The Investigating Officer has, upon being questioned as to why he had not put Guddu, the driver of the tractor, in the list of witnesses, answered that it was a correct fact that he had not taken any statement of the independent witness namely Guddu. The Investigating Officer has, upon being questioned as to why he had not put Guddu, the driver of the tractor, in the list of witnesses, answered that it was a correct fact that he had not taken any statement of the independent witness namely Guddu. He has also stated that at the time of the incident, there were Amar Singh son of Vasdev; Brijmohan son of Ram Khiladi; Bhole son of Mauji; Sunil Kumar; Anil Kumar and Susheela Bahan Ji sitting on the tractor trolley but he had not taken the statements of these persons. He has stated that he had not taken the statements of these persons as they were not ready to give their statements and he had even mentioned this fact in his inquiry report. He had stated that he knew the difference between a tractor and a trolley attached to it. He has stated that the witnesses had told him at the time of investigation that the three deceased were sitting in the trolley and that they were not sitting on the tractor. 14. CW-1 Constable 170 Har Narayan Singh has proved the death of accused-Rajveer. 15. Thereafter statements were taken of the accused persons under section 313 Cr.P.C. and the accused persons namely Kishan Singh and Vipin had stated that all the evidence were got prepared and were a bundle of lies and that the reports were all false. They denied the incident saying that they had been falsely implicated due to enmity. 16. From the side of the accused persons, DW-1 Guddu was produced and examined who allegedly was the driver of the tractor which was carrying the three deceased namely Ram Murti, Pappu and Malkhan and also the PW-1 and PW-2. However, the DW-1 in his statement had categorically stated that the PW-1 Shyam Singh and PW-2 Rakesh were not sitting in his tractor trolley. He also in fact had stated that Rajveer, Kishan Singh, Manoj, Pravesh and Vipin had not killed Ram Murti, Pappu and Malkhan after pulling them out from the tractor. He states that he would recognize the accused assailants. He also states that he does not even remember the number of the tractor. 17. Upon trial having been completed, the District & Sessions Judge, Hathras on 24.3.2012 convicted the accused Kishan Singh, Pravesh, Manoj and Vipin under section 302 read with section 149 IPC. He states that he would recognize the accused assailants. He also states that he does not even remember the number of the tractor. 17. Upon trial having been completed, the District & Sessions Judge, Hathras on 24.3.2012 convicted the accused Kishan Singh, Pravesh, Manoj and Vipin under section 302 read with section 149 IPC. With regard to the offences under sections 147, 148 and 504 IPC, no conclusion was arrived at. Under section 25 of the Arms Act, the accused Vipin who was charged under section 25 of the Arms Act, was acquitted. During trial, accused Rajveer died on 10.11.2010 and, therefore, the trial had abated viz.-a-viz. Rajveer. 18. Sri Apul Mishra, learned counsel appearing for the appellants assisted by Sri Atul Kumar, Advocate in effect argued that the appellants were innocent and that they had been wrongly implicated. Following were the arguments raised by learned counsel for the appellants :- (i) Learned counsel for the appellants states that though the incident occurred but the appellants were not the ones who had committed the crime. Learned counsel relying upon the statements made by the PW-1 and PW-2 has stated that the eye-witness account of the PW-1 and PW-2 were absolutely not convincing. Learned counsel took us through the statements made by PW-1 Shyam Singh and has stated that despite the fact that Shyam Singh had lodged the First Information Report on 26.7.2007 and the FIR clearly had stated that it was being lodged at 20.15 (8.15 PM). Shyam Singh had stated in his cross-examination that the written report was scribed by him at around 9.15 PM while sitting at a STD shop in the neighbouring bus stand. He had stated that the paper on which the complaint/written report was written was brought to him by his cousin (Bua's son) and on it he scribed the report. Learned counsel states that this is in direct contravention to the time which had been given in the FIR. Relying upon this contradictory statement of the PW-1, learned counsel states that the statement of the eye 18 witness PW-1 becomes very unreliable and the evidence can be said to be a shaky one and not to be relied upon for convicting the accused. Relying upon this contradictory statement of the PW-1, learned counsel states that the statement of the eye 18 witness PW-1 becomes very unreliable and the evidence can be said to be a shaky one and not to be relied upon for convicting the accused. (ii) He further states that in the statement of PW -1 it had been stated that the dead bodies were sealed and were in the police van stationed at the bus stand while he was writing down the written report but the Investigating Officer, PW -5, in his statement had stated that he had not received the information with regard to the incident on phone and he had reached the spot on his own on getting information at about 10:00 PM and at that point of time the dead bodies were still lying on the spot. Since the learned counsel for the appellants compared the statements of PW-1 and PW-5, they are being reproduced here as under:- The statement of the P.W.-5 which states that the dead bodies were lying at the place of incident at 10:00PM is being reproduced here as under :- ^^eq>s bl ?kVuk dh lwpuk Qksu ls ugha feyh Fkh] eSa fjiksVZ ntZ gksus ls igys ?kVuk LFky ij ugha igq¡pk Fkk] eSa ?kVukLFky ij djhc nl cts igq¡pk Fkk vkSj ml le; rd yk'ksa ?kVuk LFky ij ekStwn FkhA** (iii) The counsel for the appellants has stated that the statements of PW-1 and PW-2 with regard to the fact that as to whether the deceased Ram Murthi, Pappu and Malkhan were sitting on the tractor or trolley is not reliable. In the first information report, the PW-1 had stated that the deceased were sitting in the trolley whereas in the cross-examination he has categorically stated that the deceased were, in fact, sitting on the tractor and they were, in fact, pulled out from the tractor. The PW-2 has, in direct contravention to what had been stated by PW-1, had stated that the deceased were sitting in the trolley. Upon being cross-examined, the two witnesses had clearly stated that they knew the difference between a tractor and a trolley and, therefore, the statements, learned counsel for the appellants states, of the two eyewitnesses becomes absolutely unreliable. (iv) The counsel for the appellants has questioned about the presence of the PW-1 and PW-2 also. Upon being cross-examined, the two witnesses had clearly stated that they knew the difference between a tractor and a trolley and, therefore, the statements, learned counsel for the appellants states, of the two eyewitnesses becomes absolutely unreliable. (iv) The counsel for the appellants has questioned about the presence of the PW-1 and PW-2 also. He has stated that PW-1 has, in the first information report, stated that he was sitting in the tractor trolley when the incident occurred. However, in the cross-examination, he has stated at one point of time that when he saw the assailants coming he alongwith PW-2 had jumped out and had run away and at another point of time he had stated that he was, in fact, working for a businessman who was dealing in milk and that he was, in fact, in Kukargawan at the time when the incident had occurred and that he later on came by a motorcycle upon getting the information that the incident had occurred. (v) Learned counsel for the appellants has further relying upon the statements of PW-2 stated that even PW-2 was not clear as to whether the PW-1 and PW-2 were present at the time of incident. He states that PW-2 has very categorically stated that at the time when the incident had occurred the two i.e. the PW-1 and PW-2 had already jumped out from the trolley and had ran away. (vi) Learned counsel for the appellants has further stated that had the witnesses been on the spot they would not have given contradictory statements as to whether the firearms were taken out from the waist of Vipin, Pravesh and Manoj or whether the firearms were in their hands. In the First Information Report, it has been stated that at first firing was done in the air and the tractor was stopped and the deceased victims were pulled out from the trolley and thereafter at the exhortation of Kishan and Rajveer, the three assailants i.e. Vipin, Pravesh and Manoj had taken out the pistol from their waists and had shot the bullets whereas in the cross-examination of PW-1 and PW-2, a contrary statement had been given that the three assailants namely Vipin, Pravesh and Manoj had throughout held the firearm in their hands and along with the firearms they had entered the trolley and pulled the three victims out and killed them. (vii) Learned counsel for the appellants has stated that the tractor trolley as per the PW-2 and 5 had around 10-12 other persons in it. They all were known to the PW-1 and PW-2 but their names were not mentioned in the list of witnesses and that they were also never produced in the witness box. They were uninterested witnesses as compared to PW-2 and the PW-1 who was the brother of Pappu and Ram Murti and the nephew of Malkhan. He, therefore, states that only on the basis of an unreliable interested witnesses, the conviction of the accused could not take place. (viii) Learned counsel for the appellants also has further submitted that despite the fact that the PW-5, the Investigating Officer, was in the know of the fact that the driver was Guddu and that he was a neutral person, PW-5 had not examined Guddu even at the time of the investigation and, therefore, definitely he was not produced in the witness box. He submits that the driver of the tractor namely Guddu was produced as DW-1 and was cross-examined by the parties and he, as per the learned counsel for the appellants, has very categorically stated that even though the incident had occurred, definitely, Rakesh and Shyam Singh were not there in the tractor trolley. This, learned counsel states, was a conclusive evidence of the fact that the PW-1 and PW-2 who were claiming themselves to be eye-witnesses, were in fact not present at the spot. (ix) The DW-1 has further in definite terms had stated that the appellants were not the assailants in the incident and he could identify the actual assailants. Thus, learned counsel for the appellants submits that though the incident has taken place but the appellants were not the actual assailants and they have been implicated due to enmity. (x) Learned counsel for the appellants Sri Apul Mishra has further submitted that the whole investigation becomes doubtful in view of the fact that the Exhibit Ka-8 which has been prepared by the Investigating Officer PW-5 shows that the Investigating Officer has signed the documents on 29.7.2007 whereas the seizure of the empty cartridges was done on 26.7.2007. He further states that if the statement of PW-5 is seen then it would become clear that in fact he had seized the empty cartridges on 27.7.2007. 19. Learned AGA Sri Amit Sinha assisted by Ms. He further states that if the statement of PW-5 is seen then it would become clear that in fact he had seized the empty cartridges on 27.7.2007. 19. Learned AGA Sri Amit Sinha assisted by Ms. Mayuri Mehrotra has argued that if the incident has been proved to have occurred and if the injuries were proved by the medical report then even if there were certain discrepancies in the statements of PW-1 and PW-2 then the conviction was proper and that the appeal be dismissed. Learned AGA has submitted that as the recovery of arms was done at the pointing of Vipin, it was only indication of the fact that Vipin was definitely involved in the incident. Also, he has submitted that there was absolutely no ground whatsoever to exonerate the appellants. 20. We have heard learned counsel for the appellants Sri Apul Mishra assisted by Sri Atul Kumar and the learned AGA Sri Amit Sinha for the State. The counsel appearing for the appellants has argued primarily that two eye-witnesses i.e. PW-1 and PW-2 were not reliable eye-witnesses. There is contradiction in the statements of PW-1 to a very large extent. Initially, it was stated that the deceased were sitting inside the trolley but subsequently the PW-1 had stated that they were sitting on the tractor and that the deceased was pulled out from the tractor. 21. Learned counsel for the appellants has stated that even though the PW-1 in the first information report has stated that he was sitting in tractor trolley, in his cross-examination he had stated that he alongwith PW-2 had jumped out of the tractor trolley and at the point of time when the incident had occurred, he was not there in the tractor trolley. 22. Still further in the cross-examination, the PW-1 had stated that he was working for a businessmen and that, in fact, at the time of the incident, he was at Kukargawan and that he reached the spot later on by a motorcycle. 23. Learned counsel for the appellants has still stated that even the statement of PW-2 was not reliable as his statement was in contradiction to the statement of PW-1. 23. Learned counsel for the appellants has still stated that even the statement of PW-2 was not reliable as his statement was in contradiction to the statement of PW-1. The PW-2 had stated in his cross-examination that at the time when the incident had occurred, both the PW-1 and PW-2 were not there in the tractor trolley and that they had at an earlier point of time jumped out of the trolley. 24. Still further, we find substance in the argument of learned counsel for the appellants that when the eye-witnesses were giving eye-witness account, they would not have given contradictory statement as to whether the fire-arms, from the beginning till the firing taken place, were in the hands of the appellants or whether they were in their waist and that they were taken out at the time of firing. 25. We also find substance in the argument of learned counsel for the appellants that had the PW-1 and PW-2 been at the spot and had witnessed the incident then they would definitely have mentioned the names of 10 to 12 persons who were accompanying them and the deceased persons in the tractor trolley. 26. We also find substance in the fact that the PW-5, the Investigating Officer, had despite the fact known the name of the driver of the tractor never examined and had never included him in the list of witnesses. We also find substance in the argument of learned counsel for the appellants that the recovery of the empty cartridges was done in a very slipshod manner. Even though the seizure of the empty cartridges was done on 26.7.2007, the document showing the recovery was signed on 29.7.2007. The manner in which the prosecution witnesses had changed there stand about the fact as to how they had witnessed the incident makes the entire prosecution story unreliable. Even though it is correct that minor discrepancies should be ignored, we find that the discrepancies are of such a nature which cannot be ignored and we thus hold that the appellants were in fact not guilty of the crime as the prosecution has failed to prove its case beyond reasonable doubt against the appellants herein. 27. The appeals are, therefore, allowed. The judgment and order 24.3.2012 is set aside. 27. The appeals are, therefore, allowed. The judgment and order 24.3.2012 is set aside. The appellants before us, in both the appeals, are declared innocent and are acquitted of the charges levelled against them in the instant case. The appellant-Kishan Singh is already on bail. Therefore, his bail bonds as well as sureties are discharged. 28. In the instant case, the appellant-Pravesh was declared juvenile vide order dated 24.3.2018 by the Juvenile Justice Board, Hathras after his conviction by the impugned order and in pursuance of the order dated 24.3.2018, he was released in the instant case. The appellant-Vipin was also declared juvenile vide order dated 10.5.2018 by the Juvenile Justice Board, Hathras and was released in the instant case. The appellant-Manoj is in jail. He shall be released forthwith unless required in any other case.