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2024 DIGILAW 934 (ALL)

Nikka v. State of U. P.

2024-04-01

ASHWANI KUMAR MISHRA, MOHD.AZHAR HUSAIN IDRISI

body2024
JUDGMENT : 1. Heard Sri Ajay Pandey and Sri Rahul Saxena, learned counsel for the appellants as well as learned A.G.A for the State and perused the record. 2. This bunch of appeals are directed against the composite judgement and order passed by the trial court in Sessions Trial No.98 of 2017, arising out of Case Crime No. 2246 of 2016 (State Vs. Shama and others), whereby the accused appellants have been convicted under Section 302 read with 149 Cr.P.C. and sentenced to undergo life imprisonment with a fine of Rs. 30,000/- together with default sentence. 3. The prosecution case proceeds upon a report (Ext. Ka- 1) as per which the informant Faizulla Khan S/o Tullan Khan is resident of Village Kitnapur, District Pilibhit. On 18.11.2016 at about 6.00 a.m. in the morning all the accused persons entered the house of the complainant and on account of previous enmity dragged his son out of the house to the road with the intention to kill him. All the accused persons were having firearms. Accused Bhola then fired from the licensed gun of Khaleel causing gun shot injury to the deceased. On the intervention of the villagers, all the accused persons ultimately fled from the spot. The informant’s son Yunus later died. The informant initially brought the injured to the police station where he was sent to Primary Health Centre, Bisalpur and then to District Hospital, Pilibhit. He was later referred to District Hospital, Bareilly but he died while on the way to Bareiily. On the basis of such written report, first information report came to be lodged as Case Crime No. 2246 of 2016 on 18.11.2016 at 8.30 in the morning. The place of incident is 4 kilometer from the police station. 4. The dead body of the deceased was taken to the mortuary on the date of incident itself at 4.30 p.m. where inquest followed. Information with regard to the death has been furnished by the Rehmat Khan S/o Faizulla (P.W.-2). The inquest was completed at about 5.30 p.m. The post mortem was also conducted on the same day at about 11.45 p.m. by Dr. Manjeet Singh (PW- 4). Information with regard to the death has been furnished by the Rehmat Khan S/o Faizulla (P.W.-2). The inquest was completed at about 5.30 p.m. The post mortem was also conducted on the same day at about 11.45 p.m. by Dr. Manjeet Singh (PW- 4). As per the post mortem report, following injuries were found on the deceased during post mortem examination:- Wound of entry 8 cm above from upper border of left patella on front of the lower portion of thigh with size of wound 10 x 6.5 x inverted & margin lacerated on cutting haematoma present and vessels and mussels damaged. Wound was through and through and communicating with the external (exit) wound and underneath bone is fractured. Wound of exit 6 cm. from upper border of popliteal upper fossa on back of left thigh and size of wound is 11 x 6.5, everted margin and casseration. Both the wounds are communicated with each other. Tattooing & blackening & singeing of hair is not present on both the wounds. 5. According to the autopsy surgeon, the cause of death of the deceased was shock and hemorrhage due to ante mortem fire-arm injury. 6. The accused persons were later arrested on 20.11.2016 and the weapon of offence, namely double barrel licensed gun, along with cartridge and two country made pistols etc. were recovered from the accused Khaleel S/o Zafar Khan and Bhola S/o Jamil Khan and others and Case Crime No. 2249 of 2016 and 2250 of 2016, under Section 25/27 Arms Act were registered at 5.10. p.m. on the same day i.e. 20.11.2016. 7. The record further reveals when the injured was taken to the District Hospital, Pilibhit on 18.11.2016, his X-ray was got conducted. The X-ray report is on record (page 17 of the paperbook). Deceased Yunus Khan alias Bhoora had suffered fracture in his left thigh in the femur bone region. This document reveals that at District Hospital, Pilibhit itself the deceased had died. The investigation further proceeded and bloodstained earth and plain earth were collected from the spot by the Investigating Officer (Ext. Ka-15). The weapon of assault i.e. 12 bore double barrel gun and 12 bore used bullet were also produced (Ext. Ka-16). The recovered firearm alongwith used bullet was sent for scientific examination to the Forensic Science Laboratory and its report is on record which shall be dealt with later. Ka-15). The weapon of assault i.e. 12 bore double barrel gun and 12 bore used bullet were also produced (Ext. Ka-16). The recovered firearm alongwith used bullet was sent for scientific examination to the Forensic Science Laboratory and its report is on record which shall be dealt with later. The investigation was ultimately concluded and charge sheets were submitted on 13.01.2017 (Ext. Ka-18), 20.12.2016 (Ext. Ka-21), 20.12.2016 (Ext. Ka-22 and 02.01.2017 (Ext. Ka-23). Cognizance was taken by the concerned court and since the offence was triable by the court of Sessions, the matter was referred to the court of Sessions where four Session Trials were registered. Charges were framed against the accused appellants who denied the accusation and claimed to be tried. The Session Trial No. 98 of 2017 was in respect of Case Crime No. 2246 of 2016, under Sections 147, 148, 149, 302, 452, 504 I.P.C., Police Station Bisalpur, District Pilibhit. Session Trial No. 99 of 2017 was in respect of Case Crime No. 2249 of 2016, under Section 25/27 Arms Act, Police Station Bisalpur, District Pilibhit. Session Trial No. 100 arose out of Case Crime No. 2250 of 2016, under Section 25/27 Arms Act, Police Station Bisalpur, District Pilibhit. Session Trial No. 101 of 2017 arose out of Case Crime No. 2250 of 2016, under Section 30 Arms Act, Police Station Bisalpur, District Pilibhit. All the session trials have been clubbed and disposed of vide judgment and order dated 06.10.2021 by the Session Judge, Pilibhit and accused appellants have been convicted and sentenced as per above. Against the said judgment and order, five appeals have been preferred before this Court. 8. The prosecution has produced testimonies of following prosecution witnesses:- (i) PW-1 Faizulla Khan, (ii) PW-2 Rehmat Khan, (iii) PW-3 Hitesh Kumar, (iv) PW-4 Dr. Manjeet Singh, (v) PW-5 Puskar Singh, (vi) PW-6 Munees, (vii) PW-7 Ramveer Singh, (viii) PW-8 Shakeel Ahmad, (ix) PW-9 Suresh Kumar Singh and (x) PW-10 Pushkar Singh. 9. In addition to oral testimony of the prosecution witnesses, the prosecution has also produced following documentary evidences:- (i) F.I.R. Ext. Ka-2, Ext. Ka-4 and Ext. Ka-6, (ii) Written Report Ext. Ka-1, (iii) Recovery memo of murder weapon licensed gun double barrel 12 bore with used bullet Ext. Ka-16, (iv) Recovery memo of bloodstained and plain soil Ext. Ka-15, (v) X-ray report, (vi) Post mortem report Ext. Ka-2, Ext. Ka-4 and Ext. Ka-6, (ii) Written Report Ext. Ka-1, (iii) Recovery memo of murder weapon licensed gun double barrel 12 bore with used bullet Ext. Ka-16, (iv) Recovery memo of bloodstained and plain soil Ext. Ka-15, (v) X-ray report, (vi) Post mortem report Ext. Ka-7, (vii) Three reports of Forensic Science Laboratory, (viii) Panchayatnama Ext. Ka-8, (ix) Four Charge sheets Ext. Ka-18, Ext. Ka-21, Ext. Ka-22 and Ext. Ka-23. 10. All the accused appellants were then confronted with the evidence adduced against them during trial in order to record their statements under Section 313 Cr.P.C. All the accused appellants denied the allegations made against them and stated that they have been falsely implicated. It has also been asserted by the accused appellants that they have been implicated on account of enmity. 11. Trial court has examined oral and documentary evidence produced during trial in order to return the finding of guilt against the accused appellants on the basis of which they have been convicted and sentenced as per above. 12. Sri Ajay Pandey, learned counsel appearing in all the appeals submits that the prosecution has failed to establish the guilt of the accused appellants beyond reasonable doubt; the testimony of PW-1, who is the sole eye witness, is not credible and reliable and the conviction and sentence of the accused appellants, relying upon his testimony, is not sustainable; it is submitted that F.S.L. report does not support the prosecution case inasmuch as the gun shot wound on the deceased neither tallies with the bullet recovered nor any pallet has been found and no blackening or tattooing is noticed either which nullifies the prosecution case of firing from a close distance by a bullet; learned counsel for the accused appellants further submitted that six persons were initially implicated in the aforesaid offence but implication of one of them, namely Khaleel, has not been accepted, which renders the testimony of PW-1 unreliable; learned counsel for the accused appellants also argued that the prosecution case against all six accused persons intending to murder the deceased is not credible as there is a solitary gun shot injury on the thigh of the deceased, caused by accused Bhola, whereas other five accused persons have not caused any injury to the deceased; with reference to testimony of autopsy surgeon i.e. PW-4 Dr. Manjeet Singh, it is urged that cause of death was excessive bleeding on account of the fact that proper medical aid was not rendered to the injured, at that time, as he was initially taken to the police station, and later referred to Primary Health Center, Bisalpur and then to District Hospital, Pilibhit. In this process a lot of time was wasted. In case the deceased had been given proper medical treatment and his bleeding was stopped, he might have survived. In the alternative, learned counsel for the accused appellants submits that even if the prosecution case is taken on its face value, it would not indicate an offence under Section 302 I.P.C. and as such, maximum punishment, which could be awarded to the accused Bhola, would fall under Section 304-II I.P.C. Learned counsel asserted that accused appellant Bhola has already undergone incarceration for more than 8 years, as such, he is entitled to be released on the punishment already undergone; so far as other accused appellants are concerned, there is no overt act attributed to them and since their implication is otherwise ornamental, all other accused appellants are liable to be acquitted and the appeals deserve to be allowed. 13. Learned A.G.A., on the other hand, urged that testimony of PW-1 is wholly reliable, which is otherwise supported by the documentary evidence on record. Learned A.G.A. further argued that since the weapon used in the incident has been recovered from the accused appellants and there was specific motive available to the accused appellants to commit the murder, as such, the judgment and order of the Court of Session merits no interference. 14. Before adverting to the respective submissions advanced on behalf of the learned counsels for the parties, it would be relevant to mention some features of the case. The deceased, who was aged about 26 years, was of average built and he admittedly died on 18.11.2016. The inquest report as well as post mortem report clearly shows existence of single gun shot injury caused to the deceased, which resulted into two wounds, one of entry wound 8 cm above upper border of left patella on front of the lower portion of thigh with size of wound being 10 cm. x 6.5 cm. This wound was inverted and margins were lacerated. On cutting, haematoma was found present and vessels and muscles were found damaged. x 6.5 cm. This wound was inverted and margins were lacerated. On cutting, haematoma was found present and vessels and muscles were found damaged. The wound was through and through and communicated with the external (exit) wound and underneath bone was fractured. The other wound is exit wound from upper border of popliteal upper fossa on back of left thigh and size of wound is 11 cm. X 6.5 cm., everted margin and casseration. Tattooing, blackening and singeing of hair was found absent on both the wounds. 15. The evidence on record therefore clearly shows that the deceased died on account of single gun shot injury which has caused both the injuries i.e. entry wound and exit wound. Cause of death was shock and haemorrhage due to ante mortem fire-arm injury. The F.S.L. report shows that clothes worn by the deceased had bloodstained on major parts. The blood found was human blood but was integrated. So far as firearm recovery from the accused persons is concerned, it transpires that 12 bore DBBL Gun No. 87000 was examined. The F.S.L. report shows that 12 bore cartridge recovered from the accused persons was fired from the DBBL Gun No. 87000. 16. The prosecution case essentially relies upon the testimony of PW-1 Faizulla Khan who happens to be first informant and is also father of the deceased Yunus. In the examination-in-chief, PW-1 has stated that the incident occurred at about 6.00 a.m. in the morning. He had enmity with the accused persons. The accused entered his house and hurled filthy abuses on his son and dragged out him from the house to the public road. The accused Bhola fired from the licensed double barrel gun of accused Khaleel with an intention to kill Yunus. All other accused persons were armed with unauthorized country made pistols. On receiving the gun shot injury, Yunus fell down. On exhortation of PW-1, his other son Rahmat Khan (PW-2) and neighbour Shahjad and Munees (not produced) arrived and the accused persons left the injured thinking him to have died. All the accused persons had entered his house armed with firearms having common intention. The gun shot injury on Yunus has caused excessive bleeding. PW-1 took his son Yunus to the police station and after getting an application typed, lodged the report at Police Station Bisalpur. All the accused persons had entered his house armed with firearms having common intention. The gun shot injury on Yunus has caused excessive bleeding. PW-1 took his son Yunus to the police station and after getting an application typed, lodged the report at Police Station Bisalpur. After the report was registered, the police took the injured to Primary Health Center, Bisalpur. As the condition of the injured was deteriorating, the doctors advised him to be taken to the District Hospital, Pilibhit. At District Hospital, Pilibhit, the doctors advised the injured to be taken to Bareilly and as the injured was on the way to Bareilly, he died. PW-1 has also stated that three months prior to the incident, the accused had ransacked the shop of maternal uncle of the deceased Yunus, namely Safiq Khan, and that was the reason of enmity between them. Safiq Khan was also not living with him. The accused persons are stated to be of criminal nature and various cases were pending against them. 17. In the cross examination, PW-1 has admitted that a case under Sections 323/324 I.P.C. is proceeding against him wherein Islam is accused. Mulla is informant of that case. Father of Mulla is Jaleel. Accused Shama, Gama and Bhola are real brothers. Accused Jameel alias Lalla and Khaleel are also real brothers. Nikka is family member. 18. Soon after the incident, PW-1 claims to have gone to the Police Station, Bisalpur. He reached at Police Station, Bisalpur within 15-20 minutes. PW-2 came later and was standing behind him. Soon after the incident, Daroga and local police arrived on the spot. Accused Jameel alias Lalla and Khaleel are also real brothers. Nikka is family member. 18. Soon after the incident, PW-1 claims to have gone to the Police Station, Bisalpur. He reached at Police Station, Bisalpur within 15-20 minutes. PW-2 came later and was standing behind him. Soon after the incident, Daroga and local police arrived on the spot. Following passage from the cross examination of PW-1 is relevant and reproduced hereinafter:- ^^ge yksx mtkyk es jokuk gks x;sA 15&20 feuV es Fkkus igqap x;sA igys eS Fkkuk igaqpkA esjk csVk jger [kka esjs ihNs [kMk gqvk gSA ;g ml eqdnesa dk xokg gSA eS vk/kk ?k.Vs ds vanj Fkkus igqp x;kA lqcg 6 cts xksyh pyh] yMkbZ gq;h] njksxk th rqjar igqp x;s FksA njksxk th us eq>ls iwNk fd D;k ekeyk gSA eSus dgk fd jaft'k FkhA njksxk th esjs xkao igqps vkSj eq>ls dgk fd rqe Fkkus esa fjiksVZ fy[kkvks eSus fjiksVZ fy[kkus Fkkus x;k vkSj fQj eS Fkkus ls rglhy x;k] vkSj ogak rgjhj Vkbi djk;h vkSj fQj yMds dks xkao ls vLIkrky bykt gsrq Hkst fn;kA yMds ds lkFk xkao ds gh njksxk th us ,d flikgh vLirky Hkstk vkSj dgk fd mldks vLirky chlyiqj es HkrhZ djkvks yM+dk iqfyl dh enn ls xkao ls vLirky igqp x;k vkSj mldk bykt 'kq: gks x;kA fQj eS jiV fy[kkdj Fkkus ls vLirky igqpkA^^ 19. PW-1 has categorically stated that solitary gun shot injury on the deceased was caused by accused Bhola and that none of other five accused persons either fired or did anything. PW-1 has categorically stated that solitary gun shot injury on the deceased was caused by accused Bhola and that none of other five accused persons either fired or did anything. The passage in that regard is reproduced hereinafter:- ^^Hkksyk ds ikl raepk FkkA Hkksyk us reaps ls dksbZ Qk;j ugha fd;kA mlus canwd ls Qk;j ekjkA tc igyk Qk;j gqvk rc eS fy;kdr ds njokts ls 10 dne dh nwjh ij Fkk] fy;kdr ds njokts ds if'pe dh rjQ FkkA eS o ;wuwl lax lax vkxs ihNs tk jgs FksA rHkh Qk;j gqvk] Qk;j djus okyk eq>ls 10 dne dh nwjh ij Fkk] ;wuwl esjs lkFk Fkk] mlds Qk;j vk;kA ;wuwl fxj x;kA fy;kdr ds edku ds lkeus fy;kdr ds njookts ls 2 dne dh nwjh ijA ?kVuk ds le; esjs ikl 1 tkuoj Fks] esjs ikl nw/k nsus okys tkuoj Hkh Fks] eS tkuoj ikyus dk dke Hkh djrk gwWA mlds fy, eSus vyx xksMk cuk j[kk gSA mlh esa tkuoj jgrs gSA dqy feykdj eqfYteku FksA 6 es ls 5 eqfYTkeku us dksbZ Qk;j ugh fd;k vkSj dqN ugh fd;kA 5 eqfYTke 5 dne dh nwjh ij [kMs jgs esjs iwjc es [kMs+ jgsA^^ 20. In the cross examination, PW-1 has stated that they never had any fight with the accused persons nor had ever been disclosed to them before three months of the incident. The passage in that regard reads as under:- ^^esjk eqfYteku ls dHkh dksbZ yMkbZ ugh gqbZA vc yM+kbZ cu x;h] tc ls Hkwjk ejk igys dksbZ pDdj ugh FkkA u eq>ls u yMkbZ gksA igys eqfYteku us dgk Fkk fd (sic) fd 3 ekg igys &&&lkFk fn;k Fkk ;g ckr eSus ,Q-vkbZ-vkj- es ugh fy[kk;h Fkh] njksxk th us esjk 2 ckj 161 lhvkjihlh dk C;ku fy;k mles Hkh ugh crk;h Fkh] eq>s ugh crkbZ bldh otg ugh crk ldrkA^^ 21. The cross examination of PW-1 also indicates that he had not named any of the witness in the report and witnesses were later introduced on the further questioning of the Investigating Officer. The cross examination of PW-1 also indicates that he had not named any of the witness in the report and witnesses were later introduced on the further questioning of the Investigating Officer. The passage in that regard is reproduced hereinafter:- ^^;g dguk xyr gS fd eSus fl[kkus ls C;ku fn;k gks] eSUks fl[kkus ls c;ku fn;k gks] eSus fjiksVZ es fdlh xokg dk uke ugh fy[kk;k gSA eSus tc njksxk th dks viuk C;ku fn;k Fkk] mles fdlh xokg dk uke ugh crk;k Fkk] ?kVuk ds 7&8 fnu ckn njksxk th vk;s] mUgksus eq>ls iwNk Fkk fd fdldk&2 xokg j[kksxs rks eSus rhu yksxks ds uke crk;s Fks] ftles vius nkekn equhe [kka dks] vius yM+ds jger [kka dks vksj vius yM+ds 'kgtkn dks xokg cukus dh ckr dgh FkhA eSus rhuks vknfe;ksa ls iwNk Fkk fd D;k xokgh nksxsA bUgksus dgk fd ge iDdh rkSj ij xokgh nsaxs] uke fy[kk nksA njksxk th us dgk fd Bhd gS eS xokg cuk nsrk gwWA esjs ftu diM+ks ij ;ful [kka dk [kwu yxk Fkk njksxk th us dCts esa ys fy;s FksA [kyhy [kka ij raepk ugh Fkk canwd FkhA eSus ,Q-vkbZ-vkj esa ;g ckr fy[kkbZ Fkh fd lHkh yksxks ij reaps FksA ;g eSus ,Q-vkbZ]vkj es eSus fy[kk fn;k ;g eS ugh tkurkA esjs bl eqdnes esa jQhd] tkfgn] 'kQhd] fy;kdr fdlh dks Hkh xokg ugh cuk;k] tcfd bu yksxks ds ?kj ?kVuk LFky ds ikl gS fy;kdr ds ?kj es fy;kdr ds cPps jgrs gSA tcfd 'kQhd [kka ?kj ij Fks] ysfdu eSus bues ls fdlh dks xokg ugh nsaxs] lPph xokgh nsaxsA^^ 22. PW-2 Rahmat Khan is brother of the deceased and he has also supported the prosecution case. He has also implicated the accused Bhola of causing gun shot injury. In the cross examination, he has admitted that PW-1 had taken the deceased to the police station and he had also joined him. This witness has been confronted with his previous statement in which he has not disclosed that he had gone with PW-1 to the police station. 23. PW-3 is Constable Hitesh Kumar. He has proved the G.D. entry relating to three reports lodged in the matter. 24. PW-4 is Dr. Manjeet Singh who has conducted the postmortem on the body of the deceased. He has clearly stated that there is only one firearm injury. 23. PW-3 is Constable Hitesh Kumar. He has proved the G.D. entry relating to three reports lodged in the matter. 24. PW-4 is Dr. Manjeet Singh who has conducted the postmortem on the body of the deceased. He has clearly stated that there is only one firearm injury. Following passage from cross examination of PW-4 is relevant and is reproduced hereinafter:- ^^;quql dh e`R;q mlds tkW?k es tks ?kko Fkk mlls vR;f/kd [kwu cgus ds dkj.k gqbZ FkhA vxj jDr Jko can gks tkrk rks mldh e`R;q ugha Hkh gks ldrh FkhA eSa ;g ugh crk ldrk gwW fd cp ldrk FkkA ;k ughaA jDr Jko jksdus ds fy, ckW/k fn;k tkrk o vkSj mldks izkFkfed mipkj fn;k tkrk izkFkfed mipkj esa vkbZŒohŒ fQywV jDr pढk;k tkrk gSA e`Rkd dh e`R;q dk dkj.k mldh e`R;q iwoZ pksV ls vf/kd jDrJko RkFkk lnek FkkA ;g pksV cqysV ls vk;h FkhA cqysV iksLVekVZEk esa e`rd ds 'kjhj es ugh feyh FkhA^^ 25. PW-5 is Senior Sub Inspector Puskar Singh who has proved the inquest report. PW-6 is Munees who has admitted that he arrived at the place of occurrence after five minutes of the incident on hearing the commotion. He has admitted that he works as daily labour for about 5-6 months at Delhi. 26. Additional S.H.O. PW-7 is Ramveer Singh who has prepared the site plan and proved the recovery of clothes, plain and bloodstained earth etc. PW-8 is Sub Inspector Shakeel Ahmad who is Investigating Officer and has arrested the accused persons, from whose possession firearms were recovered. PW-9 is Incharge Inspector Suresh Kumar Singh and is formal witness. He has stated that implication of Khaleel was found false. PW-10 is Sub Inspector Puskar Singh who has conducted the investigation in Case Crime No. 2249 of 2016 and 2250 of 2016 under Section 25/27 Arms Act, Police Station Bisalpur, District Pilibhit. 27. The evidence, noticed above, has been confronted to all the accused who have stated that they have been falsely implicated on account of enmity and they have not committed the offence. No defence, however, has been produced in the matter. 28. The trial court in the facts of the case has returned the finding that the prosecution has been able to prove its case against the accused appellants beyond reasonable doubt. No defence, however, has been produced in the matter. 28. The trial court in the facts of the case has returned the finding that the prosecution has been able to prove its case against the accused appellants beyond reasonable doubt. The accused Khaleel was summoned under Section 319 Cr.P.C. but his implication has not been established and consequently Khaleel has been acquitted. All the five accused appellants Shama, Gama, Bhola, Nikka, and Jameel Khan alias Lalla have been convicted and sentenced under Sections 147, 148, 302 read with Section 149 I.P.C. The accused Gama, Shama, and Bhola have also been convicted under Section 25/27 Arms Act. The accused Jameel Khan has also been convicted under Section 30 Arms Act. 29. It is in the context of above material placed on record that this Court is required to consider as to whether the prosecution has been able to establish the guilt of the accused appellants beyond reasonable doubt in the matter or not ? 30. Prosecution case essentially relies upon the testimony of PW-1 who is the first informant and is father of deceased. As per the prosecution, there was an old enmity on account of which the accused persons entered his house; hurled filthy abuses on the deceased; dragged him out of the house to the road whereafter accused Bhola shot at the deceased with the licensed gun of Khaleel Khan. Although, Khaleel Khan was also initially implicated in the matter, but ultimately he has been acquitted after being summoned under Section 319 Cr.P.C. It was noticed that Khaleel Khan was above 80 years of age and there is no challenge to the acquittal of Khaleel Khan.The incident allegedly occurred on account of a previous enmity between the parties. The evidence on the aspect of enmity, which also is the genesis of the offence, needs to be carefully examined. 31. In the first information report, PW-1 has stated that there was an old enmity, due to which the accused persons entered his house. What was the enmity has not been explained in the FIR. The enmity has been disclosed by PW-1 in his testimony. In his examination-in-chief PW-1 has stated that due to old enmity, the accused persons entered his house. What was the enmity has not been explained in the FIR. The enmity has been disclosed by PW-1 in his testimony. In his examination-in-chief PW-1 has stated that due to old enmity, the accused persons entered his house. As per PW-1 about three months prior to the incident, the accused persons had ransacked the shop belonging to maternal uncle of deceased, namely, Shafiq Khan ever since then the accused persons maintained enmity with the informant and the deceased. It is further asserted by PW-1 that he had supported his relative Shafiq who has not been residing in the village since then. It is also alleged that the accused persons are dangerous persons against whom various criminal cases are pending. 32. However, in the cross-examination PW-1 has stated that he had no fight with the accused persons and it was only after the incident that differences have arisen between them. He has categorically admitted that the incident of ransacking of the shop of Shafiq Khan was not mentioned in the FIR nor was it ever disclosed to the Investigating Officer during recording of statement under Section 161 Cr.P.C. It is otherwise apparent on record that no FIR or even a complaint relating to incident of ransacking of shop of Shafiq Khan was ever made or disclosed to the police. No other cause of enmity has otherwise been disclosed. The other two witnesses of fact, namely, PW-2 and PW-6 have also not substantiated the plea of prior enmity. In such circumstances, analysis of evidence on record does not substantiate the plea of prior enmity between the parties. Such a plea otherwise appears to have been set up for the first time during trial and no reasons are disclosed as to why such important information was withheld by the witness earlier during investigation. The prosecution has also not been able to demonstrate as to what exactly was the genesis of the dispute between the parties. No evidence has been collected in that regard during trial. In the absence of there being any credible evidence on the point of enmity or the genesis of offence, we are not inclined to endorse the submission of learned A.G.A. that there existed prior enmity between the parties on account of which the incident occurred. 33. The prosecution case essentially rests upon the testimony of PW-1, who is the first informant and the father of deceased. 33. The prosecution case essentially rests upon the testimony of PW-1, who is the first informant and the father of deceased. PW-1 has specifically asserted that all six persons had entered into his house and had dragged the deceased outside the house and took him to the road where he was shot at by the accused Bhola. According to PW-1 all accused had firearms with them. As per PW-1 it was Bhola who shot at the deceased. 34. We have perused the inquest and the postmortem report, which shows existence of a solitary gunshot injury on the thigh region of the deceased. The wound of entry and exit have already been reproduced above which would clearly go to show that only one fire was shot at the deceased. The place of injury apparently is not on the vital part of the body. We also find that no repeat gunshot was fired. In the event, intent of the accused was to kill the deceased either the gunshot injury would have been caused on some vital part of the body or repeat fire could have been resorted to. We also find that five other accused allegedly were armed with firearms and in the event all of them intended to eliminate the deceased, there was no reason why none of them did any overt act nor any fire was shot by any of them. One of the accused specifically implicated by PW-1 is Mohd. Khaleel, who was above 80 years of age and has been acquitted after he was summoned under Section 319 Cr.P.C. The testimony of PW-1 is also questioned on the ground that implication of Khaleel once is found false, his testimony cannot be treated to be entirely reliable. 35. So far as testimony of PW-2 is concerned, though this witness claims to be present at the place of incident but his reference is not made in the first information report nor he is a witness to the inquest. The presence of PW-2 is also questioned by the appellants on the strength of statement made by PW-1, as per which, the Investigating Officer inquired from him as to who would be nominated as witness. According to PW-1, he has disclosed the Investigating Officer that PW-2 would be a witness and after being satisfied that this witness would also testify in favour of prosecution that PW-2 was subsequently introduced. According to PW-1, he has disclosed the Investigating Officer that PW-2 would be a witness and after being satisfied that this witness would also testify in favour of prosecution that PW-2 was subsequently introduced. It is also pointed out that statement of PW-2 has been recorded by the Investigating Officer on 22.11.2016 i.e. two days after the incident. His statement is recorded on the same day when statement of Shahzade was also recorded under Section 161 Cr.P.C, but he was not produced. 36. So far as PW-6 is concerned, he has admitted that he came at the place of occurrence after hearing the commotion. PW-6 by his very statement therefore has admitted that he was not an eye-witness and arrived subsequently at the place of occurrence. PW-6 has only stated that he saw the accused persons leaving the spot. 37. It is in the context of testimony of above three witnesses of fact that we are required to determine as to whether there was any intention on part of accused persons to kill the deceased or not. 38. So far as implication of persons other than accused Bhola is concerned, no overt act has been attributed to them. Out of those who were allegedly present with firearms, none of them are even claimed to have fired at the deceased. Implication of one of the five other accused persons namely Mohd. Khaleel has been found wrong. In the event, the intent on part of other accused persons was to eliminate the deceased, there was no reason why none of them did any overt act on the spot. In the facts of the case, we are persuaded to accept the contention of the appellants that the presence of other five accused was ornamental and merely to add colour to the prosecution case. Though, recovery of firearm is shown from some of those other five accused persons but the recovered firearm from them have not been connected in any manner with the firing on the accused, inasmuch as the case of the prosecution is that the firing by Bhola on the deceased was from the licensed double barrel gun of Mohd. Khaleel. 39. One of the other important aspects that needs examination in the facts of the present case, is the cause of death of the deceased. Khaleel. 39. One of the other important aspects that needs examination in the facts of the present case, is the cause of death of the deceased. The post-mortem report indicates that the cause of death of the deceased was shock and haemorrhage due to ante-mortem firearm injuries. The Autopsy Surgeon however has clearly stated that the cause of death of deceased was excessive bleeding. It is also apparent from the evidence on record that though the incident occurred at about 6.00 in the morning and the deceased was profusely bleeding but he was not rushed to any hospital for treatment. PW-1 admits that he took the injured first to the police station from where he was sent to the Primary Health Centre, Bisalpur and then to the District Hospital, Pilibhit. There was a gap of several hours between the incident and the time of death of deceased. As per the evidence on record, it was the failure to provide immediate medical assistance to stop bleeding which ultimately led to the cause of death. It is otherwise admitted by the doctor that in ordinary course of things gunfire on the thigh area would not lead to the death of the person and it was only on account of excessive bleeding that the death occurred. 40. Considering the fact that there was only one fire shot at deceased on his thigh region and there was no repeat shot fired on the deceased clearly demonstrates that the accused appellant Bhola had no intention to cause the death of the deceased. It is also submitted that this was not a case where the nature of injury caused to the deceased was such that in ordinary course such injury was likely to cause death of the deceased. 41. From the evidence noticed above, we find substance in the contention of the accused appellants that the offence attributed to the accused appellant Bhola at the best would fall within the ambit of Section 304, Part-II of the Indian Penal Code. Accused Bhola has already undergone incarceration of more than seven years six months without remission and with remission the period of incarceration would be above eight years. In our view, the sentence already undergone by the accused appellant Bhola, would sufficiently meet the ends of justice. Accused Bhola has already undergone incarceration of more than seven years six months without remission and with remission the period of incarceration would be above eight years. In our view, the sentence already undergone by the accused appellant Bhola, would sufficiently meet the ends of justice. In our conclusion, the offence committed by him at the best would fall within the ambit of Section 304 IPC Part II. Fine of Rs. 53,000/- imposed upon the appellant Bhola is however, sustained. Failure to deposit the amount of fine would result further incarceration of a period of six months. 42. The appeal is consequently allowed in part in respect of accused appellant Bhola. 43. The appeal instituted by the other accused appellants Nikka, Jameel @ Lalla, Gama and Shama are allowed for the reasons recorded above and their conviction and sentence in Session Trial No. 98 of 2017, arising out of Case Crime No. 2246 of 2016 (State Vs. Shama and others) under Section 302 read with 149 Cr.P.C., is set aside. Since the appellants are in jail, they shall be released forthwith and shall be set free, unless are wanted in any other case, subject to compliance of Section 437A Cr.P.C. 44. Copy of this judgment shall be communicated to the Chief Judicial Magistrate concerned as also the concerned Superintendent of Jail for necessary compliance.