Hon'ble Akhtar Husain Khan,J.(Delivered by Hon'ble Akhtar Husain Khan,J.) Present two Appeals; Appeal No.5054 of 2005 (Shakeel Ahmad Vs.State of U.P.) and Appeal No. 146 of 2006 (Jamil Ahmad Vs.State of U.P.) have been filed against same judgement and order, therefore, both Appeals are taken up together and decided by this common judgement.According to F.I.R. Ext.Ka-1 in brief, version of prosecution is that on 10.5.1998 at about 9.30 P.M. in night complainant Nasim Anwar and his father Abdul Gani were going back to their house from their hata situated in Mohalla Pura Rani alongwith Abu Talha son of Mohd Sami resident of Pura Rani and Anwar Ahmad son of Amanatullah resident of Hyderabad.. Abdul Gani father of complainant was talking with Abu Talha and Anwar Ahmad.Complainant Nasim Anwar was going behind them, when they reached near hata of Hazi Masood and house of Abdul Salam, accused appellantds Jamil Ahmad and Shakeel Ahmad who are resident of same mohalla of complainant, came suddenly from west side and accused appellant Shakeel Ahmad exhorted accused appellant Jamil Ahmad, whereupon accused appellant Jamil Ahmad fired at the back of Abdul Gani; father of complainant Nasim Anwar with close point.Having received injury Abdul Gani father of complainant Nasim Anwar fell down.Complainant Nasim Anwar and above persons accompanying father of complainant raised alarm and tried to catch accused appellant Jamil.Whereupon accused appellant Shakeel pointed out katta towards complainant and persons accompanying him and threatened that if anyone come forward he shall also be killed.Complainant Nasim Anwar and above persons accompanying him could not chase accused for a long distance due to fear.Both the accused appellants ran towards east intimidating complainant and persons accompanying him.According to F.I.R. Ext.Ka-1 complainant Nasim Anwar and above persons accompanying him saw the occurrence in the light of torch and electricity and identified accused appellants Jamil and Shakeel very well.According to F.I.R. Ext.Ka-1 when complainant Nasim Anwar after having chased accused appellants for a short distance came back to his father, his father succumbed to injuries on spot.According to F.I.R. Ext.Ka-1 a quarrel had taken place between Abdul Gani father of complainant and accused appellant Jamil regarding fish and tenant of ahata of complainant Nasim Anwar about a week earlier to present occurrence and at that time accused Jamil had threatened to see the father of complainant very soon.According to F.I.R. Ext.Ka-1 leaving the dead body of his father on spot complainant went to his house and get report Ext.Ka.-1 written by Nausad and presented the same in P.S. Mubarakpur with his signature.P.W.-5 Dr. R.A. Singh has stated in his statement on oath that on 11.5.1998 at 3.45 p.m. he conducted post mortem of deceased Haji Abdul Gani son of Rahmatulla resident of Mohalla Pura Rani P.S. Mubarakpur.The dead body was brought in sealed cover by Constable No.CP 458 Patru Ram and Constable No.C.P. Amit Kumar Misra and was identified by said two constables.P.W.-5 Dr. R.A. Singh has proved post mortem report of deceased Haji Abdul Gani Ext.He has stated that the death of deceased Abdul Gani may occur on 10.5.1998 at 9.30 to 10.00 P.m.. He has further stated in his statement that the ante mortem injury found on the dead body of deceased Abdul Gani was sufficient to cause death immediately.P.W.-5 Dr. R.A. Singh has stated in his statement that the ante mortem injury found on the dead body of deceased may be caused by katta also.P.W.-6 S.I. Omkar Singh is the Investigating Officer.He has stated in his statement that on 10.5.1998 he was posted in P.S. Mubarakpur.On that day at 22.30 P.M. Crime No.295 of 1998 under Section 302.504,506 I.P.C. was registered in his presence at P.S. Mubarakpur.He took investigation into his hands and made copy of chik F.I.R. and G.D. relating to registration of crime in case diary.Thereafter, on 11.5.1998 he recorded statement of complainant Nasim Anwar under Section 161 Cr.P.C. and inspected torch of complainant Nasim Anwar in the light of which he has seen occurrence.Thereafter he entrusted the torch in his supurdagi.P.W.-6 S.I. Omkar Singh has proved Memo of torch Ext.He has stated in his statement that he made inspection of spot at the pointing out of complainant.He took blood stained earth and plain earth from the place of occurrence and prepared memo.He has further stated that he recovered bullet (frontal part of bullet) also from the place of occurrence and prepared recovery memo.P.W.-6 S.I. Omkar Singh has proved in his statement Memo of blood stained earth and plain earth Ext.Ka.-7, recovery memo of bullet Ext.Ka-8 and site plan Ext.Ka.-9 in accordance with law.P.W.-7 S.I. Swami Nath Shukla has stated in his statement that on 10.5.1998 he was posted as Sub-inspector in police chauki Mubarakpur.On that day murder of Haji Abdul Gani was committed in town Mubarakpur for which crime was registered in P.S. Mubarakpur.Having received information he went to spot.In his statement he has proved inquest report Ext.Ka.-10, letter to R.I. for post mortem Ext.Ka-11, letter to C.M.S. for post mortem Ext.Ka.-12, photo nash Ext.Ka.-13 and challan nash Ext.He has stated in cross examination made by defence on page 5 (page 47 of paper book) that section 504, 506 I.P.C. escaped from writing on Ext.Ka-10, Ext.Ka-11 and Ext.Ka-12, report to C.M.S. Ext.Ka-11, report to R.I. Ext.Ka-10, , photo nash Ext.Ka-13 and challan nash Ext.Ka-14 and section 504 and 506 I.P.C. were subsequently added in report to C.M.S. Ext.Ka-11, report to R.I. Ext.Ka-10, photo nash Ext.Ka-13 and challan nash Ext.Thus, it is apparent that complainant had old enmity with said Imtiyaz and his family members but complainant has not named said Imtiyaz or his family members in the murder of his father.Therefore, false implication of accused appellants due to animosity is not acceptable.P.W.-3 complainant Nasim Anwar has stated in his statement on oath that when they reached near house of Abdul Salam both accused appellants came from gali of west and accused Jamil fired at his father from his back.In F.I.R. Ext.Out of which injury No.1 is wound of entry and the injury no.2 is wound of exit.Said wound of entry is on left side of back, 15 cm.below shoulder border and 2 cm.left from midline.Tattooing and blackening were found on this injury.Thus, post mortem report Ext.Time of death is also corroborated by post mortem report Ext.Above two appeals have been filed by accused Shakeel Ahmad and Jamil Ahmad respectively under Section 374 Cr.P.C. against judgement and order dated 11.11.2005 passed by Additional Session Judge, Court No.5, Azamgarh in Session Trial No. 76 of 1999, whereby learned Additional Sessions Judge, Azamgarh has convicted accused appellant Jamil Ahmad for offences punishable under Sections 302 I.P.C. and 506(2) I.P.C. and accused appellant Shakeel Ahmad for offences punishable under Sections 302/34 I.P.C. and 506(2) I.P.C..Learned Additional Session Judge has sentenced vide his impugned judgement and order dated 11.11.2005 to accused appellant Jamil Ahmad for offence punishable under Section 302 I.P.C. to imprisonment for life and fine of Rupees one thousand and for offence punishable under Section 506(2) I.P.C. to imprisonment for six months and to accused appellant Shakeel Ahmad for offence punishable under Section 302/34 I.P.C. to imprisonment for life and fine of Rupees one thousand and for offence punishable under Section 506(2) I.P.C. to imprisonment for six months.Learned Additional Session Judge has ordered each accused appellants to undergo imprisonment for three months in default of payment of fine.Learned Additional Session Judge further ordered that all sentences awarded to each appellants accused shall run concurrently.Sri Rajesh Pratap Singh, Advocate and Sri Rajul Bhargava, Advocate, learned counsel appeared for accused appellants and Sri Narendra Kumar Singh Yadav, learned A.G.A. appeared for State respondent.We have heard learned counsel for the parties and perused records.On the basis of above First Information Report Ext.Ka-1 Crime No.295 of 1998 under Sections 302,504,506 I.P.C. was registered in P.S. Mubarakpur, District Azamgarh against accused appellants Jamil Ahmad and Shakeel Ahmad and investigation was started by police.Inquest report of deceased Abdul Gani was prepared by police and after having completed necessary formalities dead body of Abdul Gani, father of complainant was sent for post mortem in sealed cover.During investigation at the pointing out of accused appellant Jamil recovery of 303 bore katta allegedly used in the murder of deceased Abdul Gani is reported to have been made alongwith one fired cartridge and three live cartridge and recovery memo Ext.Ka.-15 has been prepared.Thereafter, investigation has been completed by police in accordance with law and after having completed investigation police submitted charge sheet against accused appellants Jamil Ahmad and Shakeel Ahmad under Sections 302,504 and 506 I.P.C., whereupon concerned Magistrate took cognizance and after compliance of Section 207 Cr.P.C. committed the case to the court of session for trial of both accused appellants.Thereafter, Session Trial No. 76 of 1999, State of Uttar Pradesh Vs.Jamil and another under Sections 302,504,506 I.P.C. was registered in the Session court of district Azamgarh.Later on, said Session trial was transferred to the court of Additional Sessions Judge, Court No.5, Azamgarh who framed charges against accused Jamil Ahmand for offences punishable under Sections 302 and 506(2) I.P.C. and against accused Shakeel Ahmad for offences punishable under Sections 302/34 and 506 (2)( I.P.C.. Both the accused pleaded not guilty and claimed to be tried.Prosecution examined P.W.-1 Abu Talha, P.W.-2 Anwar Ahmad, P.W.-3 complainant Nasim Anwar, P.W.-4 Head Moharrir Uday Pratap Pandey, P.W.-5 Dr. R.A. Singh, P.W.-6 S.I. Omkar Singh, Investigating Officer, P.W.-7 S.I. Swami Nath Shukla and P.W.-8 S.S.I. Ramakant Pandey, Investigating Officer.After evidence of prosecution statements of both accused appellants were recorded under section 313 Cr.P.C. Both of them stated that they have been falsely implicated due to enmity.D.W.-1 Jagdamba Prasad Dubey, Junior Engineer, Electricity department was examined on behalf of accused appellants in defence.Learned Additional Session Judge, Court No.5, Azamgarh heard the arguments of both the parties and passed impugned judgement and order, whereby he has convicted and sentenced accused appellants as mentioned above.Learned counsel for accused appellants contended that accused appellants are innocent and have been falsely implicated.Learned counsel for accused appellants contended that F.I.R. is anti time and prosecution case is false and concocted.Learned counsel for accused appellants contended that prosecution has examined three witnesses of occurrence.Out of which P.W.-1 Abu Talha and P.W.-2 Anwar Ahmad have not supported version of prosecution and they have been declared hostile.Only P.W.-3 complainant Nasim Anwar has supported version of prosecution but Nasim Anwar is neither injured nor blood stains were found on his body or cloths.Therefore, there is no guarantee of his presence at the time of occurrence.Learned counsel for accused appellants contended that statement of P.W.-3 complainant Nasim Anwar is full of contradiction also and it is quite unsafe to place reliance upon his solitary statement.Learned counsel for accused appellants contended that prosecution has failed to prove the source of light.He further contended that I.O. has not shown electric bulb in site plan and D.W.-1 Jagdamba Prasad Dubey, Junior Engineer has stated on oath that at the time of occurrence there was no supply of electricity.Learned counsel for accused appellants contended that prosecution has failed to prove motive of occurrence also.Learned counsel for accused appellants contended that investigation is defective.I.O. has not shown in site plan place of witnesses from where they have seen occurrence.Learned counsel for accused appellants contended that P.W.-3 complainant Nasim Anwar has stated in cross examination that police took the dead body of his father to police station in the night of occurrence at about 11 or 11.30 P.M., while the inquest report Ext. Ka-12 shows that it has been prepared on spot on 11.5.1998 between 5.15 A.M. to 6.30 A.M.. This also leads to adverse inference against truthfulness of prosecution version.Learned counsel for accused appellants contended that occurrence has taken place in dark night by unknown person and the accused appellants have been falsely implicated due to enmity.Learned counsel for accused appellants contended that in view of above contentions, the evidence on record is not sufficient to convict accused appellants, therefore, the conviction recorded by trial court is against evidence as well as law.Learned counsel for accused appellants contended that accused appellant Jamil was juvenile at the time of occurrence.Therefore, whole trial is vitiated.Learned counsel for accused appellants prayed that both the appeals should be allowed and both accused appellants should be acquitted.Learned counsel for accused appellants placed reliance on following pronouncements of Hon'ble Apex Court:-1- Meharaj Singh (L/Nk.) Vs.2- Marudanal Augusti Vs.Learned A.G.A. contended that F.I.R. is prompt and P.W.-3 complainant Nasim Anwar is the son of deceased and is a natural witness.His solitary statement is sufficient to convict accused appellants.Learned A.G.A. contended that the statement of P.W.-3 complainant Nasim Anwar is corroborated by medical evidence as well as statement of I.O. and site plan.Learned A.G.A. contended that accused appellant Jamil has not pressed plea of juvenility before trial court.Learned A.G.A. contended that the conviction recorded by trial court is in accordance with law and sentences awarded by trial court are not excessive, therefore, there is no sufficient ground for interference in the impugned judgement and order.Learned A.G.A. prayed that the appeal should be dismissed.We have considered the submissions made by the parties.Out of 8 witnesses examined by prosecution P.W.-1 Abu Talha, P.W.-2 Anwar Ahmad and P.W.-3 Nasim Anwar are witnesses of fact and occurrence but P.W.-1 Abu Talha and P.W.-2 Anwar Ahmad have turned hostile and they have not supported version of prosecution in their statements.He has stated in his statement on oath that after occurrence he came to his house and got written F.I.R. Ext.Ka-1 by his cousin brother Naushad Ahmad and signed it.Thereafter, he went to police station with this report and presented the same in police station.P.W.-4 Head Moharrir Uday Pratap Pandey has stated in his statement that on 10.5.1998 he was posted in police station Mubarakpur on the post of Head Moharrir.He made entry of registration of the crime at the same time in G.D at Rapat No.32.. He has proved the said chik report Ext.Ka-2 and G.D. relating to registration of crime Ext.P.W.-4 Head Moharrir Uday Pratap Pandey has stated that on the same day on 10.5.1998 he sent special report of crime at 23.30 P.M. through Constable Ram Belash to higher officer.Copy of which he is filing.Trial court has markted Ext.Ka-4 on said copy.P.W.-7 S.I. Swami Nath Shukla has stated in his statement that the dead body was kept in sealed cover and specimen seal was prepared by him.P.W.-7 S.I. Swami Nath Shukla has stated in his statement that on 17.5.1998 accused Shakeel and Jamil were arrested at 4.00 A.M. in the morning.P.W.-7 S.I. Swami Nath Shukla has further stated in his statement that on the pointing out of accused Jamil Ahmad one country made katta of 303 bore one fired cartridge and three live cartridges of 303 bore were recovered from the bush situated in Saiyadwara.He has proved recovery memo of katta and said cartridges Ext.Ka-15 in his statement.P.W.-8 S.S.I. Ramakant Pandey is the Investigating Officer.He has stated in his statement that on 14.5.1998 he was posted as S.O. at police station Mubarakpur and took over investigation of this crime.He has stated in his statement that on 17.5.1998 he arrested accused Shakeel and Jamil at 4.00 A.M. in the morning.He has stated that on the pointing out of accused Jamil Ahmad one country made katta of 303 bore, one fired cartridge and three live cartridges of 303 bore were recovered from the bush.He has stated that the recovery memo of said katta and cartridges were prepared by S.I. Swami Nath Shukla P.W.-7 on spot.He has also proved recovery memo of said katta and cartridges Ext.He has stated that he also signed said recovery memo of katta and cartridges Ext.P.W.-8 S.S.I. Ramakant Pandey has stated in his statement that he has sent one fired cartridge and three live cartridges to Vidhi Vigyan Prayogshala, Lucknow.P.W.-8 S.S.I. Ramakant Pandey has stated that site plan of place of recovery was prepared by S.I. Swami Nath Shukla P.W.-7 on his direction which is Ext.He has proved charge sheet Ext.Ka-17 by identifying writing and signature of S.I. Umesh Chand Jaiswal.D.W.-1 Jagdamba Prasad Dubey, Junior Engineer, Electricity department has been examined on behalf of accused in defence.D.W.-1 Jagdamba Prasad Dubey has stated that in intervening night of 10/11-5-1998 supply of electricity was curtailed from 19.15 p.m. to 22.15 p.m.. He has proved in his statement copy of log book Ext.Kha-1 also.We have examined the evidence adduced by the parties carefully.First and most important point for determination in this appeal is as to whether F.I.R. is anti time.Learned counsel for accused appellants has tried to show that F.I.R. Ext.Ka-1 is anti time on following grounds:-1- That in inquest report Ext.Ka-12 Crime no.295 of 1998 under section 302 I.P.C. has been written while said Crime no. 295 of 1998 has been registered in P.S. Mubarakpur under section 302,504,506 I.P.C..2- That the papers prepared at the time of inquest report i.e. report to R.I. Ext.Ka-10, report to C.M.S. Ext.Ka-11, photo nash Ext.Ka-13 and challan nash Ext.Ka-14 show that in these papers also Crime no.295 of 1998 under section 302 I.P.C. was written initially and later on section 504 and 506 have been added.3- That neither section 157 Cr.P.C. nor clause 101 or 101-A of Police Regulation regarding special report has been complied with.Ka-12, report to C.M.S. Ext.Ka-11, report to R.I. Ext.Ka-10, photo nash Ext.Ka-13 and challan nash Ext.Learned counsel for accused appellants has contended that delay in dispatch of F.I.R. to Magistrate as well as special report also shows that F.I.R. was not in existence at the time alleged by prosecution.P.W.-3 complainant Nasim Anwar has stated in his statement on oath that after occurrence he came to his house and dictated First Information Report to his cousin brother Nausad, who wrote report Ext.Thereafter, he signed said report and went to police station with First Information Report Ext.P.W.-4 Head Moharrir Uday Pratap Pandey has stated in his statement on oath that on 10.5.1998 at 22.30 P.M. he registered Crime no. 295 of 1998 under Section 302,504,506 I.P.C. on the basis of written report of complainant and chik F.I.R. Ext.Ka-2 was written by him at the same time.He has further stated that at the same time he made entry of registration of crime in G.D.. He has proved said G.D. Ext.Ka.-3 also.Ka-3 which have been prepared by P.W.-4 Head Moharrir Uday Pratap Pandey in discharge of his official duty have been regularly prepared.P.W.-7 S.I. Swami Nath Shukla has stated in his statement on oath that inquest report Ext.Ka-12, report to C.M.S. Ext.Ka-11, report to R.I. Ext.Ka-10, photo nash Ext.Ka-13 and challan nash Ext.Ka-14 have been written by him.Ka-14, it shall not be presumed that F.I.R. was not in existence at the time of preparation of these papers.P.W.-3 complainant Nasim Anwar has stated in cross examination by defence on page 7 and 8 ( page 27 and 28 of paper book) that police of Chauki came on spot within 15 minutes after occurrence.He has stated that 3 or 4 Constables and Darogaji came and at the same time Darogaji prepared inquest report.P.W.-3 complainant Nasim Anwar has stated in his cross examination on page 11 (page 31 of paper book) that perhaps police took away dead body of his father in the same night at 11-11.30 P.M. He has further stated in continuation of his above statement that firstly dead body was carried to police station on cot, thereafter next day in the morning at 6-7 A.M. dead body was sent to Azamgarh.They reached Azamgarh at 8.00 A.M..P.W.-7 S.I. Swami Nath Shukla has stated in cross examination at page 5 (page 47 of paper book) that date 10.5.1998 and time 23.50 mentioned in inquest report is the date and time of his arrival on the place of occurrence.The inquest report was prepared by him on 11.5.1998 after 5.00 A.M..P.W.-7 S.I. Swami Nath Shukla has stated in cross examination at page 4 (page 46 of paper book) that the police chauki on which he was posted at the time of occurrence is situated at a distance of 250 Meters from the place of occurrence.He has stated that on place of occurrence he reached after two hours of occurrence.At the time of occurrence he was not present at the chauki.In Column-I of inquest report Ext.Ka-12 following entries have been made:-10.5.98 - 22.30 10.5.98 - 23.50 eksgYyk iqjk jkuh izkjEHk iapk;rukek 11.5.98 - 5.15 A.M.The above statement of P.W.-7 S.I. Swami Nath Shukla, who has prepared inquest report Ext.Ka-12 shows that on 10.5.1998, 23.50 P.M. mentioned in the inquest report is the time of his arrival at the place of occurrence.Thus, it is apparent from the statement of P.W.-3 complainant Nasim Anwar as well as P.W.-7 S.I. Swami Nath Shukla that police reached on spot in night, therefore, the statement made by P.W.-3 complainant Nasim Anwar that police took away the dead body of his father to police station on cot at about 11-11.30 P.M. in the same night is truth and it shows that how police acts in dealing with even heinous crimes. "10.5.1998, 23.50" written in inquest report Ext.Ka-12 shows that the preparation of inquest report was started at 23.50 P.M. in night but was not completed at that time.It shows laxity on the part of S.I. Swami Nath Shukla and it shall not cause adverse effect on prosecution case.In view of above, we are of the view that non-mentioning of section 504 and 506 I.P.C. on inquest report Ext.Ka-12, report to C.M.S. Ext.Ka-11, report to R.I. Ext.Ka-10, phot nash Ext.Ka-13, challan nash Ext.Ka-14 and addition of section 504 and 506 subsequently on said Exhibits Ka-10, Ka-11, Ka-13 and Ka-14 is the result of casual slip or mistake as well as laxity of P.W.-7 S.I. Swami Nath Shukla and no adverse presumption should be drawn against prosecution on this ground.P.W.-4 Head Moharrir Uday Pratap Pandey has stated in his statement on oath that on 10.5.1998 at 23.30 P.M. he sent special report of this crime to superior officers through Constable Bilal.In his statement on oath he has proved special report Ext.Thus, it is apparent from statement of P.W.-4 Head Moharrir Uday Pratap Pandey that special report was sent to superior officers in compliance of Clause 101 of Police Regulation.Learned counsel for accused appellants contended before us that special report has not been produced and proved before court.Ka-4 is copy of G.D. relating to dispatch of special report.Perusal of Ext.Ka-4 shows that it is copy of G.D. relating to special report.Copy of special report is not on record.But perusal of statement of P.W.-4 Head Moharrir Uday Pratap Pandey shows that defence has not cross-examined him about ext.Ka-4 and has not drawn his attention to the fact that document produced by him as Ext.Ka-4 is not special report but G.D. of special report.Defence has not challenged the sending of special report or contents of special report in cross-examination of P.W.-4 Head Moharrir Uday Pratap Pandey.Thus, it is apparent that defence has not challenged sending of special report by police.In view of above, we are of view that contention of learned counsel for accused appellants is not acceptable regarding special report.P.W.-4 Head Moharrir Uday Pratap Pandey has stated in his cross examination made by defence on page 2(page 34 of paper book) that he sent the chik F.I.R. next day by dock.Thus, it is apparent that Section 157 Cr.P.C. has also been complied with.Perusal of inquest report Ext.Ka-12 shows that copy of chik F.I.R. Ext.Ka-2 had been annexed with it.Post mortem report of deceased Haji Abdul Gani Ext.Ka-5 as well as statement of P.W.-5 Dr. R.A. Singh, shows that post mortem of deceased Abdul Gani was conducted on 11.5.1998 at 3.45 P.M. by P.W.-5 Dr. R.A. Singh.Post mortem report Ext.Ka-5 shows that seven enclosures were returned after post mortem.Defence has not cross examined P.W.-5 Dr. R.A. Singh as to whether copy of chik F.I.R. was received to him alongwith inquest report or not.In view of discussions made above, we are of the view that the trial court has rightly held that there is no sufficient ground to believe that F.I.R. is anti time.Now we shall examine source of light.In F.I.R. Ext.Ka-1 complainant Nasim Anwar has mentioned that he and witnesses named in F.I.R. saw accused appellants Jamil and Shakeel in the light of torch and electricity and identified them very well.P.W.-3 complainant Nasim Anwar has stated in his statement on oath that he saw the accused appellants in the light of torch and bulb and identified them very well.In site plan Ext.Ka-7, I.O. has not shown the place where bulb was lighting.P.W.-3 complainant Nasim Anwar has stated in cross examination at Page-7 (Page-27 of paper book) that only one bulb was lighting under railing of house of Abdul Salam.In site plan Ext.Ka-7 house of Abdul Salam has been shown by I.O. adjacent to place of occurrence, therefore, light of bulb fixed under the railing of house of Abdul Salam may easily reach to the place of occurrence.Defence has examined D.W.-1 Jagdamba Prasad Dubey, Junior Engineer of Electricity department who has proved log book Ext.Kha-1 and has stated that at the time of occurrence there was no electric supply in the locality of place of occurrence.Defence has not suggested in cross examination to P.W.-3 complainant Nasim Anwar that there was no bulb in the house of Abdul Salam.Contrary to it, defence has tried to prove that there was no electric supply at the time of occurrence.In such circumstances, we are of the view that there is no ground to disbelieve the statement of P.W.-3 complainant Nasim Anwar regarding bulb at the house of Abdul Salam.I.O. has not shown bulb in site plan, merely on this ground statement of P.W.-3 complainant Nasim Anwar in this respect may not be disbelieved.It is relevant to mention that now-a-days bulbs are used to light with aid of Inverter and Battery as well as electricity produced by Generator during break down period of electricity..P.W.-3 complainant Nasim Anwar has mentioned in F.I.R. Ext.Ka-1 as well as in his statement on oath that he had torch also.He has proved Memo of torch Ext.Ka-6 in his statement.P.W.-3 complainant Nasim Anwar has stated in his statement on oath that in the light of torch and bulb, he has identified accused appellants very well.P.W.-3 complainant Nasim Anwar has produced his torch before trial court at the time of his statement.Having considered the statements of P.W.-3 complainant Nasim Anwar and P.W.-6 S.I. Omkar Singh as well as Memo of torch Ext.Ka-6 and torch material Ext.-1, we are of the view that source of light has been proved at the time of occurrence.In absence of electric supply, bulb may be lighted with Battery and Inverter or electricity product by generator and there is nothing on record to show that the house in which bulb is alleged to have lighting, had no Inverter or Battery or generator at the time of occurrence.Now we shall examine motive of occurrence.In F.I.R. Ext.Ka-1 complainant Nasim Anwar has mentioned that about one week earlier to occurrence there had taken place a quarrel between Abdul Gani father of complainant and accused appellant Jamil regarding fish and tenant of ahata of complainant Nasim Anwar.Complainant Nasim Anwar has stated in his statement on oath also that before this occurrence there had taken place a quarrel between accused appellants and tenant of hata in which father of complainant forbade accused appellants to quarrel in his ahata.Because of this accused appellants felt annoyed with his father also.Cause/motive of occurrence alleged in F.I.R. Ext.Ka-1 has been proved by P.W.-3 complainant Nasim Anwar.P.W.-3 complainant Nasim Anwar has stated in cross examination at Page-4(Page-24 of paper book) that in presence of him, there did never take place any quarrel between his father and accused appellants.This statement of P.W.-3 complainant Nasim Anwar shows that the quarrel between father of complainant and accused appellants alleged in F.I.R. Ext.Ka-1 as well as in statement of P.W.-3 complainant Nasim Anwar did not take place in presence of complainant and complainant has only hearsay knowledge about said quarrel.In view of hearsay evidence of P.W.-3 complainant Nasim Anwar, the alleged quarrel between father of complainant and accused appellants cannot be said to have been proved in the eyes of law but in the case of Brahm Swaroop and another Vs.State of U.P. A.I.R. 2011 S.C. 280, Hon'ble Apex Court has held that," If the evidence of eyes witnesses is trustworthy and believed by the court, the question of motive becomes totally irrelevant."In site plan Ext.Ka-7 I.O. has not shown place from where witnesses have seen the occurrence.On this ground learned counsel for accused appellants has contended that investigation is defective.In similar situation different persons show different behavior.In sad demise of dear and near some people weep, some people keep mum.Some people do not dare to see deceased.Therefore, considering variation of human conduct it is not necessary that every son shall fell down on his deceased or seriously injured father.In view of above, blood stains on clothes or body is not a criteria to judge presence of witness.Therefore, presence of P.W.-3 Nasim Anwar may not be denied on the ground that no blood stain was found on his clothes or body.According to F.I.R. Ext.Ka-1 at the time of occurrence complainant Nasim Anwar and his father Haji Abdul Gani were going from their ahata to their house alongwith P.W.-1 Abu Talha and P.W.-2 Anwar Ahmad.The place of occurrence lies in between ahata and house of complainant.There is no reasonable ground to disbelieve that deceased and his son complainant Nasim Anwar were not going together.It appears natural that in night for taking meal, they shall go to their house from their hata.Therefore, presence of complainant Nasim Anwar alongwith his father deceased Abdul Gani at the time of occurrence may not be said to be unnatural and unreliable.As discussed above, time of occurrence is 9.30 P.M. and F.I.R. has been lodged in police station Mubarakpur at 22.30 P.M. on the same day within one hour of occurrence; and conclusion drawn above shows that there is no sufficient ground to presume F.I.R. Ext.Ka-1 anti time.Thus, there is sufficient ground to believe that F.I.R. is prompt.Certainly promptness of F.I.R. adds reliability to prosecution version and removes chance of concoction.Ka-1 he has mentioned that accused Jamil fired at back of his father with close range.Statement of P.W.-5 Dr. R.A. Singh as well as post mortem report of deceased Abdul Gani Ext.Ka-5 shows that deceased Abdul Gani have two fire arm injuries.Ka-5 as well as statement of P.W.-5 Dr. R.A. Singh corroborates the fact that deceased Abdul Gani has been caused injury by fire arm from the back side and with close range.Ka-1 as well as statement of P.W.-5 Dr. R.A. Singh.Thus, we find that statement of P.W.-3 complainant Nasim Anwar is corroborated by medical evidence i.e. statement of P.W.-5 Dr. R.A. Singh and post mortem report Ext.P.W.-6 S.I. Omkar Singh has stated in his statement that he recovered a bullet from the place of occurrence and prepared Fard of it Ext.Memo of bullet Ext.Ka-9 also shows that a fired bullet has been found on the spot.Site plan Ext.Ka-7 shows that in the wall of hata of Haji Masood a whole of bullet was also found by Investigating Officer P.W.-6 S.I. Omkar Singh which has been shown by him in site plan with letter 'B'.Blood was also found on the place of occurrence by P.W.-6 S.I. Omkar Singh.He has taken blood stained earth and plain earth from the place of occurrence and has prepared Memo of blood stained earth and plain earth Ext.Thus, place of occurrence alleged in F.I.R. Ext.Ka-1 as well as in statement of P.W.-3 complainant Nasim Anwar is fully corroborated by site plan and I.O. P.W.-6 S.I. Omkar Singh.Complainant Nasim Anwar is the son of deceased Abdul Gani, therefore, he shall not spare real culprit and falsely implicate accused persons.As concluded above, there is no reason also for false implication.Learned counsel for accused appellants drawn our attention to the fact that P.W.-3 complainant Nasim Anwar has stated in his statement that accused Shakeel and Jamil came from west side and ran away towards east but according to site plan Ext.Ka-7, the gali on which occurrence took place is south to north and there is no passage or gali leading to east or west.We have considered the submission of learned counsel for the appellant.Perusal of site plan shows that near place of occurrence there is open land in west of the passage through which complainant and his father was going ahata to their house.Site plan Ext.Ka-7 also shows that from the place of occurrence easily one may go towards east as there are space between houses.We have gone through entire statement of P.W.-3 complainant Nasim Anwar.His statement is fully in consonance with F.I.R. Ext.Ka-1 and there is no contradiction in his statement.Learned counsel for accused appellants has drawn our attention to the statement of P.W.-3 complainant Nasim Anwar made in cross-examination by defence on Page-5 (Page 25 of Paper book) and contended that P.W.-3 complainant Nasim Anwar has shifted place of occurrence by this statement.We have given our anxious thought to the submission of learned counsel for accused appellants.In aforesaid statement P.W.-3 Nasim Anwar has stated that this occurrence took place towards south from house of Ram Nath Koyri.Firing was done from south before reaching house of Ram Nath Koyri.At that time his father was towards south from house of Faizul Hasan.In site plan Ext.Ka-7 I.O. has shown house of Faizul Hasan and place of occurrence has been shown towards south from his house.There is no contradiction in statement of P.W.-3 complainant Nasim Anwar and site plan Ext.Ka-7 regarding place of occurrence.Statements of P.W.-7 S.I. Swami Nath Shukla, P.W.-8 S.I. Ramakant Pandey as well as recovery memo of katta and cartridges Ext.Ka-15 shows that on 17.5.1998 on the pointing out of accused Jamil one country made katta of 303 bore, one fired cartridge of 303 bore and three live cartridges of 303 bore were recovered on the pointing out of accused Jamil but bullet recovered from the place of occurrence has not been sent alongwith katta recovered on the pointing out of accused Jamil for ballistic expert opinion and in absence of ballistic expert opinion it cannot be said that the katta allegedly recovered on the pointing out of accused appellant Jamil was used in the murder of deceased Abdul Gani.But report of ballistic expert regarding bullet recovered from spot has only effect of corroborative evidence.Prosecution story as well as statement of P.W.-3 complainant Nasim Anwar may not be discarded merely on the ground of failure of I.O. to send bullet for ballistic examination.In the case of Brahm Swaroop and another Vs.Ka-5 and statement of P.W.-5 Dr. R.A. Singh as well as by site plan Ext.Ka-7 and statement of P.W.-6 S.I. Omkar Singh.Thereafter learned trial court proceeded further in accordance with law.Since accused appellant Jamil did not press aforesaid application 62-B and relinquished claim of juvenility, therefore no enquiry regarding juvenility of accused appellant was required by trial court.Learned trial court has recorded finding that accused appellant Jamil Ahmad was not juvenile at the time of occurrence.Accused appellant Jamil Ahmad has again moved application before this court claiming him to be juvenile on the date of occurrence alongwith affidavit.Copies of family register and birth register have been annexed with affidavit as proof of age of accused appellant Jamil.The copy of birth register shows that date of birth of accused appellant Jamil has been entered 17.6.1982 in birth register vide order dated 4.3.2010 passed by Up Ziladhikari.The copy of family register relates to the year 2010 and age of accused appellant Jamil has been shown in pursuance of birth certificate in which his date of birth has been written vide order dated 4.3.2010 passed by Up Ziladhikari.Therefore, this date of birth of accused appellant Jamil is not acceptable.At present accused appellant Jamil is above thirty years.Now it is difficult to ascertain his age at the time of occurrence on the basis of ossification test.In view of above, we are of the view that there is no material on record to show that accused appellant Jamil was juvenile at the time of occurrence.Accused appellant Jamil himself has not pressed his application regarding claim of juvenility before trial court, therefore, raising plea of juvenility again before this Court is barred by principle of res judicata as well as principle of stoppel also.In view of above, we are of the view that learned trial court has not committed error in passing impugned judgement and order.In view of conclusion drawn above, it is apparent that solitary evidence of P.W.-3 complainant Nasim Anwar is sufficient to convict accused appellant Jamil.According to F.I.R. Ext.Ka-1 as well as statement of P.W.-3 complainant Nasim Anwar, accused appellants Jamil and Shakeel came together at the place of occurrence and each of them were armed with kattas.According to F.I.R. Ext.Ka-1 as well as statement of P.W.-3 complainant Nasim Anwar, accused appellant Shakeel gave exhortation, whereupon accused appellant Jamil fired at the father of complainant.It is apparent from F.I.R. Ext.Ka-1 as well as statement of P.W.-3 Nasim Anwar that when complainant and persons present with him tried to catch accused appellant Jamil Ahmad, accused Shakeel Ahmad pointed out katta at them and thereafter both accused appellants ran away together.Post mortem report Ext.Ka-5 as well as statement of P.W.-5 Dr. R.A. Singh shows that ante mortem injury found on the dead body of deceased Haji Abdul Gani was sufficient to cause death in the ordinary course at once.After having gone through entire facts and circumstances of the case as well as whole evidence on record, we are of the view that the evidence on record is sufficient to hold accused appellant Jamil guilty for offences punishable under section 302 and 506(2) I.P.C. and to accused appellant Shakeel for offences punishable under section 302/34 and 506(2)Perusal of impugned judgement and order shows that learned trial court has gone through entire evidence on record as well as facts and circumstances of the case, learned trial court has considered all relevant points in its impugned judgement.The findings recorded by trial court is based on judicious analysis of evidence as well as law.In view of discussion made and conclusion drawn above, we are of the view that the trial court has rightly convicted accused appellant Jamil for offences punishable under section 302 and 506(2) I.P.C. and accused appellant Shakeel for offences punishable under section 302/34 and 506(2)Sentences awarded by trial court are not excessive and no appeal has been filed by State of U.P. for enhancement of sentence.Therefore, we are of the view that there is no sufficient ground for interference in the impugned judgement and order passed by learned trial court.In view of above, we are of the view that both appeals have no merit and are liable to be dismissed.Both appeals are dismissed accordingly.Accused appellant Shakeel Ahmad is on bail.He shall surrender before trial court within 30 days from the date of this judgement for serving sentence awarded to him, failing which trial court shall ensure his arrest and shall send him to jail for serving sentence.Accused appellant Jamil is in jail.Learned trial court shall prepare conviction warrant in accordance with law.Let a copy of this judgement be sent to trial court for securing compliance.Send back records of trial court immediately.Order Date :-24.09.2014 LJ/-

Cited provisions: Section 506 in The Indian Penal Code; Section 302 in The Indian Penal Code; Section 504 in The Indian Penal Code; Section 34 in The Indian Penal Code