Point of Law : There exists a doubt whether they are eyewitnesses of the incident or not, the place of incident is also doubtful. Oral evidence is also not consistent with the medical evidence, FIR is ante-timed and there are no independent witness of the incident.

JUDGMENT :

1. The present Criminal Appeals have been filed against the Judgment and Order dated 14.1.2016 passed by the Special Judge / Additional Sessions Judge, Bijnor in Session Trial No.485-A of 2011 (State vs. Alam); Session Trial No.485 of 2011 (State vs. Noor Mohammad and Others), arising out of Case Crime No.52 of 2011, under Sections 302/34, 323/34 IPC, P.S. Mandawar, District Bijnor, whereby appellants were convicted for life imprisonment under Sections 302/34 IPC and fine of Rs.20,000/- each, in default of payment of fine, six months additional R.I. and under Section 323/34 IPC, 3 months R.I. and fine of Rs.500/- each, in default of payment of fine, one month additional R.I. with a direction that all the sentences shall run concurrently.

2. Being aggrieved therefrom, accused Alam preferred Criminal Appeal No.888 of 2016 and accused Noor Mohammad, Deen Mohammad preferred Criminal Appeal no.639 of 2016 for setting aside their conviction and passing an order of acquittal.

3. Since common issues are involved in both the appeals, both are being disposed of by a common order. The facts stated in Criminal Appeal No.888 of 2016 shall be treated as the leading appeal.

4. The brief facts relating to case are that Salamat (son of deceased) submitted a written report at Police Station with the averment that he is resident of village Khirani, P.S. Mandawar, District Bijnor. His father purchased about 18 bigha land 2 years before from Hamid, son of Jamaluddin that is why Noor Mohammad, Deen Mohammad, Alam were on enemical terms to his father. On 19.3.2011 at 7.15 PM (evening), his younger brothers Riyasat and Faizan went to purchase items from the grocery shop of Habib, at that moment, Noor Mohammad, Deen Mohammad and Alam armed with countrymade pistol, came there, abused them and started altercation with Riyasat. Faizan came back from shop and told about the incident to his father, then he and his father Aslam reached at the shop of Habib and tried to protect Riyasat, at that time, Alam fired shot from his countrymade pistol on the head of his father, who died on spot. He and Riyasat tried to catch Alam, then Noor Mohammad and Deen Mohammad with an intention to kill, fired shot from their countrymade pistol but he and Riyasat were escaped narrowly. The prayer was made to register the report and legal action be taken. Rafeeq son of Imam Shah and Others were mentioned as witness of the incident.

5. On the basis of written report, Case Crime No.52/2011, under Sections 302/323/307/34 IPC was registered against accused Alam, Noor Mohammad, Deen Mohammad on 19.3.2011 at 8.30 PM and investigation of the case was handed over to Station Officer Sunil Kumar Sharma who went to the place of incident where S.I. Veer Singh conducted Panchayatnama of the dead body and after completing the formalities, dead body was sent for postmortem. The spot map of the place of incident was prepared, two empty cartridges were recovered by the police from the roof of the accused, the memo was accordingly prepared. During investigation, on 22.3.2011 accused were arrested and on the pointing out of Alam, countrymade pistol 315 bore, 2 live cartridges, one empty cartridge 315 bore inside the barrel and on the pointing out of Noor Mohammad, countrymade pistol 12 bore and 2 live cartridges were recovered, the memo were accordingly prepared. FIR was lodged against Alam and Noor Mohammad under Section 25 of the Arms Act on 22.3.2011 at 12.30, the investigation of the case under the Arms Act was handed over to H.C.P. Prem Singh. Respective Investigating Officer submitted charge-sheet against accused Alam, Noor Mohammad and Deen Mohammad under Sections 302/34, 307/34, 323 IPC and against accused Alam and Noor Mohammad under Section 25 of the Arms Act. Charges were framed against Alam, Noor Mohammad, Deen Mohammad under Sections 302/34, 307/34, 323 IPC and against accused Alam and Noor Mohammad under Section 25 of the Arms Act to which they denied and claimed trial.

6. The