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5. The undisputed facts and the circumstances which have come on record are that the FIR (Ex.P/2) was lodged promptly within 30 minutes of the incident by the complainant Agyaram (PW-2) where he narrated the incident but did not specify as to which appellant exhorted the other or whether both the appellants together exhorted for terminating the life of the deceased which thereafter led to the appellant Ramsiya inflicting fatal firearm Cra. No. 628/2008 & Cra. No. 489/2012 injury upon the deceased. The postmortem was conducted on 12/6/2007 at 11-45 a.m., by Dr. Jitendra Shrivastava (PW-5) opining the cause of death to be syncope due to excessive haemorrhage resulting from gunshot injury. The injury found on the dead-body was a single gunshot entry wound situated over the back of chest near T-11 vertibral with tattooing present around the wound which led to piercing the organs of the thoracic cavity including lungs and heart. Thereafter exit gunshot wound was also found on the anterior wall of the chest on left side . Besides the aforesaid, the postmortem report also found a lacerated wound, skin deep situated lateral to right eye-brow. The contents of the postmortem report (Ex.P/8) are proved by Dr. Jitendra Shrivastava (PW-6) who testified that the gunshot injury found on the dead- body was sufficient to cause death having been caused within 6 hrs. of the examination. PW-6 further testified that only one gunshot injury on the dead-body causing entry wound and exit wound was found. No metallic objects were found embedded and also that looking to the entry inflicted at the back of the deceased, the attack was made from the rear of the deceased.

Cra. No. 628/2008 & Cra. No. 489/2012 8.1 The testimony of PW-2 Agyaram inter alia discloses that the appellant Bhagwan Singh made exhortation that since deceased Ramesh Chandra had testified the sale-deed for alienation of land he (Ramesh Chandra) should be put to an end whereafter other appellant Ramsiya inflicted fatal gunshot injury. This revelation made in the testimony by PW-2 Agyaram is found missing in the FIR (Ex.P/2) which was lodged by the same complainant PW-2 Agyaram. It is submitted by the counsel that FIR merely discloses omnibus allegation of exhortation without attributing the same to any particular appellant and therefore it is urged that PW-2 has improved his earlier version thereby rendering his testimony before the court untrustworthy.

ANALYSIS

10. Taking up the case of appellant Ramsiya in Cra. No.628/08 who has caused fatal gunshot injury, it is seen that the FIR (Ex.P/2) was promptly lodged within 30 minutes of the incident at police station Daboh, District Bhind (M.P.), revealing that when deceased Ramesh Chandra alongwith complainant Agyaram Cra. No. 628/2008 & Cra. No. 489/2012 (PW-2) and Rameshwar Chauhan on different cycles were going towards the temple, both the appellant on cycle came from behind and overtook them and reached the deceased where the exhortation was made (without specifying as to who made exhortation) whereafter the appellant Ramsiya inflicted fatal gunshot injury to the deceased causing his instantaneous death. 10.1 The appellant-Ramsiya was accordingly arrested by arrest- memo (Ex.P/9) in the presence of two witnesses, namely, Devi Singh and Ramswaroop (PW-9). On disclosure made by appellant Ramsiya, the offending weapon .315 bore country-made pistol was recovered alongwith one live round and cycle in the presence of witnesses Devi Singh and Ramswaroop. The Forensic Report (Ex.P/12) in regard to the firearm opined that the recovered and seized firearm is operational and found to have been used and that the same can be used for causing fatal firearm injury. The live cartridge recovered and seized was opined to be capable of being fired by the said seized firearm. The Forensic Report Ex.P/12 is duly proved by PW-10 Ajay Bhargava.

10.2 The diary statement of Agyram, PW-2 u/S. 161 Cr.P.C. (Ex.D/1) was recorded on 12/6/2007 narrating the incident in the same manner as narrated in the FIR (Ex.P/2) with omnibus allegation of exhortation and without specifying as to which appellant actually made the exhortation.

10.3 The testimony of PW-2 Agyaram and PW-5 Rameshwar both eye-witnesses has been attacked on the ground of certain embellishments, contradictions and omission when compared with earlier version of the prosecution story as detailed above. In the considered opinion of this court, the omissions in sec. 161 Cr.P.C. statement of PW-2 Agyaram of specific allegation of exhortation Cra. No. 628/2008 & Cra. No. 489/2012 against any particular appellant, stands to the benefit of appellant Bhagwan Singh who had not caused fatal gunshot injury and against whom no overt act is alleged except accompanying the main accused Ramsiya. However, this omission can be of no avail to the appellant Ramsiya who was found to have caused gunshot injury which version in the diary statement has been duly supported by the testimony of PW-2 Agyaram and PW-5 Rameshwar with minor inconsequential omissions, contradictions and embellishments which can very well be ignored. 10.4 As regards PW-5 Rameshwar, the other eye-witness, it is seen that this witness has testified before the court and supported his earlier version in regard to the overt act of the appellant Ramsiya of causing gunshot injury to the deceased but has stated on oath that it was appellant Bhagwan Singh who exhorted by uttering abusive words and shouting that deceased Ramesh Chandra should be shot in response to which appellant Ramsiya shot the deceased. Pertinently, PW-5 who testified before the court as eye-witness was not subjected to any 161 statement during investigation as none is on record though in para 8 of his cross- examination PW-5 stated that his statement was recorded by the police during investigation. PW-5 has also testified that while heading towards temple deceased Ramesh Chandra on cycle was leading the other two (PW-2 and PW-5) and he himself (PW-5) was at the end. PW-5 Rameshwar testified that both the appellants came on the same cycle and overtook them from the left. PW-5 Rameshwar also deposed that Bhagwan Singh was riding bicycle and appellant Ramsiya was sitting behind on the carrier. 10.5 As regards the appellant Bhagwan Singh is concerned, admittedly there is no overt act against him of causing any injury Cra. No. 628/2008 & Cra. No. 489/2012 except the fact that he may have exhorted appellant Ramsiya to shoot the deceased which led to the appellant Ramsiya to cause gunshot injury. The factum of the appellant Bhagwan Singh having exhorted cannot safely be concluded in view of the inconsistencies regarding this allegation between the contents of the FIR (Ex.P/2) and the testimony of the complainant PW-2 Agyaram. The testimony of PW-5 Rameshwar in regard to the exhortation also stands on the same footing as that of PW-2 Agyaram and therefore a doubt raises as to which of the two appellants actually exhorted the other to cause gunshot injury. The possibility of the principal appellant Ramsiya actually making the exhortation immediately before causing fatal injury could not be ruled out by the prosecution, which in the considered of this court has to be read in favour of the appellant Bhagwan Singh.