JUDGMENT B.S. Chauhan, J. 1. This instant appeal has been filed by the appellant, Shanker Dayal Tewari against the Judgment and order dated 13.12.1978 passed by the IVth Additional Sessions Judge, Ballia in Sessions trial No. A-208 of 1974 convicting the appellant under Section 302/452, I.P.C. and sentencing him to undergo rigorous imprisonment for one year under Section 452, I.P.C. and imprisonment for life under Section 302, I.P.C. though directing that both the sentences would run concurrently. 2. The case of the prosecution is that on 26.2.1974 at about 7 a.m. when deceased-informant, Sarju Tiwari was brushing his teeth, sitting outside his house, the appellant, Shanker Dayal Tiwari, armed with a spear reached there alongwith three other co-accused namely, Uma Shanker, Rama Shanker and Shri Kant Tiwari co-accused, Uma shankar and Shri Kant started beating the informant, Sarju Tiwari with kicks and fists. In order to save himself the informant rushed towards his house but he was chased by the appellant along with his co-accused and inside the room the appellant struck his spear on the chest of the complainant. Hearing the cries of the deceased, Sarju Tiwari, brother to the informant and several other persons namely, Ramji, Gauri Shanker, Shri Ram and Vishwanath Pandey also arrived there. The appellant ran away after causing the said injury to the victim along with co-accused. The victim placed his hands on the injury and fell down. Subh Narain, P.W. 9 who is the son of the informant also arrived and took dictation from the informant which was, read over by the said Subh Narain P.W. 9 to his father, the informant and thereafter the informant was taken to the police station by Rameshwar Tewari P.W. 6 and Subh Narain, P.W. 9. The said written report was handed over to Shri Vikrama Yadav, Head Moharrir, P.W. 5 who had prepared the formal F.I.R. (Ext. Ka 2) and registered a case at 8.30 a.m. against the accused under Section 452/323/307, I.P.C. and the injured informant was sent to Primary Health Centre, Notwa, where he was medically examined by Dr. Ram Surat, P.W. 2. Later on, the informant was shifted to the District Hospital at Ballia and on 1.3.74 at 4 p.m. his dying declaration was recorded by Shri B. K. Singh, Magistrate, P.W. 8 (Ext. Ka 16/1). The informant succumbed to the injury on 2.3.74. The post-mortem examination was conducted by Dr. Ram Surat, P.W. 2. Later on, the informant was shifted to the District Hospital at Ballia and on 1.3.74 at 4 p.m. his dying declaration was recorded by Shri B. K. Singh, Magistrate, P.W. 8 (Ext. Ka 16/1). The informant succumbed to the injury on 2.3.74. The post-mortem examination was conducted by Dr. Sabir Hussain, P.W. 12 on 2.3.74 and the postmortem report is Ext. Ka 20. On receiving the post-mortem report by the Investigating officer, the case was converted into one under Section 302, I.P.C. Shri Matacharan Pandey investigated the case, recorded the statements of the witnesses under Section 161, Cr. P.C. and prepared a sketch map of the site. Shri Ram Palat Yadav completed the investigation and submitted the charge sheet (Ext. Ka 19) against the appellant and other co-accused. All the four accused denied their involvement in the offence and pleaded their innocence and further contended that they had falsely been implicated in the case because of the old enmity. In support of its case prosecution examined as many as twelve witnesses. Shri Mukhtar Ahmad, Constable, P.W. 1 is a formal witness who had deposited the sample of the plain and blood stained earth and the blood stained cloths in the malkhana. Ram Surat, P.W. 2 examined the complainant-deceased on 26.2.74 as he was Incharge of the Primary Health Centre, Bachuni, District Ballia Md. Ilyas Khan, P.W. 3, Constable is a formal witness, who had taken the dead body of the deceased for the post-mortem on 2.3.74. Bhagwat Tiwari, P.W. 4 is also a constable and a formal witness who had brought the sealed materials from the malkhana to hospital on 6.8.74. Vikrama Yadav, P.W. 5 was the Head Moharrir, who had taken the written report from Subh Narain, P.W. 9 and got the chik F.I.R. recorded at 8.30 a.m. Rameshwar Tewari, P.W. 6 is the only eye-witness in addition to the injured informant himself and his statement will be discussed at a later stage. Kailash Nath Pandey, P.W. 7, Sub-Inspector of Police proved the Panchayat nama of the deceased (Ext. Ka 9). B. K. Singh, P.W. 8 is the Magistrate, who recorded the dying declaration, of the informant (Ext. 16/1), and he has stated that he had recorded the dying declaration when the deceased-informant was in good physical condition. Kailash Nath Pandey, P.W. 7, Sub-Inspector of Police proved the Panchayat nama of the deceased (Ext. Ka 9). B. K. Singh, P.W. 8 is the Magistrate, who recorded the dying declaration, of the informant (Ext. 16/1), and he has stated that he had recorded the dying declaration when the deceased-informant was in good physical condition. Subh Narain, P.W. 9 is the son of deceased-informant who deposed that the deceased had dictated to him the complaint which he wrote on the paper, read over to the deceased and took the deceased to the police station along with Rameshwar Tewari, P.W. 6, lodged the F.I.R. there and took the informant-deceased to the hospital. Shri Mata Charan Pandey, P.W. 10, who was posted in police station Bairya in February, 1974 recorded the statements of Rameshwar Tewari, P.W. 6 and Subh Narain, P.W. 9 under Section 161, Code of Criminal Procedure. Dr. T.N. Singh, P.W. 11 stated in the court that he had certified the mental and physical condition of the deceased-informant to be satisfactory when the dying declaration was recorded by the Magistrate, Shri B.K. Singh, P.W. 8 Dr. Sabir Husain, P.W. 12 conducted the post-mortem of the deceased and proved the post mortem report. He found the following anti mortem injury on the person of the deceased. "Punctured wound 1" x ¼" x 1¼ on the left lateral side of chest (bit over 7th and 8th inter coasted space) direction was oblique. Bleeding was present. Margins were clean cut." Dr. opined that the death was caused due to syncope and due to shock and hemorrhage due to ante-mortem injury. 3. The appellant and other co-accused were examined under Section 313, Cr. P.C. where all of them denied their involvement in the case and stated that they had falsely been implicated, though co-accused Shri Kant Tiwari and Uma Shanker have further stated that they had been supporters of Congress Party in U.P. Vidhan Sabha Elections of 1974 as the case of the prosecution had been that the informant deceased had supported the Jan Sangh candidate and he did not vote and support the Congress candidate as per the wishes of the accused. The appellant and the co-accused also examined as many as 7 defence witnesses namely, Prabhu Nath Singh, D.W. 1, Kashi Prasad, D.W. 2 Kamla Chaudhary, D.W. 3, Ram Ji Tewari, D.W. 4, Har Nandan Prasad, D.W. 5, Rama Shanker Srivastava, D.W. 6 and Harihar Pandey D.W. 7 just to prove that the accused had been supporting the Congress candidate. 4. Learned, Additional Sessions Judge, Ballia after considering the case of the prosecution and the defence reached the following conclusions. I. The F.I.R. (Ext. Ka 2) dying declaration (Ext. Ka-16/1) and the statement of the deceased recorded under Section 161, Cr. P.C, if considered together, there was no material inconsistency in the same and in all the three documents it has specifically, been mentioned that the appellant has given a spear blow on the chest of deceased. The contradictions, if any, between the three documents were immaterial as being of trivial nature and of no merits. II. The Statement of Rameshwar Tewari, P.W. 6 was trustworthy and there was nothing in the statement which can be discarded or disbelieved. He was subjected to long cross-examination but nothing could be elicited from him, to discredit his testimony or throw doubts on his veracity. III. The injury found on the person of the deceased was caused by the sharp edged weapon and it was sufficient to cause death in the ordinary course of nature. IV. Medical evidence too fully corroborate the version of the prosecution. V. Non production of the independent witness and other contradictions or shortcoming in the prosecution evidence are trivial in nature and do not adversely effect the prosecution case. The missing of the piece of cloth which had been tied around the wound of the deceased was also found to be irrelevant. VI. Only co-accused, Uma Shanker cast his vote in favour of the Congress candidates, though the other accused did not. VII. The motive of causing the injury to the informant was also there. However, there was only one injury on the person of the deceased, the participation of the other co-accused was found doubtful and they were acquitted giving the benefit of doubt and the appellant was convicted and sentenced as stated above. 5. We have heard Shri S.S. Tiwari, learned Senior Advocate for the appellant and learned Government Advocate on behalf of the respondent on the merits of the appeal. 6. 5. We have heard Shri S.S. Tiwari, learned Senior Advocate for the appellant and learned Government Advocate on behalf of the respondent on the merits of the appeal. 6. It has been vehemently argued on behalf of the appellant that there had been too many contradictions in the F.I.R., statement of the informant- deceased recorded under Section 161, Cr. P.C. and the dying declaration recorded by the Magistrate, Shri B. K. Singh. All these contradictions had been in respect of the arms which had been alleged to have been held by the appellant and the co-accused. This contention is untenable as stated earlier there is consistency so far as the appellant is concerned as in all the three documents it has specifically been mentioned that the appellant was armed with spear and thus the accused cannot be given any benefit of such immaterial contradictions. The contention on behalf of the appellant that participation of other persons named in the dying declaration had been found doubtful and the co-accused had been acquitted, the same cannot be relied upon for the conviction of the appellant, is also devoid of any merit as in the case of Godhu and another v. State of Rajasthan, (1975) 1 SCR 906 , the Supreme Court has observed as under : "We are also unable to subscribe to the view that if a part of the dying declaration has not been proved to be correct, it must necessarily result in the rejection of the whole of the dying declaration. The rejection of a part of the dying declaration would put the court on the guard and induce it to apply a rule of caution. There may be cases where in the part of the dying declaration which is not found to be correct is so indissolubly linked with the other part of the dying declaration that it is not possible to sever the two parts. In such an event the court would well be justified in rejecting the whole of the dying declaration. There may, however, be other cases wherein the two parts of a dying declaration may be severable and the correctness of one part does not depend upon the correctness of the other part. In such an event the court would well be justified in rejecting the whole of the dying declaration. There may, however, be other cases wherein the two parts of a dying declaration may be severable and the correctness of one part does not depend upon the correctness of the other part. In the last mentioned cases the court would not normally act upon a part of the dying declaration, the other part of which has not been found to be true, unless the part related upon is corroborated in material particulars by the other evidence on record. If such other evidence shows that part of the dying declaration relied upon is correct and trustworthy, the court can act upon that part of the dying declaration despite the fact that another part of the dying declaration has not been proved to be correct." Similarly it has further been contended on behalf of the appellant that if the deposition of the witnesses, particularly of Rameshwar Tewari, P.W. 6, and Subh Narain, P.W. 9 has not been relied upon in the case of the co-accused and they had been given the benefit of doubt and acquitted, it cannot safely be relied upon for the conviction of the appellant. In the case of Balaka Singh v. State of Punjab, (1975) Suppl SCR 129, the Supreme Court after relying upon the catena of decision observed as under : "The court must make an attempt to separate grain from the chaff, the truth from the falsehood, yet this could only be possible when the truth is separable from the falsehood. Where the grain cannot be separated from the chaff because the grain and the chaff are so inextricably mixed up that in the process of separation the Court would have to reconstruct an absolutely new case for the prosecution by divorcing the essential details presented by the prosecution completely from the context and the background against which they are made, then this principle will not apply." 7. Next contention of the learned counsel for the appellant is that the medical evidence is inconsistent with the ocular evidence, particularly deposition of Rameshwar Tewari, P.W. 6. Next contention of the learned counsel for the appellant is that the medical evidence is inconsistent with the ocular evidence, particularly deposition of Rameshwar Tewari, P.W. 6. No doubt material inconsistency in the medical evidence and oral deposition of the witnesses is always fatal for the case of the prosecution as held by the Supreme Court in the case of Satbir v. State of Haryana, AIR 1981 SC 2074 . If the evidence of the witnesses for the prosecution is totally inconsistent with the medical evidence, it may be most fundamental defect in the prosecution case and unless reasonably explained, the entire prosecution case is to be discarded. In the case of Ram Narain v. State of Punjab, AIR 1975 SC 1727 , the Supreme Court has held as under : "It is obvious that where the direct evidence is not supported by the expert evidence, then the evidence is wanting in the most material part of the prosecution case and it would be difficult to convict the accused on the basis of such evidence." 8. However, the submission of the learned counsel for the appellant is totally preposterous, particularly in view of the statement of Rameshwar Tewari, P.W. 6 where in his cross examination he has specifically told that the spear was only 3-4 feets long and thus the contention of the learned counsel for the appellant that it was not possible to cause such injury as found on the person of the deceased inside the room by the spear stands falsified. The next contention of the learned counsel for the appellant that there could be no motive for causing the injury to the deceased as the appellant himself being the supporter of the Congress candidate and thus the genesis of the crime had been suppressed, is also without any force in view of the specific findings given by the Sessions Judge and that too after examining the ballot papers of the appellant and co-accused that no one except Uma had voted for the Congress candidate. Moreover, in the case of Babu Lodhi v. State of U.P., AIR 1987 SC 1286, the Supreme Court has observed that "it is needless to say that when there is acceptable evidence of eyewitnesses to the commission of an offence, the question of motive cannot loom large." Similarly in the case of Shivji G. Mohita v. State of Maharashtra, AIR 1973 SC 55 , the Supreme Court has observed as under : "Evidence as to motive, would no doubt go a long way in cases wholly dependent on circumstantial evidence............But that would not be so in cases where there are eye-witnesses of credibility...............But that does not mean that if a motive is not established, the evidence of an eye-witness is rendered untrustworthy. It has further been cent ended on behalf of the appellant that not a single neighbour has been examined by the prosecution and the statement of Rameshwar Tewari, P.W. 6, who is interested and partisan witness being, the real brother of the deceased cannot be relied upon. The testimony of Rameshwar Tewari, P.W. 6 must have been corroborated by independent eye-witnesses. It is our considered opinion that in view of the peculiar facts and circumstances of this case non-examination of independent witnesses cannot be fatal to the prosecution. The dying declaration, F.I.R. scribed by the son, Subh Narain, P.W. 9 and the statement under Section 161 of Cr. P.C. recorded by Investigating Officer form the core of the prosecution case. All criticism against these having already been rejected examination of any independent witness is not to add or subs tract anything to this set of evidence and is, therefore, wholly immaterial. 9. In the case of State of West Bengal v. Orilal Jaiswal and another, (1994) Supp. (1) SCC 73, the Supreme Court observed as under : "It was, therefore, not necessary to examine the neighbour or tenants to prove the prosecution case............such deposition by close relation who may be interested in the prosecution of the accused need not be discarded simply on the score of the absence of corroboration by independent witnesses." 10. (1) SCC 73, the Supreme Court observed as under : "It was, therefore, not necessary to examine the neighbour or tenants to prove the prosecution case............such deposition by close relation who may be interested in the prosecution of the accused need not be discarded simply on the score of the absence of corroboration by independent witnesses." 10. Similarly, in the case of Tarjinder Singh v. State of Haryana, AIR 1994 SC 503 , it has been observed by the Supreme Court that the evidence of the close relations, interested witnesses requires to be scrutinized with great care and cautions, but it cannot be rejected merely on the ground of their close relationship or interest. The same view has been taken by the Supreme Court in the case of Rat Sahib and others v. State of Haryana, 1994 Suppl (1) SCC 74. It has further been contended by the learned counsel for the appellant that there may be too many contradictions in the statement of Rameshwar Tewari, P.W. 6 and the deceased. The Supreme Court in the case of Surat Singh v. State of Punjab, AIR 1977 SC 705 , has held that such trifling contradictions cannot affect the case of the prosecution. Moreover, the complainant-deceased or his brother Rameshwar Tewari, P.W. 6 and son Subh Narain, P.W. 9 would be the last persons to let go the real assailant and substitute him by any innocent person vide : Prasad Mahto v. State of Bihar, AIR 1993 SC 2477 . Since the incident had taken place inside the house, the possibility of the presence of P.W. 6, Rameshwar Tewari and P.W. 9, Subh Narain cannot be doubted. Minor variations in the statements of such persons are always probable but the courts are not to attach much weight to such contradictions as they are natural. It is wholly unthinkable that such close relations will ever spare the real culprit. The chaff having been already separated by the trial court, we find no convincing reason to discard the testimony of Rameshwar Tewari, P.W. 6 and Subh Narain, P.W. 9. It is wholly unthinkable that such close relations will ever spare the real culprit. The chaff having been already separated by the trial court, we find no convincing reason to discard the testimony of Rameshwar Tewari, P.W. 6 and Subh Narain, P.W. 9. In the last it has been contended on behalf of the appellant that had there been an intention to kill the deceased, the appellant could have given several blows to the deceased and the very nature of the injury and particularly as appellant has inflicted only one injury on the person of the deceased, the charge against the appellant cannot be brought home, by any means under Section 302, I.P.C. This contention is full of substance and we are of the considered opinion that in the facts and circumstances in which the offence took place, the number of blows given to the deceased, the part of the body where the injury had been inflicted and the fact that injury was caused on 26.2.74 and the informant died on 2.3.74 i.e. 3-4 days from the date of incident, it would not be possible to convict the appellant under Section 302 I.P.C. 11. WE, therefore, set aside the conviction of the appellant under Section 302, I.P.C. and we alter his conviction to one under Section 326, I.P.C. and the appellant is sentenced to rigorous imprisonment for seven years. The conviction of the appellant under Section 452, I.P.C. and the sentence awarded for the said offence as R.I. for one year is maintained. However, the substantive sentence would run concurrently. 12. The appellant is on bail. His bail bond is cancelled, sureties are discharged. He is directed to surrender before the Chief Judicial Magistrate, Ballia. This appeal is allowed to the extent as indicated herein above. Appeal allowed partly.