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2001 DIGILAW 591 (RAJ)

Jaiveer Singh v. State of Rajasthan

2001-04-11

KHEM CHAND SHARMA, SHIV KUMAR SHARMA

body2001
Honble SHARMA, J.–This appeal owes its origin in the judgment dated March 7, 1998 of the learned Additional Sessions Judge Khetri (Distt. Jhunjhunu) whereby the accused appellant Jaiveer Singh was convicted under Section 302 of the Indian Penal Code and Section 27 of the Indian Arms Act and sentenced against Section 302 IPC to undergo rigorous life imprisonment with fine of Rs. 200/- (in default to further undergo six months R.I.) and against Section 27 of the Indian Arms Act to undergo three years rigorous imprisonment with fine of Rs. 100/- (in default to further undergo three months R.I.). (2). The prosecution case is woven like this:- On March 8, 1993 at 10.05 a.m. informant Jai Singh lodged a written report at Police Station Khetri stating therein that earlier at 7.00 a.m. on that day the informant and his younger brother Ganga Singh (since deceased) had gone to their field. Ram Chandra Singh @ Nanar Singh also joined them there. In order to operate the tube well Ganga Singh put on the diesel engine. The informant soon thereafter noticed three persons approaching the tube well. Out of the three persons two were Umed Singh and Jaiveer Singh (appellant) and third was not known to the informant. Those three persons surrounded Ganga Singh near the water reservoir. Jaiveer took out pistol and pointed it towards Ganga Singh. Ummed Singh exhorted Jaiveer to fire at Ganga Singh, thereupon Jaiveer opened fire which hit Ganga Singh on his chest. The informant and Ram Chandra Singh raised alarm. Har Nath Singh and Hanuman Singh who were working in the nearby field also shouted that Jaiveer had fired at Ganga Singh. The three intruders ran away. On reaching near the water reservoir the informant found his brother Ganga Singh lying dead. Three years before Jaiveer and his elder brother Dharmpal committed murder of Nar Singh and Hari Singh, who were the brothers of the informant. In that case Jaiveer was released on bail. (3). The Police Station Khetri registered FIR No. 52/93 (Ex. P.7) for the offences under Sections 302/34 IPC and Section 3/25 Indian Arms Act and investigation commenced. Site was inspected vide memo (Ex.P.8). Dead-body of Ganga Singh was subjected to post mortem. Report of post mortem is (Ex.P.38). The cause of death was shock and internal haemorrhage from lungs and fractures following gun shot. P.7) for the offences under Sections 302/34 IPC and Section 3/25 Indian Arms Act and investigation commenced. Site was inspected vide memo (Ex.P.8). Dead-body of Ganga Singh was subjected to post mortem. Report of post mortem is (Ex.P.38). The cause of death was shock and internal haemorrhage from lungs and fractures following gun shot. Statements of witnesses were recorded and the appellant was arrested. On the basis of information (Ex.P 42) of the appellant a katta (country made pistol) was recovered vide recovery memo (Ex.P.27). Three other accused persons Rajpal Singh, Ram Kumar Singh and Badan Singh were also arrested. Empties were recovered vide recovery memo Ex.P.39. A wrist watch was recovered vide memo (Ex.P.40). The Forensic Science Laboratory Report is (Ex.P.44). On conclusion of the investigation the charge sheet was filed against the appellant and three co-accused persons. (4). In due course the case came up for trial before the learned Additional Sessions Judge Khetri. The trial court framed charges under Section 302 IPC and Sections 3/25 and 27 of the Indian Arms Act against the appellant as also against co-accused Raj Pal Singh. As against the other two co-accused Badan Singh and Ram Kumar Singh charge under Section 302 read with Section 120B IPC was framed. All the four accused denied the charges and claimed trial. The prosecution examined as many as 24 witnesses, thereafter explanation of the accused under Section 313 Cr.P.C. was recorded. The accused denied the allegations and claimed innocence. No evidence in defence was led. On hearing the final submissions the learned trial court acquitted co-accused Badan Singh and Ram Kumar Singh from the charge under Section 302 read with Section 120B IPC. Co-accused Raj Pal Singh was also acquitted from the charges under Section 302 IPC and Section 27 of the Indian Arms Act but convicted under Section 3/25 of the Indian Arms Act to undergo the imprisonment already undergone. The appellant Jaiveer Singh however was conviction and sentenced as indicated hereinabove. (5). The learned Additional Sessions Judge based the convicted of the appellant principally on the evidence of Jai Singh (PW. 5), Hanuman Singh (PW. 6) and Ram Chandra Singh @ Nanar Singh (PW. 7). The presence of these witnesses on the scene of occurrence has not been doubted and it impelled the learned Additional Sessions Judge to hold these witnesses as eye witnesses of the occurrence. (6). Mr. 5), Hanuman Singh (PW. 6) and Ram Chandra Singh @ Nanar Singh (PW. 7). The presence of these witnesses on the scene of occurrence has not been doubted and it impelled the learned Additional Sessions Judge to hold these witnesses as eye witnesses of the occurrence. (6). Mr. S.R. Bajwa, learned Senior Advocate appearing for the appellant canvassed that the assault on deceased Ganga Singh appears to have been taken place under the cover of darkness. No one, it seems, was present when the assault took place. The eye witnesses have tried to create their presence falsely. It was a blind crime to which there was no eye witness. The complainant has come out with an overly embellished version. Three of the co- accused against whom the complainant party had levelled specific allegations, have already been acquitted and the version of the complainant party has been found false qua three of the co- accused. Thus it was urged that the trial Judge has erred in relying upon the fractured prosecution version. In respect of testimony of eye witnesses the learned counsel contended that they are interested and wholly unreliable witnesses as their statements suffer from numerous infirmities. The evidence of alleged eye witnesses is in direct conflict of medical testimony and that of ballistic expert. Learned counsel placed reliance on various judicial pronouncement that shall be dealt with at appropriate juncture. (7). On the other hand Mr. S.C. Purohit, learned Public Prosecutor and Mr. M.R. Mitruka learned counsel for the complainant supported the impugned judgment and urged that the eye witnesses are the natural and truthful witnesses. On placing reliance on various authorities it was contended that in the depositions of witnesses there are always normal discrepancies however honest and truthful they may be. These discrepancies are due to normal errors of observations, normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of the occurrence. It was further urged that autopsy was conducted at the spot and in view of clear evidence that Ganga Singh died as a result of gun shot injuries, the post mortem examination loses all its significance. (8). Before dealing with the contentions raised by the learned counsel for the appellant we would like to indicate the nature of the evidence led by the prosecution in support of the case. (8). Before dealing with the contentions raised by the learned counsel for the appellant we would like to indicate the nature of the evidence led by the prosecution in support of the case. To begin with there is a central evidence consisting of three eye witnesses Jai Singh (P.W. 5). Hanuman Singh (PW. 6) and Ram Chandra Singh @ Nanar Singh (PW. 7) who were allegedly present near the place of occurrence. This evidence is sought to be corroborated by the evidence of Aas Mohammed SHO (PW. 22) who deposed that appellant Jaiveer Singh gave information about recovery of `katta and the evidence of Mohan Lal ASI (PW.24), Veer Bhan Singh (PW. 12) and Roop Singh (PW. 15) in respect of recovery of katta. Aas Mohammed SHO (PW 22) also deposed that he recovered empties from the place of occurrence. (9). Let us now examine the reliability of the prosecution witnesses through whom the prosecution has to establish that the case against the appellant has been proved beyond reasonable doubt. As has been stated earlier that the conviction of the appellant is based on the testimony of Jai Singh (PW.5) Hanuman Singh (PW.6) and Ram Chandra Singh @ Nanar Singh (PW.7). Coming to the testimony of Jai Singh (PW.5) it is to be noticed that he is the elder brother of the deceased. He instituted FIR of the occurrence. In his deposition he stated that on March 8, 1993 he and his younger brother Ganga Singh had gone to their tube well. Leaving Ganga Singh with the engine, he proceeded towards his field. Suddenly Jaiveer Singh, Rajpal Singh and Ummed Singh appeared from the side of Kotri (small room), they pushed down Ganga Singh, Umed Singh exhorted Jaiveer to fire at Ganga Singh, thereupon Jaiveer opened fire. He alongwith Nanar Singh, Hanuman Singh and Harnath Singh ran towards the tube well to rescue Ganga Singh and Jaiveer Singh, Umed Singh and Raj Pal Singh fled towards Ilakhar village. He found the dead body of Ganga Singh in a pool of blood near the tube well. In the cross examination this witness stated that at the time of incident he was standing at a distance of fifty yards from the place of occurrence. Jaiveer opened fire thrice from the range of three to four feet. The witness disowned his statement (Ex. D 2) recorded under Section 161 Cr. In the cross examination this witness stated that at the time of incident he was standing at a distance of fifty yards from the place of occurrence. Jaiveer opened fire thrice from the range of three to four feet. The witness disowned his statement (Ex. D 2) recorded under Section 161 Cr. P.C. according to which he is not an eye witness of the occurrence and was informed by Ram Chandra Singh @ Nanar Singh that his brother Ganga Singh was shot dead by Jaiveer Singh. (10). Hanuman Singh (PW. 7) in his deposition stated that when he and his father Har Nath Singh reached at the field in the morning they saw Jai Singh watering the field and Ganga Singh starting the Engine. In the meanwhile Nanar Singh also reached there. Around seven a.m. Umed Singh, Jaiveer Singh and one more person appeared near the tube well. They surrounded Ganga Singh, Jaiveer took out the pistol and pointed it towards Ganga Singh. Umed Singh exhorted Jaiveer to fire at Ganga Singh thereupon Jaiveer opened fire twice. After receiving second fire Ganga Singh fell down. Thereafter Jaiveer opened third fire at Ganga Singh. He had seen this incident from the distance. When he reached near the place of incident he found Ganga Singh dead. In his cross examination he stated that at the time of incident he was at a distance of about 50-60 yards. According to him all the three fires were shot by Jaiveer. He deposed that he informed the police about the presence of Jai Singh. He also disowned his statement (Ex.D.3) recorded by the police under Section 161 Cr. P.C. (11). Nanar Singh @ Ram Chandra Singh (PW. 7) corroborated the version of Jai Singh and Hanuman Singh. He also disowned his statement (Ex.D.4) recorded by the police under Section 161 Cr. P.C. (12). According to Mr. S.R. Bajwa, learned counsel for the appellant, the presence of Jai Singh, Hanuman Singh, Nanar Singh at the place of occurrence is highly doubtful. In the statement recorded by the police under Section 161 Cr.P.C., Jai Singh admitted that he did not see the incident from his eyes and was informed about the incident by Nanar Singh but in the trial court this witness has become the star witness of the prosecution. In the statement recorded by the police under Section 161 Cr.P.C., Jai Singh admitted that he did not see the incident from his eyes and was informed about the incident by Nanar Singh but in the trial court this witness has become the star witness of the prosecution. Strangely he has given eye witness account of the incident in the FIR, he is obviously a lier. Hanuman Singh and Nanar Singh are chance witnesses. They are related to Jai Singh and they have interest in the success of the prosecution case. All the three witnesses disowned their earlier version. Their statements suffer from numerous infirmities and on the basis of wholly unreliable testimony of these witnesses the appellant cannot be convicted. (13). On a close scrutiny of the testimony of the aforequoted three witnesses we find that Jai Singh (PW. 5) instituted FIR at 10.05 a.m. on March 8, 1993 with the police station Khetri which is around 20 kilometers away from the place of incident. The FIR was based on the eye witness account of the incident. We do not see any delay in lodging the FIR. A bare look at the statement of Jai Singh (Ex.D.2) alleged to have been recorded by the police under Section 161 Cr.P.C. demonstrates that it was recorded on March 8, 1993 but time of recording the statement was not mentioned. Jai Singh in his deposition before the trial Judge categorically stated that he had seen the incident from his eyes and he did not say before the police that he was at his house and Nanar Singh informed him about the murder of his brother Ganga Singh. He disowned his entire statement recorded by the police. In his deposition before the trial Judge he stated that the police was in hand and glove with the accused party. Hanuman Singh (PW. 6) and Ram Chandra Singh @ Nanar Singh (PW. 7) also disowned their statements recorded by the police under Section 161 Cr. P.C. (14). Before testing the credibility and assessing the intrinsic worth of the testimony of the prosecution evidence, we deem it proper to examine the scope of Sections 161 and 162 Cr. P.C. Section 161 Cr. P.C. applies only to investigations relating to the commission of offences and covers the cases of information received by the police after commencement of investigation. Before testing the credibility and assessing the intrinsic worth of the testimony of the prosecution evidence, we deem it proper to examine the scope of Sections 161 and 162 Cr. P.C. Section 161 Cr. P.C. applies only to investigations relating to the commission of offences and covers the cases of information received by the police after commencement of investigation. It is only a person believed to be acquainted with the facts and circumstances of the case that may be examined under Section 161 Cr. P.C. The purpose of examination under this Section is to obtain evidence preliminary to arrest. Section 162 Cr. P.C. provides that no statement made by any person to a police officer in the course of an investigation shall be used for any purpose at any inquiry or trial in respect of any offence under investigation at the time when such statement was made, except for the purpose of contradicting the witness. Section 162 creates a general bar against the user of statements of witnesses made before police during investigation on the assumption that the said statements are not made under circumstances inspiring confidence. The law allows the police officer to obtain such statements with a view to facilitate the investigation of the offences. But it renders them inadmissible in evidence for the obvious reason that a suspicion about voluntaries would attach to them. The police officer to whom the statement is made in the course of investigation should not require the witness to sign such statement. The policy underlying the rule contained in the Section seems to be that witnesses at the trial should be free to make statements. It is significant to note that the statement made by a person before the police in the course of investigation and the statement made by the person as a witness in court do not stand on the same footing, the reason being that the former statement is not made on oath. (15). Bearing in mind the aforesaid principles we proceed to analyse the deposition of Aas Mohammed SHO (PW.22) who recorded the statements of Jai Singh, Hanuman Singh and Ram Chandra Singh @ Nanar Singh under Section 161 Cr. P.C. In the cross-examination Aas Mohammed stated that Jai Singh produced report before him at 10.05 a.m. but he did not record his statement at that time. P.C. In the cross-examination Aas Mohammed stated that Jai Singh produced report before him at 10.05 a.m. but he did not record his statement at that time. He recorded the statement of Jai Singh at 11.40 a.m. at the place of occurrence. He recorded the statements of Har Nath Singh, Hanuman Singh and Nanar Singh at 2.25 p.m. on the date of incident. He did not add or subtract any thing in the statements and recorded exactly as were made to him. We have again scanned the statements Ex. D.2. Ex. D.3 and Ex. D4. recorded by Aas Mohammed. Statements of Jaisingh (Ex.D.2) and Hanuman (Ex.D.3) were recorded on March 8, 1993 whereas statement of Nanar Singh (Ex.D4) was recorded on March 11, 1993. Aas Mohammed SHO did not think it proper to mention time of recording the statements for the reasons best known to him. From the version given in the statements under Section 161 Cr. P.C. all the three witnesses Jai Singh, Hanuman and Ram Chandra Singh @ Nanar Singh are not the eye witnesses of the incident. But these witnesses stated on oath before the trial court that they had seen Jaiveer opened fire from their own eyes. As the police was in hand and glove with the accused, it did not record their deposition that Umed Singh exhorted Jaiveer to fire at Ganga Singh thereupon Jaiveer opened fire at Ganga Singh and killed him. Jai Singh (PW.5) deposed that police recorded his statement at Khetri at 7.00 p.m. and he narrated that Jaiveer opened fire thrice and killed Ganga Singh but the police did not record the statement correctly. He disowned the statement recorded by the police. Jai Singh stated thus- `POLICE NE DHARAM PAL AUR JAIVEER KO PAISE LEKAR CHHOD DIYA, AGAR POLICE KANOONI KARYAWAHI SAHI KARTI TO YEH AAJ MERE TEEN BHAIYON KI HATYA NAHIN HOTI. POLICE UNKA PAKSH LETI RAHI KYONKI HAMARE SE PAISE LENE KI KISI TARAH KI UMMEED NAHIN THI. IESILIYE MERE TEEN BHAIYON KI HATYA KI. (Police let off Dharam Pal and Jaiveer after obtaining money. Had the police proceeded in accordance with law the murder of my three brothers could have been prevented. POLICE UNKA PAKSH LETI RAHI KYONKI HAMARE SE PAISE LENE KI KISI TARAH KI UMMEED NAHIN THI. IESILIYE MERE TEEN BHAIYON KI HATYA KI. (Police let off Dharam Pal and Jaiveer after obtaining money. Had the police proceeded in accordance with law the murder of my three brothers could have been prevented. But the police used to shield them as it had no expectations of money from us and because of this my three brothers had been murdered.) In view of the fact that Jai Singh had given eye witness account of the incident in the FIR and lodged it promptly, how can we believe that in his statement under Section 161 Cr. P.C. he would say that he did not see the incident from his eyes? There are material contradictions in the statement of Aas Mohammed SHO in so far as it relates to recording of statements of Jai Singh, Hanuman and Ram Chandra Singh @ Nanar Singh is concerned. Non-mentioning of time of recording the statements also create suspicion in our mind. The circumstances under which these statements were allegedly recorded do not inspire confidence and in our considered opinion the defence can not make use of the contradictions of the depositions of the witnesses made from such statements, which appear to have been recorded by the SHO contrary to those facts stated by the person lodging the FIR. We therefore hold that the statements alleged to have been recorded under Section 161 Cr. P.C. do not have potency to discredit the evidence recorded by the trial Judge. On this count therefore we are not inclined to disbelieve the testimony of Jai Singh, Hanuman and Ram Chandra Singh @ Nanar Singh. Their Lordships of the Supreme Court in State of Rajasthan vs. Kishore (1), propounded in para 18, thus- ``Mere fact that the investigating officer committed irregularity or illegality during the course of the investigation would not and does not cast doubt on prosecution case nor trustworthy and reliable evidence can be cast aside to record acquittal on that account. (16). It was next contended by learned counsel for the appellant that the witnesses are interested and chance witnesses and their statements should not be believed. It appears from the material on record that Jai Singh, Hanuman and RamChandra Singh @ Nanar Singh are relatives of the deceased Ganga Singh as well as appellant Jaiveer. (16). It was next contended by learned counsel for the appellant that the witnesses are interested and chance witnesses and their statements should not be believed. It appears from the material on record that Jai Singh, Hanuman and RamChandra Singh @ Nanar Singh are relatives of the deceased Ganga Singh as well as appellant Jaiveer. Harnath Singh, (the father of witness Hanuman), Maman Singh, (the father of Jai Singh and Ganga Singh) and Shri Bux Singh, (the father of appellant Jaiveer) are the real brothers. Their wives are also the real sisters. Wife of witness Ramchandra Singh is also their real sister. Thus witnesses Jai Singh, Hanuman and Ram Chandra Singh are the near relatives of deceased Ganga Singh as well as the appellant Jaiveer Singh. We do not find force in the submission that these witnesses are interested witnesses and in the absence of testimony of independent witness, their evidence can not be relied upon. We however agree that their testimony is required the test of stricter scrutiny. (17). Learned counsel further canvassed that there are inconsistent versions of the occurrence. The FIR speaks of only one fire, whereas the witnesses state that the appellant opened fire thrice. In view of contradictory versions conviction of appellant can not be sustained. Reliance was placed on State of Haryana vs. Gurdial Singh (2), Ramasray Pandey vs. State of Bihar (3), State of Rajasthan vs. Rajendra Singh (4) and Mohd. Iqbal M. Shekh vs. State of Maharashtra (5). (18). Ramasray Pandey vs. State of Bihar (supra) was the case wherein the eye witnesses did not speak truth about the genesis of the occurrence and the place of incident. They irretrievably mutitating the truth with regard to number of assailants and the author of fatal blow. Alleged oral dying declaration of the deceased was hopelessly contradicting and unbelievable. Under those circumstances it was held by their Lordships of the Supreme Court that there was no credible evidence on record to bring home the charge of murder. (19). In State of Haryana vs. Gurdial Singh (supra) there were two versions. The one version in the statements made before the police was that `G shot dead the deceased whereas in the evidence before the court `P was responsible for murder. It was indicated by the Honble Supreme Court that in view of contradictory versions conviction of `P could not be sustained. (20). The one version in the statements made before the police was that `G shot dead the deceased whereas in the evidence before the court `P was responsible for murder. It was indicated by the Honble Supreme Court that in view of contradictory versions conviction of `P could not be sustained. (20). In State of Rajasthan vs. Rajendra Singh (supra) no gun shot injuries were found on deceased as positively stated by the eye witnesses. Injuries on the person of accused not explained. Acquittal of the accused held proper on the ground that eye witnesses were not reliable as they were not willing to give true version and suppressing material facts. (21). Placing reliance on Mohd. Iqbal M. Shaikh vs. State of Maharashtra (supra) it was urged by the learned counsel that evidence of prosecution consists of only chaff and the question of separating chaff from the grain would not arise. Their Lordships of the Supreme Court in the said case indicated in para 19 thus:- `` We are quite aware of the principle that in a country like India where it is difficult to find witness who has not made any embellishment or exaggeration, and therefore, in such case court would be justified in separating the chaff from the grain and then act upon the grain. But where the evidence consists of only chaff as in the present case, question of separating chaff from the grain would not arise. (22). We have closely scanned the FIR, Post Mortem Report and the statements of Jai Singh, Hanuman and Ram Chandra Singh @ Nanar Singh. According to Mr. Bajwa learned counsel for the appellant following material infirmities are present in the prosecution case.- (i) As per FIR (Ex.P.6) appellant Jaiveer shot only one fire on the chest of deceased Ganga Singh but in the statement before the trial Judge it was stated by Jai Singh that Jaiveer opened fire thrice. (ii) The FIR was reached in the court of Magistrate on March 10, 1993 at 12.45 p.m. and there was no explanation for this delay. (iii) There is no reference of empties in the FIR. (iv) Conduct of witnesses is unnatural. (v) Gun was shot at a distance of three to four feet but from the post mortem report this theory of prosecution appears to be false and shot was fired from close range. (vi) Recovery of katta was planted. (iii) There is no reference of empties in the FIR. (iv) Conduct of witnesses is unnatural. (v) Gun was shot at a distance of three to four feet but from the post mortem report this theory of prosecution appears to be false and shot was fired from close range. (vi) Recovery of katta was planted. (vii) From the condition of the dead body the death must have occurred before the wee hours and all the three witnesses are obvious lier. The witnesses have concealed the true version of the occurrence and even if their statements are taken at their face value it is totally inconsistent with the medical evidence and the ballistic experts evidence. Reliance was placed on Ram Narain vs. State of Punjab (6), wherein their Lordships of the Supreme Court propounded that accused is entitled to acquittal where the prosecution evidence is inconsistent with the medical evidence and that of ballistic expert. (23). A look at the Post Mortem report (Ex. P.38) reveals that cause of death of deceased Ganga Singh was shock and internal haemorrhage from lungs and fractures following Gun shot injuries. There were three gun shot entry wounds of the same size and all injuries were ante mortem in nature. According to Dr. B.S. Daderwal (PW. 21) following injuries were found on the body of Ganga Singh- (i) One round gun shot entry wound size 1/4 x 1/4 on left third sterno costal region. (ii) One gun shot exit wound size 1/2 x 1/2 below the right second rib. (iii) One oval gun shot entry wound 1/4 x 1/4 on the right side of back. (iv) One oval gun shot entry wound on posterior auxiliary line on 5th rib 1/4 x 1/4. (v) One gun-shot exit wound 1/2 x 1/2 x 3/4 below the left scapulour inferior angle on 4th left rib at a distance of 3/4 from injury No.4. (24). In the cross-examination Dr. B.S. Daderwal stated that he did not find smoking and blackening in the surroundings of the wounds. Gun power was also not found in the wounds. (25). It is no doubt true that in the FIR it was stated by Jaisingh that Jaiveer shot gun fire on the chest of Ganga Singh and in the examination in chief before the trial Judge he deposed that Jaiveer opened fire, however in the cross-examination he clarified that Jaiveer opened fire thrice. (25). It is no doubt true that in the FIR it was stated by Jaisingh that Jaiveer shot gun fire on the chest of Ganga Singh and in the examination in chief before the trial Judge he deposed that Jaiveer opened fire, however in the cross-examination he clarified that Jaiveer opened fire thrice. Hanuman and Ramchandra @ Nanar Singh also stated that Jaiveer shot three fires from the katta. According to these witnesses it was Jaiveer who shot fires at Ganga Singh and killed him. There is a consistency in the statements of the witnesses. All the three witnesses spoke truth about the genesis of the occurrence and the place of incident. They are consistent with regard to author of the injuries. The version made in the FIR is not different from the version made before the trial court. The eye witnesses categorically stated that Jaiveer inflicted gun shot injuries to Ganga Singh and corresponding Gun shot injuries were found in the post mortem report of Ganga Singh. In the FIR informant Jai Singh stated thus- ``JAIVEER NE KATTE SE GANGA SINGH KI CHHATI PAR FIRE KAR DIYA (JAIVEER OPENED FIRE FROM THE KATTA ON THE CHEST OF GANGA SINGH). In the examination in chief before the learned trial Judge, Jai Singh had deposed as follows- ``ITNI HI DER MAIN JAIVEER NE FIRE KAR DIYE (within this duration Jaiveer opened fire) In the cross examination, however he clarified that Jaiveer opened fire three times. (26). We wish to refer at this juncture the observations made by their Lordships of the Supreme Court in Leela Ram vs. State of Haryana (7). The High Court of Punjab and Haryana acquitted the accused on the ground that the eye witnesses account regarding the number of shots fired by the accused on the deceased stood contradicted by medical evidence. The positive case of the prosecution as set up by Leela Ram (the son of the deceased) was that two shots were fired by the accused at the deceased but the High Court after scanning medical testimony was of the view that injuries on the dead body of the deceased were the result of one gun shot and not of two shots as stated by the eye witnesses. Leela Ram assailed the judgment of the High Court by filing S.L.P. before the Honble Apex Court. Leela Ram assailed the judgment of the High Court by filing S.L.P. before the Honble Apex Court. Their Lordships of the Supreme Court set aside the acquittal in para 15 of the judgment indicated thus- ``....Whether there was one shot or two shots, can it not be termed to be immaterial in the matter of assessing the culpability of the accused. The son who saw his father has been shot at and thereafter fell dead-total stunning effect on the son and it is on this score that mere hair splitting on the available evidence ought not to be undertaken and instead of totality of the situation ought to have been reviewed.... In respect of medical evidence it was observed that- ``...Needless to say that the Doctor probably has not been able to match the cross examining lawyer and there was thus an unequal duel between the medical man and a refined lawyer. (27). In the case on hand Jai Singh (PW. 5) the brother of deceased Ganga Singh, who saw his brother has been shot at and thereafter fell dead, it seems, had on him the stunning effect of the incident. On the facts the presence of Jai Singh at the field where the incident occurred, being the real brother of deceased appears to be quite natural by reason of the fact that the field belonged to both of them and they had gone there together for the purpose of watering it. (28). We are unable to pursuade ourselves to agree with the submissions advanced before us by the learned counsel for the appellant that there are inconsistent versions of the occurrence. The discrepancies referred to by learned counsel in our opinion are minor, insignificant, natural and not material. Their Lordships of the Supreme Court in State of Rajasthan vs. Kalki and others (8), indicated thus- (Para 7) ``In the depositions of witnesses there are always normal discrepancies however honest and truthful they may be. These discrepancies are due to normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of occurrence and the like. Material discrepancies are those which are not normal, and not expect of a normal person. (29). These discrepancies are due to normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of occurrence and the like. Material discrepancies are those which are not normal, and not expect of a normal person. (29). There is no dispute about the fact that Ganga Singh died as a result of the Gun shot injuries and all the three eye witnesses attributed the Gun shot injuries to the appellant Jaiveer. We have considered the evidence from the point of view of trustworthiness and we are satisfied that the eye witnesses had not spoken untruth and their testimony had not been polluted. The arguments raised by Mr. Bajwa learned counsel for the appellant with the help of post mortem examination of the deceased do not appeal to us in view of ratio indicated in Kehar Singh vs. State (Delhi Administration) (9). In para 42 their Lordships propounded thus- ``42. Learned counsel for Appellant No.1 Satwant Singh also made a reference to some of the questions which were raised before the High Court in respect of the post mortem, although learned counsel appearing for the other two appellants did not seriously raise those questions. It is apparent that in the facts of the case as the evidence stands the question of postmortem or a fuller post mortem was necessary or not loses all its significance. There is no dispute that she died as a result of the gun shot injuries which was inflicted by Beant Singh and Satwant Singh, one who shot from his service revolver and other from the carbine. In view of such clear evidence about the cause of death, the post mortem examination loses all its significance. It becomes important only in cases where the cause of death is to be established and is a matter of controversy. (30). After having gone through the evidence of Doctor B.S. Daderwal we are of the view that his testimony could not be said to be inconsistent with the evidence of the eye witnesses. What was said to be inconsistent was only a mere probability which was indicated by the doctor in the cross examination. (30). After having gone through the evidence of Doctor B.S. Daderwal we are of the view that his testimony could not be said to be inconsistent with the evidence of the eye witnesses. What was said to be inconsistent was only a mere probability which was indicated by the doctor in the cross examination. Thus the ratio of the judicial pronouncements on which reliance has been placed by the learned counsel for the appellant is of no help to the appellant in the facts and circumstances of the instant case. (31). That takes us to the other submissions of Mr. Bajwa, learned counsel for the appellant. After having scanned the FIR we have noticed that though it was lodged on March 8, 1993 at 10.05 a.m. but it reached in the court of Magistrate at 12.45 p.m. on March 10, 1993. Learned Magistrate put a note that on account of Holi holidays the FIR was produced on March 10. Thus this ground is of no help to the appellant. The delay in reaching the FIR to the Court of Magistrate stands explained. In so far as submissions in regard to non-mentioning of empties in the FIR is concerned, we are of the view that it is not fatal in the facts and circumstances of this case. Site plan (Ex.P.8) was promptly drawn on the date of the occurrence i.e. on March 8, 1993 at 12.10 p.m. wherein at place X-1 two empty cartridges were found lying. They were seized on March 8, 1993 at 1.00 p.m. vide Ex. P.39. Thus it can not be presumed that empties were planted. The police recovered one Katta (country made pistol) at the instance of the appellant vide Ex. P.28, the said empty cartridges and country made pistol were sent to the FSL for examination. Randhir Singh (PW 23) delivered them to the FSL and according to him the seals of the packets were intact throughout. Country made pistol recovered from co-accused Raj Pal Singh (convicted under Section 3/25 of the Arms Act) was also sent to FSL. Report of FSL is Ex. P.44. The report after physical and chemical examination of barrel residues indicated that country made pistol recovered at the instance of the appellant had been fired. It was further indicated that hole present on the T-shirt of the deceased appear to have been caused by copper jacketed projectile. Report of FSL is Ex. P.44. The report after physical and chemical examination of barrel residues indicated that country made pistol recovered at the instance of the appellant had been fired. It was further indicated that hole present on the T-shirt of the deceased appear to have been caused by copper jacketed projectile. The presence of powder charge residues on and around the hole present of front portion of the T-shirt indicate that the shot has been fired from close range. (32). In so far as recovery of katta at the instance of accused Jaiveer is concerned, it was attested by the police officer and independent search witness and we are satisfied that it did not introduce any serious infirmity in the evidence furnished by the recoveries which at best was only a corroborative piece of evidence. (33). It has come in the evidence of Jai Singh (PW.5) that the appellant and the deceased had animus. The appellant earlier had been convicted in a criminal case of killing the two real brothers of the deceased, though the High Court allowed his appeal and acquitted him. The theory propounded by learned counsel for the appellant that the witnesses reached at the place of incident much after the occurrence had taken place, is not acceptable to us and we are unable to hold that presence of witnesses Jai Singh, Hanuman and Ram Chandra Singh @ Nanar Singh as doubtful for seeing the gun shot fire made on the deceased by the appellant, on the hypothesis made by the learned counsel for the appellant. We find the depositions of all the three witnesses as honest and true. (34). In view of what we have discussed hereinabove we find no merit in the instant criminal appeal, it is accordingly dismissed and the impugned judgment of the learned Additional Sessions Judge Khetri (Distt. Jhunjhunu) stands confirmed.