Judgment BRAJ NANDAN PRASAD SINGH, J. 1. Since prosecution case has been fairly spelt out in the judgment of the Court below, we do not wish to discuss them in details. However, salient features of the case may be noticed at the threshold. 2. It was alleged that in the midnight of 22nd June, 1996, while family members of Manoj Kumar Rai (PW 7) were fast asleep on the roof of the house, miscreants, who were 10/12, in numbers, holding arms and torch, came upstairs and began to abuse them. When deceased Yogendra Rai questioned them for their action, Dinesh Rai allegedly on exhortation made by Nandu Rai, pumped bullet in his chest who dropped injured. When bombs were lobbed, Diplal Rai suffered injuries from explosion. Rekha Devi suffered pellet injuries and it was alleged that Jaikal Devi too suffered injuries when she was assaulted with hard and blunt object. The injured were carried to the hospital when Yogendra Rai succumbed to the injuries sustained by him. It was also alleged in fardbeyan of Manoj Kumar Rai, which was registered at 1.15 hours and 22nd June, 1996 at his house, that miscreants who were downstairs, had also removed house belonging which include ornaments, wearing apparel, cash etc. 3. A police case was registered on behest of said Manoj Kumar Rai, son of the deceased, pursuant to which, as usual, investigation commenced. The Police Officer entrusted with the task of investigation, it seems, recorded statement of witnesses, visited place of occurrence, prepared inquest report over the dead body of the deceased, got autopsy held by the doctor over the dead body of Yogendra Rai and took steps for apprehension of the miscreants and eventually laid charge- sheet before the Court. 4. It seems that though prosecution commenced against nine persons including Nandu Rai (since deceased), only appellants were put on trial on various charges, and at trial, State examined altogether 12 witnesses, who are inmates of the house, two witnesses namely, Ram Padarath Jha (PW 11) and Dhaneshwar Upadhyay (PW 12), formal in nature, who simply brought on the record, First Information Report, fardbeyan and inquest report. Jaikal Devi, stated to be one of the injured, was examined as PW 8 who testified about sustaining injuries due to assault. Jaikal Devi, stated to be one of the injured, was examined as PW 8 who testified about sustaining injuries due to assault. Rekha Devi, another female said to be injured, from pellets, was examined as PW 9 and she too testified about Yogendra Rai having sustained gun shot injuries, miscreants lobbing bomb and commission of dacoity in the house, in the night of incident. Dr. Vinod Kumar Mehta, who held autopsy over the dead body of the deceased Yogendra Rai, was examined as PW 10 and we shall advert to his evidence later on. 5. Defence of the appellants both before the Court below and this Court was that of innocence and false implication due to persisting animosity between the parties for which it is stated at Bar that there had been good evidence. Other defence of the appellants, while admitting death of Yogendra Rai, was that he was of bad reputation and criminal antecedents and hence a large number of persons had been hostile to him and hence his killing due to bad conduct was not an improbability. Other defence of the appellants was that since a sradh ceremony had been observed on 22nd June, 1996, in the house of Ramashish Rai due to death of his daughter-in-law, it was most unlikely that his family members would indulge in such violence. However, defence had not chosen to examine witness either to strengthen their defence or to counter the accusation attributed to the appellants. Trial Court on consideration of the evidences available on the record, rejecting plea of innocence of the appellants did not hold the appellants guilty of the charges under Sections 307 and 380, IPC and accordingly, recorded finding of acquittal against them on this count. Though all the appellants stood charged also under Section 302/149, IPC, though no such explicit finding about recording acquittal has been recorded, it seems that the trial Court had not found rest of the appellants except Dinesh Rai, to be guilty of sharing common object. There is no gainsaying the fact that the trial Court recorded finding of guilt against rest appellants also under Sections 452 and 148, IPC, for which, while on the first count they were sentenced to suffer rigorous imprisonment for a term of five years, on the second count, they were sentenced to suffer rigorous imprisonment for a term of three years. As for Dinesh Rai, he suffered conviction both under Section 302, IPC and 27 of the Arms Act, but while for the second count no separate sentence was awarded to him, for the first count, he was sentenced to life imprisonment. Though prosecution had been launched also against Nanhu Rai, he was not put on trial. When hearing of the appeal commenced before us, it was stated at Bar that Chhedi Rai too, one of the appellants, had died during pendency of the appeal, though no evidence about his death was placed on the record. 6. Since manifold contentions were raised at Bar to assail the finding recorded by Court below, we wish to analyse essence of narrations made by the witnesses, lest we may not loose sight of the submissions canvassed on behalf of the appellants. Reiterating his earliest version, which he rendered before the Police shortly after the incident, Manoj Kumar Rai (PW 7) states that in the night of incident while he and his family members were fast asleep on the roof of the house, 10/12 miscreants variously armed came upstairs and began to assault them and also hurled abuses and when they were questioned by his father, Dinesh Rai on exhortation made by Nandu Rai, pumped pellet in his chest who dropped injured. When bombs were lobbed, Diplal Rai suffered injuries from explosion. His wife Rekha Devi too suffered injuries from the pellets, and about Jaikal, the witness states that she too was assaulted by miscreants with hard blunt object. Though the injured was carried to hospital, his father succumbed to the injuries. At this stage learned counsel for the appellants referring to evidence of this witness would highlight that if fardbeyan of Manoj Kumar Rai recorded by the Police was to be given any credence, fardbeyan was recorded by Police at Bhagwatipur village but contrary to this assertion of this witness in evidence was that his statement was recorded by Police at medical college hospital, and on this score, contentions are raised that credibility of this witness is open to question. We have found that the trial Court has given consideration to this aspect of the matter and without giving much significance, had proceeded further and we too endorse the finding recorded by Court below, as even if there be such variation, that was not of vital significance to discard credibility of this witness, who is found otherwise credible, and those who had lent assurance to narrations made by Manoj Kumar Rai (PW 7), happen to be Ram Chandra Rai (PW 1), Shanti Devi (PW 2), Ramesh Devi (PW 3), Rajiv Kumar (PW 4), and Champa Devi (PW 6), who had stated with sustained consistencies about appellants going upstairs breaking open door planks of the house, and one of them namely, Dinesh Rai firing shots on Yogendra Rai who dropped injured. Narration in similar terms and veins, were made by them also about miscreants lobbing bomb, and Diplal Rai, Rekha Devi, and Jaikal Devi sustaining injuries, in the same transaction, though no explicit accusation about assailant of an individual victim had been made by these witnesses. These are the essence of narrations made by these witnesses, which we do not wish to discuss in details. 7. Dr. Vinod Kumar Mehta (PW 10) who held autopsy over dead body of Yogendra Rai had noticed four number of oval snapped injuries which were on the chest and mid scapular region, and while injury Nos. 1 and 3 were wounds of entry, injury Nos. 2 and 4 were wounds of exist. These injuries, in estimation of the doctor were anti-mortem in nature caused by fire arms. 8. Thrust of the argument made at Bar on behalf of the appellants was that since animosity persisting between Ramashish Rai and Nandu Rai had been acknowledged by as many as all the witnesses examined by the prosecution at trial, false implication of the appellants appears to be most probable, particularly when motive assigned by the State also appears to be fragile, and our attention on this score had been drawn to evidences of PWs 1, 2, 3, 6 and 7 who had accepted some sort of animosity between family of the deceased on one hand and also family of Nandu and Ramashish on the other. It is now well nigh settled that while animosity may be a tool for false implication, that may be equally a motive for committing an offence and the traditional proverb that enmity is a sharp edged weapon that cuts both ways cannot be lost sight of. In the backdrop of persisting animosity, if good evidences with sustained consistencies are available on the record, we are afraid that can be thrown overboard simply for there being animosity or strained relationship between the parties, and tracing to the genesis of the incident, from the evidences available on the record, it seems that preceding the incident, pursuant to a panchayati, Nandu Rai had to execute a deed in respect of 10 kathas of land in favour of the deceased for which Nandu Rai was aggrieved. Even though motive may be weak or fragile, when direct evidences are available, that pells into insignificance. 9. Highlighting non-examination of Investigating Officer, submission is that it had materially prejudiced th defence, particularly when attention of some of the witnesses had been drawn by the defence at trial to impeach their credibility, there being no parallel statement recorded by the police during investigation, and due to non- examination of Investigation Officer it is stated with stress that prosecution was also guilty of introducing distorted version about place of occurrence which had not been established by good evidence: Now, we may refer to the evidence of Champa Devi (PW 6) whose attention had been drawn by the defence at trial about she having not made parallel statement before the police about Dinesh Rai having fired shots on Yogendra Rai. True it is that had Investigating Officer been examined, some questions which we do not consider vital, would not have remained unanswered. But for that reason alone, neither defence be prejudiced nor that would constitute infirmity in the prosecution version, as even if narrations made by Champa Devi (PW 6), whose credibility is sought to be impeached with the aid of her earlier version made during investigation, is kept out of zone of consideration, evidence of other witnesses are galore to suggest complicity of Dinesh Rai to be the assailant of the deceased, and we have also noticed the positive findings recorded by the doctor, who during postmortem examination had noticed corresponding injuries on the body of the deceased Yogendra Rai. Now, we are of the view that in view of ocular testimony of five witnesses, which corroboration from the positive findings recorded by the doctor, both killing of Yogendra Rai by gun shot injuries and Dinesh Rai to be assailant has been established by unimpeachable evidence. 10. However, some other lucid submissions made by the learned counsel can also be noticed. Contentions were raised that, as we have noticed earlier, that since there was shradh in the family of Ramashish Rai on the day of incident, it was quite unlikely that family members of Ramashish Rai or his relation, who might have attended the sradh, would participate in the incident. Though holding of sradh of the day of incident in the house of Ramashish Rai had been acknowledged by witnesses, complicity of appellants would not be excluded on such consideration alone, as time of holding of sradh is not very much explicit so as to exclude participation of the appellants in the incident. Equally with all persuasiveness, contentions were raised that since it was a darkened night, identification of the appellants on that score too was extremely improbable, particularly when some of the appellants were of other villages and they were stranger to the family of the deceased. 11. Now we may refer to the evidence of PW 1 who states with emphatic assertion that apart from the fact that it was a moonlit night, electric bulb too was burning there at the place of occurrence. Evidence of PW 2 was about flash of torch light, and also burning of electric lamp, and similar had been evidence of PW 6. PW 4 stated that apart from moonlit night, there was also a lamp burning, and similar had been evidence of PW 7 also about there being electric bulb burning on the roof of the house. Among the appellants, Chhedi Rai and Awadhesh Rai hail from village Mohammadpur Sura, which situates at a distance of about 16/18 miles from village Bhagwatipur, and Awadhesh Rai, as has been the evidence of witnesses, happens to be son of Chhedi Rai. Likewise, Lal Babu Rai was shown to be son of Nandu Rai, and said Nandu Rai happens to be son-in-law of Chhedi Rai. As has been the evidence, PW 1 was related in village Sura from where Chhedi Rai hails, and house of father-in- law of PW 1 was at insignificant distance. Likewise, Lal Babu Rai was shown to be son of Nandu Rai, and said Nandu Rai happens to be son-in-law of Chhedi Rai. As has been the evidence, PW 1 was related in village Sura from where Chhedi Rai hails, and house of father-in- law of PW 1 was at insignificant distance. Dinesh Rai though hails from Nasirpur, as has been evidence of witnesses, is married in the family of Ramashish Rai, and he was noticed frequently visiting village Bhagwatipur. Ramchandra Rai (PW 1) was quite familiar with Dinesh Rai, who had been visiting his village, and similar was the evidence of other family members including Shanti Devi (PW 2) and Champa Devi (PW 6). Rajiv Kumar (PW 4) was only 11 years old when he was examined by the State during trial and he too was conversant with Dinesh Rai who had been visiting village Bhagwatipur, he being married in the family of Ramashish Rai. In such state of affairs when witnesses were quite familiar with him, his identification was most probable. Contentions were raised that PW 1 was married in village Sura, and Chhedi Rai and Awadhesh Rai were resident of that village. It was submitted that almost entire relations of Lal Babu Rai including his father, maternal grandfather, and Nandu were implicated in the case, but we find no good evidence about there being any animosity with the family of Lal Babu Rai, that may actuate or animate Manoj Kumar to falsely implicate them, and that apart, as we have noticed, even if there be animosity, in view of good and direct evidence, that would not be a matter of vital significance to persuade the Court to discredit good evidence available on the record. Regard being had to the insignificant distance of village Sura from Bhagwatipur, likelihood of Chhedi Rai and Awadhesh Rai being familiar with the family of the deceased cannot be discounted, particularly, in view of their identification by the witnesses. 12. Unable to offer any meaningful criticism, submission is that even when the house was equipped with electrical connection, it is rather unusual that entire family would be sleeping on the roof, in the night. 12. Unable to offer any meaningful criticism, submission is that even when the house was equipped with electrical connection, it is rather unusual that entire family would be sleeping on the roof, in the night. We do not want to say more on this issue, in view of evidence of almost all the witnesses that entire family members were on the roof of the house in the night of the incident, and there appears to be nothing unusual about it. None of the miscreants, as has been the evidence of witnesses, had masked their faces so as to exclude possibility of their identification. The occurrence took place in the midnight, on 21st June, 1996 and it was within couple of hours that fardbeyan of Manoj Kumar Rai was recorded by the Police at his house, and that reflects that prosecution was launched with all promptitude which has reduced the chances of concoction. Since evidence about identification of the appellants was made also by Rajiv Kumar (PW 4), who was only 11 years old, with emphatic assurance, we find no good reason to disbelieve this witness and discredit his testimony, which did not appear to us to be tutored. 13. Yet it is urged that even though large number of persons had thronged at the place of occurrence during occurrence, prosecution had chosen to examine only those who were house inmates, entirely to the exclusion of those independent witnesses, against whom possibility no eye-brow could have been raised. Though argument appears to be lucrative and attractive at first sight, it looses all its significance in view of narrations made by witnesses. If narrations made by witnesses were given any credence, though Sakal Deo Rai, Sonful Rai, Kanhai Sahni and others had thronged to the place of occurrence, miscreants had made good their escape and in that view of the matter, possibility of these persons to be ocular witnesses of the incident, did not appear to be probable. Evidence of PW 6 was, however, otherwise, as she totally negates presence of villagers during incident, as none of them came upstairs. 14. Evidence of PW 6 was, however, otherwise, as she totally negates presence of villagers during incident, as none of them came upstairs. 14. Another submission made on behalf of the appellants was that there is also variation in narrations made by the witnesses about number of shots allegedly fired by Dinesh Rai, and our attention has been brought to the evidence of PW 3 Rashmi Devi, who states that her husband sustained three firearm injuries. Reference was made also to evidence of Rajiv Kumar (PW 4) who stated to have heard three shots of firing and referring to the positive finding recorded by the doctor about there being only two wounds, learned counsel made endeavour to dig a hole in the prosecution version. However, we are of the view, and which is well nigh settled that corroboration of evidence of ocular witnesses with that of the medical evidence of the doctor with mathematical precision cannot be expected in criminal cases. Firing of one shot or two shots is quite immaterial in matter of assessing culpability of the assailants and the practice of counting number of injuries with shots attributed to the assailants, would in our opinion be a mere hairsplitting exercise, and it is the totality of the situation which ought to be considered by Court and, we may refer to two decisions of the Apex Court of the land, which is reported in 1997 (2) East Cr C 169 (SC) : 1997 Cri LJ 2983 Mithlesh Upadhyaya V/s. State of Bihar and others decision reported in 2000 (1) PLJR (SC) 19 Lata Ram (d) through Dulichand V/s. State of Haryana and another in which observations made by the Apex Court was that variation, in number of shots fired by the accused contradicted by medical evidence would not affect all evidence of witnesses, as firing of one shot or two shots was immaterial in the matter of assessing culpability of the accused. Apart from that, even in the fardbeyan, which was the earliest version of the prosecution, Dinesh Rai was suggested to have fired two successive shots on the deceased. 15. We may also notice the last submission made on behalf of the appellants and that is that though other appellants, except Dinesh Rai, and suffered conviction only under Sections 452 and 148, IPC, they have been acquitted of the major charges. 15. We may also notice the last submission made on behalf of the appellants and that is that though other appellants, except Dinesh Rai, and suffered conviction only under Sections 452 and 148, IPC, they have been acquitted of the major charges. It is brought to our notice that these appellants have suffered incarceration for some period. Prosecution was launched against appellants in the year 1996, and it is stated at Bar that they suffered trauma of protracted prosecution for about 7 years. In these circumstances, having given due consideration to the evidence available on the record which explicitly suggests Dinesh Rai to be author of fatal injuries sustained by Yogendra Rai, we uphold conviction of Dinesh Rai under Section 302, IPC simpliciter notwithstanding charge under Section 302/149, IPC, which in the circumstances, would not prejudice the appellant, since Dinesh Rai had faced trial on these accusations, and evidences too of unimpeachable nature had been available on the record and without burdening our judgment with various judicial pronouncements, we may refer to a decision of Apex Court reported in (2003) 8 SCC 80 , Hiralal and others V/s. State (Govt. of NCT) Delhi. So far rest appellants were concerned, regard being had to the facts and circumstances of the case and also they having suffered incarceration for some period, while upholding finding of guilt recorded by Court below, they are sentenced to the period already undergone by them. As such, appellants, namely, Ramashish Rai, Raj Narayan Rai, Tapesh- war Rai, Bindeshwar Rai, Awadhesh Rai, Chhedi Rai alias Chedi Rai and Lal Babu Rai are discharged from liability of their bail bonds. 16. In the result both the appeals are dismissed with aforesaid modification. SACHCHIDANAND JHA, J. 17 I agree. Appeals dismissed with modification.