Judgment BRAJ NANDAN PRASAD SINGH, J. 1. Though factual matrix transpiring in the fardbeyan of Paras Nath Banwasi (PW 14) and narrative unfolded by him in his evidence at trial, have been fairly spelt out in the judgment of the Court below, we wish to reiterate them with brevity for better appreciation of contentions that were raised at Bar. One Ganesh Mali (hereinafter referred to as deceased), who was a flowerman by profession, as usual, left his house preceding 9.30 a.m. on 3.10.1995, having taken his breakfast, for distribution of flowers in rice mill. He proceeded on foot from his village to Deohalia market and after staying in the market for a while, finding no vehicle for Ramgarh, he continued his journey on foot, and it was alleged that shortly after he reached Labedah More, he noticed Sheo Charan Kushwaha and Sanjay Kushwaha (hereinafter referred to as the appellants), standing on the road, obviously waiting for some one, and shortly thereafter, when Ganesh Mali happened to reach there on bicycle, his movement was restricted by them who having caught hold of the bicycle, fired shot on him, pursuant to which the deceased dropped dead. The appellants shortly, thereafter, escaped in the nearby sugarcane field. The Police Officer who arrived within half an hour of the incident, visited place of occurrence, prepared inquest report over the dead body of the deceased, and fardbeyan of Paras Nath Banwasi (PW 14) at 10 hours on 3rd October, 1995 at Masarhi rice mill was recorded by Shri Ram Kripal Sharma, Sub Inspector of Police, O/C Ramgarh Police Station. 2. As usual, after the police was set in motion, investigation followed, in course of which, Police Officer visited place of occurrence, prepared inquest report of the dead body of the deceased, recorded statement of the witnesses, seized blood stained earth and also front part of the cartridges, noticed a bicycle lying on the road adjacent to the dead body of Ganesh Mali, took steps for apprehension of the assailants and eventually on conclusion of investigation, laid charge-sheet before the Court showing the assailants absconding. 3. 3. In the eventual trial that followed, the State examined altogether 17 witnesses and those examined by the State include family members of the deceased Paras Nath Banwasi, sole eye-witness, the doctor who held autopsy over the dead body of the deceased, Police Officer who performed onerous task of investigation and also host of witnesses who in fact turned volte face to the State. 4. Defence of the appellants both before the Court below and this Court had been denial of allegations and false implication. However, defence had not chosen to examine any witness and the trial Court while rejecting plea of innocence of the appellants, recorded verdict of guilt, finding appellants guilty under Section 302/34 of the Indian Penal Code (IPC), and sentenced him to undergo imprisonment for life. Trial Court found appellants guilty also under Section 27(1) of the Arms Act, but no separate sentence was awarded on this count. 5. Various contentions were raised at Bar to assail the findings recorded by the Court below and it was sought to be urged that though a lot of witnesses were examined at trial by the State, majority of them had turned volte face to the State, and hence, falsity of prosecution allegation is writ large, to persuade the Court to disbelieve the solitary eye-witness. It is sought to be urged that in background of majority of witnesses turning hostile, solitary ocular account given by PW 14 which too was not free from blemishes, did not deserve credence, placing reliance on whom, the trial Court had rushed to erroneous conclusion about recording finding of guilt against the appellants. 6. Other plank of argument was that on his showing of PW 14, Deohalia Raigarh Road was a busy place and buses usually ply on the road and thence there was no good reason for PW 14 to negotiate distance on foot particularly when means of transport was available. It is contended that narrations given by solitary eye-witness did not impress about there being any object for his loitering in the market without any object. It is contended that narrations given by solitary eye-witness did not impress about there being any object for his loitering in the market without any object. The finding recorded by the doctor about there being only one gun shot injury on the body of the deceased, contrary to the accusation attributed to the appellants about both of them having fired on the deceased, was also assailed on premises that this too manifestly suggests that PW 14 was not eye-witness, as finding recorded by the doctor runs counter to the ocular testimony given by the witnesses. Though ocular narration given by Paras Nath Banwasi (PW 14), was also criticized on premises that though the assailants fired shots on the deceased on his chest the finding of the doctor was quite reverse, as while entry wound was on back, exit wound was on the chest. Failure of the Investigating Officer to send the blood stained earth and also front part of the cartridges found at the place of occurrence for their chemical examination or to the ballistic expert was also taken to be a serious lapse on the part of the State which did not constitute clinching evidence about blood found on the earth to be human blood. Yet it is urged that it would appear from the Voters List (Exhibit A), placed on the record that Paras Nath Banwasi did not hail from village Deohalia, and in fact he was resident of village Chhatarpur from where he was also a voter. 7. Before we bestow our consideration to these arguments which were canvassed at Bar on behalf of the appellants, we wish to dwell upon the testimony of witnesses. Admittedly Lalita Kumari (PW 1), Gopal Rai (PW 2), Butan Ram (PW 3), Kadu Mallah (PW 4), Nibulal Bari (PW 7), and Tribhwan Singh (PW 10), had demonstrated their complete ignorance about the incident and had turned volte face to the State. Sanjay Kumar Jaiswal (PW 5), who is shown to be a seizure list witness, had disowned any seizure having been effected by the Police Officer in his presence, though he acknowledged his signature in the seizure memo, and his excuse was that Police Officer had secured his signature on a plain piece of paper. Munna Sah (PW 6), stated to have learnt about Ganesh Mali having been killed. Munna Sah (PW 6), stated to have learnt about Ganesh Mali having been killed. Likewise, Birendra Yadav (PW 8), stated that while he was in rice mill, he learnt about some incident. This witness also resiled from his statement made before the Magistrate under Section 164 of the Code of Criminal Procedure. Ram Singasan Tiwary (PW 11), stated to have learnt about one flowerman having been killed. Attention of these witnesses was drawn to their statements allegedly rendered before the Police and from evidence of Investigating Officer it would appear that these witnesses had not made such parallel statements before the Police and had claimed to have known about the incident shortly on visiting the place of occurrence and hence suppressed those facts during trial. 8. Now, adverting to other set of witnesses, who do not claim to be eyewitnesses, but have lent some assurance to the prosecution allegation about killing of the deceased, firstly we may refer to the evidence of Ramdai (PW 9), who happens to be mother of the deceased. She says that as usual, her son having taken breakfast, on the fateful day, left for rice mill for distributing flower and shortly thereafter, on hearing alarm about killing of her son, she rushed to the place of occurrence and found her son dead, and name of the assailants too was disclosed to her by Paras Nath Banwasi (PW 14). The witness states that though the deceased was not on litigating terms with the appellants, he being a social worker had been desisting appellants for their involvement in nefarious activities and anti social work. Though attention of this witness had been drawn by the defence towards narrations made by her before the Police, during investigation, we find that there has been no material omission in her evidence to discredit her as only omission on her part was about mentioning the bicycle, on which her son had left house. 9. Adverting to the evidence of other witness, namely, Bihari Musahar (PW 12), we find witness stating at trial that while he was on Dewhalia road, he, on hearing alarm rushed to the place of occurrence and found Ganesh Mali dead by fire arms wound, and it was Paras Nath Banwasi (PW 14), who told him about appellants having killed Ganesh Mali from their fire arms. Bihari Musahar (PW 12), was also a witness to the preparation of the inquest report by the Police Officer, and quite with the tune of the mother of the deceased, this witness too states that since the deceased was a social worker, who had been desisting appellants for their involvement in anti social work, they being inimical, had shot him dead. We notice that attention of this witness too was drawn by the defence towards statement rendered before the Police but there has not been any disparity in the statement of witnesses rendered before the Police and those led at trial as in both the statements he stated to have learnt about incident and also about assailants of the deceased, from Paras Nath Banwasi (PW 14), hence, we find that this witness too had made parallel statement before the Police, and there appears no good reason to discard his testimony. 10. Other witness was Mosst. Binda Devi (PW 13). She is wife of the deceased and she too stated to have rushed to the place of occurrence along with her mother- in-law on alarms being raised about killing of her husband. She found her husband dead on the plank of the road and blood oozing out from his Chest. The details of the incident and also the name of the assailants was disclosed to her by Paras Nath Banwasi. Her attention too had been drawn by the defence towards narrations made before the Police, and though we find that no such parallel statement had been made before the Police about Paras Nath Banwasi making disclosure to her either about details of the incident or name of the assailants, but for some reason which we shall assign later on, this omission on the part of the witness did not appear to be material, in view of both Ramdai (PW 9), and Mosst. Binda Devi (PW 13), reaching place of occurrence simultaneously when Paras Nath Banwasi disclosed details of the incident and also name of the assailants, and it seems quite unlikely that while Ramdai (PW 9), would be receptive to the disclosure made by Paras Nath Banwasi, Binda Devi (PW 13) would not. Binda Devi (PW 13), reaching place of occurrence simultaneously when Paras Nath Banwasi disclosed details of the incident and also name of the assailants, and it seems quite unlikely that while Ramdai (PW 9), would be receptive to the disclosure made by Paras Nath Banwasi, Binda Devi (PW 13) would not. This fact cannot be lost sight of that she was none else but the wife of the deceased and it is not unlikely that even when disclosures were made by the witness to her in presence of her mother-in- law, she might have missed to make such narrations before the Police and for this reason, we find this witness too credible. 11. Reiterating narrations which he rendered before the Court in his earliest version, Paras Nath Banwasi (PW 14), would state that on fateful day, he proceeded for Deohalia market from his village and after staying for a while, he proceeded to Ramgarh on foot and when he reached near Labdeha, he saw appellants standing, and the deceased coming from side of rice mill on bicycle, and shortly before deceased could reach Labdeha more, appellants restricted his movement and shot him dead with firearms and escaped in the nearby sugarcane field. Narrations made by this witness at trial was quite in conformity with the earliest version and no serious infirmity has crept in his evidence to discredit him and to render him unworthy of credence. The witness was quite emphatic that he hails from village Deohalia and had refuted suggestions made by the defence that he was resident of village Chhatarpur. 12. Dr. Devi Prasad (PW 15), who held autopsy over the dead body of the deceased noticed following ante mortem injuries : (i) Lacerated wound 1/4"x 1/4" in diameter x chest cavity deep margin tatooed and inverted over left side of back (lower ribs) 4" away from left scapular region which was wound of entry. (ii) Lacerated wound 3/4" x 1/4"x chest cavity deep 2" above the right nipple in front of chest. Margin of wound is inverted, which is wound of exit. On opening the chest, chest cavity was full of dark fluid below heart, apex of the both chambers of the heart were damaged and lacerated. Left lung was pale and ruptured. Right lung was also ruptured and haemotised. Both injuries were communicating to each other. Margin of wound is inverted, which is wound of exit. On opening the chest, chest cavity was full of dark fluid below heart, apex of the both chambers of the heart were damaged and lacerated. Left lung was pale and ruptured. Right lung was also ruptured and haemotised. Both injuries were communicating to each other. On opening the abdomen it contained small amount of semi solid food material. Both injuries were ante mortem, grievous and caused by firearms and death was due to excessive haemorrhage and shock as a result of abovementioned inquires leading to cardio respiratory failure. Time lapsed since death and post mortem examination was approximately within six hours. Injuries in his opinion were sufficient in ordinary course of nature to cause death. 13 The Police Officer, who conducted investigation, happens to be Ram Kripal Sharma (PW 16). He stated to have started for the place of occurrence shortly on receipt of telephonic information about killing of a person and on reaching the place of occurrence, he noticed dead body on the northern plank of the road, west to the rice mill. He stated to have recorded fardbeyan of Paras Nath Banwasi, inspected the place of occurrence, got inquest report prepared, collected blood stained earth and cartridges and got seizure list prepared in respect thereof, recorded statement of witnesses, took steps for apprehension of the assailants, got autopsy held over the dead body of the deceased and on completion of investigation, since the assailants were absconding, laid charge-sheet before the Court showing them absconders. The Police Officer stated to have seized bicycle lying adjacent to the dead body on the road. Md. Asgar Ali (PW 17), was a formal witness who proved statement of Birendra Yadav (PW 8). recorded under Section 164 of the Code of Criminal Procedure. 14. As we have noticed, a lot of arguments were canvassed on behalf of the appellants, obviously to assail the findinga recorded by the Court below. Admittedly, as we have noticed, some of the witnesses examined by the State had turned hostile. recorded under Section 164 of the Code of Criminal Procedure. 14. As we have noticed, a lot of arguments were canvassed on behalf of the appellants, obviously to assail the findinga recorded by the Court below. Admittedly, as we have noticed, some of the witnesses examined by the State had turned hostile. However contention raised at Bar that since majority of the witnesses had turned volte face to the State, the sole testimony of PW 14 too had to be discredited, did not impress us for the simple reason that credibility of a witness has to be judged on its own merit, and that apart, those who had turned volte face to the State could not have been eye-witnesses to the incident. While commenting on PW 14, arguments were made to persuade us to discredit this witness, and reliance on this score was placed on a decision of the Apex Court reported in AIR 1994 SC 542 (State of Rajasthan V/s. Bhola Singh and another. However, ratio of the case cited at Bar is not applicable to the facts of the instant case, as in that case, testimony of the witness was disbelieved by the Court, there being no means of identification of the assailants, and also because those who were eye-witnesses, were not examined at trial without assigning good reasons. We have critically analysed evidence of Paras Nath Banwasi (PW 14), and we find that his evidence was free from blemishes which could not render him unworthy of credence. Though Investigating Officer stated to have seized blood stained earth and also front part of the cartridges from the place of occurrence, admittedly there has been no evidence of their examination by expert. But for that reason alone, the bona fide of the prosecution case cannot be thrown to wind, as it has been consistently reiterated by Courts that these are matters of petty details which did not befog the real issue, and that apart for lapses on part of the Investigating Officer, the prosecution was not to be a casualty. We may notice other arguments too which were highlighted at Bar. We may notice other arguments too which were highlighted at Bar. Both the appellants were attributed to have fired shots on the deceased, and true it is though the doctor found both injuries communicating to each other, in our view, there was no material variation on this point also, and instead of hairsplitting, totality of situation has to be taken into consideration, and without multiplying decisions on this point, we may refer to the decision of the Apex Court reported in 2000 SCC (Crl) 222 (Leela Ram V/s. State of Haryana and others). Almost in similar situation, while rejecting such plea, which has been raised at Bar, the Apex Court found both eye-witness and the doctor credible, though against accusation of firing two shots, there was one firearm wound on the body of the deceased, and in this view of the matter, we find argument canvassed on this score too meritless and devoid of merit. This leads us to consider other argument. As per the accusations about the assailants firing from the front, the doctor recorded positive finding about entry wound being on the back of the deceased, and on this score too, we are of the view that apparently eye-witness had seen the incident from some distance and possibility of there being mistake in stating the situs of injury cannot be overlooked, and on this score too we may profitably refer to a decision of the Apex Court of the land reported in (1998) 6 SCC 240 (State of Bihar V/s. Padarath Singh and others). Learned counsel for the State has brought to our notice another decision of the Apex Court reported in 2002 SCC (Crl) 371 (Pandurang Kalu Patil and another V/s. State of Maharashtra). However, we have noticed that in the case cited at Bar the deceased had sustained injuries on the chest in the process of being chased and in that backdrop, observations were made by Apex Court that in reflect action, sustaining injuries on the chest was not a remote possibility. However, we have noticed that in the case cited at Bar the deceased had sustained injuries on the chest in the process of being chased and in that backdrop, observations were made by Apex Court that in reflect action, sustaining injuries on the chest was not a remote possibility. Though prosecution did not have a case that the deceased sustained injury in the process of being chased, yet we are of the view that once the deceased might have apprehended danger at the hands of the assailants who were holding fire arms, he was not expected to be static and immobile, and it was most likely that he might have sustained injury on the back, and hence viewed in this perspective, we reject contentions raised at Bar on this score too. 15. Arguments were made that though a large number of persons had thronged to the place of occurrence shortly after the incident, they were withheld by the State and on this score too we find that had those persons been examined, they would not have been ocular witness and hence their non examination did not introduce any legal infirmity in the prosecution version. 16. Narratives unfolded by the mother and wife of the deceased and also the sole eye-witness do suggest that deceased was a social worker, who had been desisting appellants for their involvement in nefarious and anti social activities. From evidence of the Investigating Officer, it appears that the appellants had criminal antecedent, as they were involved in some cases. True it is that Paras Nath Banwasi too was in the same organization, in which the deceased was, and in that backdrop, he may be interested witness. The evidence placed on the record do suggest that the appellants had been insisting on the deceased for removal of Paras Nath Banwasi from said organization, and their induction in his place. These matters might be of some significance but so far object or motive was concerned. Once we find the witnesses credible, the quest for motive or object was only academic, and it pells into insignificance. Simply because the informant had chosen to negotiate distance on foot, was not a cogent ground to discredit his testimony. As the witness says that as buses were not available at that time for going to Ramgarh, he opted to cover distance on foot, and there appears to be nothing unusual in it. Simply because the informant had chosen to negotiate distance on foot, was not a cogent ground to discredit his testimony. As the witness says that as buses were not available at that time for going to Ramgarh, he opted to cover distance on foot, and there appears to be nothing unusual in it. 17. Feeble arguments were made by the learned counsel for the appellants to argue alternatively that there was no evidence that the appellants came with premeditation to execute killing of the deceased, and as against allegation of being firing of two shots, there was only one firearm wound, it is yet to be determined as to who was the assailant, and on this score too we reject these contentions. Evidence of Paras Nath Banwasi was that he noticed assailants standing on the road with fire arms and viewed in this perspective, we find strength in argument of the learned counsel for the State that the assailants had visited the place of occurrence with premeditation of executing the killing of the deceased, and this argument too appears to be quite fragile to merit consideration. Since there has been accusation about both the appellants having taken recourse to firing, and they suffered conviction under Section 302/34 IPC, this argument too loses all its significance as to who of the two appellants was assailant as both of them shared common intention, in pursuance of which assailants resorted to firing and executed killing of the deceased, and that apart, even if there be minor embellishment or trivial discrepancies, they did not render evidence of eye-witness unbelievable. We have found that more or less similar arguments were canvassed before the Court below and the Court below had rejected these contentions with sturdy and good reasonings. 18. Having bestowed our anxious and deepest consideration to the facts and circumstances of the case and also evidences placed on the record, we find that the findings recorded by Court below were well merited which did not warrant any interference. There being no merit, the appeal is accordingly dismissed. Since appellant No. 2 Sanjay Kushwaha is on bail, his bail bonds are cancelled and it is directed that all steps be taken by the Court below for his apprehension and confinement to custody to serve out the sentence. SACHCHIDANAND JHA, J. 19 I agree.