Judgment [Per Hon'ble Rajesh Tandon, J.] 1. Present appeal has been filed by accused Ajaypal @ Mintoo and Khempal against the judgment and order dated 17th June 1996 passed by the Sessions Judge, Nainital in Sessions Trial No. 122 of 1995 convicting the accused appellants under sections 302 read with section 34 LP.C. and Section 394 read with Section 34 LP.C. and sentencing them to imprisonment for life. 2. Brief stated the prosecution story as came out from the first information report and the statement of P.W.1 is that deceased Prem Prakash Agarwal was running a flour mill at Kunda Chauraha, P.S. Kashipur. On 5-10-1994 at 4 P.M. he instructed his son Sunil Kumar (P.W.1) on telephone to bring Rs. 10,000/- to his shop. Sunil Kumar reached Kunda Chauraha at about 5 P.M. and handed over the case to his father at the flour mill. Prem Prakash Agarwal kept the money in his trousers pocket. Thereafter Prem Prakash proceeded to answer the call of nature asking his son Sunil Kumar to stay and wait for him. In the meantime witness Vijay Kumar (P.W.2) and Arvind Kumar (P.W.3) also reached there. On inquiry Sunil Kumar told them that he was waiting for his father, as they had to go to Kashipur. The bus was likely to arrive shortly and they expected Sri Prem Prakash Agarwal to come back soon after attending the nature's call but when he did not come back they all proceeded towards the grove where they saw, that the accused Ajaypal alias Mintoo and Khempal had surrounded Prem Prakash. Accused Ajaypal gave him a blow of Danda on the head of Prem Prakash whereupon he fell down. Thereafter accused Khempal inflicted incised wound by knife on the neck of Prem Prakash. When the witnesses proceeded further nearer to the place of incident both the accused fled away. Injured Prem Prakash was being taken brought to the flour mill but he died on the way. The money, which Prem Prakash had kept in his pocket, was missing. 3. Sunil Kumar (P.W.1) submitted a written report (Ex.Ka-1) at the Police Station, Kashipur on the same day, on the basis of which check F.I.R. (Ex.Ka-7) was prepared at 7.10 P.M. and a case was registered on the General Diary, report is Ex.Ka-8. 4. The investigation of the case was entrusted to S.I. Shyam Nath Pande (P.W.6). 3. Sunil Kumar (P.W.1) submitted a written report (Ex.Ka-1) at the Police Station, Kashipur on the same day, on the basis of which check F.I.R. (Ex.Ka-7) was prepared at 7.10 P.M. and a case was registered on the General Diary, report is Ex.Ka-8. 4. The investigation of the case was entrusted to S.I. Shyam Nath Pande (P.W.6). He recorded the statements of witnesses and on 6-10-1994 held the inquest on the dead body and prepared the inquest report (Ex.Ka-4). He inspected the place of occurrence and seized samples of plain earth, blood stained earth, as well as Danda, water bottle etc. He sent the dead body for post mortem examination. He arrested the accused persons and interrogated them. The investigating officer made recovery of the knife the weapon used in the crime and blood stained clothes of the accused persons on the pointing out of the accused. The amount looted by the accused was also recovered by the police. The recovered articles were sent for chemical examination. The report of the Chemical examination is Ex.Ka-18. After completing the investigation, the police submitted charge sheet Ex.Ka-15, against both the accused. 5. Charges under sections 394 read with 34 I.P.C. and 302 read with 34 I.P.C. were framed against the accused persons by the Sessions Judge. They pleaded not guilty and claimed to be tried. 6. To prove its case, the prosecution examined nine witnesses including Dr. P.K. Dixit (P.W.7) who conducted post mortem examination on the dead body of Prem Prakash Agarwal on 6-10-1994 at 10.30 AM and found the following ante mortem injuries: (1) Lacerated wound 6 cm. x 1 cm. x bone deep on the left side of scalp, 10 cm. above the left ear, transverse in direction. (2) Lacerated wound 5 cm. x 1 cm. x bone deep on the right side of scalp, 6 cm. above right ear. (3) Lacerated wound 8cm. x 2cm. x bone deep and bone fractured under the wound on the middle of scalp, 10 cm. above the bridge of nose. (4) Incised wound 6 cm. x 2 cm. x 4 cm. deep on the front of neck, trachea, oesophagus, right carotid artery and other structures under the wound were cut. 7. In the opinion of the doctor the death was caused due to shock and hemorrhage as a result of the ante mortem injuries. He proved the post mortem report Ex.Ka-16. 8. x 2 cm. x 4 cm. deep on the front of neck, trachea, oesophagus, right carotid artery and other structures under the wound were cut. 7. In the opinion of the doctor the death was caused due to shock and hemorrhage as a result of the ante mortem injuries. He proved the post mortem report Ex.Ka-16. 8. P.W.1 Sunil Kumar, informant has proved the written report Ex.Ka-1 He narrated the entire prosecution story in his statement. Accused Ajaypal was running a tea stall near his flour mill and accused Khempal used to come to his flour mill for grinding wheat. 9. Witnesses Vijay Kumar (P.W.2) and Arvind Kumar (P.W.3) are also witnesses of fact. They were with the informant at the time of occurrence. They fully supported the statement made by the informant P.W.1. 10. P. W.4 Harbir Singh has stated that Police has taken blood stained Baan of cot in his presence and prepared Fard Ex.ka-1. He proved Baan as Ex.1 and its Fard as Ex.ka-2. He also stated that Police also took hair from the fist of deceased in his presence vide Fard Ex.ka-3. He has stated that Investigating Officer also took in his possession a pair of chappals, water bottle, blood stained Danda, blood stained earth, material exhibits III to IV and Fard Ex. ka-5. 11. P.W.S Balbir Singh is the witness of discovery under section 27 of the Evidence Act. He has stated that on the pointing of accused persons two bundles of currency notes of Rs. 50/- and 20 notes of Rs. 100/- and other articles as blood stained clothes, knife etc. were recovered from the cane field of Dr. Malhotra. He proved material exhibits VII to XII and Fard EX.ka-6., 12. S.I. Syam Nath Pande P.W.6 has investigated the case. 'He narrated details regarding investigation in his statement and also stated about recovery of articles and weapon under section 27 of the Evidence Act. He proved Check F.I.R. Ex, ka-7 and Copy of G.D. EX.ka-8. He has stated that he seized the 'Baan' of the cot on which the deceased was lying and prepare fard Ex.ka-2, he also took heir of the accused from the fist of the deceased and prepared Fard Ex.ka-3. He has stated that he collected a pair of chappal, a bottle of water blood stained and plain earth and a Danda from the place of occurrence. He has stated that he collected a pair of chappal, a bottle of water blood stained and plain earth and a Danda from the place of occurrence. He has stated that he arrested the accused persons and interrogated them. He also stated that blood stained cloths, knife and money looted were recovered on the pointing out of the accused persons in presence of public witnesses P,W.4 Harbir Singh and P.W.5 Balbir Singh. On 7-10-1994 the investigation was transferred to SHO Ram Singh, who completed other formalities of investigation and submitted charge sheet EX.ka-15 against the accused persons. 13. P.W.8, Constable Beer Singh took the dead body to mortuary for post mortem examination. He is a formal witness. 14. P.W.9, Head Constable Prem Pal Singh has stated that In October 1994, he was posted at Police Outpost, Kunda. He has stated that accused were arrested in his presence. He proved G.D. entry dated 6-10-94 and stated that he submitted the recovered articles for chemical examination to Forensic laboratory, Agra. He is also a formal witness. 15. Accused persons in their statements under section 313 Cr.P.C. denied the prosecution allegations. Accused Ajaypal @ Mintoo stated that he" had been falsely implicated in the case by Sunil as he wanted to grab his shop and during his detention in jail, he gave some money to his brother and took possession over his shop. Accused persons have not adduced any evidence in defence. 16. On a careful consideration of the evidence on record the learned Sessions Judge held the accused persons guilty for the offences punishable under sections 302 read with section 34 and Section 394 read with section 34 I.P.C. and sentenced them to undergo imprisonment for life. Feeling aggrieved the present appeal has been filed by the accused persons. 17. We have heard Sri Arvind Vashist learned Amicus curiae for the accused and Sri G.S. Sandhu, Government Advocate and have gone through the record of the case and the judgment under appeal with the help of the learned counsel. 18. The case of the prosecution rests on the ocular evidence of Sunil Kumar P.W.1, Vijay Kumar P.W.2 and Arvind Kumar P.W.3. We have, in the light of the submissions made by the learned amicus curiae, carefully examined the testimony of these eye witnesses. P.W.1 Sunil Kumar is the son of deceased and P.W.2 Vijay Kumar and P.W.3 Arvind Kumar are his friends. We have, in the light of the submissions made by the learned amicus curiae, carefully examined the testimony of these eye witnesses. P.W.1 Sunil Kumar is the son of deceased and P.W.2 Vijay Kumar and P.W.3 Arvind Kumar are his friends. Therefore, the testimony of these witnesses need to be subjected to careful scrutiny. 19. P.W.1 Sunil Kumar has given a detailed version of the occurrence. He told that accused Mintoo gave a blow of Danda on the head of deceased due to which he fell down and thereafter accused Khempal chopped the neck of his father by a knife. He was cross-examined at length but nothing has come out to disbelieve his statement. 20. P.W.2 Vijay Kumar and P.W.3 Arvind Kumar have also fully supported the statement of P.W-1 Sunil Kumar and there is no contradiction in their statements regarding the manner of incident. 21. When an incident is narrated by the same person to different persons on separate occasions some variations in the narration of the incident are bound to appear. However, such differences do not militate against the trustworthiness of the narration unless the variations are held to be so abnormal or unnatural as would not occur in the evidence of truthful witnesses. 22. The Apex Court in the case Narayan Chetanram Chaudhary v. State of M.P. (2000) 8 SCC 457 has held as under: "Only such omissions which amount to contradiction in material particulars can be used to discredit the testimony of the witness. The omission in the police statement by itself would not necessarily render the testimony of witness unreliable. When the version given by the witness in the court is different in material particulars from that disclosed in his earlier statements, the case of the prosecution becomes doubtful and not otherwise. Minor contradictions are bound to appear in the statements of truthful witnesses as memory sometimes plays false and the sense of observation differ from person to person. The omissions in the earlier statement if found to be of trivial details, as in the present case, the same would not cause any dent in the testimony of PW-2 Even if there is contradiction of statement of a witness on any material point that is no ground to reject the whole of the testimony of such witness." 23. The testimony of eyewitnesses also find corroboration from the promptly lodged FIR. The testimony of eyewitnesses also find corroboration from the promptly lodged FIR. The informant Sunil Kumar (PW1) has narrated the entire incident in his written report EX.ka-1 and no variation has been found in his oral testimony made before the Sessions Judge. 24. The learned counsel for the accused has pointed out that the statements of eyewitnesses find no support from the medical evidence. All the three eyewitnesses have stated that the accused gave only one blow of Danda on the head of deceased whereas per post mortem report, Ex. ka-16, there were three lacerated wounds on the scalp of the deceased. All the eyewitnesses have been consistent in stating that they Saw the accused Mintoo gave one Danda blow on the head of the deceased who then fell down on the ground. The witnesses had reached the place of occurrence a little later when the accused had already surrounded the deceased and in the process of looting the deceased there was struggle and resistance. However, the eyewitnesses have seen the actual assault in the occurrence when accused Mintu gave Danda blow on the head of deceased and accused Khempal chopped his neck. P.W.2 Vijay Kumar in his cross-examination has given explanation of the other wounds found on the dead body of deceased Prem Prakash. He stated as under: 25. Thus from the above statement of P.W.2 it is clear that witnesses could have seen the accused gave only one Danda blow on the head of deceased, and on receiving that blow the deceased fell down, but it was quite probable that soon before they have given few more Danda blows on the" person of the deceased and that there was struggle between them. 26. Another incriminating evidence collected by the prosecution is that some hair were found in the fist of deceased. On clinical examination the hair were found resembling with the hair of the head of accused Ajay pal. This also support the possibility of struggle in which the deceased caught hold of the hair of accused Ajay pal and hair were struck off to remain in the fist. 27. So far as the motive to commit crime is concerned, from the evidence of the prosecution it is clear that the motive behind the murder of Prem Prakash was robbery. 28. 27. So far as the motive to commit crime is concerned, from the evidence of the prosecution it is clear that the motive behind the murder of Prem Prakash was robbery. 28. In the present case three witnesses have categorically deposed that they had seen the accused persons committing the murder of deceased Prem Prakash and the money which the deceased was having with him at the time of occurrence was found missing and later on the same was recovered on the pointing out of the accused persons from the cane field of Dr. Malhotra and as such in the present case the motive also stands proved. 29. So far as the discovery under section 27 of the Evidence Act is concerned, the same was made on the joint statement by the accused, persons, which is not admissible in evidence to connect the accused persons With the crime. However, from the statement of P.W.6 S.I. 5hyam Nath Pande and P.W.5 Balbir Singh it has been established that recovery of blood stained knife, currency notes and blood stained clothes were ,made from the cane field of Dr. Malhotra. 30. The learned amicus curiae has stated that P.W.2 Vijay Kumar and P.W.3 Arvind Kumar are the chance witnesses and no reliance can be placed on their testimony. Both these witnesses have stated that they used to come to Painth (weekly market) at Kunda for purchasing vegetables. When they were returning to Kashipur they saw P.W.15unii Kumar standing in front of his flour mill and on inquiry he told that he would also come to Kashipur by bus with his father who had gone towards the grove for nature's call. Thus the presence of the witnesses at the place of occurrence is not unnatural or doubtful in any way. 31. The learned Amicus curiae has also submitted that there is difference in the amount which P.W.1 Sunil Kumar alleged to have given to his father and the amount recovered from the field of Dr. Malhotra. P.W.1 Sunil Kumar has stated that he had given two packets of currency notes of Rs. 50/- amounting a total sum of Rs. 10,000/- to his father. Besides this Rs. 2,000/- which were in the shape of 20 currency notes of Rs. 100/- each were also recovered, which were already with deceased Prem Prakash from before. Malhotra. P.W.1 Sunil Kumar has stated that he had given two packets of currency notes of Rs. 50/- amounting a total sum of Rs. 10,000/- to his father. Besides this Rs. 2,000/- which were in the shape of 20 currency notes of Rs. 100/- each were also recovered, which were already with deceased Prem Prakash from before. Thus there is no adverse effect on the prosecution case by the recovery of more amount as P.W.1 Sunil Kumar has nowhere stated that there were only Rupees ten thousand with deceased Prem Prakash. 32. The learned amicus curiae has also submitted that no opportunity was given to the accused person to adduce defence evidence. This argument of the learned defence counsel has no force. The learned Sessions Judge in the statement of accused under section 313 Cr.P.C. had asked question No. 31 to accused Ajaypal @ Mintu that as to whether he would adduce any defence and he answered in negative. Similar question was asked to accused Khempal, who stated that he would adduce evidence in defence. The statements of accused persons under section 313 Cr.P.C. were recorded on 25-1-1996. Later on accused Khempal has further statement on 3-2-1996 that he do not want to adduce any evidence in defence. Thus it cannot be said that the trial Court has not afforded opportunity to the accused to adduce evidence in defence. 33. The statements of ail three eyewitnesses find Support from the medical evidence. The learned Sessions Judge has carefully scrutinized the evidence of the witnesses and found it worthy of reliance. The learned Sessions Judge has rightly held that the prosecution has proved the guilt of the accused by overwhelming evidence. Thus the conviction of the appellant is well founded and cannot be interfered with. 34. So far the sentence is concerned, the learned Sessions Judge awarded sentence of imprisonment of life, which is minimum sentence prescribed under section 302 I.P.C. In our opinion the sentence awarded to the accused persons is appropriate. 35. The Apex Court in the case State of Karnataka v. Puttaraja (2004) 1 SCC 475 has held as under: 'The Court will be failing in its duty if appropriate punishment is not awarded for a crime which has been committed not only against the individual victim but also against the society to which the criminal and the victim belong." 36. The Apex Court in the case State of Karnataka v. Puttaraja (2004) 1 SCC 475 has held as under: 'The Court will be failing in its duty if appropriate punishment is not awarded for a crime which has been committed not only against the individual victim but also against the society to which the criminal and the victim belong." 36. For the above reasons the appeal lacks merit and is liable to be dismissed. 37. The appeal is dismissed accordingly. The conviction of the accused appellants and the sentence passed thereon by the trial Court is upheld. 38. Let a copy of the judgment along with trial Court's record be sent to the Sessions Judge concerned forthwith.