JUDGMENT The judgment of the Court was delivered by T.P.Sharma, J.:- 1. This appeal is directed against the judgment of conviction & order of sentence dated 6.3.2002 passed by the Second Additional Sessions Judge, Raipur, in Sessions Trial No.448/2001 whereby and whereunder learned Second Additional Sessions Judge after holding the appellants guilty for the offence of murder, convicted under Section 302 read with section 34 of the Indian Penal Code and each of them sentenced to undergo imprisonment for life and to pay a fine of Rs.10000/- in default of payment of fine to further undergo rigorous imprisonment for 3 years. 2. Judgment & order are challenged on the ground that without there being any reliable and clinching evidence against the appellants, the Second Additional Sessions Judge has convicted and sentenced the appellants as aforementioned and thereby committed illegality. 3. Case of the prosecution in brief is that on 23.9.2001 at about 7 a.m. Santosh Kumar Mandle (PW-6) servant of Shatruhan Sharma (PW-5) and Smt.Latabai (PW-10) was washing utensils in the house of Shatruhan at village Tilda, Police Station-Neora, District-Raipur. He heard sound for help of son of Shatruhan deceased Suraj (cpkvks cpkvks). He came out from the house. Accused persons were assaulting Suraj by axe and iron pipe. Suraj fell down. Accused Goverdhan assaulted by axe, accused Rajendra assaulted by iron pipe and accused Chintaram assaulted by fist and kick to Suraj. Chintrman was also saying that beat and kill him. He immediately informed the incident to Shatruhan Sharma (PW-5) and Smt.Latabai (PW- 10). Bhuru, mother of Bau and other persons have seen the incident. In the intervening night of 22.9.2001 and 23.9.2001 at about 11 p.m. earlier Suraj had gone into house of Chintaram for ganza seeds and thereafter, accused Chintaram came to the house of Suraj and quarreled. The accused persons caused fatal injuries over the body of Suraj. He become unconscious. Santosh Kumar Mandle (PW-6) lodged the F.I.R. vide Ex.P/12. Mother and father of Suraj immediately took him to hospital. He was examined by Dr.G.R.Agrawal (PW-1) who found following injuries:- i) One contusion of 6 cm. x 5 cm. with active bleeding and fracture of under beneath bone over right temporal region. ii) One incised wound of + cm. x + cm. x screen deep just above right ear iii) One incised wound over occipital region of 5 cm. x 1 cm. x 5 cm. with active bleeding and fracture of under beneath bone over right temporal region. ii) One incised wound of + cm. x + cm. x screen deep just above right ear iii) One incised wound over occipital region of 5 cm. x 1 cm. x skin deep iv) One incised wound over frontal region of 4 cm. x 1 cm. x skin deep v) One incised wound of 4 cm. x 1 cm. x skin deep 10 cm. from injury No.3. vi) One lacerated wound over right hand of 7 cm. x 3 cm. x skin deep vii) One incised wound over left hand of 2 cm. x + cm. x skin deep. viii) One lacerated wound over right hand of 3 cm. x 2 cm. x skin deep ix) One lacerated wound over right elbow of 3 c.m. x 2 c.m. x skin deep. Active bleeding were present over the injury. 4. Injury over the head was grievous in nature. Suraj was referred to Medical College Hospital, Raipur vide Ex.P/1. In the evening of 23.9.2001, Suraj was shifted to MMI Hospital, Raipur by his parents for further treatment where he died during the course of treatment on 25.9.2001 at about 9.22 p.m. Intimation of death was given to police vide Ex.P/14. Merg intimation was recorded vide Ex.P/15. Spot map was prepared by investigating officer vide Ex.P/8. Tikrapara police after summoning the witnesses vide Ex.P/19, prepared inquest over the dead body of Suraj vide Ex.P/20. Dead body of Suraj was sent for autopsy vide Ex.P/21 to Medical College Hospital, Raipur. Autopsy was conducted by Dr.Arvind Niralwar (PW-13) vide Ex.P/22 and found 9 external injuries and fracture of left temporal bone. Cause of death was comma as a result of injury and death was homicidal in nature. Registered merg intimation was recorded vide Ex.P/25. Appellant Goverdhan made disclosure statement on 23.9.2001 to the police before the witnesses relating to axe vide Ex.P/3 and two blood stained axe were recovered at the instance of accused Goverdhan from his father's room vide Ex.P/6. Accused Rajendra also made disclosure statement on 23.9.2001 at about 3.45 p.m. relating to iron pipe vide Ex.P/4, same was recovered at the instance of accused Rajendra from his father's room vide Ex.P/5. Blood stained soil and plain soil were recovered from the place of incident vide Ex.P/7. Accused Rajendra also made disclosure statement on 23.9.2001 at about 3.45 p.m. relating to iron pipe vide Ex.P/4, same was recovered at the instance of accused Rajendra from his father's room vide Ex.P/5. Blood stained soil and plain soil were recovered from the place of incident vide Ex.P/7. Blood stained clothes were seized from Shatruhan Sharma (PW-5) vide Ex.P/10. Spot map was prepared by Patwari vide Ex.P/16. Accused Goverdhan and Rajendra were arrested on 23.9.2001 vide Exs. P/23 and P/24. Seized articles were examined by Dr.G.R.Agrawal (PW-1) vide Ex.P/2. Seized articles were sent for medical analysis where presence of blood over two axe recovered from Goverdhan and iron pipe recovered from Rajendra were confirmed vide Ex.P/30. 5. Statements of the witnesses were recorded under Section 161 of the Code of Criminal Procedure, 1973 (hereinafter referred to as `the Code') and after completion of investigation, charge sheet was filed in the Court of the Judicial Magistrate First Class, Raipur, who in turn committed the case to the Court of the Sessions Judge, Raipur from where Second Additional Sessions Judge, Raipur received the same on transfer for trial. 6. In order to prove the guilt of the accused/appellants, the prosecution examined as many as 15 witnesses. Statements of the accused/ appellants were also recorded under Section 313 of the Code where they denied the circumstances appearing against them and claimed innocence and false implication in the crime in question. The accused have also produced defence evidence of Ramlal Yadav (DW-1), Village Hasda, P.S. Abhanpur and Lakhan Lal Sahu (DW-2), Village Hasda, P.S. Abhanpur who have deposed that during the course of trial while mother of the deceased Suraj, namely Latabai was sitting in front of the Court, one police officer of Tilda police station came and threatened the mother of deceased Suraj and compelled her to give evidence against Chintaram and his son (accused persons). Ramlal Yadav (DW-1) has also deposed that he has inquired police officer that why he has compelled the witnesses. 7. After affording an opportunity of hearing to the parties, the Second Additional Sessions Judge has convicted and sentenced the appellants as aforementioned. 8. We have heard Shri Arun Kochar, counsel for the appellants and Shri Ravindra Agrawal, Panel lawyer for the State and perused the judgment impugned and record of the Court below. 9. 7. After affording an opportunity of hearing to the parties, the Second Additional Sessions Judge has convicted and sentenced the appellants as aforementioned. 8. We have heard Shri Arun Kochar, counsel for the appellants and Shri Ravindra Agrawal, Panel lawyer for the State and perused the judgment impugned and record of the Court below. 9. Learned counsel for the appellants vehemently argued that this is a case of no evidence. They have been falsely implicated on the ground of enmity. According to the case of the prosecution, Santosh Kumar Mandle (PW-6) was eyewitness, but he has specifically deposed that after hearing the sound of Suraj when he came out from the house, at that time, Suraj was lying on the land and was unconscious. Injuries were present over the body of Suraj and he has lodged the F.I.R. vide Ex.P/12. In F.I.R. (Ex.P/12) it has been only mentioned that Santosh Kumar Mandle (PW-6) informed the incident to mother and father of Suraj. Shatrughan, mother of Bhuru and other persons have seen the incident. It shows that Smt.Latabai (PW-10) has not seen the incident, but only in order to implicate the accused persons, she has deposed in her evidence that she is eyewitness and has seen the incident. Her uncorroborated evidence is not reliable and not safe for conviction of the appellants. Learned counsel further argued that statement of Smt.Lata Bai was recorded after 5 days of the incident. The prosecution has not explained the delay in recording the statement of eyewitness under Section 161 of the Code and in absence of such explanation, statement of Smt.Latabai (PW-10) is not reliable. Suspicion however grave cannot take to place of evidence. Learned counsel also argued that that according to the case of the prosecution, mother and father of the deceased Suraj were present but has not tried to intervene the incident and has not tried to rescue the deceased shows her statement doubtful. 10. Learned counsel placed reliance in the matter of State of Punjab v. Sucha Singh1 in which the Apex Court has held that father of the deceased was present at the time of alleged incident but has not tried to rescue him or intervene and has not accompanied the injured to the hospital shows his presence doubtful. 10. Learned counsel placed reliance in the matter of State of Punjab v. Sucha Singh1 in which the Apex Court has held that father of the deceased was present at the time of alleged incident but has not tried to rescue him or intervene and has not accompanied the injured to the hospital shows his presence doubtful. Learned counsel further placed reliance in the matter of State of Orissa v. Mr.Brahmananda Nanda2 in which the Apex Court has held that eye witness not disclosing name of assailant for a day and half after the incident, the evidence of such witness is not reliable. Non-disclosure of name of assailant immediately by the witness and non- explanation of such non-disclosure is fatal to the prosecution. Learned counsel also placed reliance of judgment dated 20.8.2009 passed by this Court in Criminal Appeal Nos.238 of 2003,470 of 2003 & 784 of 2003 in which this Court has held that the evidence of eyewitnesses full of discrepancies make their evidence not safe to rely . 11. On the other hand, learned State counsel supported the judgment impugned and argued that mother of the deceased Smt.Lata Bai (PW-10) has seen the incident. She came after hearing the sound of Santosh Kumar Mandle (PW-6) who has lodged the F.I.R. and according to the case of the prosecution, he has also seen the incident, but has not supported the case before the Court. Her statement inspires confidence, trustworthy and safe to rely. Her statement cannot be discarded only on the ground that she is relative witness and has not disclosed the fact that she has seen the incident for more than 5 days and only on 28.9.2001 after 6 days of the incident because her name finds place in the F.I.R. lodged on the same day within 30 minutes of the incident. The contents of the F.I.R. and lodging of the F.I.R. have been proved by hostile witness Santosh Kumar Mandle (PW-6), servant of the deceased and Smt.Lata Bai (PW- 10). The conduct of Smt. Lata Bai (PW-10) is natural and relevant under Sections 6 and 8 of the Evidence Act. Even she has slapped one of the accused in the police station when the accused persons went to the police station. The conduct of Smt. Lata Bai (PW-10) is natural and relevant under Sections 6 and 8 of the Evidence Act. Even she has slapped one of the accused in the police station when the accused persons went to the police station. Learned counsel further submits that at the instance of the appellants weapons have been recovered and presence of blood over axe, iron pipe recovered from the appellants have been confirmed vide FSL report Ex.P/30. Learned counsel also argued that Smt. Lata Bai (PW-10) was busy in treatment of her son who lastly died on 25.9.2001 at about 9.22 p.m. Autopsy was conducted on 26.9.2001 and after autopsy, the police has recorded her statement on 28.9.2001 vide Ex.D/1, therefore, there is no delay in recording her statement. Her presence at the time of inquest is clear from the inquest report vide Ex.P/20. 12. Learned counsel placed reliance in the matter of State of U.P. v. Satish3 in which the Apex Court has held that in case of delay in recording the statement of the witnesses under Section 161 of the Code unless the investigating officer is categorically asked as to why there was delay in examination of the witnesses, the defence cannot gain any advantage thereform. Learned counsel further placed reliance in the matter of Pawan v. State of Uttaranchal and other connected matters in which the Apex Court has held that omission of the names of two witnesses in the F.I.R. is not material. 13. In order to appreciate the contentions of the parties, we have examined the evidence adduced on behalf of the prosecution. In the present case, homicidal death as a result of injury has not been substantially disputed by the appellants, on the other hand, it is established by the evidence of Dr.G.R.Agrawal (PW-1) who has examined the injured, Shyam Bai (PW-3), Shatruhan Sharma (PW-5), father of the deceased, Santosh Kumar Mandle (PW-6) servant of Shatruhan Sharma (PW-5) who has lodged the F.I.R. and Smt. Lata Bai (PW-10) Smt. Lata Bai (PW-10) and Dr.Arvind Niralwar (PW-13) who has conducted autopsy. Dr.G.R.Agrawal (PW-1) has deposed in his evidence that on 23.9.2001 at about 8 am, he has examined unconscious patient Suraj and found the aforementioned injuries as mentioned in para-3 of the said judgment. Dr.Arvind Niralwar (PW-13) who has conducted autopsy on 26.9.2001 and found the aforesaid injuries as mentioned in Ex.P/22 autopsy report. Dr.G.R.Agrawal (PW-1) has deposed in his evidence that on 23.9.2001 at about 8 am, he has examined unconscious patient Suraj and found the aforementioned injuries as mentioned in para-3 of the said judgment. Dr.Arvind Niralwar (PW-13) who has conducted autopsy on 26.9.2001 and found the aforesaid injuries as mentioned in Ex.P/22 autopsy report. The injuries were sufficient for causing death and death was homicidal in nature. 14. In order to establish the complicity of the accused/appellants in the crime in question, the prosecution has examined eyewitness. The case of the prosecution rests on the eyewitness and circumstantial evidence of disclosure of the fact i.e. recovery of weapons at the instance of appellants No.1 and 2. Santosh Kumar Mandle (PW-6), servant of the deceased and Smt.Lata Bai (PW-10), has deposed that on the date of incident at about 7 a.m. he was clearing utensils in the house of the deceased, he heard sound for help (cpkvks cpkvks), immediately he came out from the house, he saw Suraj was lying alone, he was unconscious. He saw injury over temporal region, back of the head and defuse bleeding, then he lodged the report vide Ex.P/12. Shatruhan Sharma (PW-5) father of the deceased has deposed that on 23.9.2001 at about 6-7 a.m. he was sleeping in his house, his wife Smt.Lata Bai (PW-10) came inside the house and told her that there was quarrel outside her house, then he came out from his house. His son was lying on the land stained with blood, then he immediately sent her wife to the police station. Shyam Bai and Bhuru were also present there. They advised to take Suraj to the hospital immediately. Police also came to the spot. They took Suraj to hospital. His wife Lata Bai and brother Raju Sharma also went to the hospital. 15. Smt.Lata Bai (PW-10) mother of the deceased has categorically deposed that on 23.9.2001 at about 7 a.m. she was standing near door. She was holding broom. Her husband and daughter Anju were sleeping. Santosh was clearing utensils. Earlier Santosh and Suresh had gone outside for ease (toilet). They came back. Santosh told her to prepare tea and also told that he is going to Verma's house. Just after 5 minutes son of Verma's came near her house and informed that Suraj was sitting with his father and asked for Chilam and he went with Chilam. Earlier Santosh and Suresh had gone outside for ease (toilet). They came back. Santosh told her to prepare tea and also told that he is going to Verma's house. Just after 5 minutes son of Verma's came near her house and informed that Suraj was sitting with his father and asked for Chilam and he went with Chilam. After 10 minutes Suraj cried as papa, then Santosh came out from the house and immediately came inside and told that Bhai Suraj Ko Mar Dale. She immediately came out from the house. All accused persons were assaulting Suraj. Accused Chintaram was holding pipe, one accused was holding axe and one accused was holding carpenter axe (Basula). All accused were assaulting Suraj. She cried and came inside and told the incident to her husband and again she came out, the accused persons were running from the spot. She has further deposed that she went to the police station. Appellants Goverdhan and Rajendra also went to the police station. They narrated the incident to the police, then police withheld them in the police station and came to the spot. They took Suraj to the hospital. She also went to the hospital and finally, they referred for Makahara (Medical College Hospital, Raipur). She has also deposed that so many persons came after hearing the sound. Shyam Bai (PW-3) has deposed that she came to know that Suraj died, but she did not know as to how Suraj died. The prosecution has declared her hostile. Santosh Kumar Mandle (PW-6) who has lodged the F.I.R. within 30 minutes of the incident in which he has specifically given details of the incident, which reveals that all three accused persons have caused injuries to Suraj. Accused Chintaram assaulted by fist, accused Goverdhan assaulted by axe and accused Rajendra assaulted by iron pipe. Chintaram was also saying that Jan Se Mar Do, then he immediately informed mother and father of Suraj. The incident has been seen by Bhuru, mother of Bau and other persons of the vicinity, but he has not supported the case of the prosecution in his evidence. Prosecution declared him hostile. In his cross-examination, he has deposed that he has not stated in F.I.R. relating to assault made to Suraj. 16. Shatruhan Sharma (PW-5) father of the deceased has also not supported the case of the prosecution and the prosecution has declared him hostile. Prosecution declared him hostile. In his cross-examination, he has deposed that he has not stated in F.I.R. relating to assault made to Suraj. 16. Shatruhan Sharma (PW-5) father of the deceased has also not supported the case of the prosecution and the prosecution has declared him hostile. He has admitted in para-5 of his evidence that he used to consume ganja and liquor and deceased Suraj was in habit of taking ganja. He has admitted in para-8 of his evidence that during the course of the trial, he used to come to the Court. 17. In the present case, considering the evidence of Shatruhan Sharma (PW-5) and Santosh Kumar Mandle (PW-6), the only evidence of Smt.Lata Bai (PW-10) is remained for consideration who has categorically supported the case of prosecution and specifically deposed that she has seen the incident that all three accused persons have assaulted his son. In her detail cross-examination, she has admitted the criminal antecedent of her son. In para-9 of her cross- examination, she has admitted the suggestion that there was no previous enmity with Verma's family, but there was enmity of Verm's with appellant Chintaram. In para 10, she has deposed that when she saw the incident then she immediately went inside the house and asked her husband. She caught hold the hands of her husband. Her husband was searching his shoe, then even she abused her husband and told the word Kutta and stated that they were assaulting the child and you are searching for shoe. Again she came out at that time accused persons were running from the spot. She has specifically deposed that after seen the incident she immediately went inside the house to wake up her husband. Her husband woke out and went towards the house of the accused persons, accused persons were not present in their house, then her husband closed the door from outside. She has also deposed that so many persons gathered on the spot. In para 12, she has also deposed that she told the name of accused persons in the police station. She again came to the spot and took her son to the hospital with police. In para 13, she has deposed that accused Chintaram was present inside his house and rest two persons went to the police station. In para 12, she has also deposed that she told the name of accused persons in the police station. She again came to the spot and took her son to the hospital with police. In para 13, she has deposed that accused Chintaram was present inside his house and rest two persons went to the police station. After hearing the sound of Chintaram from inside the house, his door was opened by his neighbour Kumari Bai. In para 14, she has specifically deposed that Rajendra and Goverdhan went to the police Station through another way and even she has slapped one of the accused in the police station and told the police that they have assaulted her son. She has denied the suggestion that she has not seen the incident and also denied the suggestion that Santosh told her that somebody has assaulted Suraj (her son). She has also denied the suggestion in para- 18 of her cross-examination that Assistant Sub-Inspector (Police) has threatened her and told her to support the case of the prosecution. 18. The accused persons have examined defence witnesses Ramlal Yadav (DW-1) and Lakhan Lal Sahu (DW-2). Ramlal Yadav (DW-1) has deposed that he was present in the Court premises with Khemanlal of village Hasda, at that time one police officer of Tilda police station was threatening one woman and was directing the woman that she should say that Chintaram and other two persons had assaulted her son and if she will not say in favour of police, then they will put behind the bar to her and her husband. Lakhan Lal Sahu (DW-2) has also deposed the same thing. He has deposed that in one civil case he was present at 8th February in the Court. He is also resident of village Hasda. Place of incident is Shikshak Colony, Police Station Neora and these witnesses are residents of village Hadsa, Police Station Abhanpur. Ramlal Yadav (DW-1) has admitted in his cross-examination that he has not made complaint to the Court. He has stated in para 2 of his evidence that the accused persons are residents of village Hasda. Lakhan Lal Sahu (DW-2) has specifically deposed that on 8th February police officer was threatening to woman. 19. According to the record of the case, case was committed to the Court of Sessions for 28.11.2001, witnesses were examined on 4.1.2002, 5.1.2002 and 7.1.2002. Lakhan Lal Sahu (DW-2) has specifically deposed that on 8th February police officer was threatening to woman. 19. According to the record of the case, case was committed to the Court of Sessions for 28.11.2001, witnesses were examined on 4.1.2002, 5.1.2002 and 7.1.2002. On 2nd February, 2002 two witnesses were examined and again on 8.2.2002 Ramkrishna Dubey, Inspector and Ramkumar Vaishnav, Assistant Sub Inspector were examined on behalf of the prosecution. The record reveals that Latabai was examined on 5.1.2002 and not on after 8.2.2002. The prosecution has not re-examined or defence has not cross-examined this witness after 5.1.2002 on 8.2.2002. The prosecution has examined Inspector Ramkrishna Dubey (PW-14) and Ramkumar Vaishnav (PW-15). These two witnesses are not residents of Tilda. They are chance witnesses but their statements cannot be discarded only on the ground that they are chance witnesses. 20. According to defence witnesses, the police officer has not threatened twice the woman, but it appears that on one day police officer has threatened the woman before these two witnesses that too on 8th February, 2001. On 5.1.2001 the prosecution has examined Lata Bai. Defence has suggested her in para 18 of her evidence that Assistant Sub Inspector Ramkumar Vaishnav threatened her that if she will not support the case of prosecution, then they will put behind the bar to her and her husband. On 8th February, 2001 case was not pending for examination of Lata Bai (PW-10). There was no occasion for supporting the case of the prosecution on 8th February by Lata Bai. These facts are sufficient to discard or reject the evidence of defence witnesses Ramlal Yadav (DW- 1) and Lakhan Lal Sahu (DW-2). 21. In the matter of State of Punjab (supra), the Apex Court has held that eyewitness not trying to rescue the deceased or intervene and even not accompanied to the hospital makes their statement doubtful. In the present case, Shatruhan Sharma (PW-5) whom the prosecution has declared hostile has not deposed that he has seen the incident, but his evidence and F.I.R. (Ex.P/12) reveal that he is concealing the truth, therefore, his evidence is of no use, except the part that the deceased Suraj died as a result of fatal injuries which is not disputed by any of the parties. 22. A Division Bench of this Court vide its judgment dated 20.8.2009 passed in Criminal Appeal Nos. 22. A Division Bench of this Court vide its judgment dated 20.8.2009 passed in Criminal Appeal Nos. 238/2003, 470/2003 & 784 of 2003 has held as under: "11. In Balakrushna Swain -vs.- The State of Orissa, AIR 1971 SC 804, the Apex Court held that unjustified and unexplained long delay on part of investigating officer in recording statement of material eye-witness, u/s 161 Crt.P.C., during investigation of murder case will render evidence of such witness unreliable. Because the delay would give an opportunity to concoct a different version than what actually took place." 23. In the mater of State of Orissa (supra), the Apex Court held that where in a murder case the entire prosecution case depended on the evidence of a person claiming to be eye- witness and this witness did not disclose the name of the assailant for a day and a half after the incident and the explanation offered for non-disclosure was unbelievable, such non-disclosure was a serious infirmity which destroyed the credibility of the evidence of the witness and the High Court was correct in rejecting it as untrustworthy and acquitting the accused. 24. In the present case, name of Lata Bai finds place in the F.I.R. recorded within 30 minutes of the incident in which specifically mentioned that Santosh Kumar Mandle (PW-6) immediately informed the incident to mother and father of Suraj i.e. Shatruhan Sharma (PW-5) and Lata Bai (PW-10). Her statement under Section 161 of the Code was recorded on 28.9.2001 vide Ex.D/1 in which she has specifically deposed that she has seen the incident. Assistant Sub Inspector Ramkumar Vaishnav (PW-15) has recorded the statement of Lata Bai, but defence has not asked anything to this witness that why he has recorded the statement of this witness after 6 days on 28.9.2001. 25. Lata Bai (PW-10) has deposed that she has informed the police on the same day, though this suggestion has been denied by the police officers Inspector Ramkrishna Dubey and Assistant Sub Inspector Ramkumar Vaishnav (PW-15). According to the statement of Lata Bai (PW-10) just after the incident she went to the police station and to the hospital. Finally police shifted injured Suresh to Makahara Hospital, Raipur where he died on 25.9.2001. Inquest report (Ex.P/20) reveals the presence of Lata Bai (PW-10) at Raipur. Autopsy was conducted by Dr.Arvind Niralwar (PW-13) at Raipur on 26.9.2001. According to the statement of Lata Bai (PW-10) just after the incident she went to the police station and to the hospital. Finally police shifted injured Suresh to Makahara Hospital, Raipur where he died on 25.9.2001. Inquest report (Ex.P/20) reveals the presence of Lata Bai (PW-10) at Raipur. Autopsy was conducted by Dr.Arvind Niralwar (PW-13) at Raipur on 26.9.2001. She has admitted in her evidence that she was present during the course of treatment, at the time of inquest and autopsy. Her statement was recorded by Tilda police on 28.9.2001. It appears that after autopsy of her son when she came back to her house at Tilda, then may be after funeral, the police has recorded her statement. Her presence in her house finds support from the F.I.R. Ex.P/12, but Santosh Kumar Mandle (PW-6) has not supported the contents of the F.I.R. It has been mentioned in the F.I.R. that Goverdhan assaulted Suraj by axe, Rajendra assaulted by pipe and Chintaman assaulted by fists and legs. Suraj was examined by Dr.G.R.Agrawal (PW-1) on 23.9.2001 at about 8 a.m. vide Ex.P/1. Ex.P/1A reveals that Goverdhan and Rajendra have assaulted by axe and iron pipe, but name of 3rd accused Chintaram does not find place in Ex.P/1A. 26. Name of Lata Bai (PW-10) finds place in the F.I.R. in which it has been specifically mentioned that Santosh Kumar Mandle (PW-6) saw the incident that the appellants were assaulting Suraj, then he immediately rushed inside the house and informed mother and father of Suraj. In the matter of Pawan (supra), the Apex Court has held that that omission of the names of two witnesses in the F.I.R. is not material particularly because it is not necessary that all the names of the witnesses be mentioned in the F.I.R, though intimation to this witness by the person who has seen the incident firstly finds place in the F.I.R. It would be natural conduct of the parents to immediately rush to the place i.e. to come out from the house which she had done, therefore, her presence on the spot cannot be doubtful. 27. 27. As held by the Apex Court in the matter of State of U.P. (supra), delay in recording the statement of the witnesses under Section 161 of the Code unless the investigating officer is categorically asked as to why there was delay in examination of the witnesses the defence cannot gain any advantage thereform. Para 18 and 20 of the said judgment reads as under:- "18. As regards delayed examination of certain witnesses, this Court in several decisions has held that unless the investigating officer is categorically asked as to why there was delay in examination of the witnesses the defence cannot gain any advantage therefrom. It cannot be laid down as a rule of universal application that if there is any delay in examination of a particular witness the prosecution version becomes suspect. It would depend upon several factors. If the explanation offered for the delay examination is plausible and acceptable and the court accepts the same as plausible, there is no reason to interfere with the conclusion. 20. It is to be noticed that the explanation when offered by the IO on being questioned on the aspect of delayed examination by the accused has to be tested by the court on the touchstone of credibility. If the explanation is plausible then no adverse inference can be drawn. On the other hand, if the explanation is found to be implausible, certainly the court can consider it to be one of the factors to affect credibility of the witnesses who were examined belatedly. It may not have any effect on the credibility of the prosecution's evidence tendered by the other witnesses." 28. Lata Bai (PW-10) has deposed in para 1 of her evidence that 3rd accused was assaulted her son. In para 2, she has deposed that the accused Goverdhan and Rajendra went to the police station and told the police that they have murdered the deceased Suraj. In para 7, she has deposed that Chintaram was saying ekjks&ekjks. In para 13, she has deposed that Chintaram was hidden in his house and rest two accused went to the police station and her husband has closed the house of Chintaram from the outside and kumari Bai has opened the door after hearing the sound of Chintaram from inside of his house. In para 13, she has deposed that Chintaram was hidden in his house and rest two accused went to the police station and her husband has closed the house of Chintaram from the outside and kumari Bai has opened the door after hearing the sound of Chintaram from inside of his house. In para 14, she has again deposed that accused Goverdhan and Rajendra rushed to police station and she has slapped to one of them at Police Station. This shows active participation of Goverdhan and Rajendra of the offence and Ex.P/1A shows that Chintaram has not participated in the incident who is father of appellants No.1 and 2 and was found inside his house just after the incident. 29. Suspicion however grave cannot take to place of evidence and the prosecution is required to prove its case beyond all shadow of doubt. Repeated allegation by alleged eyewitness Lata Bai (PW-10) against Rajendra and Goverdhan and mentioning name of only Rajendra and Goverdhan in Ex.P/1A prepared within one hour of the incident cast grave doubt on the question of participation of Chintaram in commission of the aforesaid offence. Taking into consideration the evidence of Lata Bai and Ex.P/1A, it is difficult to hold that appellant No.3 Chintaram has participated in the commission of the offence. 30. Lata Bai (PW-10), mother of the deceased Suraj is relative witness. Her statement under Section 161 of the Code has been recorded after 6 days of the incident, but nothing has been asked by the defence to Assistant Sub Inspector Ramkumar Vaishnav (PW-15) who was recorded the statement of Lata Bai relating to delay in recording her statement. Statement of Lata Bai reveals that mainly she was busy in the treatment of her son and after his death she was present at the time of inquest and autopsy. Her husband Shatruhan Sharma (PW-5) was also present at the time of autopsy. Her presence also finds support at the time of autopsy in Ex.P/21, application for autopsy. Record of the prosecution reveals that Lata Bai, mother of the deceased Suraj has received dead body after autopsy on 26.9.2001 at Raipur. These facts are sufficient explanation for recording her statement on 28.9.2001. She is a woman and mother of the deceased who was fighting to save life of her son and was busy in the treatment of her son. These facts are sufficient explanation for recording her statement on 28.9.2001. She is a woman and mother of the deceased who was fighting to save life of her son and was busy in the treatment of her son. These explanation itself are natural and when she came back to village Tilda after cremation, her statement was recorded. While dealing with the question of reliability of relative witness the Apex Court in the matter of Dalip Singh and others v. The State of Punjab4 has held that a witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted. Para 26 of the said judgment reads as under:- "26. A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity against the accused, to wish to implicate him falsely. Ordinarily, a close relation would be the last to screen the real culprit and falsely implicate an innocent person. It is true, when feelings run high and there is personal cause for enmity, that there is a tendency to drag in an innocent person against whom a witness has a grudge along with the guilty, but foundation must be laid for such a criticism and the mere fact of relationship far from being a foundation is often a sure guarantee of truth. However, we are not attempting any sweeping generalization. Each case must be judged on its own facts. Our observations are only made to combat what is so often put forward in cases before us as a general rule of prudence. There is no such general rule. Each case must be limited to and be governed by its own facts." 31. While dealing with the same question, the Apex Court in the matter of Guli Chand and others v. State of Rajasthan5 has held that mere fact that relative witness or his relations is not sufficient to discard his testimony. 32. Admittedly, there is improvement in the statement of Lata Bai recorded under Section 161 of the Code and the Court evidence of Lata Bai, but improvement, exaggeration, omissions and contradiction are not sufficient for discarding the testimony of any witnesses. 32. Admittedly, there is improvement in the statement of Lata Bai recorded under Section 161 of the Code and the Court evidence of Lata Bai, but improvement, exaggeration, omissions and contradiction are not sufficient for discarding the testimony of any witnesses. It is duty of the Court to separate grain from the chaff, the truth from the falsehood, yet this can only be possible when the truth is separable from the falsehood. 33. While dealing with the question of reliability of the evidence of the person who has exaggerated and patiently given false statement up to some extent, the Apex Court in the matter of Laxman and others v. State of Maharashtra 6 has held that witnesses cannot be branded as liars in toto and their testimony rejected outright even if parts of their statements are demonstrable incorrect or doubtful. Relevant portion reads as under: "Before we discuss the evidence further, we may observe that Professor Munsterberg in a book called "On the Witness Stand" (p.51), "Law and the Modern Mind" (see: 1949 ed. P.106) gives instances of experiments conducted by enacting sudden unexpected preplanned episodes before persons who were then asked to write down, soon afterwards, what they had seen and heard. The astounding result was: "Words were put into the mouths of men who had been silent spectators during the whole short episode; actions were attributed to the chief participants of which not the slightest trace existed; and essential parts of the tragic- comedy were completely eliminated from the memory of a number of witnesses". Hence, the Professor concluded: "We never know, or imagine". Witnesses can not, therefore, be branded as liars in toto and their testimony rejected outright even if parts of their statements are demonstrably incorrect or doubtful. The astute judge can separate the grains of acceptable truth from the chaff of exaggerations and improbabilities which cannot be safely or prudently accepted or acted upon. It is sound commonsense to refuse to apply mechanically, in assessing the worth of necessarily imperfect human testimony, the maxim: "falsus in uno falsus in omnibus" 34. The prosecution has also led evidence relating to disclosure of the fact/recovery of weapons at the instance of the accused persons. These are corroborative piece of evidence. 35. It is sound commonsense to refuse to apply mechanically, in assessing the worth of necessarily imperfect human testimony, the maxim: "falsus in uno falsus in omnibus" 34. The prosecution has also led evidence relating to disclosure of the fact/recovery of weapons at the instance of the accused persons. These are corroborative piece of evidence. 35. The present case is mainly rests on the evidence of solitary eyewitness Lata Bai (PW-10) who has deposed that appellants Goverdhan and Rajendra have caused fatal injuries to his son and specifically deposed that Goverdhan and Rajendra have assaulted, though there is some discrepancy relating to holding of weapons, but her evidence reveals that appellants Goverdhan and Rajendra have inflicted injuries to deceased Suraj. After commission of the offence they fled away from the spot and on the same day they were interrogated at 3 p.m. by Nevra Police. Accused Goverdhan has made disclosure statement of axe vide Ex.P/3 and accused Rajendra has made disclosure statement of iron pipe vide Ex.P/4 and the same were recovered vide Exs.P/5 and P/6, but accused Chintaram has not made disclosure statement and nothing has been recovered from him. At the time of morning at about 7 a.m. after hearing crises, Lata Bai (PW-10) came out from her house, then she saw that the accused persons were assaulting her son. She immediately went inside the house for calling her husband who was sleeping and again she came out at that time, accused persons fled away from the spot with weapons. 36. In these circumstances, it is not normally possible to see who was holding which weapon and who was caused injuries over which part of the body of the deceased/injured by which weapons, but this fact and circumstances are sufficient for drawing inference that the accused persons are the persons who have caused fatal injuries to the deceased Suraj. This is not a case of sudden fight. They have fallowed the deceased, caused injuries and fled away from the spot shows that in sharing common intention they have caused injuries to the deceased. 37. This is not a case of sudden fight. They have fallowed the deceased, caused injuries and fled away from the spot shows that in sharing common intention they have caused injuries to the deceased. 37. On close scrutiny of the evidence of Lata Bai, we are of the considered view that her statement suffers from some improvement, exaggeration but finds support of F.I.R. (Ex.P/12), medical requisition for medical examination and Ex.P/1A inspires confidence and trustworthy and safe to rely relating to the commission of the offence by appellants No.1 and 2 Goverdhan and Rajendra. 38. As regards the motive of the offence is concerned, in case of eyewitness question of motive losses its importance. Even otherwise motive is an aid in criminality and it can be inferred on the basis of injury, weapons, part of the body effected and other circumstances. 39. In the present case, axe and iron pipe have been used for causing injuries. Injuries were fatal sufficient for causing death. The accused persons have caused injuries in front of house of the deceased and when the persons of the vicinity gathered, then they fled away from the spot show their intention of causing homicidal death amounting to murder. 40. After appreciating the evidence available on record, learned Second Additional Sessions Judge has convicted and sentenced the appellants as aforementioned on the basis of evidence of Lata Bai (PW-10), but on close scrutiny of the evidence and other documents, the evidence against appellant No.3 Chintaram is not of clinching nature sufficient for drawing inference that appellant No.3 Chintaram has also participated in the commission of the offence. On the other hand, it reveals from the evidence of Lata Bai that two accused persons went to the police station. Chintaram was in his house. Chintaram was not holding any weapon. Nothing has been recovered from Chintaram. Within half an hour the police has prepared Ex.P/1A in which name of appellant Chintaram does not find place and cast doubt upon the story of the prosecution relating to presence and participation of Chintaram in connection with the aforesaid offence. Chintaram has not been convicted and sentenced as a member of unlawful assembly but has been convicted and sentenced with aid of Section 34 of the Indian Penal Code in sharing common intention. Chintaram has not been convicted and sentenced as a member of unlawful assembly but has been convicted and sentenced with aid of Section 34 of the Indian Penal Code in sharing common intention. Learned Second Additional Sessions Judge has not considered the aforesaid material aspect and thereby committed illegality in convicting and sentencing appellant No.3 Chintaram. Conviction and sentence imposed upon appellants No.1 and 2 Goverdhan and Rajendra are based on reliable and clinching evidence and the same are sustainable under the law, but conviction and sentence imposed upon appellant No.3 Chintaram are not sustainable under the law. 41. For the foregoing reasons, the appeal is partly allowed. The judgment impugned is modified. Conviction and sentence imposed upon appellants No.1 and 2 Goverdhan and Rajendra are hereby maintained, but conviction and sentence imposed upon appellant No.3 Chintaram under Section 302 read with Section 34 are hereby set aside. He is acquitted of the said charge. He be set at liberty at once and be released if not required in other case.