JUDGMENT (1) VIDE impugned judgment and order dated 30. 04. 2007, the appellants, Abdul Hamid @ millu, Akbar, Afsar @ Umar Daraj and arasleen @ Mursaleen @ Sanno have been convicted for the offence of having murdered mohd. Kazim @ Babbu Pehelwan (hereinafter referred to as the "deceased"), for which offence they have been sentenced to undergo imprisonment for life and pay a fine in sum of Rs. 5,000/- each; in default to undergo rigorous imprisonment for one year. (2) Case of the prosecution was that in the night of 03. 02. 2001 the appellants went to the house of the deceased and that a dispute arose between appellant Arasleen and the deceased over a sum of money. Thereafter all the appellants fired shots at the deceased from their respective pistols and fled from the place of the incident after causing the death of the deceased. The wife and sons of the deceased namely, Haseen Bano PW-1, Safdar PW-2 and Akbar PW-3, had witnessed the incident. Needless to state the case of the prosecution hinged upon the veracity and credibility of the testimony of Haseen Bano PW-1, Safdar PW-2 and Akbar PW-3. (3) Criminal law was set into motion when at around 11. 20 P. M. oh 03. 02. 01, DD Entry No. 28a, Ex. PW-6/a, was recorded by HC umesh Singh PW-6, to the effect that a wireless information has been received informing that two persons named Akbar and Afsar have shot a person near a transformer situated near Brahmpur Pulia. (4) On receiving a copy of the afore-noted dd Entry, SI Jagbir Singh PW-12, accompanied with Const. Shokeender PW-5 and const. Billu Singh PW-7, went to the electric transformer situated near Brahmpur pulia and on learning that an incident of murder had taken place at a nearby slum-dwelling bearing Municipal No. B-16/k-3332, K-Block, Ganda Nala, Seelam Pur proceeded to the said dwelling where they learnt that the deceased has been removed to GTB hospital. Leaving Const. Shokeender PW-5, at the place of occurrence, SI Jagbir Singh PW-12 and Const. Billu Singh PW-7, proceeded to GTB hospital where they were informed that the deceased has been declared brought dead as noted in the Ex. PW-4/a of the deceased. We note that on the MLC Ex. Leaving Const. Shokeender PW-5, at the place of occurrence, SI Jagbir Singh PW-12 and Const. Billu Singh PW-7, proceeded to GTB hospital where they were informed that the deceased has been declared brought dead as noted in the Ex. PW-4/a of the deceased. We note that on the MLC Ex. PW-4/ a of the deceased, following was recorded:- "name and address of relative or friend brought by : wife alleged H/o gunshot patient brought to hospital at 11. 30 P. M. " (5) After obtaining the MLC Ex. PW-4/a of the deceased, SI Jagbir Singh and Const. Billu Singh returned to the place of occurrence where they met Haseena Bano PW-1, the wife of the deceased, who claimed to have witnessed the incident. SI Jagbir Singh recorded the statement Ex. PW- l/a of Haseen bano and made an endorsement Ex. PW-12/ a thereon, and at around 1. 30 A. M. forwarded the same through Const. Billu Singh pw-7, for registration of an FIR. Const. Billu singh took Ex. PW-12/a to the police station and handed over the same to HC Ram singh PW-8, who recorded the FIR No. 50/ 2001, Ex. PW-8/a, at 1. 40 A. M. on 04. 02. 01. HC Ram Singh contemporaneously prepared dd Entry No. 30a Ex. PW-6/da, recording the registration of the FIR Ex. PW-8/a. (6) In her statement Ex. PW- l / A, Haseen bano stated that she resides in a slum-dwelling bearing Municipal No. B-16/k-3332, K-Block, Ganda Nala, Seelam Pur with her family. Her husband had a factory, where bangles were manufactured, but at present is running a dairy on account of the said factory being sealed. Tonight, at around 10. 30 P. M. she along with her husband and children was present in her house when sanno Pehelwan along with his nephews akbar and Afsar s/o Allah Pehelwan and one abdul alias Millu who was their friend had come there. That two of her children; namely, Safdar and Akbar were awake at the time of the arrival of said persons in their house. The aforesaid persons who reside in new Seelampur used to keep meeting her husband and that she is well acquainted with them as they are her distant relatives. That two of her children; namely, Safdar and Akbar were awake at the time of the arrival of said persons in their house. The aforesaid persons who reside in new Seelampur used to keep meeting her husband and that she is well acquainted with them as they are her distant relatives. On the arrival of the said persons, she got up from takhat (cot) and was standing when sanno asked her husband to return the money borrowed by him on which her husband replied that he did not owe any money to him. Thereupon a quarrel ensued between her husband and Sanno and suddenly sanno took out a pistol. On seeing this, akbar, Safdar and Millu also took out pistols hidden in their clothes. On seeing pistol in their hands, she got scared; fell on the feet of Sanno and pleaded with him to forgive the deceased, but all the four aforesaid persons fired shots at her husband. The bullets fired by them hit the chest, left abdomen and the ribs of the deceased. When she and her two children Akbar and Safdar shouted for help the said four persons ran away. She sent her son Akbar to call the police and removed her husband who was profusely bleeding to GTB hospital in a TSR with the help of her son Safdar where he was declared as brought dead. Sanno pehelwan, Akbar, Afsar and Millo had acted in concert with each other and murdered her husband. She and her two sons namely, safdar and Akbar, have witnessed the incident in question. At the spot SI Jagveer Singh PW-12, prepared the rough site plan, Ex. PW-12/b of the place of the offence; recording therein, at point "a" the spot where the takhat (cot)on which the deceased was murdered was lying. On thorough search of the place of occurrence, two cartridge cases of. 12 bore arid. 315 bore respectively and one bullet of 315 bore were found which were seized vide memo Ex. PW-2/a. SI Jagveer Singh lifted blood found at the place of occurrence which was seized vide memo Ex. PW-1 /c. The blanket stained with blood found at the place of occurrence was seized vide memo Ex. PW-1/b. Const. Padam (photographer) PW-9, reached the place of occurrence on being summoned. 4 photographs, Ex. PW-9/a to ex. PW-9/d; negatives whereof are Ex. PW-9/e to Ex. PW-9/h were taken. PW-1 /c. The blanket stained with blood found at the place of occurrence was seized vide memo Ex. PW-1/b. Const. Padam (photographer) PW-9, reached the place of occurrence on being summoned. 4 photographs, Ex. PW-9/a to ex. PW-9/d; negatives whereof are Ex. PW-9/e to Ex. PW-9/h were taken. (7) The statements of the sons of the deceased namely Safdar PW-2 and Akbar PW-3, who also claimed to have witnessed the incident were recorded under Section 161 cr. P. C. wherein they also indicted the appellants as the assailants of the deceased. (8) Since the deceased was brought dead at the hospital, his body was sent to the mortuary of GTB Hospital, where dr. K. K. Banerjee PW-18, conducted the postmortem at about 11. 05 A. M. on 04. 02. 2001 and gave his report Ex. PW 18/a, which records the following externa] ante-mortem injuries:- "antemortem Injuries (i) Firearm Entry wound 3 cm x 2 cm x cavity deep with irregular margins and blackening around the wound obliquely placed on left side of upper part of chest 4. 5 cm medial to above at straight line drawn medially from left nipple and 4. 5 cm away from mid-line directed Inwards and medially from left to side of chest cavity. On exploring the wound it had caused a wide fracture of the 1st rib in the left parasternal area 3,5 x 3 cm, a big laceration of the left anterosuperior surface of the heart, aortic arch and upper lobe of left lung. (ii) Firearm Entry wound 1 cm x 0. 8 cm, oval shaped surrounded by tattooing over an,area of 9 cm x 9. 2 cm on left side of abdomen 5 cm away from mid-line, 15 cm above the middle of left inguinal line entering the abdominal cavity directed from left to right obliquely from above downwards. (iii) Firearm Exit wound 1 cm x 1. 2 cm on right posterior axilliary line 10 cm above right iliac crest irregular margins. On exploring the wound it was found connecting injury No. 2 and caused perforation of the ileum. " He opined that the cause of the death of the deceased was shock as a result of ante-mortem injuries to the internal organs produced by the projectile of a firearm from a closed range. That the injuries Nos. On exploring the wound it was found connecting injury No. 2 and caused perforation of the ileum. " He opined that the cause of the death of the deceased was shock as a result of ante-mortem injuries to the internal organs produced by the projectile of a firearm from a closed range. That the injuries Nos. (ii) and (iii) were caused by two different weapons and were sufficient to cause death in the ordinary course of nature. (9) After the post-mortem, the doctor handed over the clothes and blood sample of the deceased on a gauze, a blanket found wrapped on the body of the deceased, three wads and 90 pellets recovered from the body of the deceased to HC Om Pal Singh PW-11, who in turn handed over the same to HC bhoop Singh PW-1o, as recorded in the memo Ex. PW-10/a. (10) Since the three eye-witnesses; namely, Haseen Bano PW-1, Safdar PW-2 and Akbar PW-3, had indicted the appellants of having murdered the deceased, the police set out to apprehend them. Appellants abdul Hamid and Akbar were apprehended by Inspector Rajender Gautam PW-18, SI jagveer Singh PW-12 and Const. Billu Singh pw-7 on 08. 02. 01 from a fly-over at ISBT. Thereafter appellants Afsar and Arsaleen were apprehended on 09. 02. 01 and 14. 02. 01 respectively. The appellants were interrogated and their confessional statements were recorded. We need not note the contents of confessional statements inasmuch as the same are completely inadmissible in evidence as they admit of guilt. We note that no recovery were effected nor was a fact discovered by the police pursuant to the said statements made by the appellants. (11) On 20. 04. 01 SI Mahesh Kumar, a draftsman, was taken to the place of occurrence by Inspector Rajender Gautam PW-19, where at the instance of Safdar he prepared the site plan to scale Ex. PW-13/a; recording therein, points "a" to "f", the spots where the takhat on which the deceased was murdered was lying, the two shells and bullets were found, the spots wherefrom Safdar and Haseena witnessed the incident and blood was lying, respectively. (12) The seized materials; viz. the blood sample and clothes of the deceased, the blanket seized from the place of occurrence and the blanket found wrapped on the body of the deceased at the time of post-mortem were sent to a serologist for a serological test. (12) The seized materials; viz. the blood sample and clothes of the deceased, the blanket seized from the place of occurrence and the blanket found wrapped on the body of the deceased at the time of post-mortem were sent to a serologist for a serological test. Vide FSL reports Ex. PW-19/d and Ex. PW-19/e it was opined that the blood group of the deceased was "a"; that the blood lifted from the place of occurrence was human blood of group "a"; that human blood of group "a" was found on the clothes of the deceased and the afore-noted two blankets. The two cartridge cases and one bullet found at the place of occurrence, three wads and 90 pellets recovered from the body of the deceased and the clothes of the deceased were sent to a ballistic expert for his opinion. Vide report Ex. PW-19/c, the ballistic expert opined that the said two cartridges cases are fired empty cartridge cases; that the bullet found at the place of occurrence corresponds to the bullet of. 315 cartridge; that the wads recovered from the body of the deceased are air cushion wad, under shot wad and over powder wad of 12 bore cartridge; that the pellets, 88 in number, correspond to shots of a 12 bore cartridge; that four holes were found present on the shirt of the deceased, three in front and one in back and that the three out of the said four holes viz, two in front and one in back, were caused by the bullets. (13) Needless to state, the appellants were sent for trial. Charges were framed against them for having committing the offence punishable under Sections 302/34 IPC. (14) At the trial, HC Umesh Singh PW-6, deposed that DD Entry No. 28a, Ex. PW-6/ a, was recorded by him. HC Ram Singh PW-8, deposed that the FIR Ex. PW-8/a and DD entry No. 30a Ex. PW-6/da were recorded by him. Const. Om Pal Singh PW-11, deposed having handed over the clothes and blood sample of the deceased, the blanket found wrapped on the body of the deceased and the wads and pellets recovered from the body of the deceased to HC Bhoop Singh pw-10, vide memo Ex. PW- 10/a. SI Mahesh kumar PW-13, deposed that the site plan to scale Ex. PW-13/a was prepared by him. Dr. PW- 10/a. SI Mahesh kumar PW-13, deposed that the site plan to scale Ex. PW-13/a was prepared by him. Dr. K. K. Banerjee PW-18, deposed that he conducted the post-mortem of the deceased and the post-mortem report Ex. PW-18/a was prepared by him. Const. Padam PW-9, deposed that the photographs, Ex. PW-9/a to Ex. PW-9/d; negatives whereof are Ex. PW-9/e to Ex. PW-9/h were taken and developed by him. Mohd. Hashim PW-15 and abdul Kalam PW-16, the brothers of the deceased, deposed that they had identified the body of the deceased. Ignoring the testimony of few formal police witnesses who deposed to the receipt of various articles in the malkhana and further movement thereof to FSL, we note the testimonies of such witnesses, in respect whereof, submissions were made during the arguments of the appeals on the issue, whether Haseen Bano PW-1. Safdar PW-2 and Akbar PW-3, were at all eye-witnesses. (15) Haseena Bano PW-1, the wife of the deceased, deposed on the lines of her statement Ex. PW-1/a. (16) Safdar PW-2, the son of the deceased, deposed that on 03. 02. 01 the appellants who were quite familiar to him had come to his house and that he, his parents arid his younger brother were awake at that time. That appellant Sanno asked his father to return the money borrowed by him to which the deceased replied that he did not owe any money to him whereupon an altercation took place between them. Suddenly the appellant sanno took out a pistol hidden in his clothes. On seeing this, Akbar, Safdar and Millu also took out pistols hidden in their clothes. On seeing pistol in their hands, his mother got scared; fell on the feet of Sanno and pleaded with him to forgive the deceased. Thereafter appellant Afsar followed by appellant Akbar fired shots at the deceased whereupon he, his mother and brother surrounded the deceased. Thereafter appellants Sanno and millu fired shots at the deceased and then all the appellants fled from their house after firing shots in the air. He and his mother removed the deceased to GTB Hospital in a tempo where the doctor declared him as brought dead. On their return from the hospital they found that two police officials were present at their residence. Two cartridge cases and one bullet was recovered by the police from their house. Mohd. He and his mother removed the deceased to GTB Hospital in a tempo where the doctor declared him as brought dead. On their return from the hospital they found that two police officials were present at their residence. Two cartridge cases and one bullet was recovered by the police from their house. Mohd. Akbar PW-3, the son of the deceased, deposed that on 03. 02. 01 at around 10. 30 P. M. the appellants had come to his house and that he, his parents and siblings were present therein at that time. Appellant Sanno asked his father to return the money borrowed by him to which the deceased replied that he did not owe any money to him, whereupon an altercation took place between them. Suddenly the appellant Sanno took a pistol hidden in his clothes. On seeing this, Akbar, Safdar and millu also took out pistol hidden in their clothes. On seeing pistols in their hands, his mother got scared; fell on the feet of sanno and pleaded with him to forgive the deceased. Thereafter appellant Afsar fired a shot at the deceased which hit him on the chest and he fell on the ground. Thereafter appellant Akbar fired a shot at the deceased which hit him on the back side of his stomach. Thereafter appellants Sanno and Millu fired shots at the deceased and then the appellants fled from their house. His mother and brother Akbar removed the deceased to the hospital in a TSR, Two cartridge cases and one bullet was recovered by the police from their house. (17) In their examination under Section 313 Cr. P. C, the appellants pleaded innocence and false implication. They stated that the deceased used to indulge in gambling and was murdered by some unidentified persons in connection with the same. The deceased was murdered near an electric transformer situated near Brahmpur Pulia and that his body was subsequently shifted by his family to his residence in order to contrive evidence against the appellants. That the family of the deceased was inimical towards appellant Akbar and Mursaleen on account of the fact that' the brother of the wife of the deceased was engaged to a relative of said appellants, which engagement was broken by the family of the said appellants. That the family of the deceased was inimical towards appellant Akbar and Mursaleen on account of the fact that' the brother of the wife of the deceased was engaged to a relative of said appellants, which engagement was broken by the family of the said appellants. Due to this the family of the deceased bore a grudge against appellants Afsar and abdul Hamid inasmuch they had supported the appellants Akbar and Mursaleen in the dispute arising out of the said broken engagement. Additionally, appellant Afsar pleaded the defence of alibi to improbablize his physical presence at the place of occurrence at the alleged time of occurrence. He stated that he was attending the marriage of the daughter one Satbir Singh, a friend of his father, at the alleged time of the crime. (18) In defence, the appellants examined five witnesses namely, Rukhsana, Allo, satbir Singh, Jakir and Sayeeda Parveen as dw-1, DW-2, DW-3, DW-4 and DW-5 respectively. Rukhsana DW-1, a neighbour of the deceased, deposed that the deceased used to indulge in gambling in his lifetime. That 6-7 years ago at around 10-10. 20 P. M. she was present in her residence when she heard noises coming from the neighbourhood whereupon she went out and found that the deceased was lying murdered under an electric transformer situated near pulia. That 2-3 persons brought the deceased to his residence wherein no family member of the deceased was found present. The deceased was laid down on the floor of his residence and was covered by a blanket. Someone from the crowd informed the wife of the deceased who was present at the residence of her brother. That she had appraised the police about the said incident. (19) JAKIR DW-4, a neighbour of the deceased, deposed that the deceased used to indulge in gambling in his lifetime. That about 6-6 1 /2 years ago he had seen that the deceased was lying near an electric transformer situated near the pulia of his colony and that 15-20 persons were standing near the deceased. That someone from the crowd went to the house of the deceased but the same was found to be locked. That thereafter some persons from the crowd removed the deceased to GTB hospital. That someone from the crowd went to the house of the deceased but the same was found to be locked. That thereafter some persons from the crowd removed the deceased to GTB hospital. (20) SAYDA Parveen DW-5, a neighbour of the appellant Mursaleen, deposed that a dispute had arisen between the families of the wife of the deceased and appellant mursaleen in connection with the engagement of the brother of the wife of the deceased with a relative of appellant mursaleen. That the family of the wife of the deceased had given threats to appellant mursaleen and also to his family members and friends. Also DW-2, the father of appellant afsar, deposed that the family of the deceased was inimically deposed towards his family as he had supported appellant mursaleen in the dispute which had arisen between the families of the wife of the deceased and appellant Mursaleen in connection with the engagement of the brother of the wife of the deceased with a relative of appellant Mursaleen. That on 03. 02. 01 appellant Afsar had gone to village Kiradi near punjabi Bagh to attend a marriage and returned home next day at around 4 A. M. (21) Satbir Singh DW-3, a friend of the father of appellant Afsar, deposed that the marriage of his daughter was solemnized on 03. 02. 01 and that appellant Afsar had attended the said marriage. That appellant afsar handed him a gift at around 7. 30 P. M. and that he had last seen him at venue between 12. 30 A. M. to 1. 00 A. M. (22) Believing the testimony of Haseen bano PW-1, Safdar PW-2 and Akbar PW-3, to be creditworthy; holding that the witnesses examined by the defence particularly rukhsana DW-1 and Jakir DW-4, do not inspire any confidence for the reason there is a material contradiction between their versions inasmuch as Rukhsana had deposed that the deceased was removed to his house from the electric transformer whereas jakir deposed that he was removed to the hospital; that appellant Afsar has not been able to prove his defence of alibi for the reason the credentials of Satbir Singh DW-3, are doubtful, inasmuch as he has not been able to show any evidence to establish that appellant Afsar had attended the marriage of his daughter on 03. 02. 01, the learned trial Judge has convicted the appellants. 32a. 02. 01, the learned trial Judge has convicted the appellants. 32a. At the hearing of the appeals, learned counsel for the appellants advanced submissions on following 8 counts:-I That the FIR registered in the present case was ante-timed. II That the witnesses,namely, Haseena bano PW-1, Safdar PW-2 and Akbar PW-3, are "wholly unreliable" witnesses. III That there is variance between medical and ocular evidence. IV That the conduct of the so-called eyewitnesses after the incident is most unnatural. V That the case set tip by the prosecution is improbable, v vi That the prosecution failed to prove the genesis of the occurrence. That there are suspicious circumstances in the case of the prosecution. VIII That the investigation conducted in the present case is most perfunctory. FIR BEING ANTE-TIMED The first submission advanced by the learned counsel for the appellants was that the FIR Ex. PW-8/a registered in the present case was ante-timed which leads to a strong presumption that the police had gained time to contrive evidence against the appellants. According to the counsel, the circumstances which indicated that the FIR was ante-timed are that: - (i) no evidence has been adduced by the prosecution to prove that the requirement of sending the copy of the FIR to the magistrate soon after the occurrence prescribed under Section 157 Cr. P. C. was complied with. Particular emphasis was laid on the fact that the police official who had allegedly delivered copy of the FIR to the Magistrate has not been examined by the prosecution; (ii) there is a serious contradiction in the evidence on record regarding the delivery of the FIR to the Magistrate inasmuch as FIR Ex. PW-8/a records that the same was delivered through Const. Ranveer Singh whereas HC Bhoop Singh PW-8, who is the scribe of the FIR, deposed that the same was delivered through Const. Harbeer Singh; (iii)DD Entry No. 30a Ex. PW-6/da, records that the FIR in question is "being recorded" at 1. 40 A. M. on 04. 02. 01 which is contrary to the recording contained in the FIR that the same was recorded at 1. 40 A. M. on 04. 02. 01 and (iv) the fact that DD Entry No. 30a ex. PW-6/da, was got proved by the defence and not by prosecution indicates that the prosecution had attempted to conceal the said document. 02. 01 which is contrary to the recording contained in the FIR that the same was recorded at 1. 40 A. M. on 04. 02. 01 and (iv) the fact that DD Entry No. 30a ex. PW-6/da, was got proved by the defence and not by prosecution indicates that the prosecution had attempted to conceal the said document. (23) It is no doubt true that the compliance with the provisions of Section 157 cr. P. C. is required to be proved by the prosecution. However, the question which arises for consideration is whether the failure of the prosecution in proving the said requirement necessarily leads to an inference that the FIR has not laden lodged at the stated time or that the investigation is not fair and forthright. (24) A similar contention advanced before madhya Pradesh High Court in the decision reported as Naniya alias Nannuram and Ors. v State of M. P. (1995) MPLJ 439 : (1995 Cri lj 1870) was repelled by the Court in the following terms:- "though, it is the requirement of law that the report of the offence, if any, be immediately sent to the Magistrate having jurisdiction, but any irregularity in that will not be sufficient to throw the case of the prosecution over board. What is required is that the evidence should be closely scrutinized and the possibility as to whether FIR has been antedated should also be examined. " In the decision reported as Poor Singh v. State of MP 2004 Cri L J 3180 a contention was advanced before the Madhya pradesh High Court that no proof was adduced by the prosecution pertaining to compliance with the provisions of Section 157 of Code of Criminal Procedure regarding sending of copy of the First Information Report to the Magistrate concerned, therefore, the accused persons could have not been convicted. The court noted that no question was put to the Investigating Officer, who was the scribe of the FIR, regarding the dispatch of the copy of the FIR to the Magistrate and that no suggestion was given to the said witness to the effect that copy of the FIR was not sent or that it was dispatched late, which if given, would have given an opportunity to the witness to afford some explanation or to show as to when the FIR, was sent to and received by the Magistrate. In view of the afore-noted circumstances, it was held by the court that it cannot be said that the copy of the FIR was not sent to the Magistrate promptly. It was further held that mere non-compliance with the provisions of section 157 Cr. P. C. is by itself no ground to throw out the case of the prosecution. (25) In the decision reported as State of MP v. Pattu2001 Cri. L. J. 3217, the only evidence regarding the dispatch of the copy of the FIR to the Magistrate was the testimony of the police official who had registered the fir that he had sent the copy of the FIR to the Magistrate through a special messenger. The special messenger who had delivered the copy of the FIR to the Magistrate was not examined by the prosecution. It was held by Madhya Pradesh High Court that the deposition of the author of the FIR regarding the delivery of a copy of the FIR to the Magistrate is sufficient to prove compliance with the provisions of Section 157 cr. P. C. It was yet again held by the Court that mere non-compliance of Section 157 cr. P. C. shall not itself lead to throwing out of the case of the prosecution. (26) In the instant case, HC Ram Singh pw-8, has categorically deposed that he had dispatched the FIR Ex. PW-8/a after its registration to the Magistrate and senior police officials through a special messenger. It is relevant to note that neither any question was put nor any suggestion was given to the witness in his cross-examination regarding the dispatch of the FIR. In view of the afore-noted facts and judicial decisions noted herein above, we find no merit in the submission of the counsel predicated upon Section 157 Cr. P. C. (27) Insofar as the discrepancy between the recording contained in FIR Ex. PW-8/a and the testimony of HC Ram Singh PW-8, regarding the delivery of the FIR to the Magistrate is concerned, it be noted here that hc Ram Singh was "examined on 24. 02. 06 i. e. five years after scribing the FIR. Human memory is not infallible. PW-8/a and the testimony of HC Ram Singh PW-8, regarding the delivery of the FIR to the Magistrate is concerned, it be noted here that hc Ram Singh was "examined on 24. 02. 06 i. e. five years after scribing the FIR. Human memory is not infallible. It is too much to expect that the witness would correctly remember the name of the police officer who had delivered the FIR scribed by him after five years of scribing the FIR particularly when he has been scribing and dispatching dozens of FIR in a month. (28) It was pointed out by the learned counsel, pertaining to DD Entry No. 30a, ex. PW-6/d, that the said DD Entry records that FIR No. 50/2001 is "being recorded" at 1. 40 A. M. on 04. 02;dl, meaning thereby, that the said FIR was in the process of being recorded at 1. 40 A. M., which is manifestly contrary to the recording contained in the said FIR that it was recorded at 1. 40 a. M. on 04. 02. 01. Elaborating this contention learned counsel contended that the fact that the prosecution had attempted to suppress the said DD Entry by not proving the same reinforces the stand of the appellants that the FIR Ex. PW-8/a was not recorded at 1. 40 A. M. as alleged by the prosecution. Nothing much turns on the fact whether the FIR Ex. PW-8/a was "being recorded" or "recorded" at 1. 40 A. M. on 04. 02. 01. If the argument of the counsel that the FIR was being recorded at 1. 40 A. M. is accepted, then it can safely be taken the registration of the FIR would have been completed by 1. 55 A. M. This difference of fifteen minutes in the stated and actual time; of the registration of the FIR as brought out by the counsel is of no consequence inasmuch as police Would have taken mere fif-teen minutes to contrive evidence against the appellants. It is apparent that the scribe of the FIREx. PW-8/a, has recorded the time at which he Started the registration of the fir, as the time of its registration. The argument is nothing more than quibbling with words and expressions. (29) Insofar as the contention that the prosecution had attempted to conceal the dd Entry No. 30a Ex. It is apparent that the scribe of the FIREx. PW-8/a, has recorded the time at which he Started the registration of the fir, as the time of its registration. The argument is nothing more than quibbling with words and expressions. (29) Insofar as the contention that the prosecution had attempted to conceal the dd Entry No. 30a Ex. PW-6/da, as it has not proved the same is concerned, suffice would it be to state that the omission by the prosecution to prove the said document is of no consequence inasmuch as prosecution did not prove the said document as nothing much turned on the said document, for the reason, it merely pertained to the registration of the FIR Ex. PW-8/a. EYE-WITNESSES BEING "wholly unreliable" WITNESSES (30) UNDER this head, learned counsel for the appellants contended that the so-called eye-witnesses are "wholly unreliable" witnesses for the reason their evidence Is full of serious contradictions. The contradictions pointed out by the learned counsel can be broadly classified into three categories namely, (i) inter-se contradictions between the testimony of the said witnesses; (ii) contradictions between the statements of the witnesses recorded under Section 161 cr. P. C. and their testimony in Court and (iii)contradictions between the testimony of the said witness and other evidence on record. Under the first category, the contradictions pointed out by the learned counsel were: - (i) Haseen Banq PW-1, deposed that all the four appellants had at once fired shots at the deceased from their respective pistols, whereas Safdar PW-2 and Akbar PW-3, deposed that appellant Afsar followed by appellants Akbar, Sannb and Millu had fired shots at the deceased; (ii) Haseena Bano deposed that she had sent Akbar to the police station after the incident to inform the police, but neither Safdar nor Akbar deposed about the fact that Akbar, had gone to the police station after the' incident and (iii)Haseena Bano deposed that she and her son safdar had removed the deceased to the hospital in a TSR whereas Safdar deposed that they had removed the deceased to the hospital in a tempo. (31) UNDER the second category, the contradictions pointed out by the learned counsel were: - (i) Safdar stated in his statement under Section 161 Cr. (31) UNDER the second category, the contradictions pointed out by the learned counsel were: - (i) Safdar stated in his statement under Section 161 Cr. P. C. that the shots fired by appellants Sanno and Millu had hit the wall whereas he pleaded ignorance about the said fact in his testimony; (ii) Akbar stated in his statement under Section 161 cr. P. C. that he, his mother and Safdar had embraced the deceased before firing of shots by appellants Sanno and Millu whereas he deposed in Court that they had come near to the deceased but had not embraced him; (iii) Haseena Bano stated in her statement ex. PW-1 /a that the appellants were her distant relatives whereas she deposed in her examination-in-chief that she was related to the appellants as she and the appellants belonged to the same community and (iv)Haseena Bano stated in her testimony that the deceased removed the quilt from his body when the appellants arrived at their residence whereas no such factum was stated by her in her statement Ex. PW-1 /a. (32) UNDER the third category, the contradictions pointed out by the learned counsel were:- (i) Haseena Bano deposed that no blanket was wrapped on the body of the deceased at the time of the incident or admission of the deceased in the hospital whereas seizure memo Ex. PW- 10/a records that a blanket was found covering the body of the deceased at the time of admission of the deceased in the hospital (ii) Safdar deposed that the police had seized quilts and mattresses from the place of occurrence but there is no memo recording the seizure of the said articles and (iii) Haseena Bano and safdar deposed that they had met the police at the hospital whereas there is no evidence establishing the said fact. After pointing out the afore-noted contradictions, learned, senior counsel drew attention of this Court to the decision of Supreme Court reported as Mahinder Singh v. State of Haryana 1974 Cri L J 742 (SC)wherein it was held that there is a limit of illiteracy of a witness which should be considered a factor in his benefit and that it cannot induce a Court to ignore the infirmities in his evidence or to fill in lacuna in the prosecution case. Learned senior counsel contended that in view of the afore-noted observations of Supreme Court, this Court should attach due importance to the contradictions pointed herein above and discard the evidence of the said witnesses. (33) The appreciation of ocular evidence is a Herculean task. There is no fixed or strait-jacket formula for appreciation of ocu lar evidence. The judicially evolved principles regarding the appreciation of the ocular evidence in a criminal case can be enumerated as under:- I While appreciating the evidence of a witness, the approach must be whether the evidence of the witness read as a whole appears to have a ring of truth. Once that impression is formed, it is undoubtedly necessary for the Court, to scrutinize the evidence more particularly keeping in view the deficiencies, drawbacks and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it' is against the general tenor of the evidence given by the witness arid whether the earlier evaluation of the evidence is shaken as to render it unworthy of belief. II If the Court before whom the witness gives evidence had the opportunity to form the opinion about the general tenor of evidence given by the witness, the appellate court which had not this benefit will have to attach due weight to the appreciation of evidence by the trial Court and unless there are reasons weighty and formidable it would not be proper to reject the evidence on the ground of minor variations or infirmities in the matter of trivial details. III When eye-witness is examined at length it is quite possible for him to make some discrepancies. But courts should bear in mind that it is only when discrepancies in the evidence of a witness are so incompatible with the credibility, of his version that the Court is justified in jettisoning his evidence. IV Minor discrepancies on trivial matters not touching the core of the case, hyper technical approach by taking sentences torn out of context here or there from the evidence, attaching importance to some technical error committed by the investigating officer not going to the root of the matter would not ordinarily permit rejection of the evidence as a whole. IV Minor discrepancies on trivial matters not touching the core of the case, hyper technical approach by taking sentences torn out of context here or there from the evidence, attaching importance to some technical error committed by the investigating officer not going to the root of the matter would not ordinarily permit rejection of the evidence as a whole. V Too serious a view to be adopted on mere variations falling in the narration of an incident (either as between the evidence of two witnesses or as between two statements of the same witness) is an unrealistic approach for judicial scrutiny. VI By and large a witness cannot be expected to possess a photographic memory and to recall the details of an incident. It is not as if a video tape is replayed on the men-tal screen. VII Ordinarily it so happens that a witness is overtaken by events. The witness could not have anticipated the occurrence which so often has an element of surprise. The mental faculties therefore cannot be expected to be attuned to absorb the details. VIII The powers of observation differ from person to person. What one may notice, another may not. An object or movement might emboss its image on one person's mind whereas it might go unnoticed on the part of another. IX By and large people cannot accurately recall a conversation and reproduce the very words used by them or heard by them. They can only recall the main purport of the conversation. It is unrealistic to expect a witness to be a human tape recorder. X In regard to exact time of an incident, or the time duration of an occurrence, usually, people make their estimates by guess work on the spur of the moment at the time of interrogation. And one cannot expect people to make very precise or reliable estimates in such matters. Again, it depends on the time-sense of individuals which varies from person to person. XI Ordinarily a witness cannot be expected to recall accurately the sequence of events which take place in rapid succession or in a short time span. A witness is liable to get confused, or mixed up when interrogated later on. Again, it depends on the time-sense of individuals which varies from person to person. XI Ordinarily a witness cannot be expected to recall accurately the sequence of events which take place in rapid succession or in a short time span. A witness is liable to get confused, or mixed up when interrogated later on. XII A witness, though wholly truthful, is liable to be overawed by the court atmosphere and the piercing cross examination by counsel and out of nervousness mix up facts, get confused regarding sequence of events, or fill up details from imagination on the spur of the moment. The sub-conscious mind of the witness sometimes so operates on account of the fear of looking foolish or being disbelieved though the witness is giving a truthful and honest account of the occurrence witnessed by him. XIII A former statement though seemingly inconsistent with the evidence need not necessarily be sufficient to amount to contradiction. Unless the former statement has the potency to discredit the later statement, even if the later statement is at variance with the former to some extent it would not be helpful to contradict that witness. (These principles have been culled out from the decisions of Supreme Court reported as Bharwada Bhoginbhai Hirjibhai v. State of Gujarat AIR 1983 SC 753 : (1983 cri LJ 1096), Leela Ram v. State of Haryana air 1999 SC 3717 and Tahsildar Singh v. State of UP AIR 1959 SC 1012 : 1959 Cri LJ 1261). (34) As noted herein above, the first step in appreciating evidence of a witness is to examine his evidence dehors the discrepancies appearing therein and to see whether the evidence appears to be a truthful account. In the instant case, the incident occurred around 10. 30 P. M. on 03. 02. 01. The statement Ex. PW-l/a of Haseena Bano, which formed the basis of the registration of the FIR Ex. PW-8/a, was recorded at 1. 30 a. M. on 04. 02. 01. The FIR stood registered at around 1. 40 A. M. on 04. 02. 01. It be noted here that Haseena Bano had removed the deceased to the hospital as recorded in the mlc Ex. PW-4/a of the deceased. The statement of Haseena Bano Ex. PW-l/a was recorded at the place of occurrence after she had returned from the hospital. 01. The FIR stood registered at around 1. 40 A. M. on 04. 02. 01. It be noted here that Haseena Bano had removed the deceased to the hospital as recorded in the mlc Ex. PW-4/a of the deceased. The statement of Haseena Bano Ex. PW-l/a was recorded at the place of occurrence after she had returned from the hospital. It can reasonably be taken that it must have taken at- least 45 minutes for Haseena Bano in removing the deceased to the hospital, getting him admitted there and thereafter to return to the place of the occurrence. In these circumstances, the possibility of Haseena Bano contriving facts and spinning a false story in such less time is remote. (35) There is yet another fact which needs to be noted. The Supreme Court in the decision reported as Malkiat Singh v. State of punjab (1991) 4 SCC 341 has held that it is settled law that the First Information Report is not substantive evidence. It can be used only to contradict the maker thereof or for corroborating his evidence and also to show that the implication of the accused was not an after-thought. In the instant case, the FIR Ex. PW-8/a, records that haseena Bano had stated that the bullets fired by the appellants hit the chest, left abdomen and ribs of the deceased. The findings of the doctor who had conducted the post-mortem of the deceased after the registration of the FIR as recorded in the postmortem report Ex. PW-18/a are that two bullet entry wounds were found on the left abdomen and the chest of the deceased. Therefore, the FIR Ex. PW-8/a duly corroborates the testimony of Haseena Bano, for the reason, unless Haseena Bano had seen the bullets hitting the deceased; she could not have correctly stated the situs of the injuries suffered by the deceased, prior to the conduct of the post-mortem of the deceased. (36) The MLC Ex. PW-4/a of the deceased corroborates the testimony of Haseena Bano that she had removed the deceased to the hospital, which in turn, establishes her presence at the place of occurrence at the time of the incident. The three eye-witnesses have corroborated each other on material aspects relating to the incident. (37) Therefore, the conclusion which emerges from the first reading of the evidence of the witnesses in question is that they are prima facie truthful witnesses. The three eye-witnesses have corroborated each other on material aspects relating to the incident. (37) Therefore, the conclusion which emerges from the first reading of the evidence of the witnesses in question is that they are prima facie truthful witnesses. (38) Next, it needs to be considered, whether the contradictions pointed out by the learned counsel render the testimony of said witnesses, unworthy of any credit. Before examining the effect of the contradictions pointed out by the learned counsel qua the credibility of the witnesses, it be noted here, that the witnesses were subjected to a very lengthy cross-examination, evident from the fact that the cross-examination of Haseena Bano, Safdar and Akbar runs into 31, 23 and 13 pages respectively. They were cross-examined by as many as four counsel. (39) The first contradiction which relates to the sequence of firing of shots by the appellants as stated by Haseena Bano on the one hand and Safdar and Akbar on the other hand, shall be dealt by us under the head "variance between medical and ocular evidence". (40) The second contradiction that Safdar and Akbar have not deposed a word about the factum of Akbar going to the police station after the incident in their examination-in-chief, is of no consequence, for the reason they have succinctly stated in their cross-examination that Akbar had gone to the police station after the incident. Mere omission on part of the said witnesses to state the said fact in examination-in-chief is not fatal to the case of the prosecution. The third contradiction which relates to the mode of transport used to remove the deceased to the hospital is no contradiction, because a TSR is also loosely referred to as a tempo. Even otherwise, the discrepancies in the evidence of the prosecution regarding the mode of transportation for removing the deceased to the hospital are minor in nature as held by Supreme Court in a recent decision in Criminal Appeal No. 341 of 2006 Gurunath Donkappal Keri v State of karnataka decided on 06. 05. 2009 (reported in 2009 Cri LJ 2995). (41) The fourth contradiction, which relates to the place, where the shots fired by appellants Sanno and Millu had hit, shall be dealt by us under the head "variance between medical and ocular evidence". 05. 2009 (reported in 2009 Cri LJ 2995). (41) The fourth contradiction, which relates to the place, where the shots fired by appellants Sanno and Millu had hit, shall be dealt by us under the head "variance between medical and ocular evidence". (42) The fifth contradiction relating to whether the witnesses had embraced or surrounded the deceased before the firing of the shot by appellants Sanno and Millu pointed out by learned counsel is again of no consequence. As already noted hereinabove, only those former statements which have the potential to discredit the later statement of a witness can be used to contradict a witness. The fact that whether the witnesses had embraced or surrounded the deceased before firing of the shots by appellants Sanno and Millu has no material bearing on the guilt/innocence of the appellants. Likewise, the contradictions that whether the deceased were related to each other because of being distant relatives or because of belonging to the same community or that whether the deceased had removed the quilt at the time of arrival of the appellants are of no consequence. The next two contradictions which relate to the seizure of the articles during the Investigation are of no consequence for the reason it is settled law that it is not proper to reject the evidence of a witness on the ground of minor variations or infirmities in the matter of trivial details. (43) Insofar as the last contradiction which relates to the removal and admission of the deceased in the hospital by the witnesses haseena Bano and Safdar is concerned, suffice would it be to state that the deposition of the said witnesses that they had removed the deceased to the hospital, stands corroborated by the MLC Ex. PW-4/a of the deceased, which records that the wife of the deceased had brought him to the hospital. JUDGMENT (1) VIDE impugned judgment and order dated 30. 04. 2007, the appellants, Abdul Hamid @ millu, Akbar, Afsar @ Umar Daraj and arasleen @ Mursaleen @ Sanno have been convicted for the offence of having murdered mohd. Kazim @ Babbu Pehelwan (hereinafter referred to as the "deceased"), for which offence they have been sentenced to undergo imprisonment for life and pay a fine in sum of Rs. 5,000/- each; in default to undergo rigorous imprisonment for one year. (2) Case of the prosecution was that in the night of 03. Kazim @ Babbu Pehelwan (hereinafter referred to as the "deceased"), for which offence they have been sentenced to undergo imprisonment for life and pay a fine in sum of Rs. 5,000/- each; in default to undergo rigorous imprisonment for one year. (2) Case of the prosecution was that in the night of 03. 02. 2001 the appellants went to the house of the deceased and that a dispute arose between appellant Arasleen and the deceased over a sum of money. Thereafter all the appellants fired shots at the deceased from their respective pistols and fled from the place of the incident after causing the death of the deceased. The wife and sons of the deceased namely, Haseen Bano PW-1, Safdar PW-2 and Akbar PW-3, had witnessed the incident. Needless to state the case of the prosecution hinged upon the veracity and credibility of the testimony of Haseen Bano PW-1, Safdar PW-2 and Akbar PW-3. (3) Criminal law was set into motion when at around 11. 20 P. M. oh 03. 02. 01, DD Entry No. 28a, Ex. PW-6/a, was recorded by HC umesh Singh PW-6, to the effect that a wireless information has been received informing that two persons named Akbar and Afsar have shot a person near a transformer situated near Brahmpur Pulia. (4) On receiving a copy of the afore-noted dd Entry, SI Jagbir Singh PW-12, accompanied with Const. Shokeender PW-5 and const. Billu Singh PW-7, went to the electric transformer situated near Brahmpur pulia and on learning that an incident of murder had taken place at a nearby slum-dwelling bearing Municipal No. B-16/k-3332, K-Block, Ganda Nala, Seelam Pur proceeded to the said dwelling where they learnt that the deceased has been removed to GTB hospital. Leaving Const. Shokeender PW-5, at the place of occurrence, SI Jagbir Singh PW-12 and Const. Billu Singh PW-7, proceeded to GTB hospital where they were informed that the deceased has been declared brought dead as noted in the Ex. PW-4/a of the deceased. We note that on the MLC Ex. PW-4/ a of the deceased, following was recorded:- "name and address of relative or friend brought by : wife alleged H/o gunshot patient brought to hospital at 11. 30 P. M. " (5) After obtaining the MLC Ex. PW-4/a of the deceased, SI Jagbir Singh and Const. PW-4/a of the deceased. We note that on the MLC Ex. PW-4/ a of the deceased, following was recorded:- "name and address of relative or friend brought by : wife alleged H/o gunshot patient brought to hospital at 11. 30 P. M. " (5) After obtaining the MLC Ex. PW-4/a of the deceased, SI Jagbir Singh and Const. Billu Singh returned to the place of occurrence where they met Haseena Bano PW-1, the wife of the deceased, who claimed to have witnessed the incident. SI Jagbir Singh recorded the statement Ex. PW- l/a of Haseen bano and made an endorsement Ex. PW-12/ a thereon, and at around 1. 30 A. M. forwarded the same through Const. Billu Singh pw-7, for registration of an FIR. Const. Billu singh took Ex. PW-12/a to the police station and handed over the same to HC Ram singh PW-8, who recorded the FIR No. 50/ 2001, Ex. PW-8/a, at 1. 40 A. M. on 04. 02. 01. HC Ram Singh contemporaneously prepared dd Entry No. 30a Ex. PW-6/da, recording the registration of the FIR Ex. PW-8/a. (6) In her statement Ex. PW- l / A, Haseen bano stated that she resides in a slum-dwelling bearing Municipal No. B-16/k-3332, K-Block, Ganda Nala, Seelam Pur with her family. Her husband had a factory, where bangles were manufactured, but at present is running a dairy on account of the said factory being sealed. Tonight, at around 10. 30 P. M. she along with her husband and children was present in her house when sanno Pehelwan along with his nephews akbar and Afsar s/o Allah Pehelwan and one abdul alias Millu who was their friend had come there. That two of her children; namely, Safdar and Akbar were awake at the time of the arrival of said persons in their house. The aforesaid persons who reside in new Seelampur used to keep meeting her husband and that she is well acquainted with them as they are her distant relatives. On the arrival of the said persons, she got up from takhat (cot) and was standing when sanno asked her husband to return the money borrowed by him on which her husband replied that he did not owe any money to him. Thereupon a quarrel ensued between her husband and Sanno and suddenly sanno took out a pistol. On the arrival of the said persons, she got up from takhat (cot) and was standing when sanno asked her husband to return the money borrowed by him on which her husband replied that he did not owe any money to him. Thereupon a quarrel ensued between her husband and Sanno and suddenly sanno took out a pistol. On seeing this, akbar, Safdar and Millu also took out pistols hidden in their clothes. On seeing pistol in their hands, she got scared; fell on the feet of Sanno and pleaded with him to forgive the deceased, but all the four aforesaid persons fired shots at her husband. The bullets fired by them hit the chest, left abdomen and the ribs of the deceased. When she and her two children Akbar and Safdar shouted for help the said four persons ran away. She sent her son Akbar to call the police and removed her husband who was profusely bleeding to GTB hospital in a TSR with the help of her son Safdar where he was declared as brought dead. Sanno pehelwan, Akbar, Afsar and Millo had acted in concert with each other and murdered her husband. She and her two sons namely, safdar and Akbar, have witnessed the incident in question. At the spot SI Jagveer Singh PW-12, prepared the rough site plan, Ex. PW-12/b of the place of the offence; recording therein, at point "a" the spot where the takhat (cot)on which the deceased was murdered was lying. On thorough search of the place of occurrence, two cartridge cases of. 12 bore arid. 315 bore respectively and one bullet of 315 bore were found which were seized vide memo Ex. PW-2/a. SI Jagveer Singh lifted blood found at the place of occurrence which was seized vide memo Ex. PW-1 /c. The blanket stained with blood found at the place of occurrence was seized vide memo Ex. PW-1/b. Const. Padam (photographer) PW-9, reached the place of occurrence on being summoned. 4 photographs, Ex. PW-9/a to ex. PW-9/d; negatives whereof are Ex. PW-9/e to Ex. PW-9/h were taken. (7) The statements of the sons of the deceased namely Safdar PW-2 and Akbar PW-3, who also claimed to have witnessed the incident were recorded under Section 161 cr. P. C. wherein they also indicted the appellants as the assailants of the deceased. 4 photographs, Ex. PW-9/a to ex. PW-9/d; negatives whereof are Ex. PW-9/e to Ex. PW-9/h were taken. (7) The statements of the sons of the deceased namely Safdar PW-2 and Akbar PW-3, who also claimed to have witnessed the incident were recorded under Section 161 cr. P. C. wherein they also indicted the appellants as the assailants of the deceased. (8) Since the deceased was brought dead at the hospital, his body was sent to the mortuary of GTB Hospital, where dr. K. K. Banerjee PW-18, conducted the postmortem at about 11. 05 A. M. on 04. 02. 2001 and gave his report Ex. PW 18/a, which records the following externa] ante-mortem injuries:- "antemortem Injuries (i) Firearm Entry wound 3 cm x 2 cm x cavity deep with irregular margins and blackening around the wound obliquely placed on left side of upper part of chest 4. 5 cm medial to above at straight line drawn medially from left nipple and 4. 5 cm away from mid-line directed Inwards and medially from left to side of chest cavity. On exploring the wound it had caused a wide fracture of the 1st rib in the left parasternal area 3,5 x 3 cm, a big laceration of the left anterosuperior surface of the heart, aortic arch and upper lobe of left lung. (ii) Firearm Entry wound 1 cm x 0. 8 cm, oval shaped surrounded by tattooing over an,area of 9 cm x 9. 2 cm on left side of abdomen 5 cm away from mid-line, 15 cm above the middle of left inguinal line entering the abdominal cavity directed from left to right obliquely from above downwards. (iii) Firearm Exit wound 1 cm x 1. 2 cm on right posterior axilliary line 10 cm above right iliac crest irregular margins. On exploring the wound it was found connecting injury No. 2 and caused perforation of the ileum. " He opined that the cause of the death of the deceased was shock as a result of ante-mortem injuries to the internal organs produced by the projectile of a firearm from a closed range. That the injuries Nos. (ii) and (iii) were caused by two different weapons and were sufficient to cause death in the ordinary course of nature. " He opined that the cause of the death of the deceased was shock as a result of ante-mortem injuries to the internal organs produced by the projectile of a firearm from a closed range. That the injuries Nos. (ii) and (iii) were caused by two different weapons and were sufficient to cause death in the ordinary course of nature. (9) After the post-mortem, the doctor handed over the clothes and blood sample of the deceased on a gauze, a blanket found wrapped on the body of the deceased, three wads and 90 pellets recovered from the body of the deceased to HC Om Pal Singh PW-11, who in turn handed over the same to HC bhoop Singh PW-1o, as recorded in the memo Ex. PW-10/a. (10) Since the three eye-witnesses; namely, Haseen Bano PW-1, Safdar PW-2 and Akbar PW-3, had indicted the appellants of having murdered the deceased, the police set out to apprehend them. Appellants abdul Hamid and Akbar were apprehended by Inspector Rajender Gautam PW-18, SI jagveer Singh PW-12 and Const. Billu Singh pw-7 on 08. 02. 01 from a fly-over at ISBT. Thereafter appellants Afsar and Arsaleen were apprehended on 09. 02. 01 and 14. 02. 01 respectively. The appellants were interrogated and their confessional statements were recorded. We need not note the contents of confessional statements inasmuch as the same are completely inadmissible in evidence as they admit of guilt. We note that no recovery were effected nor was a fact discovered by the police pursuant to the said statements made by the appellants. (11) On 20. 04. 01 SI Mahesh Kumar, a draftsman, was taken to the place of occurrence by Inspector Rajender Gautam PW-19, where at the instance of Safdar he prepared the site plan to scale Ex. PW-13/a; recording therein, points "a" to "f", the spots where the takhat on which the deceased was murdered was lying, the two shells and bullets were found, the spots wherefrom Safdar and Haseena witnessed the incident and blood was lying, respectively. (12) The seized materials; viz. the blood sample and clothes of the deceased, the blanket seized from the place of occurrence and the blanket found wrapped on the body of the deceased at the time of post-mortem were sent to a serologist for a serological test. Vide FSL reports Ex. PW-19/d and Ex. (12) The seized materials; viz. the blood sample and clothes of the deceased, the blanket seized from the place of occurrence and the blanket found wrapped on the body of the deceased at the time of post-mortem were sent to a serologist for a serological test. Vide FSL reports Ex. PW-19/d and Ex. PW-19/e it was opined that the blood group of the deceased was "a"; that the blood lifted from the place of occurrence was human blood of group "a"; that human blood of group "a" was found on the clothes of the deceased and the afore-noted two blankets. The two cartridge cases and one bullet found at the place of occurrence, three wads and 90 pellets recovered from the body of the deceased and the clothes of the deceased were sent to a ballistic expert for his opinion. Vide report Ex. PW-19/c, the ballistic expert opined that the said two cartridges cases are fired empty cartridge cases; that the bullet found at the place of occurrence corresponds to the bullet of. 315 cartridge; that the wads recovered from the body of the deceased are air cushion wad, under shot wad and over powder wad of 12 bore cartridge; that the pellets, 88 in number, correspond to shots of a 12 bore cartridge; that four holes were found present on the shirt of the deceased, three in front and one in back and that the three out of the said four holes viz, two in front and one in back, were caused by the bullets. (13) Needless to state, the appellants were sent for trial. Charges were framed against them for having committing the offence punishable under Sections 302/34 IPC. (14) At the trial, HC Umesh Singh PW-6, deposed that DD Entry No. 28a, Ex. PW-6/ a, was recorded by him. HC Ram Singh PW-8, deposed that the FIR Ex. PW-8/a and DD entry No. 30a Ex. PW-6/da were recorded by him. Const. Om Pal Singh PW-11, deposed having handed over the clothes and blood sample of the deceased, the blanket found wrapped on the body of the deceased and the wads and pellets recovered from the body of the deceased to HC Bhoop Singh pw-10, vide memo Ex. PW- 10/a. SI Mahesh kumar PW-13, deposed that the site plan to scale Ex. PW-13/a was prepared by him. Dr. PW- 10/a. SI Mahesh kumar PW-13, deposed that the site plan to scale Ex. PW-13/a was prepared by him. Dr. K. K. Banerjee PW-18, deposed that he conducted the post-mortem of the deceased and the post-mortem report Ex. PW-18/a was prepared by him. Const. Padam PW-9, deposed that the photographs, Ex. PW-9/a to Ex. PW-9/d; negatives whereof are Ex. PW-9/e to Ex. PW-9/h were taken and developed by him. Mohd. Hashim PW-15 and abdul Kalam PW-16, the brothers of the deceased, deposed that they had identified the body of the deceased. Ignoring the testimony of few formal police witnesses who deposed to the receipt of various articles in the malkhana and further movement thereof to FSL, we note the testimonies of such witnesses, in respect whereof, submissions were made during the arguments of the appeals on the issue, whether Haseen Bano PW-1. Safdar PW-2 and Akbar PW-3, were at all eye-witnesses. (15) Haseena Bano PW-1, the wife of the deceased, deposed on the lines of her statement Ex. PW-1/a. (16) Safdar PW-2, the son of the deceased, deposed that on 03. 02. 01 the appellants who were quite familiar to him had come to his house and that he, his parents arid his younger brother were awake at that time. That appellant Sanno asked his father to return the money borrowed by him to which the deceased replied that he did not owe any money to him whereupon an altercation took place between them. Suddenly the appellant sanno took out a pistol hidden in his clothes. On seeing this, Akbar, Safdar and Millu also took out pistols hidden in their clothes. On seeing pistol in their hands, his mother got scared; fell on the feet of Sanno and pleaded with him to forgive the deceased. Thereafter appellant Afsar followed by appellant Akbar fired shots at the deceased whereupon he, his mother and brother surrounded the deceased. Thereafter appellants Sanno and millu fired shots at the deceased and then all the appellants fled from their house after firing shots in the air. He and his mother removed the deceased to GTB Hospital in a tempo where the doctor declared him as brought dead. On their return from the hospital they found that two police officials were present at their residence. Two cartridge cases and one bullet was recovered by the police from their house. Mohd. He and his mother removed the deceased to GTB Hospital in a tempo where the doctor declared him as brought dead. On their return from the hospital they found that two police officials were present at their residence. Two cartridge cases and one bullet was recovered by the police from their house. Mohd. Akbar PW-3, the son of the deceased, deposed that on 03. 02. 01 at around 10. 30 P. M. the appellants had come to his house and that he, his parents and siblings were present therein at that time. Appellant Sanno asked his father to return the money borrowed by him to which the deceased replied that he did not owe any money to him, whereupon an altercation took place between them. Suddenly the appellant Sanno took a pistol hidden in his clothes. On seeing this, Akbar, Safdar and millu also took out pistol hidden in their clothes. On seeing pistols in their hands, his mother got scared; fell on the feet of sanno and pleaded with him to forgive the deceased. Thereafter appellant Afsar fired a shot at the deceased which hit him on the chest and he fell on the ground. Thereafter appellant Akbar fired a shot at the deceased which hit him on the back side of his stomach. Thereafter appellants Sanno and Millu fired shots at the deceased and then the appellants fled from their house. His mother and brother Akbar removed the deceased to the hospital in a TSR, Two cartridge cases and one bullet was recovered by the police from their house. (17) In their examination under Section 313 Cr. P. C, the appellants pleaded innocence and false implication. They stated that the deceased used to indulge in gambling and was murdered by some unidentified persons in connection with the same. The deceased was murdered near an electric transformer situated near Brahmpur Pulia and that his body was subsequently shifted by his family to his residence in order to contrive evidence against the appellants. That the family of the deceased was inimical towards appellant Akbar and Mursaleen on account of the fact that' the brother of the wife of the deceased was engaged to a relative of said appellants, which engagement was broken by the family of the said appellants. That the family of the deceased was inimical towards appellant Akbar and Mursaleen on account of the fact that' the brother of the wife of the deceased was engaged to a relative of said appellants, which engagement was broken by the family of the said appellants. Due to this the family of the deceased bore a grudge against appellants Afsar and abdul Hamid inasmuch they had supported the appellants Akbar and Mursaleen in the dispute arising out of the said broken engagement. Additionally, appellant Afsar pleaded the defence of alibi to improbablize his physical presence at the place of occurrence at the alleged time of occurrence. He stated that he was attending the marriage of the daughter one Satbir Singh, a friend of his father, at the alleged time of the crime. (18) In defence, the appellants examined five witnesses namely, Rukhsana, Allo, satbir Singh, Jakir and Sayeeda Parveen as dw-1, DW-2, DW-3, DW-4 and DW-5 respectively. Rukhsana DW-1, a neighbour of the deceased, deposed that the deceased used to indulge in gambling in his lifetime. That 6-7 years ago at around 10-10. 20 P. M. she was present in her residence when she heard noises coming from the neighbourhood whereupon she went out and found that the deceased was lying murdered under an electric transformer situated near pulia. That 2-3 persons brought the deceased to his residence wherein no family member of the deceased was found present. The deceased was laid down on the floor of his residence and was covered by a blanket. Someone from the crowd informed the wife of the deceased who was present at the residence of her brother. That she had appraised the police about the said incident. (19) JAKIR DW-4, a neighbour of the deceased, deposed that the deceased used to indulge in gambling in his lifetime. That about 6-6 1 /2 years ago he had seen that the deceased was lying near an electric transformer situated near the pulia of his colony and that 15-20 persons were standing near the deceased. That someone from the crowd went to the house of the deceased but the same was found to be locked. That thereafter some persons from the crowd removed the deceased to GTB hospital. That someone from the crowd went to the house of the deceased but the same was found to be locked. That thereafter some persons from the crowd removed the deceased to GTB hospital. (20) SAYDA Parveen DW-5, a neighbour of the appellant Mursaleen, deposed that a dispute had arisen between the families of the wife of the deceased and appellant mursaleen in connection with the engagement of the brother of the wife of the deceased with a relative of appellant mursaleen. That the family of the wife of the deceased had given threats to appellant mursaleen and also to his family members and friends. Also DW-2, the father of appellant afsar, deposed that the family of the deceased was inimically deposed towards his family as he had supported appellant mursaleen in the dispute which had arisen between the families of the wife of the deceased and appellant Mursaleen in connection with the engagement of the brother of the wife of the deceased with a relative of appellant Mursaleen. That on 03. 02. 01 appellant Afsar had gone to village Kiradi near punjabi Bagh to attend a marriage and returned home next day at around 4 A. M. (21) Satbir Singh DW-3, a friend of the father of appellant Afsar, deposed that the marriage of his daughter was solemnized on 03. 02. 01 and that appellant Afsar had attended the said marriage. That appellant afsar handed him a gift at around 7. 30 P. M. and that he had last seen him at venue between 12. 30 A. M. to 1. 00 A. M. (22) Believing the testimony of Haseen bano PW-1, Safdar PW-2 and Akbar PW-3, to be creditworthy; holding that the witnesses examined by the defence particularly rukhsana DW-1 and Jakir DW-4, do not inspire any confidence for the reason there is a material contradiction between their versions inasmuch as Rukhsana had deposed that the deceased was removed to his house from the electric transformer whereas jakir deposed that he was removed to the hospital; that appellant Afsar has not been able to prove his defence of alibi for the reason the credentials of Satbir Singh DW-3, are doubtful, inasmuch as he has not been able to show any evidence to establish that appellant Afsar had attended the marriage of his daughter on 03. 02. 01, the learned trial Judge has convicted the appellants. 32a. 02. 01, the learned trial Judge has convicted the appellants. 32a. At the hearing of the appeals, learned counsel for the appellants advanced submissions on following 8 counts:-I That the FIR registered in the present case was ante-timed. II That the witnesses,namely, Haseena bano PW-1, Safdar PW-2 and Akbar PW-3, are "wholly unreliable" witnesses. III That there is variance between medical and ocular evidence. IV That the conduct of the so-called eyewitnesses after the incident is most unnatural. V That the case set tip by the prosecution is improbable, v vi That the prosecution failed to prove the genesis of the occurrence. That there are suspicious circumstances in the case of the prosecution. VIII That the investigation conducted in the present case is most perfunctory. FIR BEING ANTE-TIMED The first submission advanced by the learned counsel for the appellants was that the FIR Ex. PW-8/a registered in the present case was ante-timed which leads to a strong presumption that the police had gained time to contrive evidence against the appellants. According to the counsel, the circumstances which indicated that the FIR was ante-timed are that: - (i) no evidence has been adduced by the prosecution to prove that the requirement of sending the copy of the FIR to the magistrate soon after the occurrence prescribed under Section 157 Cr. P. C. was complied with. Particular emphasis was laid on the fact that the police official who had allegedly delivered copy of the FIR to the Magistrate has not been examined by the prosecution; (ii) there is a serious contradiction in the evidence on record regarding the delivery of the FIR to the Magistrate inasmuch as FIR Ex. PW-8/a records that the same was delivered through Const. Ranveer Singh whereas HC Bhoop Singh PW-8, who is the scribe of the FIR, deposed that the same was delivered through Const. Harbeer Singh; (iii)DD Entry No. 30a Ex. PW-6/da, records that the FIR in question is "being recorded" at 1. 40 A. M. on 04. 02. 01 which is contrary to the recording contained in the FIR that the same was recorded at 1. 40 A. M. on 04. 02. 01 and (iv) the fact that DD Entry No. 30a ex. PW-6/da, was got proved by the defence and not by prosecution indicates that the prosecution had attempted to conceal the said document. 02. 01 which is contrary to the recording contained in the FIR that the same was recorded at 1. 40 A. M. on 04. 02. 01 and (iv) the fact that DD Entry No. 30a ex. PW-6/da, was got proved by the defence and not by prosecution indicates that the prosecution had attempted to conceal the said document. (23) It is no doubt true that the compliance with the provisions of Section 157 cr. P. C. is required to be proved by the prosecution. However, the question which arises for consideration is whether the failure of the prosecution in proving the said requirement necessarily leads to an inference that the FIR has not laden lodged at the stated time or that the investigation is not fair and forthright. (24) A similar contention advanced before madhya Pradesh High Court in the decision reported as Naniya alias Nannuram and Ors. v State of M. P. (1995) MPLJ 439 : (1995 Cri lj 1870) was repelled by the Court in the following terms:- "though, it is the requirement of law that the report of the offence, if any, be immediately sent to the Magistrate having jurisdiction, but any irregularity in that will not be sufficient to throw the case of the prosecution over board. What is required is that the evidence should be closely scrutinized and the possibility as to whether FIR has been antedated should also be examined. " In the decision reported as Poor Singh v. State of MP 2004 Cri L J 3180 a contention was advanced before the Madhya pradesh High Court that no proof was adduced by the prosecution pertaining to compliance with the provisions of Section 157 of Code of Criminal Procedure regarding sending of copy of the First Information Report to the Magistrate concerned, therefore, the accused persons could have not been convicted. The court noted that no question was put to the Investigating Officer, who was the scribe of the FIR, regarding the dispatch of the copy of the FIR to the Magistrate and that no suggestion was given to the said witness to the effect that copy of the FIR was not sent or that it was dispatched late, which if given, would have given an opportunity to the witness to afford some explanation or to show as to when the FIR, was sent to and received by the Magistrate. In view of the afore-noted circumstances, it was held by the court that it cannot be said that the copy of the FIR was not sent to the Magistrate promptly. It was further held that mere non-compliance with the provisions of section 157 Cr. P. C. is by itself no ground to throw out the case of the prosecution. (25) In the decision reported as State of MP v. Pattu2001 Cri. L. J. 3217, the only evidence regarding the dispatch of the copy of the FIR to the Magistrate was the testimony of the police official who had registered the fir that he had sent the copy of the FIR to the Magistrate through a special messenger. The special messenger who had delivered the copy of the FIR to the Magistrate was not examined by the prosecution. It was held by Madhya Pradesh High Court that the deposition of the author of the FIR regarding the delivery of a copy of the FIR to the Magistrate is sufficient to prove compliance with the provisions of Section 157 cr. P. C. It was yet again held by the Court that mere non-compliance of Section 157 cr. P. C. shall not itself lead to throwing out of the case of the prosecution. (26) In the instant case, HC Ram Singh pw-8, has categorically deposed that he had dispatched the FIR Ex. PW-8/a after its registration to the Magistrate and senior police officials through a special messenger. It is relevant to note that neither any question was put nor any suggestion was given to the witness in his cross-examination regarding the dispatch of the FIR. In view of the afore-noted facts and judicial decisions noted herein above, we find no merit in the submission of the counsel predicated upon Section 157 Cr. P. C. (27) Insofar as the discrepancy between the recording contained in FIR Ex. PW-8/a and the testimony of HC Ram Singh PW-8, regarding the delivery of the FIR to the Magistrate is concerned, it be noted here that hc Ram Singh was "examined on 24. 02. 06 i. e. five years after scribing the FIR. Human memory is not infallible. PW-8/a and the testimony of HC Ram Singh PW-8, regarding the delivery of the FIR to the Magistrate is concerned, it be noted here that hc Ram Singh was "examined on 24. 02. 06 i. e. five years after scribing the FIR. Human memory is not infallible. It is too much to expect that the witness would correctly remember the name of the police officer who had delivered the FIR scribed by him after five years of scribing the FIR particularly when he has been scribing and dispatching dozens of FIR in a month. (28) It was pointed out by the learned counsel, pertaining to DD Entry No. 30a, ex. PW-6/d, that the said DD Entry records that FIR No. 50/2001 is "being recorded" at 1. 40 A. M. on 04. 02;dl, meaning thereby, that the said FIR was in the process of being recorded at 1. 40 A. M., which is manifestly contrary to the recording contained in the said FIR that it was recorded at 1. 40 a. M. on 04. 02. 01. Elaborating this contention learned counsel contended that the fact that the prosecution had attempted to suppress the said DD Entry by not proving the same reinforces the stand of the appellants that the FIR Ex. PW-8/a was not recorded at 1. 40 A. M. as alleged by the prosecution. Nothing much turns on the fact whether the FIR Ex. PW-8/a was "being recorded" or "recorded" at 1. 40 A. M. on 04. 02. 01. If the argument of the counsel that the FIR was being recorded at 1. 40 A. M. is accepted, then it can safely be taken the registration of the FIR would have been completed by 1. 55 A. M. This difference of fifteen minutes in the stated and actual time; of the registration of the FIR as brought out by the counsel is of no consequence inasmuch as police Would have taken mere fif-teen minutes to contrive evidence against the appellants. It is apparent that the scribe of the FIREx. PW-8/a, has recorded the time at which he Started the registration of the fir, as the time of its registration. The argument is nothing more than quibbling with words and expressions. (29) Insofar as the contention that the prosecution had attempted to conceal the dd Entry No. 30a Ex. It is apparent that the scribe of the FIREx. PW-8/a, has recorded the time at which he Started the registration of the fir, as the time of its registration. The argument is nothing more than quibbling with words and expressions. (29) Insofar as the contention that the prosecution had attempted to conceal the dd Entry No. 30a Ex. PW-6/da, as it has not proved the same is concerned, suffice would it be to state that the omission by the prosecution to prove the said document is of no consequence inasmuch as prosecution did not prove the said document as nothing much turned on the said document, for the reason, it merely pertained to the registration of the FIR Ex. PW-8/a. EYE-WITNESSES BEING "wholly unreliable" WITNESSES (30) UNDER this head, learned counsel for the appellants contended that the so-called eye-witnesses are "wholly unreliable" witnesses for the reason their evidence Is full of serious contradictions. The contradictions pointed out by the learned counsel can be broadly classified into three categories namely, (i) inter-se contradictions between the testimony of the said witnesses; (ii) contradictions between the statements of the witnesses recorded under Section 161 cr. P. C. and their testimony in Court and (iii)contradictions between the testimony of the said witness and other evidence on record. Under the first category, the contradictions pointed out by the learned counsel were: - (i) Haseen Banq PW-1, deposed that all the four appellants had at once fired shots at the deceased from their respective pistols, whereas Safdar PW-2 and Akbar PW-3, deposed that appellant Afsar followed by appellants Akbar, Sannb and Millu had fired shots at the deceased; (ii) Haseena Bano deposed that she had sent Akbar to the police station after the incident to inform the police, but neither Safdar nor Akbar deposed about the fact that Akbar, had gone to the police station after the' incident and (iii)Haseena Bano deposed that she and her son safdar had removed the deceased to the hospital in a TSR whereas Safdar deposed that they had removed the deceased to the hospital in a tempo. (31) UNDER the second category, the contradictions pointed out by the learned counsel were: - (i) Safdar stated in his statement under Section 161 Cr. (31) UNDER the second category, the contradictions pointed out by the learned counsel were: - (i) Safdar stated in his statement under Section 161 Cr. P. C. that the shots fired by appellants Sanno and Millu had hit the wall whereas he pleaded ignorance about the said fact in his testimony; (ii) Akbar stated in his statement under Section 161 cr. P. C. that he, his mother and Safdar had embraced the deceased before firing of shots by appellants Sanno and Millu whereas he deposed in Court that they had come near to the deceased but had not embraced him; (iii) Haseena Bano stated in her statement ex. PW-1 /a that the appellants were her distant relatives whereas she deposed in her examination-in-chief that she was related to the appellants as she and the appellants belonged to the same community and (iv)Haseena Bano stated in her testimony that the deceased removed the quilt from his body when the appellants arrived at their residence whereas no such factum was stated by her in her statement Ex. PW-1 /a. (32) UNDER the third category, the contradictions pointed out by the learned counsel were:- (i) Haseena Bano deposed that no blanket was wrapped on the body of the deceased at the time of the incident or admission of the deceased in the hospital whereas seizure memo Ex. PW- 10/a records that a blanket was found covering the body of the deceased at the time of admission of the deceased in the hospital (ii) Safdar deposed that the police had seized quilts and mattresses from the place of occurrence but there is no memo recording the seizure of the said articles and (iii) Haseena Bano and safdar deposed that they had met the police at the hospital whereas there is no evidence establishing the said fact. After pointing out the afore-noted contradictions, learned, senior counsel drew attention of this Court to the decision of Supreme Court reported as Mahinder Singh v. State of Haryana 1974 Cri L J 742 (SC)wherein it was held that there is a limit of illiteracy of a witness which should be considered a factor in his benefit and that it cannot induce a Court to ignore the infirmities in his evidence or to fill in lacuna in the prosecution case. Learned senior counsel contended that in view of the afore-noted observations of Supreme Court, this Court should attach due importance to the contradictions pointed herein above and discard the evidence of the said witnesses. (33) The appreciation of ocular evidence is a Herculean task. There is no fixed or strait-jacket formula for appreciation of ocu lar evidence. The judicially evolved principles regarding the appreciation of the ocular evidence in a criminal case can be enumerated as under:- I While appreciating the evidence of a witness, the approach must be whether the evidence of the witness read as a whole appears to have a ring of truth. Once that impression is formed, it is undoubtedly necessary for the Court, to scrutinize the evidence more particularly keeping in view the deficiencies, drawbacks and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it' is against the general tenor of the evidence given by the witness arid whether the earlier evaluation of the evidence is shaken as to render it unworthy of belief. II If the Court before whom the witness gives evidence had the opportunity to form the opinion about the general tenor of evidence given by the witness, the appellate court which had not this benefit will have to attach due weight to the appreciation of evidence by the trial Court and unless there are reasons weighty and formidable it would not be proper to reject the evidence on the ground of minor variations or infirmities in the matter of trivial details. III When eye-witness is examined at length it is quite possible for him to make some discrepancies. But courts should bear in mind that it is only when discrepancies in the evidence of a witness are so incompatible with the credibility, of his version that the Court is justified in jettisoning his evidence. IV Minor discrepancies on trivial matters not touching the core of the case, hyper technical approach by taking sentences torn out of context here or there from the evidence, attaching importance to some technical error committed by the investigating officer not going to the root of the matter would not ordinarily permit rejection of the evidence as a whole. IV Minor discrepancies on trivial matters not touching the core of the case, hyper technical approach by taking sentences torn out of context here or there from the evidence, attaching importance to some technical error committed by the investigating officer not going to the root of the matter would not ordinarily permit rejection of the evidence as a whole. V Too serious a view to be adopted on mere variations falling in the narration of an incident (either as between the evidence of two witnesses or as between two statements of the same witness) is an unrealistic approach for judicial scrutiny. VI By and large a witness cannot be expected to possess a photographic memory and to recall the details of an incident. It is not as if a video tape is replayed on the men-tal screen. VII Ordinarily it so happens that a witness is overtaken by events. The witness could not have anticipated the occurrence which so often has an element of surprise. The mental faculties therefore cannot be expected to be attuned to absorb the details. VIII The powers of observation differ from person to person. What one may notice, another may not. An object or movement might emboss its image on one person's mind whereas it might go unnoticed on the part of another. IX By and large people cannot accurately recall a conversation and reproduce the very words used by them or heard by them. They can only recall the main purport of the conversation. It is unrealistic to expect a witness to be a human tape recorder. X In regard to exact time of an incident, or the time duration of an occurrence, usually, people make their estimates by guess work on the spur of the moment at the time of interrogation. And one cannot expect people to make very precise or reliable estimates in such matters. Again, it depends on the time-sense of individuals which varies from person to person. XI Ordinarily a witness cannot be expected to recall accurately the sequence of events which take place in rapid succession or in a short time span. A witness is liable to get confused, or mixed up when interrogated later on. Again, it depends on the time-sense of individuals which varies from person to person. XI Ordinarily a witness cannot be expected to recall accurately the sequence of events which take place in rapid succession or in a short time span. A witness is liable to get confused, or mixed up when interrogated later on. XII A witness, though wholly truthful, is liable to be overawed by the court atmosphere and the piercing cross examination by counsel and out of nervousness mix up facts, get confused regarding sequence of events, or fill up details from imagination on the spur of the moment. The sub-conscious mind of the witness sometimes so operates on account of the fear of looking foolish or being disbelieved though the witness is giving a truthful and honest account of the occurrence witnessed by him. XIII A former statement though seemingly inconsistent with the evidence need not necessarily be sufficient to amount to contradiction. Unless the former statement has the potency to discredit the later statement, even if the later statement is at variance with the former to some extent it would not be helpful to contradict that witness. (These principles have been culled out from the decisions of Supreme Court reported as Bharwada Bhoginbhai Hirjibhai v. State of Gujarat AIR 1983 SC 753 : (1983 cri LJ 1096), Leela Ram v. State of Haryana air 1999 SC 3717 and Tahsildar Singh v. State of UP AIR 1959 SC 1012 : 1959 Cri LJ 1261). (34) As noted herein above, the first step in appreciating evidence of a witness is to examine his evidence dehors the discrepancies appearing therein and to see whether the evidence appears to be a truthful account. In the instant case, the incident occurred around 10. 30 P. M. on 03. 02. 01. The statement Ex. PW-l/a of Haseena Bano, which formed the basis of the registration of the FIR Ex. PW-8/a, was recorded at 1. 30 a. M. on 04. 02. 01. The FIR stood registered at around 1. 40 A. M. on 04. 02. 01. It be noted here that Haseena Bano had removed the deceased to the hospital as recorded in the mlc Ex. PW-4/a of the deceased. The statement of Haseena Bano Ex. PW-l/a was recorded at the place of occurrence after she had returned from the hospital. 01. The FIR stood registered at around 1. 40 A. M. on 04. 02. 01. It be noted here that Haseena Bano had removed the deceased to the hospital as recorded in the mlc Ex. PW-4/a of the deceased. The statement of Haseena Bano Ex. PW-l/a was recorded at the place of occurrence after she had returned from the hospital. It can reasonably be taken that it must have taken at- least 45 minutes for Haseena Bano in removing the deceased to the hospital, getting him admitted there and thereafter to return to the place of the occurrence. In these circumstances, the possibility of Haseena Bano contriving facts and spinning a false story in such less time is remote. (35) There is yet another fact which needs to be noted. The Supreme Court in the decision reported as Malkiat Singh v. State of punjab (1991) 4 SCC 341 has held that it is settled law that the First Information Report is not substantive evidence. It can be used only to contradict the maker thereof or for corroborating his evidence and also to show that the implication of the accused was not an after-thought. In the instant case, the FIR Ex. PW-8/a, records that haseena Bano had stated that the bullets fired by the appellants hit the chest, left abdomen and ribs of the deceased. The findings of the doctor who had conducted the post-mortem of the deceased after the registration of the FIR as recorded in the postmortem report Ex. PW-18/a are that two bullet entry wounds were found on the left abdomen and the chest of the deceased. Therefore, the FIR Ex. PW-8/a duly corroborates the testimony of Haseena Bano, for the reason, unless Haseena Bano had seen the bullets hitting the deceased; she could not have correctly stated the situs of the injuries suffered by the deceased, prior to the conduct of the post-mortem of the deceased. (36) The MLC Ex. PW-4/a of the deceased corroborates the testimony of Haseena Bano that she had removed the deceased to the hospital, which in turn, establishes her presence at the place of occurrence at the time of the incident. The three eye-witnesses have corroborated each other on material aspects relating to the incident. (37) Therefore, the conclusion which emerges from the first reading of the evidence of the witnesses in question is that they are prima facie truthful witnesses. The three eye-witnesses have corroborated each other on material aspects relating to the incident. (37) Therefore, the conclusion which emerges from the first reading of the evidence of the witnesses in question is that they are prima facie truthful witnesses. (38) Next, it needs to be considered, whether the contradictions pointed out by the learned counsel render the testimony of said witnesses, unworthy of any credit. Before examining the effect of the contradictions pointed out by the learned counsel qua the credibility of the witnesses, it be noted here, that the witnesses were subjected to a very lengthy cross-examination, evident from the fact that the cross-examination of Haseena Bano, Safdar and Akbar runs into 31, 23 and 13 pages respectively. They were cross-examined by as many as four counsel. (39) The first contradiction which relates to the sequence of firing of shots by the appellants as stated by Haseena Bano on the one hand and Safdar and Akbar on the other hand, shall be dealt by us under the head "variance between medical and ocular evidence". (40) The second contradiction that Safdar and Akbar have not deposed a word about the factum of Akbar going to the police station after the incident in their examination-in-chief, is of no consequence, for the reason they have succinctly stated in their cross-examination that Akbar had gone to the police station after the incident. Mere omission on part of the said witnesses to state the said fact in examination-in-chief is not fatal to the case of the prosecution. The third contradiction which relates to the mode of transport used to remove the deceased to the hospital is no contradiction, because a TSR is also loosely referred to as a tempo. Even otherwise, the discrepancies in the evidence of the prosecution regarding the mode of transportation for removing the deceased to the hospital are minor in nature as held by Supreme Court in a recent decision in Criminal Appeal No. 341 of 2006 Gurunath Donkappal Keri v State of karnataka decided on 06. 05. 2009 (reported in 2009 Cri LJ 2995). (41) The fourth contradiction, which relates to the place, where the shots fired by appellants Sanno and Millu had hit, shall be dealt by us under the head "variance between medical and ocular evidence". 05. 2009 (reported in 2009 Cri LJ 2995). (41) The fourth contradiction, which relates to the place, where the shots fired by appellants Sanno and Millu had hit, shall be dealt by us under the head "variance between medical and ocular evidence". (42) The fifth contradiction relating to whether the witnesses had embraced or surrounded the deceased before the firing of the shot by appellants Sanno and Millu pointed out by learned counsel is again of no consequence. As already noted hereinabove, only those former statements which have the potential to discredit the later statement of a witness can be used to contradict a witness. The fact that whether the witnesses had embraced or surrounded the deceased before firing of the shots by appellants Sanno and Millu has no material bearing on the guilt/innocence of the appellants. Likewise, the contradictions that whether the deceased were related to each other because of being distant relatives or because of belonging to the same community or that whether the deceased had removed the quilt at the time of arrival of the appellants are of no consequence. The next two contradictions which relate to the seizure of the articles during the Investigation are of no consequence for the reason it is settled law that it is not proper to reject the evidence of a witness on the ground of minor variations or infirmities in the matter of trivial details. (43) Insofar as the last contradiction which relates to the removal and admission of the deceased in the hospital by the witnesses haseena Bano and Safdar is concerned, suffice would it be to state that the deposition of the said witnesses that they had removed the deceased to the hospital, stands corroborated by the MLC Ex. PW-4/a of the deceased, which records that the wife of the deceased had brought him to the hospital.