JUDGMENT Hon’ble P.K.S. Baghel, J.—The applicants, Braj Pal and Kishan Lal have filed this application under Section 389 (1) of Criminal Procedure Code in Criminal Appeal No. 5851 of 2011. We have heard learned counsel for the parties. 2. The short facts leading to present application are that the deceased Shishupal aged about 20 years was resident of Dhakpura Meerapur, Police Station Mujariya, district Budaun. Deceased Shishupal was agricultural labour. On the fateful day 23.4.2003 the applicants came to the house of the deceased at 7 p.m. in the evening and asked Shishupal to accompany them for harvesting of wheat crops at their Farm. Initially he was reluctant to accompany and work at their Farm but on their insistence he gave in. He did not return to his home and on the next day his dead body was found near the field of Bhojraj. There was a gun shot injury near his nose. His mother Anguri Devi wife of Late Ram Sahai Jatav lodged an First Information Report on 24.4.2003 at Police Station Mujaria district Budaun. The police arrested both the applicants on 26.4.2003 and on search one 12 bore country made pistol and one cartridge was found from the possession of the Braj Pal. On 24.4.2003 a case crime No. 41 of 2003 was registered under Section 302/34, 201 IPC read with Section 3 (2) 5 of SC/ST/PA Act at Police Station Mujaria district Budaun. 3. Both the applicants were tried by the Special Judge SC/ST Act Budaun. The trial Court by its judgment and order dated 16th September, 2011 found both the applicants guilty under Section 302 read with Section 34 and sentenced them to life imprisonment with fine. 4. Briefly stated the prosecution case was that the deceased Shishupal was shot dead by the applicants and thereafter they have put his body in a plastic bag (plastic palli) and dumped the body in the field of the Bhojraj. There was a scarf around his head and there was a piece of plastic seat of a tractor on the injury of the deceased and in the trolley of the tractor a plastic bag was found stained with blood. However, the I.O. did not make those materials as? case property. 5. There was a scarf around his head and there was a piece of plastic seat of a tractor on the injury of the deceased and in the trolley of the tractor a plastic bag was found stained with blood. However, the I.O. did not make those materials as? case property. 5. The mother of the deceased Anguri Devi was examined as PW-1 and in her statement she had stated that both the applicants/accused came to her house and took her son with them for harvesting at their Farm. Her statement was corroborated by another witness namely Phool Singh who was examined as PW-2 and Braj Pal (the brother of the deceased) who was examined PW-3. The deceased’s mother has also stated that there was a plastic piece of the tractor seat and plastic on the trolley of the tractor which the I.O. has not taken as materials to make them case property. The post mortem report reveals that the cause of the death was shock and haemorrhage from the gun shot injury. 6. Learned counsel for the applicants submitted that no effort was made by the mother of the deceased to trace him when the deceased Shishupal did not return in the night. He further submitted that the prosecution witnesses in their statement had stated that the deceased Shishupal had left at 7 p.m. without taking his meal. However, the post mortem report reveals that semi digested food was found in his stomach. It was strenuously argued that in the same night at 2 a.m, the daughter of Kisan Lal was also shot at and she received gun injuries, though not fatal, therefore there was no possibility of the involvement of applicant No. 2. He further submitted that there was inconsistency and contradiction in the statement of the PW-1 and PW-2 in respect of tractor. He has further submitted that all the three witnesses are interested witnesses as the PW-1 Anguri Devi is the mother of the deceased and PW-2 Phool Singh is the uncle of the deceased and PW-3 Braj Pal is the brother of the deceased. Thus the trial Court erred in relying on the statements of the interested witnesses. Lastly learned counsel for the applicant submitted that there was no motive for the murder of the deceased by the applicants. 7. Thus the trial Court erred in relying on the statements of the interested witnesses. Lastly learned counsel for the applicant submitted that there was no motive for the murder of the deceased by the applicants. 7. Learned AGA has submitted that there was a strong circumstantial evidence to indicate that both the applicants have murdered the deceased Shishupal as they have taken him from his house in presence of PW-1,2 and 3. He has further submitted that the motive for the crime is discernible from the record in as much as Shishupal had refused to work at their Farm but, against his wishes they had forced him for harvesting of the wheat crops. He further submitted that the role of the I.O. was not impartial and the PW-1 has also doubted the impartiality of the I.O. as some of the material evidence such as piece of the plastic seat of the tractor which was found on the wound of the deceased and the blood stained plastic bag which was found in the trolley of the tractor were not made case property. 8. We have considered the rival submissions made by the learned counsels and have perused the record placed before us. We fail to comprehend as to why a mother who has lost her son would falsely implicate persons other than accused. She in such circumstance would not spare real culprits. Her statement is corroborated by the two witnesses PW-2 Phool Singh and PW-3 Braj Pal. 9. The Supreme Court in the case of Mani Ram v. State of Rajasthan, 1993 Supp (3) SCC 18, has laid down the law in following terms. “The testimony of both the witnesses has impressed us and they appear to us to be truthful witnesses and being the close relations of the deceased would, in the ordinary course of things, be the last persons to screen the actual offender and implicate the appellants falsely.” (italicized by us). The Supreme Court has reiterated the same view in the case of Bur Singh v. State of Punjab, (2008) 16 SCC 65 67. In paragraph 12 the Supreme Court observed : “12. Merely because the eye-witnesses are family members their evidence cannot per se be discarded. When there is allegation of interestedness, the same has to be established. The Supreme Court has reiterated the same view in the case of Bur Singh v. State of Punjab, (2008) 16 SCC 65 67. In paragraph 12 the Supreme Court observed : “12. Merely because the eye-witnesses are family members their evidence cannot per se be discarded. When there is allegation of interestedness, the same has to be established. Mere statement that being relatives of the deceased they are likely to falsely implicate the accused cannot be a ground to discard the evidence which is otherwise cogent and credible. We shall also deal with the contention regarding interestedness of the witnesses for furthering the prosecution version. “11. ..... Relationship is not a factor to affect credibility of a witness. It is more often than not that a relation would not conceal actual culprit and make allegations against an innocent person. Foundation has to be laid if plea of false implication is made. In such cases, the Court has to adopt a careful approach and analyse evidence to find out whether it is cogent and credible. 12. In Dalip Singh v. State of Punjab1 it has been laid down as under: (AIR p. 366, para 26) ’26. A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity against the accused, to wish to implicate him falsely. Ordinarily a close relation would be the last to screen the real culprit and falsely implicate an innocent person. It is true, when feelings run high and there is personal cause for enmity, that there is a tendency to drag in an innocent person against whom a witness has a grudge alongwith the guilty, but foundation must be laid for such a criticism and the mere fact of relationship far from being a foundation is often a sure guarantee of truth. However, we are not attempting any sweeping generalisation. Each case must be judged on its own facts. Our observations are only made to combat what is so often put forward in cases before us as a general rule of prudence. There is no such general rule. Each case must be limited to and be governed by its own facts.” (italicized by us) 10. Each case must be judged on its own facts. Our observations are only made to combat what is so often put forward in cases before us as a general rule of prudence. There is no such general rule. Each case must be limited to and be governed by its own facts.” (italicized by us) 10. The above decision has since been followed in Guli Chand v. State of Rajasthan, in which Vadivelu Thevar v. State of Madras, was also relied upon.” The next submission of the learned counsel for the applicants that no effort was made by the mother of the deceased to search whereabout of the deceased, hardly merit acceptance. The deceased was taken by the accused in the evening at 7 p.m. for harvesting and the body was found in early morning on the very next day. Therefore, in our opinion there was no inordinate delay. From the record it is also evident that it is admitted fact that deceased had worked at the field of accused for only 2 to 3 hours and thereafter he left their place. This fact alone shows that the accused were the persons in whose company deceased was before his death. In such circumstances accused have to explain their conduct. 11. The Supreme Court in the case of Murlidhar and others v. State of Rajasthan, AIR 2005 SC 2345 , observed in paragraph 20 as under : “20. In Mir Mohd. Omar it was established that the accused had abducted the victim, who was later found murdered. The abductors had not given any explanation as to what happened to the victim after he was abducted by them. The Sessions Court held that the prosecution had failed to establish the charge of murder against the accused persons beyond any reasonable doubt as there was “a missing link in the chain of events after the deceased was last seen together with the accused persons and the discovery of the dead body of the deceased at Islamia Hospital”. Rejecting the said contention this Court observed (vide SCC p. 392, para 31): “31. The pristine rule that the burden of proof is on the prosecution to prove the guilt of the accused should not be taken as a fossilised doctrine as though it admits no process of intelligent reasoning. Rejecting the said contention this Court observed (vide SCC p. 392, para 31): “31. The pristine rule that the burden of proof is on the prosecution to prove the guilt of the accused should not be taken as a fossilised doctrine as though it admits no process of intelligent reasoning. The doctrine of presumption is not alien to the above rule, nor would it impair the temper of the rule. On the other hand, if the traditional rule relating to burden of proof of the prosecution is allowed to be wrapped in pedantic coverage, the offenders in serious offences would be the major beneficiaries and the society would be the casualty.” This Court further observed thus (vide SCC p. 392, para 33): “33. Presumption of fact is an inference as to the existence of one fact from the existence of some other facts, unless the truth of such inference is disproved. Presumption of fact is a rule in law of evidence that a fact otherwise doubtful may be inferred from certain other proved facts. When inferring the existence of a fact from other set of proved facts, the Court exercises a process of reasoning and reaches a logical conclusion as the most probable position. The above principle has gained legislative recognition in India when Section 114 is incorporated in the Evidence Act. It empowers the Court to presume the existence of any fact which it thinks likely to have happened. In that process the Court shall have regard to the common course of natural events, human conduct, etc. in relation to the facts of the case.” (italicized by us) 12. The submission of the learned counsel for the applicants that the presence of the semi digested food in the stomach of the deceased falsify the prosecution case, is not acceptable to the Court as the contents of food concerned remains for long hours in the stomach and duration thereof depends on various factors. The Supreme Court in the case Mani Ram v. State of Rajasthan (supra) has held that “the process of digestion depends upon the digestive power of an individual and varies from an individual to an individual. It also depends upon the type and amount of food taken. The period of digestion is different for different types of food.” (italicized by us). 13. It also depends upon the type and amount of food taken. The period of digestion is different for different types of food.” (italicized by us). 13. We find considerable force in the submission of the learned AGA that Investigating Officer was not fair in the investigation in as much as he did not make the plastic bag and plastic piece of the tractor seat which was found on the wound of the deceased as case property. He had also ignored the blood found on the trolley of the tractor. The mother of the deceased had made serious allegations against the Investigating Officer in this regard. 14. The argument of learned counsel for the applicants/accused that in the same night Mamta daughter of applicant No. 2 was also shot by the unknown miscreants and as such he was not present though ingenious will have to be rejected. In our view it was only a smoke screen to save the applicants from the involvement in the crime. The trial Court in our view has rightly refused to give any relevance in the present facts of the case. 15. As regards, the inconsistency pointed out by the learned counsel for the applicants, we are of the view that minor discrepancies are bound to occur for the various reasons such as time gap and the date of occurrence and the date on which the witness was examined, the sociological background of witnesses also plays its own role in the case of rustic/illiterate villagers and some discrepancies can be safely ignored. In the totality of the circumstances, we do not find any merit in the bail application and is accordingly rejected. ——————