Research › Search › Judgment

Allahabad High Court · body

2014 DIGILAW 1790 (ALL)

MAHENDRA SINGH v. STATE OF U. P.

2014-05-30

OM PRAKASH VII, V.K.SHUKLA

body2014
JUDGMENT Hon’ble Om Prakash-VII, J.—This criminal appeal has been preferred by the accused/appellants against the judgement and order dated 27.1.1986 passed by the II Additional District & Sessions Judge, Shahjahanpur in Session Trial No. 482/1985 (State v. Shiv Pal Singh and others) convicting and sentencing the appellants for the offences punishable under Section 302 IPC to undergo life imprisonment and for the offence under Section 307 IPC to undergo six years rigorous imprisonment. All the sentences have been directed to run concurrently. At the outset, it is relevant to mention here that during pendency of this appeal, the appellant No. 1 - Mahendra Singh and appellant No. 4 Virendra Singh have died. Accordingly, vide order dated 23.4.2014, this Court has abated the appeal as against the appellant No. 1- Mahendra Singh and appellant No. 4 Virendra Singh. 2. Now, we are proceeding to consider the present appeal in respect of rest of the appellants i.e. Shiv Pal Singh and Shri Pal Singh. The facts of the case are that on 4.8.1985 at about 7.15 p.m. when the informant Shishu Pal Singh alongwith the deceased, who was his real brother, were returning from his field for village, accused appellants Shiv Pal Singh, Shri Pal Singh son of Sikdar Singh, Virendra son of Pratap Singh and Mahendra son of Bhoori Singh, all resident of village Jaura Khurd were coming from the village side and as and when the informant and his brother reached near the field of Buddhu Mehtar, all the above-named accused caught the both brothers. Accused Shri Pal abusing the informant and the deceased told that the father of the informant had given evidence in murder case against them, therefore, they would be killed. All the accused whipped out their tamanchas and in furtherance of their common intention opened fire on the deceased who after receiving injuries fell down on the earth and consequently died on the spot. The informant got free himself from their clutches and ran away. Accused persons also opened fire on him, due to which he also caused injuries in his leg and on his alarm the informant’s father and other villager Soran Singh son of Ganga Singh and Rajpal Singh son of Chhattar Singh came there who saw the accused persons and they challenged them and also rescued the informant. All the accused ran way towards western side. All the accused ran way towards western side. The First Information Report (in short ‘ FIR’) could not be lodged on the day of occurrence due to night and also due to injuries sustained by the informant. The dead body of the deceased Dharam Pal was lying on the spot and after arranging the means for transportation informant came to lodge FIR. 3. This FIR is of dated 5.8.1985. The offence is said to have been committed on 4.8.1985. The written report scribed by one Suresh Pal Singh is Ext. Ka-3 on the lower Court record. On the basis of written report, Chik FIR, Ext. Ka-6 was got registered on 5.8.1985 at 8.40 a.m. at police station concerned mentioning all the details as had been described in Ext. Ka-3. G.D. Entry was also made, which is Ext. Ka-7. 4. The Investigating Officer proceeded to place of occurrence and inquest report and other police papers photo lash, Form No. 13, sample seal,letter to R.I. and other required papers (Ext. Ka-8 to Ext Ka-12) in respect of the deceased were prepared. The Investigating Officer also prepared fard recovery obtaining the sample of simple earth and blood stained earth from the place of occurrence (Ext. Ka-4). Four empty and two live cartridges of 315 bore found on the spot were also taken into custody. The Investigating Officer also inspected the house of accused persons and took search of their houses and fard Ext. Ka-14 and Ka-15 in this regard was also prepared. The dead body of the deceased was sent for post-mortem and autopsy report Ext.Ka-1 was prepared after conducting the post mortem on 6.8.1985 at 4.00 p.m. After making the inspection of the spot, a site plan Ext. Ka-13 was prepared. 5. Dr. Ramesh Kumar had conducted the post mortem on the dead body of the deceased. On external examination, the deceased was 19 years old and symptom after the death was about 2 days ago and also the deceased was good built body and the rigor mortis was passed over the body from both the upper and lower extremities. Dead body was identified by constable who had brought it. Putrification was started. Eyes were coming out and tongue was tightened between the teeth. There was swelling on the body. 6. On internal examination of the dead body of the deceased, following ante-mortem injuries were found: “1. Dead body was identified by constable who had brought it. Putrification was started. Eyes were coming out and tongue was tightened between the teeth. There was swelling on the body. 6. On internal examination of the dead body of the deceased, following ante-mortem injuries were found: “1. Gunshot wound of entry 1 cm X 1 cm over posterior side of chest left side 10 cm below left acromid calcicular joint directing being downwards and forward. 2. Gunshot wound of entry 1 cm x 1 cm over left side back of chest 7 cm below injury No. 1. Direction was downward. 3. Gunshot wound of exit 2 cm x 2 cm over posterior side of left half chest 6 cm below injury No. 2. 4. Gunshot wound of entry 1 cm. X 1 cm. Over posterior side of chest left half direction being forward and slightly downward. 5. Gunshot wound 1 cm x 1 cm over left side of abdomen 15 cm below injury No. 4. 6. Gunshot wound of exit 2 cm x 1-1/2 cm over front side of chest left side 3 cm below left nipple. 7. Gunshot wound of exit 2 cm x 2 cm over front side of chest left side 3 cm below injury No. 6. 8. Gunshot wound of entry 1 cm x 1 cm over lateral side of left upper arm 15 cm below left acromind calvicular joint. 9. Gunshot wound of exit 2 cm x 1 cm over left upper arm 3 cm below injury No. 8. 10. Abrasion 2 cm x 3 cm over left side of chest 6 cm below injury No. 4. According to the doctor plura and left lung were raptured at places and pericardium heart and abdominal walls were also raptured. 500 ml blood was found present. Membranes was raptured. In the cavity one metallic pellet and one litre blood was recovered. There was no defect in the abdomen and about 250 ml unidentifiable food particles were found. Small intestine was empty. In large intestine faecal matter was found present but there was no any defect. In the opinion of doctor, the death was caused due to shock and haemorrhage as a result of ante-mortem injuries. There was no defect in the abdomen and about 250 ml unidentifiable food particles were found. Small intestine was empty. In large intestine faecal matter was found present but there was no any defect. In the opinion of doctor, the death was caused due to shock and haemorrhage as a result of ante-mortem injuries. Further, the death took place at the alleged time of incident and that the ante mortem injuries caused by gunshot being numbers 1 to 7 were sufficient in the ordinary course of nature to cause death. Informant Shishu Pal Singh has also been medically examined on 5.8.1985 at Primary Health Centre and injury report Ext. Ka-2 was prepared, which is as under: Fire-arm wound of Entry 3 cm to 1 cm x depth not clear,muscles are protruding out through wound. Margins are blackish. Swelling present on whole left foot. Wound is situated in front of left leg and 6 cm above left foot. Movements are restricted. As per the doctor examining the injured, the above noted single injury was caused by some fire-arm weapon, duration of it was about 1 day old. Nature of wound was kept under observation and advised X-ray of left leg (lower part) and foot at Distt. Hospital Shahjahanpur. 7. The Investigating Officers have recorded the statements of witnesses and arrested the accused persons and after completing the investigation, charge-sheet against all the accused appellants under Sections 302 IPC and 307 IPC was filed. The case being exclusively triable by session Court, was committed to the Court of sessions. Accused/appellants appeared and charges under Sections 302 IPC and 307 IPC were framed in the trial Court against them mentioning the fact that all the accused had committed the murder of Dharam Pal in furtherance their common intention and also hurt to the informant Shishu Pal Singh in furtherance of their common intention. All the accused have denied the charges framed against them and claimed for trial. 8. All the accused have denied the charges framed against them and claimed for trial. 8. Trial proceeded and on behalf of prosecution, six witnesses have been examined, wherein PW-1 Ramesh Kumar, who has conducted the post mortem and prepared the post mortem report, PW-2 Dr A.K. Tripathi, who has examined the informant and prepared the injury report, PW-3 Shishu Pal Singh, who is stated to be an eye-witness of the incident, PW-4 Raj Pal Singh, who is also stated to be an aye witness, PW-5 Nawab Singh, Investigating Officer, PW-6 Jitendra Prakash Mishra, Head Constable, who has prepared the chik. After closing of evidence, statement of accused/appellants under Section 313 Cr.P.C. was recorded. Accused appellant Shiv Pal Singh has denied the contents of the FIR accepting the address of the informant, deceased and the accused appellants. He has also stated that Police has made a false investigation and present case has been started on the basis of enmity. Police has submitted a false charge-sheet. The same statement has been made by Shri Pal that has been made by Shiv Pal Singh stating that they were accused in a murder of Ganga Singh and Meham Singh but father of the informant was not in that case. To substantiate the case, no oral evidence was adduced by the defence but only the dispatch register maintained at police station concerned for sending the special report has been summoned on the request of the defence in the lower Court.. 9. Having heard the learned counsel for the parties and going through the record, the trial Court has found that the prosecution has fully succeeded in bringing home the charges against the accused/appellants beyond reasonable doubt and the accused /appellants have been convicted and sentenced, hence this appeal. We have heard Shri G.S. Hajela, learned counsel for the appellants, and Shri Narendra Kumar Singh Yadav, learned AGA for the State at length, and perused the entire record carefully. Castigating the impugned judgement and order, learned counsel for the appellants has made the following submissions before us: 1. There was no motive to commit the alleged offence and the motive stated by the prosecution has not been established and, thus, the appellants have been falsely implicated in this case. 2. Castigating the impugned judgement and order, learned counsel for the appellants has made the following submissions before us: 1. There was no motive to commit the alleged offence and the motive stated by the prosecution has not been established and, thus, the appellants have been falsely implicated in this case. 2. The eye account witnesses, PW-3 & PW-4 were not present on the spot at the time of the occurrence and there presence at the time of occurrence is doubtful. Statements of these witnesses are also unnatural. It is a case of blind murder and no one has seen the occurrence. 3. PW-3 is related and interested witness. 4. The prosecution case is not supported by any independent witness. 5. The witnesses examined by the prosecution as eye account witnesses are inimical, interested and partisan witnesses. 6. Medical evidence does not support the prosecution case as injuries found on the body of the deceased do not tally with the statements of prosecution witnesses. A reference is also made that no blackening, tattooing and scorching have been found over the injuries of the deceased, for this reason also the prosecution story is improbable. 7. FIR is belated and is the result of legal advice and no plausible explanation has been given for the same. 8. There is major contradictions, variations, discrepancies and inconsistency in the prosecution evidence. 9. Different distance has been shown from police station to the place of occurrence in the FIR and inquest report. Thus, referring these submissions the contention has been raised that the FIR was not in existence at the time of preparing the inquest report. 10. All prosecution witnesses have not been examined, therefore, it shall be presumed that if they would have been examined, they have not supported the prosecution case. Making the aforesaid submissions, learned counsel for the appellants prays that the present appeal be allowed and the impugned judgement and order be set-aside and the appellants may be acquitted from the charges levelled against them. 10. Per contra, learned AGA for the State has submitted that the delay in lodging the FIR has been explained properly at the initial stage in the FIR, and it is probable and natural one. 10. Per contra, learned AGA for the State has submitted that the delay in lodging the FIR has been explained properly at the initial stage in the FIR, and it is probable and natural one. PW-3 is an injured witness and he has also received injuries in the said incident but he escaped from the place of occurrence getting him free from the clutches of the accused persons. The witnesses said to be eye-witnesses are most natural and probable witness and the testimony of these witnesses is supported with the medical evidence. Injuries on the body of the deceased tally with the fires made by the accused appellants. Injury found on the body of the PW-3 is also received in the same incident. Laches or lapse on the part of the police or investigating agency will not affect the testimony of the ocular witnesses. The witnesses may be interested witnesses or related witnesses but their testimony cannot be thrown out only on this ground. Only precaution has to be taken by the Court to scrutinize the statements cautiously. Minor contradictions, discrepancy, inconsistency in the statements of witnesses do not affect the veracity of the statements. There is no contradiction or inconsistency on the material point. Accused appellants were known to each other and it was the month of August, therefore it was not so dark at the time of occurrence. Difference in distance shown in the chik report and the inquest report has been properly explained by the witnesses. Thus, making the aforesaid submissions, it is submitted that the prosecution has fully succeeded to prove the guilt of the accused/appellants beyond reasonable doubt and the findings of the trial Court are based on evidence available on record and it has rightly believed the prosecution case and has rightly convicted the accused/appellants. 11. We have considered the submissions made by the learned counsel for the parties and have carefully gone through the entire record and evidence. In the present matter, the offence is said to have been committed on 4.8.1985 at about 7.15 p.m. in the field of Buddhu Mehtar near village Jaura khurd. As per prosecution story, dead body of the deceased was lying on the spot till the local police reached there and prepared inquest report. The FIR is lodged by an injured witness, namely, Shishu Pal Singh on the next date at 8.40 a.m.. As per prosecution story, dead body of the deceased was lying on the spot till the local police reached there and prepared inquest report. The FIR is lodged by an injured witness, namely, Shishu Pal Singh on the next date at 8.40 a.m.. Injured Shishu Pal Singh has been medically examined at Primary Health Centre, Jaitipur on 5.8.1985 at 3.30 p.m., who had been brought by the constable. Autopsy on the dead body of the deceased is of 6.8.1985 at 4.00 p.m. While examining the injured Shishu Pal Singh, the doctor concerned has advised for X-ray and the injuries received by him were kept under observation. From a perusal of entire evidence available on record, it is also clear that the prosecution has not led any evidence in regard to X-ray or treatment given to the injured. Injuries found on the body of Shishu Pal Singh is of fire-arm injury. Nine ante-mortem gunshot injuries and one abrasion have been found on the body of the deceased Dharam Pal. Out of the said nine gunshot injuries, four are exit wounds corresponding to entry wounds received by the deceased. The prosecution has examined PW-3 Shishu Pal Singh and PW-4 Raj Pal as eye account witnesses and the other eye account witnesses mentioned in the FIR have not been examined. Scriber of the written report has also not been examined by the prosecution. It is not mentioned in the FIR as to who had caught to whom during the course of occurrence, and this fact has also not been stated to the Investigating Officer in the statements under Section 161 Cr. P.C.. Although this fact has been stated for the first time in cross-examination by PW-3. PW-3 is also not clear whether his father has made deposition before the Court in the case lodged earlier against the appellants. In the FIR only this much fact is mentioned that all the accused had opened fire upon the deceased but in the evidence before the Court, PW-3 has specifically stated that ÞekSds ij dqy pkj Qk;j gq, FksA pkjksa us ,d ,d Qk;j fd, Fks pkjksa us /keZiky ij Qk;j fd,A mlds Hkh yxk esjs Hkh yxkA pkjksa us /keZiky ij Qk;j fd,A esjs Åij vyx ls Qk;j ugha fd;kA esjs Hkh Qk;j yxkA^^ Type of weapon, i.e. 12 bore or 315 bore assigned to each accused has also not been mentioned in the FIR. In the evidence led before the Court, it has come that when the accused persons caught the deceased and informant, accused appellants did scuffle and mar-peet. There is also some variation on the point of exhortation, whether all the accused have jointly exhorted or appellant Shri Pal only. The defence has not put any question to the injured witnesses or the doctor, who has examined the PW-3 that injuries found on the body of the injured could not come in the said incident. Defence has also not put any question from the PW-3 that he was not present on the spot. The defence has tried to establish the enmity between both the parties and also with PW-4 Raj Pal Sigh, although PW-4 has specifically denied and stated that said nephew Mahendra Singh has also assaulted him and a case is pending against them. Thus, in the light of the above facts and the evidence available on record, the submissions raised by the learned counsel for the parties are to be scrutinized. 12. Before dealing with the submissions made by the learned counsel for the parties, it is relevant to quote the propositions laid down by the Supreme Court in the case of Gangabhavani v. Rayapati Venkat Reddy and others, JT 2013 (12) SC 117, which is as under (paragraphs 7 to 18 of the said judgement): “7. It is a settled legal proposition that where the evidence of the witnesses for the prosecution is totally inconsistent with the medical evidence or the evidence of the ballistics expert, it amounts to a fundamental defect in the prosecution case and unless it is reasonably explained may discredit the entire case of the prosecution. However, the opinion given by a medical witness need not be the last word on the subject. Such an opinion is required to be tested by the Court. If the opinion is bereft of logic or objectivity, the Court is not obliged to go by that opinion. After all an opinion is what is formed in the mind of a person regarding a particular fact situation. If one doctor forms one opinion and another doctor forms a different opinion on the same facts, it is open to the Judge to adopt the view which is more objective or probable. After all an opinion is what is formed in the mind of a person regarding a particular fact situation. If one doctor forms one opinion and another doctor forms a different opinion on the same facts, it is open to the Judge to adopt the view which is more objective or probable. Similarly, if the opinion given by one doctor is not consistent or probable, the Court has no liability to go by that opinion merely because it is given by the doctor. “It would be erroneous to accord undue primacy to the hypothetical answers of medical witnesses to exclude the eye-witnesses’ account which had to be tested independently and not treated as the ‘variable’ keeping the medical evidence as the ‘constant’.” 7.1 Where the eye-witnesses’ account is found credible and trustworthy, a medical opinion pointing to alternative possibilities cannot be accepted as conclusive. The eye-witnesses’ account requires a careful independent assessment and evaluation for its credibility, which should not be adversely prejudged on the basis of any other evidence, including medical evidence, as the sole touchstone for the test of such credibility. (Vide: Ram Narain Singh v. State of Punjab, AIR 1975 SC 1727 ; State of Haryana v. Bhagirath, AIR 1999 SC 2005 ; Abdul Sayeed v. State of M.P., (2010) 10 SCC 259 ; and Rakesh v. State of M.P., (2011) 9 SCC 698 ). 8. Thus, the position of law in cases where there is a contradiction between medical evidence and ocular evidence stands crystallised to the effect that though the ocular testimony of a witness has greater evidentiary value vis-à-vis medical evidence, when medical evidence makes the ocular testimony improbable, that becomes a relevant factor in the process of the evaluation of evidence. However, where the medical evidence goes so far that it completely rules out all possibility of the ocular evidence being true, the ocular evidence may be disbelieved. 13. CONTRADICTIONS IN EVIDENCE : 9. In State of U.P. v. Naresh, (2011) 4 SCC 324 , this Court after considering a large number of its earlier judgments held: “In all criminal cases, normal discrepancies are bound to occur in the depositions of witnesses due to normal errors of observation, namely, errors of memory due to lapse of time or due to mental disposition such as shock and horror at the time of occurrence. Where the omissions amount to a contradiction, creating a serious doubt about the truthfulness of the witness and other witnesses also make material improvement while deposing in the Court, such evidence cannot be safe to rely upon. However, minor contradictions, inconsistencies, embellishments or improvements on trivial matters which do not affect the core of the prosecution case, should not be made a ground on which the evidence can be rejected in its entirety. The Court has to form its opinion about the credibility of the witness and record a finding as to whether his deposition inspires confidence. Exaggerations per se do not render the evidence brittle. But it can be one of the factors to test credibility of the prosecution version, when the entire evidence is put in a crucible for being tested on the touchstone of credibility. Therefore, mere marginal variations in the statements of a witness cannot be dubbed as improvements as the same may be elaborations of the statement made by the witness earlier. The omissions which amount to contradictions in material particulars i.e. go to the root of the case/materially affect the trial or core of the prosecution’s case, render the testimony of the witness liable to be discredited.” 9.1 A similar view has been re-iterated by this Court in Tehsildar Singh and another v. State of U.P., AIR 1959 SC 1012 ; Pudhu Raja and another v. State, Rep. by Inspector of Police, JT 2012 (9) SC 252; and Lal Bahadur v. State (NCT of Delhi), (2013) 4 SCC 557 ). 10. Thus, it is evident that in case there are minor contradictions in the depositions of the witnesses the same are bound to be ignored as the same cannot be dubbed as improvements and it is likely to be so as the statement in the Court is recorded after an inordinate delay. In case the contradictions are so material that the same go to the root of the case, materially affect the trial or core of the prosecution case, the Court has to form its opinion about the credibility of the witnesses and find out as to whether their depositions inspire confidence. 14. EVIDENCE OF A RELATED/INTERESTED WITNESSES : 11. In case the contradictions are so material that the same go to the root of the case, materially affect the trial or core of the prosecution case, the Court has to form its opinion about the credibility of the witnesses and find out as to whether their depositions inspire confidence. 14. EVIDENCE OF A RELATED/INTERESTED WITNESSES : 11. It is a settled legal proposition that the evidence of closely related witnesses is required to be carefully scrutinised and appreciated before any conclusion is made to rest upon it, regarding the convict/accused in a given case. Thus, the evidence cannot be disbelieved merely on the ground that the witnesses are related to each other or to the deceased. In case the evidence has a ring of truth to it, is cogent, credible and trustworthy, it can, and certainly should, be relied upon. (Vide: Bhagalool Lodh and another v. State of U.P., AIR 2011 SC 2292 ; and Dhari and others v. State of U.P., AIR 2013 SC 308 ). 12. In State of Rajasthan v. Smt. Kalki and another, AIR 1981 SC 1390 , this Court held: “5A. As mentioned above the High Court has declined to rely on the evidence of P.W. 1 on two grounds: (1) she was a “highly interested” witness because she “is the wife of the deceased”......For, in the circumstances of the case, she was the only and most natural witness; she was the only person present in the hut with the deceased at the time of the occurrence, and the only person who saw the occurrence. True it is she is the wife of the deceased; but she cannot be called an ‘interested’ witness. She is related to the deceased. ‘Related’ is not equivalent to ‘interested. A witness may be called ‘interested’ only when he or she derives some benefit from the result of a litigation; in the decree in a civil case, or in seeing an accused person punished. A witness who is a natural one and is the only possible eye-witness in the circumstances of a case cannot be said to be ‘interested’. In the instant case P.W.1 had no interest in protecting the real culprit, and falsely implicating the respondents.” (Emphasis added) (See also: Chakali Maddilety and others v. State of A.P., AIR 2010 SC 3473 ). 13. In the instant case P.W.1 had no interest in protecting the real culprit, and falsely implicating the respondents.” (Emphasis added) (See also: Chakali Maddilety and others v. State of A.P., AIR 2010 SC 3473 ). 13. In Sachchey Lal Tiwari v. State of U.P., AIR 2004 SC 5039 , while dealing with the case this Court held: “7...........Murders are not committed with previous notice to witnesses; soliciting their presence. If murder is committed in a dwelling house, the inmates of the house are natural witnesses. If murder is committed in a street, only passers-by will be witnesses. Their evidence cannot be brushed aside or viewed with suspicion on the ground that they are mere ‘chance witnesses’. The expression ‘chance witness’ is borrowed from countries where every man’s home is considered his castle and everyone must have an explanation for his presence elsewhere or in another man’s castle. It is quite unsuitable an expression in a country where people are less formal and more casual, at any rate in the matter explaining their presence.” 14. In view of the above, it can safely be held that natural witnesses may not be labelled as interested witnesses. Interested witnesses are those who want to derive some benefit out of the litigation/case. In case the circumstances reveal that a witness was present on the scene of the occurrence and had witnessed the crime, his deposition cannot be discarded merely on the ground of being closely related to the victim/deceased. 15. DELAY IN LODGING FIR AND ITS CONTENTS : 15. The case of the prosecution cannot be rejected solely on the ground of delay in lodging the FIR. The Court has to examine the explanation furnished by the prosecution for explaining the delay. There may be various circumstances particularly the number of victims, atmosphere prevailing at the scene of incidence, the complainant may be scared and fearing the action against him in pursuance of the incident that has taken place. If the prosecution explains the delay, the Court should not reject the case of the prosecution solely on this ground. There may be various circumstances particularly the number of victims, atmosphere prevailing at the scene of incidence, the complainant may be scared and fearing the action against him in pursuance of the incident that has taken place. If the prosecution explains the delay, the Court should not reject the case of the prosecution solely on this ground. Therefore, the entire incident as narrated by the witnesses has to be construed and examined to decide whether there was an unreasonable and unexplained delay which goes to the root of the case of the prosecution and even if there is some unexplained delay, the Court has to take into consideration whether it can be termed as abnormal. (Vide: P. Venkataswarlu v. State of A.P., AIR 2003 SC 574 ; and State of U.P. v. Munesh, AIR 2013 SC 147 ). 16. It is also a settled legal proposition that merely not mentioning all the names of all the accused or their overt acts elaborately or details of injuries said to have been suffered, could not render the FIR vague or unreliable. The FIR is not an encyclopaedia of all the facts. More so, it is quite natural that all the names and details may not be given in the FIR, where a large number of accused are involved. 16. NON-CROSS-EXAMINATION OF A WITNESS ON A PARTICULAR ISSUE : 17. This Court in Laxmibai (Dead) Thr. L.Rs. and another v. Bhagwanthuva (Dead) Thr. L.Rs. and others, AIR 2013 SC 1204 , examined the effect of non-cross-examination of witness on a particular fact/circumstance and held as under: “31. Furthermore, there cannot be any dispute with respect to the settled legal proposition, that if a party wishes to raise any doubt as regards the correctness of the statement of a witness, the said witness must be given an opportunity to explain his statement by drawing his attention to that part of it, which has been objected to by the other party, as being untrue. Without this, it is not possible to impeach his credibility. Without this, it is not possible to impeach his credibility. Such a law has been advanced in view of the statutory provisions enshrined in Section 138 of the Evidence Act, 1872, which enable the opposite party to cross-examine a witness as regards information tendered in evidence by him during his initial examination in chief, and the scope of this provision stands enlarged by Section 146 of the Evidence Act, which permits a witness to be questioned, inter alia, in order to test his veracity. Thereafter, the unchallenged part of his evidence is to be relied upon, for the reason that it is impossible for the witness to explain or elaborate upon any doubts as regards the same, in the absence of questions put to him with respect to the circumstances which indicate that the version of events provided by him, is not fit to be believed, and the witness himself, is unworthy of credit. Thus, if a party intends to impeach a witness, he must provide adequate opportunity to the witness in the witness box, to give a full and proper explanation. The same is essential to ensure fair play and fairness in dealing with witnesses. (Emphasis supplied) (See also: Rohtash Kumar v. State of Haryana, JT 2013 (8) SC 181; and Gian Chand and others v. State of Haryana, JT 2013 (10) SC 515). 18. Thus, it becomes crystal clear that the defence cannot rely on nor can the Court base its finding on a particular fact or issue on which the witness has not made any statement in his examination-in-chief and the defence has not cross-examined him on the said aspect of the matter.” 17. Now, in light of the propositions laid down by the Supreme Court in Gangabhavani case (supra), this Court is proceeding to deal with the submissions made by the learned counsel for the parties. In the present case, FIR is lodged on 5.8.1985 at about 8.40 a.m. and the offence is said to have been committed on 4.8.1985 at about 7.15 p.m., meaning thereby FIR as per prosecution itself came into existence after a gap of about 12 hours. Distance between the place of occurrence and the police station concerned is shown in the chik report as five miles but in the inquest report, it is shown about 10 kilometres. Distance between the place of occurrence and the police station concerned is shown in the chik report as five miles but in the inquest report, it is shown about 10 kilometres. The FIR itself discloses that it could not be lodged due to fear of accused and also for the reason that the informant had received injury. This fact has also been stated before the Court by the PW-3. PW-5 - the Investigation Officer has made clear that he has recorded the distance between place of occurrence and the police station concerned on the basis of approximate distance covered by him. This witness has also stated that distance shown in the FIR is based on the registered maintained in the police station, and now the building of the police station has been shifted to another place, therefore, at present the distance is changed. Learned counsel for the appellants referred these discrepancies and the cutting regarding date and time of preparation of the inquest report and argued that the FIR was not in existence at the time mentioned in chik report. Learned counsel for the appellants also referred other police papers prepared at the time of preparing of inquest report. 18. It is settled legal position that where the prosecution case rests on the ocular evidence, prosecution case cannot be doubted solely on the ground of delay in lodging the FIR. There may be various circumstances particularly, the past history of the appellants, atmosphere prevailing at the scene of incidence, the complainant may be scared and fearing in the action against the accused in pursuance of the incident that has taken place. The trial Court has observed that the FIR was in existence at the time of preparing the inquest report. Variation regarding the distance shown in chik report has been properly explained by the prosecution. It has also been observed that there is delay in lodging the FIR but it has been properly explained and it is also probable and natural in the facts and circumstances of the case. If the observations made by the trial Court and the submissions made by the learned counsel for the parties are compared with the facts and circumstances of the present case, it can safely be held that the prosecution has come forward from the very beginning explaining the reason of delay in lodging the FIR. If the observations made by the trial Court and the submissions made by the learned counsel for the parties are compared with the facts and circumstances of the present case, it can safely be held that the prosecution has come forward from the very beginning explaining the reason of delay in lodging the FIR. In the present case, the offence is said to have been committed in the evening and means of transportation was not available at that time. The brother of the deceased is also said to have received injuries in the said incident. The incident is taken place in the village area and when the family members of the deceased managed a bullock cart, then they proceeded to lodge FIR on the next morning. It is also pertinent to mention here that threatening and intimidating the other family member on the spot, the appellants had done to death to the deceased, then it might be possible that family members and other relatives were fearful in proceeding to lodge the FIR in night. It is also worth mentioning here that since all the appellants have also been prosecuted earlier in a murder case, thus keeping in mind their criminal antecedents, the family members would have not gone to lodge the FIR in the night itself. Thus, in the circumstances mentioned above, the trial Court has rightly observed that delay in lodging the FIR has been properly explained and the FIR was in existence at the time mentioned in the chik report. The reasons for delay in lodging the FIR is probable and natural one. Therefore, the findings recorded by the trial Court on this score is not liable to be interfered with. 19. Now the Court proceeds to deal with the submission regarding the presence of PW-3 Shishu Pal Singh and PW-4 Raj Pal on the spot at the time of occurrence. It is the case of prosecution, from the very beginning i.e. lodging the FIR till deposition before the Court, that the deceased and PW-3 both had gone to their field for agricultural work and were returning from there, and as and when they reached near the field of Buddhu Mehtar, all the appellants came there and hold the deceased and the informant and also opened fire whipping out their country made pistol kept by them. Although scuffle and mar-peet have not been mentioned in the FIR but during evidence before the Court this fact has also come. There is also some variation as to whether the accused appellants have made only four fires or more than four. PW-4, is not resident of the village in question, means that he was a chance witness. PW-3 is the brother of the deceased, meaning thereby he may be categorized as interested witness. PW-4 has explained the reason of his presence on the spot at the time of occurrence that after looking his field, he was returning to village Jaura Khurd for arrangement of labour, and when he heard the hue and cry, he reached on the spot. The informant’s father Jang Bahadur had also reached on the spot. PW-4 may be a chance witness but the reason explained by him regarding his presence on the spot cannot be disbelieved as villagers used to go to see their field in the evening and also used to go for arrangement of labour in neighbouring villages also. Thus, the trial Court’s view that PW-4 is an eye account witness and his presence at the time of occurrence is probable, natural and believable, is correct. 20.As far as the presence of PW-3 on the spot at the time of occurrence is concerned, PW-4 has also stated that when he reached to his field, which is adjacent to the field of the informant, he had seen them in their field. Place of occurrence is about 300 paces from the village in question. Returning of the informant and deceased from that place is not unnatural. It is also not unnatural or improbable that both the brothers were returning together. It may also be mentioned that PW-3 has received gunshot wound in his left leg and PW-2 has medically examined him and has stated that injury found on the body of the PW-3 could be caused in the same incident. No question has been put by the defence from PW-3 or PW-2 to the effect that injury found on the body of PW-3 is self inflicted injury. No any suggestion or question has also been put by the defence that PW-3 was not present on the spot at the time of occurrence. No question has been put by the defence from PW-3 or PW-2 to the effect that injury found on the body of PW-3 is self inflicted injury. No any suggestion or question has also been put by the defence that PW-3 was not present on the spot at the time of occurrence. Since PW-3 has received injuries in the said incident, which is corroborated by the evidence of PW-4 and also finds support with the statement of PW-2 Dr. A.K. Tripathi, therefore, the finding given by the trial Court regarding presence of PW-3 and PW-4 is not liable to be interfered with and from the aforesaid evidence it is established that PW-3 and PW-4 are most natural and probable witnesses. Due to non-examination of the father of the informant and other witnesses mentioned in the FIR, the credibility and veracity of the statements of PW-3 and PW-4 cannot be doubted. PW-3 is an injured witness. Statement of PW-3 can also not be thrown out or doubted on this score also that he is brother of the deceased. Both were returning at the time of incident from their field after agricultural work because in villages farmers go to their fields and return from their field in the evening to their houses. 21. So far as the submission regarding relativeness or interestedness of the witnesses is concerned, it is settled legal position that merely because the witnesses were closely related to the deceased, their testimonies cannot be discarded. Their relationship to one of the parties is not a factor that affects the credibility of a witness, more so, a relation would not conceal the actual culprit and make allegations against an innocent person. A party has to lay down a factual foundation and prove by leading impeccable evidence in respect of its false implication. The defence could not elicit anything from the testimony of PW-3 as to why he had falsely nominated the accused persons. However, in such cases, the Court has to adopt a careful approach and analyse the evidence to find out whether it is cogent and credible evidence. 22. In the present case, PW-4 has specifically denied that he has any enmity with the accused appellants and for this, explanation has been given that one Mahendra Singh, nephew of this witness, had also assaulted to this witness and in that respect a criminal case is pending. 22. In the present case, PW-4 has specifically denied that he has any enmity with the accused appellants and for this, explanation has been given that one Mahendra Singh, nephew of this witness, had also assaulted to this witness and in that respect a criminal case is pending. In this factual situation, the finding of the trial Court that enmity shown by the appellants is not sufficient to encourage this witness to make false statement is also not liable to be interfered with. In the facts and circumstances of the case when at the place of occurrence only these two persons (the deceased and the informant) were present while returning from field and accused appellants came there and there were no other person at that time, then also PW-3 can be termed as most natural witness. It is true that PW-3 is relative witness and he may be interested but his interestedness is not to that standard that he had falsely deposed before the Court. He can also not be termed in the category that he has deposed before the Court to derive some benefit from the result of litigation. Since deceased was his brother who was done to death by the appellants, therefore, his interestedness may be to that extent that the accused persons be punished for their act and due to this reason he is telling the true fact happened before him. 23. So far as non-examination of other witnesses cited in the FIR is concerned, it is suffice to say that if a witness examined in the Court is otherwise found reliable and trustworthy, the fact sought to be proved by that witness need not be further proved through other witnesses though there may be other witnesses available who could have been examined but were not examined. Non-examination of material witness is not a mathematical formula for discarding the weight of the testimony available on record however natural, trustworthy and convincing it may be. It is settled law that non-examination of eye-witness cannot be pressed into service like a ritualistic formula for discarding the prosecution case with a stroke of pen. It is now well-settled principle of law that whom to cite as a witness and whom not to cite is within the domain of the prosecution. It is primarily for the prosecutor to decide which witness it should examine in order to unfold the prosecution story. It is now well-settled principle of law that whom to cite as a witness and whom not to cite is within the domain of the prosecution. It is primarily for the prosecutor to decide which witness it should examine in order to unfold the prosecution story. (Vide State of U.P. v. Ganga Ram, (2005) 13 SCC 239 ). 24. Further, it is also settled proposition of law that it is not the matter of quantity of evidence but the quality of evidence produced by the prosecution. In this regard, a reference can be taken to a case law reported in Food Inspector v. G. Satyanarayana, AIR 2004 SC 1236 , wherein the Hon’ble Supreme Court has held that it is not the number of witnesses but it is the quality of evidence which is required to be taken note of by the Courts for ascertaining the truth of the allegations made against the accused. Section 134 of The Evidence Act provides that no particular number of witnesses is required for proof of any fact. The witnesses of fact produced on behalf of the prosecution, are trustworthy and well reliable and merely because no independent witness has been examined, the evidence of witnesses of fact cannot be discarded. 25. So far the submission regarding discrepancies and contradictions pointed out by the learned counsel for the appellants in the statements of PW-3 PW-4 and other witnesses are concerned, they are not having much force because presence of PW-3 and PW-4 on the spot at the time of the incident is very much established by the prosecution evidence. Apart to this, it is well-settled proposition of law that any inconsistency or discrepancy occurred in the investigation or laches on the part of the Investigating Officer does not affect the veracity of statement of reliable prosecution witnesses until and unless such discrepancies are of such nature that the entire prosecution story is collapsed. Defence has also tried to establish enmity between the informant and the appellants referring the earlier murder trial case lodged against the appellants wherein the father of the informant is said to be a witness. This fact has also been mentioned as motive to commit the present crime. Defence has also tried to establish enmity between the informant and the appellants referring the earlier murder trial case lodged against the appellants wherein the father of the informant is said to be a witness. This fact has also been mentioned as motive to commit the present crime. It may be mentioned here that enmity is a double edged weapon which may be a reason to commit an offence and at the same time it may also be a reason for false implication. Therefore, conclusion has to be taken on the basis of careful scrutiny of entire evidence. In the present matter there are eye account witnesses, whose statements are natural and believable, therefore, motive stated by the prosecution may be taken in favour of the prosecution. The trial Court view that the prosecution has established motive beyond reasonable doubt is also correct and the same does not require any interference. 26. As far as the submission that medical evidence does not support the prosecution case, it is well-settled that ocular account of the incident would have primacy over medical evidence, unless it rules out all other hypothesis. If the direct testimony of eye-witnesses is reliable, the same cannot be rejected on hypothetical medical evidence. In the present case, PW-1 Dr. Ramesh Kumar has prepared the post mortem report and has found nine fire-arm injuries and one abrasion on the body of the deceased. Prosecution case is that accused appellants have used country made pistol. One palette from the body of the deceased has also been recovered during post mortem. Out of nine fire-arm injuries, four are exit injuries meaning thereby four other injuries corresponding to the exit injuries are the entry wound of these four exit injuries, then remains only one fire-arm wound, which is in excess. The prosecution case is that accused appellants have made four fires. Although there is some discrepancy and variation on this point but looking to the place and direction of the injuries and also the statements of PW-1 it can safely be held that all the injuries found on the body of the deceased have been caused by the weapon assigned to the appellants in the same transaction. Although there is some discrepancy and variation on this point but looking to the place and direction of the injuries and also the statements of PW-1 it can safely be held that all the injuries found on the body of the deceased have been caused by the weapon assigned to the appellants in the same transaction. It may be mentioned here that the appellants are said to have used country made pistol and it is impossible for a witness to remember or recollect the type of weapon used by the appellants whether it was 12 bore or 315 bore. The doctor conducting the post mortem has also not bely that excess injury found on the body of the deceased could not be caused in the same incident. Thus, the trial Court has rightly held that medical evidence fully supports the prosecution case. 27. As far as time of death is concerned, putrification has started and the post mortem is done on 6.8.1985 at 4.00 p.m. meaning thereby that about 48 hours had been elapsed. In the month of August, putrification may be started sooner than the winter season. Thus also medical evidence is in support of the oral evidence of the eye account witnesses. The doctor has clearly opined that injury No. 10, which is abrasion, may be occurred during the course of incident. When accused appellants were making fires upon the deceased and the informant, the deceased fell down on the earth and it is possible that he would have writhed, thus, the opinion of the doctor expressed in regard to injury No. 10 is acceptable and requires no interference, and the submission made by the learned counsel for the appellants that the medical evidence does not support the prosecution is not acceptable. 28. 28. When the delay in lodging the FIR has been properly explained by the prosecution and FIR is not the result of legal advice, presence of PW-3 Shishu Pal Singh, who is an injured witness, and PW-4 Raj Pal have been found natural and probable, their statements are not doubtful, the contradictions, variations and discrepancies are not of such nature which adversely affect the consistent and clear statements of the witnesses on material points, medical evidence fully supports the prosecution case, non-examination of all witnesses also does not affect the veracity of the statements of the eye account witnesses examined in this matter, Special report in the matter has been sent timely by the police concerned then it is to be seen what role has been played by each of the appellants in committing the present offence. 29. The trial Court has framed the charge against the all appellants for committing the offence under Section 302 IPC and 307 IPC and has also convicted and sentenced them for the offence under Section 302 and 307 IPC taking recourse of the provisions of Section 37 IPC, which runs as under: “37. Cooperation by doing one of several acts constituting an offence.—When an offence is committed by means of several acts, whoever intentionally co-operates in the commission of that offence by doing any one of those acts, either singly or jointly with any other person, commits that offence.” The Supreme Court in the case of Shyamal Ghosh v. State of West Bengal, (2012) 7 SCC 646 , has discussed the matter for applicability of Section 34 IPC. Paragraph 87 of the said judgement, which is relevant, is as under: “87. Upon analysis of the above judgments and in particular the judgment of this Court in the case of Dharnidhar v. State of Uttar Pradesh and others, (2010) 7 SCC 759 , it is clear that Section 34 IPC applies where two or more accused are present and two factors must be established i.e. common intention and participation of the accused in the crime. Section 34 IPC moreover, involves vicarious liability and therefore, if the intention is proved but no overt act was committed, the Section can still be invoked. Section 34 IPC moreover, involves vicarious liability and therefore, if the intention is proved but no overt act was committed, the Section can still be invoked. This provision carves out an exception from general law that a person is responsible for his own act, as it provides that a person can also be held vicariously responsible for the act of others, if he had the common intention to commit the act. The phrase ‘common intention’ means a pre-oriented plan and acting in pursuance to the plan, thus, common intention must exist prior to the commission of the act in a point of time. The common intention to give effect to a particular act may even develop at the spur of moment between a number of persons with reference to the facts of a given case.” 30. Prosecution case is that all the appellants have opened fire from their country made pistol making exhortation. It is established fact that all the appellants have opened fire upon the deceased and informant. The attending circumstances emerged on the spot itself clearly indicate that all appellants have committed present offence in furtherance of their common intention, meaning thereby prosecution has been able to establish that essential ingredients, i.e., pre concert of mind, for implementation of provisions of Section 34 IPC has been emerged on the spot at the time of commission of offence. If the charge framed in the matter are minutely perused in consonance with the evidence available on record, it is clear that all the ingredients to take recourse of provisions of Section 34 IPC are found in the charge framed against accused appellants. Therefore, we are of the view that the trial Court has wrongly taken recourse of provisions of Section 37 IPC. In the charges framed against the appellants, the trial Court itself has mentioned that the offence has been committed by the appellants in furtherance of their common intention and if such was the factual position, the trial Court ought to have punished the appellants taking recourse of the provisions of Section 34 IPC instead of provisions of Section 37 IPC. Thus, the trial Court’s finding in this respect is liable to be modified to this extent and the appellants Shri Pal and Shiv Pal Singh both are liable to be convicted and sentenced taking recourse of the provisions of Section 34 IPC. Thus, the trial Court’s finding in this respect is liable to be modified to this extent and the appellants Shri Pal and Shiv Pal Singh both are liable to be convicted and sentenced taking recourse of the provisions of Section 34 IPC. Thus, the appellants Shiv Pal Singh and Shri Pal Singh are hereby held guilty for the offence committed by them in furtherance of their common intention under Section 302 read with Section 34 IPC and also under Section 307 read with Section 34 IPC for committing the murder of Dharam Pal and causing injuries to the informant Shishu Pal Singh with intention to kill him. The sentence imposed upon both the appellants for the offence Section 302 read with Section 34 IPC is remained unaltered as life imprisonment and sentence imposed upon both the appellants for the offence under Section 307 read with Section 34 IPC is also remained unaltered for a term of 6 years rigorous imprisonment. Both the sentences shall run concurrently. Hence, the appeal having no force is liable to be dismissed modifying the finding of the trial Court on the point of applicability of Section 34 and Section 37 IPC and affirming the impugned judgement and order passed by the trial Court on other points. Accordingly the Appeal is dismissed. The accused appellants Shiv Pal Singh and Shri Pal Singh are on bail, their bail bonds are cancelled. They are directed to surrender before the Chief Judicial Magistrate concerned forthwith, who shall take them into custody and send them in jail for serving out the remaining sentence imposed upon them by the trial Court. In case they fail to surrender, as directed above, the Chief Judicial Magistrate concerned is directed to take coercive action against them in this regard. Copy of this judgement alongwith lower Court record be sent forthwith to the Sessions Judge, Shahjahanpur for compliance.