JUDGMENT Arun Tandon and Akhtar Husain Khan, JJ.: - Heard Sri V.P. Srivastava, learned Senior Advocate assisted by Sri Sanjay Kumar, Advocate on behalf of the sole appellant and learned Additional Government Advocate for the State-respondent. 2. This criminal appeal is directed against the judgement and order passed by the Special Judge/Additional Sessions Judge, Moradabad dated 6th February, 1986 in Sessions Trial No. 581 of 1985 being Case Crime No. 307 of 1985, Police Station Bilari, District Moradabad. The sole appellant Virendra has been convicted of an offence under Section 302 of the Indian Penal Code and has been sentenced with imprisonment for life. 3. The case of the prosecution, as reflected from the records of the present appeal, is as follows: 4. The first informant, Dwarika Prasad, son of Ram Gopal lodged a first information report with the Police Station Bilari, District Moradabad on 22nd June, 1985 at 6: 20 a.m. It was stated that on the previous day i.e. 21st June, 1985 at about 7: 30 p.m. (in the evening), the accused Rajendra son of Jagan and Virendra son of Bannu Kom Yadav, reached the house of Hori Jatav and stated that you (Hori) and other members of his caste i.e. (Jatavs) have refused to work as labourers in their field and they have formed a group among themselves. The appellant Virendra and Rajendra also abused the females of the community. By that time, they had reached the house of informant. Hearing the abuses, Ram Gopal, the deceased, his sons the informant Dwarika Prasad and Rajveer came out of their house. Deceased Ram Gopal enquired as to why accused (Rajednra and Virendra) were abusing the females of entire community. On hearing this, Rajendra exhorted Virendra to kill the deceased Ram Gopal. Virendra immediately fired from his country-made pistol upon the father of the informant, namely, Ram Gopal. On being hit by the gun shot, Ram Gopal fell in front of the door of his residence and expired on the spot. On hearing the gun shot, Hori son of Summeri, Pooran son of Summeri, Than Singh son of Summeri, Bhukhan son of Nirottam and the mother of the informant Lilawati, his wife Shanti and his younger brother Rajveer Singh etc. arrived on the sport. They challenged the accused. On such challenge being made, Rajendra fired upon them from the pistol in his hand. arrived on the sport. They challenged the accused. On such challenge being made, Rajendra fired upon them from the pistol in his hand. Both of the accused ran away from the spot after threatening that if any action is taken, they shall be dealt with in like manner. 5. It is further the case of the prosecution that information was sent to the Village Chowkidar but he could not be traced. Due to fear, nobody proceeded to lodge the first information report in the night. Next day i.e. 22nd July, 1985 in the morning at 6: 20 a.m., Dwarika Prasad son of the deceased Ram Gopal reached the Police Station, where he lodged the first information report. The written report, on the basis whereof, the first information report was lodged, was marked as Exhibit-Ka-1. The first information report was registered, as Case Crime No. 307 of 1985, Police Station Billari, District Moradabad. Sub-Inspector Udai Veer Singh, who was posted at the police station Billari at the relevant time, undertook the investigation and reached the place of incident with police force on the same day. He conducted inquest of the dead body of Ram Gopal between 8: 30 a.m. and 10: 30 a.m. He also prepared the inquest report, which was marked as Exhibit Ka-9. The chick first information report prepared by the Head Moharrir of the police station Billari, namely, Kishan Lal was marked as Exhibit Ka-3. Copy of the General Diary entries was marked as Exhibit Ka-4. The inquest report marked as Exhibit Ka-9 along with other relevant papers and letter to R.I., which were marked as Exhibit Ka-5, Chalan Lash, which was marked as Exhibit Ka-6, photograph of the lash, which was marked as Exhibit Ka-7, letter to C.M.O., which marked as exhibit Ka-8, copy of the first information report, which was marked as Ka-10, were forwarded along with sealed dead body for post-mortem through Constables, Satveer and Kailash Chandra. The Investigating Officer collected the blood-stained and ordinary earth, which were marked as Exhibits 1 and 2 vide Memo Exhibit Ka-11 from the place of incident and sealed the same in the separate packets. The accused were not available in the village. The Investigating Officer made search of their houses vide Memo Exhibits Ka-12 and Ka-13 but could not recover any incriminating material. The Investigating Officer prepared the site plan marked as Exhibit Ka-14 and interrogated the witnesses. The accused were not available in the village. The Investigating Officer made search of their houses vide Memo Exhibits Ka-12 and Ka-13 but could not recover any incriminating material. The Investigating Officer prepared the site plan marked as Exhibit Ka-14 and interrogated the witnesses. 6. The post-mortem of the dead body of deceased Ram Gopal was performed by Dr. R.K. Goyal, who also prepared the post mortem report. Dr. Goyal found following ante mortem injuries on the dead body of the deceased as per Post Mortem Report Exhibit Ka-2: "Gun shot wound of entry 9 cm. X 7 cm., cavity deep on right upper chest adjacent to mid point of left clavicle. Right clavicle was found fractured. One cap was recovered from chest cavity. Two wads in pieces and cotton-piece was recovered from the anterior wall of chest. 16 small pellets were recovered from anterior chest wall and chest cavity. There was no wound of exit on the body. On internal examination the pleura gas found ruptured. Right Jung was found ruptured. The lungs were blood-less. The heart was empty. 4 ounces of blood was found in chest cavity. Right sub-clavian artery was found ruptured. Semi-liquid 4 ounces material was found in the stomach. The small intestines were half full with gases. The large intestines were half full with faecal matter." 7. In the opinion of the Doctor, the cause of the death was shock and haemorrhage due to the injuries caused by gun shot. 8. In the opinion of the Doctor, the time of death could be about 7: 30 p.m. on 21st June, 1985. The death may have occurred instantaneously on receiving the injury. The injuries could have been caused by country-made pistol from a distance of 2 or 3 paces. 9. The Investigating Officer obtained processes under Sections 82 and 83 of the Code of Criminal Procedure against the accused in order to secure their arrest etc. The accused surrendered before the Court on 1st July, 1985. The Investigating Officer examined them in jail on 10th July, 1985 and after completing the investigation submitted the charge-sheet, which was marked as Exhibit Ka-15 against the accused on 10th July, 1985. 10. The learned Chief Judicial Magistrate committed the case to the court of Sessions on 4th September, 1985. 11. The Investigating Officer examined them in jail on 10th July, 1985 and after completing the investigation submitted the charge-sheet, which was marked as Exhibit Ka-15 against the accused on 10th July, 1985. 10. The learned Chief Judicial Magistrate committed the case to the court of Sessions on 4th September, 1985. 11. Charges under Sections 302/34 and Section 307 of the Indian Penal Code were framed against the accused Rajendra and charges under Section 302 /34 and Section 307/34 of the Indian Penal Code were framed against the accused Virendra. Both the accused pleaded not guilty of the charges and claimed to be tried. 12. The prosecution, in support of its case examined informant Dwarika Prasad son of the deceased the eye witness as P.W.-1, Than Singh an other eye witness was examined as P.W. 2, Ram Bhookan the other eye witness was examined as P.W.3. Dr. R.K. Goyal, who had performed the Autopsy was examined as P.W.4. Udai Veer Singh, who was the Investigating Officer, was examined as P.W.5, while constable Satveer, who had taken the dead body for post mortem was examined as P.W.6. 13. Version of the defence was that they have been falsely implicated. Ram Gopal had probably been murdered by some unknown assailant during the night when he might have been sleeping outside his house on the cot. False implication because of enmity, ill-will due to the caste, disharmony and on account of village rivalry between Yadavs and Jatavs was pleaded. 14. The defence did not examine any witness from its side. 15. Eye Witnesses, P.W.1, P.W.2 and P.W.3 all supported the prosecution story, as narrated in the first information report. Dr. R.K. Goyal, who had performed the post mortem, proved the post mortem report, while the Investigation Report was proved by the Sub-Inspector Udai Veer Singh, the Investigating Officer. 16. The Trial Court, after considering the entire evidence on record, came to a specific conclusion that there was hardly any delay in lodging of the first information report and whatever delay has occurred had been explained. It has been recorded that eye witnesses account is well supported by the medical evidence. There was hardly any discrepancies worth consideration. 16. The Trial Court, after considering the entire evidence on record, came to a specific conclusion that there was hardly any delay in lodging of the first information report and whatever delay has occurred had been explained. It has been recorded that eye witnesses account is well supported by the medical evidence. There was hardly any discrepancies worth consideration. It has been found that not only the first information report had been lodged within reasonable time giving the details of the incident, which had taken place along with the names of the persons involved, the version thereof was well supported by the eye witnesses account as well as by the medical evidence. The prosecution has been held to have established the charge against the accused beyond doubt. The Trial Court concluded that the appellant-accused Virendra were guilty of offence under Section 302 of the Indian Penal Code. He has been convicted of the offence and punished with imprisonment for life. 17. So far as the other accused Rajendra is concerned, a finding has been returned by the Trial Court that the role of exhortation could not be fully established by the prosecution against Rajendra. The trial court has held that the gun shot was fired upon the deceased by Virendra only to teach him a lesson on the spur of the moment because of the incident, which had taken place on 21st June, 1985, as narrated by the prosecution witnesses and as disclosed in the first information report. The Trial Court, therefore, came to a conclusion that no offence against Rajendra could be brought home with certainty by the prosecution and so he has been acquitted. 18. Sri V.P. Srivastava, learned Senior Advocate, on behalf of the appellant, pointed out the following discrepancies on the basis of material on record and suggested that because of these discrepancies, it cannot be said with certainty that the accused appellant had committed the offence, as alleged. He submitted as follows: (a) That there was a delay in lodging of the first information report, inasmuch as the incident is stated to have taken place on 21st June, 1985 at about 7: 30 p.m., while the first information report had been lodged after nearly 12 hours to be precise on 22nd June, 1985 at 06: 20 a.m. The distance from the place of incident to the police station was between 8 to 10 kilometres. (b) That from the first information report as well as from the statements of the prosecution witnesses specifically P.W.1 Dwarika Prasad, it is established that the dead body of Ram Gopal lay on the ground after he suffered the gun shot injury but from the Panchnama prepared by the Investigating Officer on the spot on 23rd June, 1985, it is established that the dead body of the deceased Ram Gopal was found lying on a cot, which fact had not been explained by the prosecution and thus corroborated the defence of the accused qua Ram Gopal having been fired upon during night by some one else when he was sleeping on a cot outside his house. (c) That in the General Diary Entries and the Chick first information report, the distance from the place of the incident to the police station was disclosed as around 8 kilometres, so was the statement made by the prosecution witnesses, while in the Panchnama prepared, the distance has been disclosed as 10 kilometres. The Investigating Officer had admitted in his testimony that he had the General Diary and the copy of the Chick First Information Report, when he prepared the Panchnama. Such discrepancies in the distance could have occurred only when Panchnama had been prepared prior to the lodging of the first information report, therefore, entire case of the prosecution had to be disbelieved. (d) That the Trial Court has held no motive could be attributed to the accused and therefore, in absence of motive there is no reason as to why the accused would kill the deceased. (e) That there is little or no explanation qua the two wads of cotton-piece recovered from the internal wall of the chest of the deceased as per the Post Mortem Report, as it was the case of the prosecution that after Ram Gopal suffered gun shot injury, he expired immediately and no treatment whatsoever was provided to him. 19. (e) That there is little or no explanation qua the two wads of cotton-piece recovered from the internal wall of the chest of the deceased as per the Post Mortem Report, as it was the case of the prosecution that after Ram Gopal suffered gun shot injury, he expired immediately and no treatment whatsoever was provided to him. 19. Lastly, it is submitted that even if it is accepted that the accused has fired upon by the appellant, then in absence of any motive and in view of the finding of the Trial Court that it was only on the spur of the moment, because of trend of the incident, which had taken place, on the fateful day that the accused only wanted to teach a lesson to Ram Gopal for unnecessary interfering in the matter, at best an offence under Section 304 Part-I of the Indian Penal Code could be said to have been committed and therefore, finding of the trial court that the appellant was guilty of an offence under Section 302 of the Indian Penal Code was unsustainable. 20. In support of his pleas, Sri V.P. Srivastava, learned Senior Advocate has referred to the following judgements of the Apex Court: "1. Jag Deo Singh vs. State of U.P., 1979 Criminal Law Journal 236, 2. Gurdial Singh & Others vs. State of Punjab reported in 2011 SCC (2) 768 and 3. Ranjitham vs. Basavraj & Others reported in 2012 (1) SCC (Crl.) 454 : 2012 (1) ACR 820 (SC).” 21. Learned Additional Government Advocate on behalf of the State disputes the correctness of the contentions raised on behalf of the appellant. He submits that in the facts of the case the first information report was within reasonable time. The prosecution story, as narrated in the first information report, was well supported by eye witnesses account as well as by the medical evidence. 22. The prosecution in the facts of the case has been able to bring home the charge with certainty against the accused appellant. The discrepancies in the matter of distance from the place of incident to the police station as well as in the matter of recovery of pieces of wads of cotton from the body of the deceased are trivial in nature and shall not vitiate the prosecution story. The discrepancies in the matter of distance from the place of incident to the police station as well as in the matter of recovery of pieces of wads of cotton from the body of the deceased are trivial in nature and shall not vitiate the prosecution story. He further submits that in the facts of the case, offence under Section 302 had been established beyond doubt. The appellant is not correct in suggesting that at best offence under Section 304 of the Indian Penal Code can be said to have been committed. 23. We have considered the submissions made by the learned counsels for the parties and have examined the records of the present appeal. 24. From the records of the present appeal, we find that the first information report in respect of the incident, which had taken place on 21st June, 1985 at 07: 30 p.m. had been lodged with the Police Station Billari, which was at the distance of 8-10 kilometres from the place of incident on 22nd June, 1985 at 6: 20 a.m. The time taken for lodging of the first information report had been successfully explained by the prosecution. It had been stated that because of fear, nobody had gone to lodge the first information report in the night and they waited for sun rise for travel to the police station which was at distance of 8-10 kilometers for getting the first information report lodged. 25. We, therefore, have no hesitation to record that there has been no inordinate delay in lodging of the first information report. 26. We further find that the prosecution story was well established by eye witnesses account of P.W.1, P.W.2 and P.W.3, who all were present at the site of the incident naturally. Nothing much could be shown to the Court to discredit their statements. Minor discrepancies in the testimony of eye witnesses will not be fatal to the prosecution story. 26. We further find that the prosecution story was well established by eye witnesses account of P.W.1, P.W.2 and P.W.3, who all were present at the site of the incident naturally. Nothing much could be shown to the Court to discredit their statements. Minor discrepancies in the testimony of eye witnesses will not be fatal to the prosecution story. The legal position in that regard has been settled by the Apex Court in the case of State of U.P. vs. Naresh reported in (2011) 4 SCC 324 : 2011 (2) ACR 1190 (SC), wherein in paragraph-30, it has been held that in all criminal cases, normal discrepancies are bound to occur in the depositions of witnesses due to normal errors of observations, errors of memory due to lapse of time or due to mental deposition 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 eye witness and other witnesses also material improvements, while deposing in the court, such evidence cannot be safe to rely upon. However, minor contractions, 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. [Reference Bihari Nath Goswami v. Shiv Kumar Singh, (2004) 9 SCC 186 : 2004 (2) ACR 1643 (SC)]. 27. The said judgement of the Apex Court has been followed with approval in the case of Lal Bahadur & others vs. State (N.C.T. of Delhi) reported in (2013) 4 SCC 557 : 2013 (2) ACR 1190 (SC), paragraph-22. 28. [Reference Bihari Nath Goswami v. Shiv Kumar Singh, (2004) 9 SCC 186 : 2004 (2) ACR 1643 (SC)]. 27. The said judgement of the Apex Court has been followed with approval in the case of Lal Bahadur & others vs. State (N.C.T. of Delhi) reported in (2013) 4 SCC 557 : 2013 (2) ACR 1190 (SC), paragraph-22. 28. So far as the issue of dead body of the deceased Ram Gopal being found on a cot and not on the ground by the Investigating Officer when he visited the site after registration of the first information report, is concerned, we find that the Trial Court has recorded cogent reasons in that respect and has rightly held that the dead body must have been put on a cot, as it was lying there in the village throughout the night by some one. It is also worth mentioning that a categorical finding has been recorded by the Trial Court on the basis of material evidence on record that no blood stains were found from the rassi (nara) used for weaving of the cot. This further demolishes the defence story of Ram Gopal having been shot, while he was sleeping during the night outside his house, by some one else. There is evidence on record, which establishes that no blood stains were found on the rassi (dori) of the cot. 29. So far as the recording of distance of 10 kilometres from the place of incident to police station in the Panchnama by the Investigating Officer is concerned, we find that in the Chick First Information Report and General Diary distance has been mentioned as 8 kilometres. The discrepancies, if any, in mentioning the distance between the place of incident and police station in the Panchnama cannot be said to be fatal so as to discredit the prosecution story. Error, if any, in that regard was on the part of the Investigating Officer. Any error on the part of the Investigating Officer of such trivial nature will not discredit the prosecution story, as has been laid down by the Apex Court in the case of Karan Singh vs. State of Haryana & Another reported in (2013) 12 SCC 529 . 30. Any error on the part of the Investigating Officer of such trivial nature will not discredit the prosecution story, as has been laid down by the Apex Court in the case of Karan Singh vs. State of Haryana & Another reported in (2013) 12 SCC 529 . 30. The last discrepancy pointed out by the learned counsel for the appellant, namely, recovery of pieces of wads of cotton from the inside wall of the chest of the deceased at the time of post mortem. We find that the post mortem had been conducted on 23rd June, 1985 i.e. a day after the dead body had been shifted to the hospital concerned. In any view of the matter, recovery of the cotton wads from the inside wall of the chest of the deceased is not such a factor as made lead the Court to disbelieve the eye witnesses account, which was well supported by the medical evidence. 31. The Apex Court in the case of Pundappa Yankappa Pujari vs. State of Karnataka passed in Criminal Appeal No. 1251 of 2006 decided on 2nd July, 2014, has held that when the Court found that the evidence of the Eye Witnesses is true and can be relied upon, absence of proof of motive or the conspiracy to commit the crime would not dislodge the prosecution from securing the conviction of the accused on the basis of reliable evidence. 32. This takes the Court to the last contention raised on behalf of the appellant namely that in the facts on record at best an offence under Section 304 of the Indian Penal Code was made out and the appellant could not have been held guilty under Section 302 of the Indian Penal Code. 33. In our opinion, this contention has only been raised to be rejected. The accused had fired upon the deceased from a close range in the chest by a country-made pistol. He new fully well that the gun shot injury from such a close range at a vital part of the body would result in death of the victim. Such fact of the accused is squarely covered by Section 300 of the Indian Penal Code read with fourthly. Therefore, the accused has rightly been held to have committed the offence of culpable homicide amounting to murder. 34. Such fact of the accused is squarely covered by Section 300 of the Indian Penal Code read with fourthly. Therefore, the accused has rightly been held to have committed the offence of culpable homicide amounting to murder. 34. It would be worthwhile to reproduce Section 300 and Section 304 of the Indian Penal Code, which read as under: "300. Murder.--Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or 2ndly.--If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or 3rdly.--If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of the nature to cause death, or 4thly.--If the person, committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid." 304. Punishment for culpable homicide not amounting to murder.--Whoever commits culpable homicide not amounting to murder shall be punished with 1[imprisonment for life], or imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine, if the act by which the death is caused is done with the intention of causing death, or of causing such bodily injury as is likely to cause death, or with imprisonment of either description for a term which may extend to ten years, or with fine, or with both, if the act is done with the knowledge that it is likely to cause death, but without any intention to cause death, or to cause such bodily injury as is likely to cause death. 35. In view of the aforesaid, we are of the considered opinion that judgements relied upon by the learned counsel for the appellant are clearly distinguishable. 36. We find no error in the judgement of the trial court. The case of the appellant does not fall under Section 304 Part-I of the Indian Penal Code. 37. 35. In view of the aforesaid, we are of the considered opinion that judgements relied upon by the learned counsel for the appellant are clearly distinguishable. 36. We find no error in the judgement of the trial court. The case of the appellant does not fall under Section 304 Part-I of the Indian Penal Code. 37. We have no hesitation to record that Section 300 read with fourthly is attracted, specifically in the circumstance that the deceased was neither armed nor had instigated the accused in any manner. 38. The conviction of the appellant Virendra under Section 302 of the Indian Penal Code and also the sentence which has been inflicted for the offence so committed, is affirmed. 39. The appeal lacks merit and is accordingly dismissed. 40. The appellant Virendra is on bail, his bail bond is cancelled and sureties discharged. He shall be taken into custody forthwith to serve out the sentence so awarded to him by the trial court. 41. The Chief Judicial Magistrate, Moradabad may ensure compliance of the judgement delivered by this Court today.