JUDGMENT Arun Tandon and Akhtar Husain Khan, JJ. – Heard Sri Vinay Saran, learned counsel for the appellants and Sri Narendra Kumar Singh Yadav, learned A.G.A. for the State respondents. 2. The present appeal has been filed against the judgment and order of the Third Additional Sessions Judge, Saharanpur dated 03.05.1989 passed in Sessions Trial No. 226 of 1986, being Case Crime No. 235 of 1986, police station-Deoband, district-Saharanpur. 3. Three appellants have been convicted of offence under Section 302 read with Section 149 I.P.C. and have been sentenced for life imprisonment. They have also been convicted of an offence under Section 147 and 148 I.P.C. and have been sentenced with rigorous imprisonment of 1 year and 2 years respectively. 4. The case of the prosecution, as reflected from the records, is as follows: On 17th July, 1985 at about 6.30 a.m. a first information report was lodged by one Shafi at police station-Deoband, district-Saharanpur with the allegation that in the night intervening 16th and 17th July, 1985 the informant along with is two sons Anees and Idris and daughter Jullo was sleeping in the gallery of his house, a lantern was burning. The accused Ashraf, Shamim, Tasleem with guns, Rabban with rifle along with four other unknown persons armed with country made pistol came to the site where the informant along with his children was sleeping. The accused asked about Mustafa and stated that they will set right his Dadagiri right. Mustafa is the other son of informant. On being informed that Mustafa was not there, on the asking of Ashraf, all the accused fired upon Anees, Idris and daughter Jullo. The informant could save himself by hiding behind the door. However, on his screening Ibrahim, Ishtiyaq and the wife of the informant Zeeran reached the spot. Because of the gun shot injury Anees, Idris and Jullo expired on the spot. Identity of four other accused was not known to the informant. Incident is alleged to have taken around 1.00 a.m. 5. Sub-Inspector Prem Singh Nagar along with S.O. Badan Singh Yadav proceeded to the village for investigation. Panchayatnama of the dead body of Anees, Idris and Jullo was prepared. The Sub Inspector prepared the photo lash, challan lash and letter for C.M.O. of all the three dead bodies. All the three dead bodies were sealed in cloth and handed over to constable Dharampal and and Ramesh for post-mortem. Panchayatnama of the dead body of Anees, Idris and Jullo was prepared. The Sub Inspector prepared the photo lash, challan lash and letter for C.M.O. of all the three dead bodies. All the three dead bodies were sealed in cloth and handed over to constable Dharampal and and Ramesh for post-mortem. The postmortem of the dead bodies was done by Dr. Vishnu Dutt at Saharanpur Hospital on 18th July, 1985 between 2.30 p.m. to 4.10 p.m. 6. The defence admitted the genuineness of the post-mortem reports and dispensed with the formal proof of the same. 7. The post-mortem examination report of the dead body of Anees disclosed following ante-mortem injuries: - 1. Gun-shot wound of entry 1cm.x ½ cm. x cavity deep on back of neck 10 cm. from left ear. Margins inverted and accimosed. 2. Gun-shot wound of exit 3 cm. x 1 cm. x cavity deep on right side face extending upto right nostril, 2 cm. below the right eye. Margins everted and lacerated corresponding to injury no. 1. 3. Multiple gun-shot wounds of entry in an area of 6 cm. x 2 cm. on left side face each measuring .2 cm. diameter and muscle deep. 8. On internal examination the doctor found the occipital bone fractured. Membrane and the brain was found lacerated. The bladder was empty and both the intestines were full of faecal matter and gases. The doctor opined the cause of death due to shock and haemorrhage due to gun-shot ante-mortem injuries. 9. The post-mortem examination report of the dead body of Idris disclosed following ante-mortem injuries: - 1. Gun-shot wound of entry 2 cm.x 1cm. x cavity deep on right side chest upper part just below the right clavical. Margins inverted and accimosed. 2. Gun-shot would of exit 3 cm. x 2 cm. x cavity deep on left side back 12 cm. below the lower end of left exscapula corresponding to injury no. 1. 3. Gun-shot would of entry 1 cm. x ½ cm. x muscle deep on back of right side scalp 11 cm. from right ear. Margins inverted and occimosed. 4. Gun-shot would of exit 1 ½ cm. x ½ cm. x muscle deep on right side face 3 cm. below right ear corresponding to injury no. 3. Margins of the exit woulds were lacerated. 10. On internal examination both the pleura were found punctured and both the lungs lacerated. from right ear. Margins inverted and occimosed. 4. Gun-shot would of exit 1 ½ cm. x ½ cm. x muscle deep on right side face 3 cm. below right ear corresponding to injury no. 3. Margins of the exit woulds were lacerated. 10. On internal examination both the pleura were found punctured and both the lungs lacerated. The bladder was found empty and both the intestines contained faccal matter and gases. The cause of death was opined to be the shock and haemorrhage due to bullet injuries. 11. The post-mortem examination report of the dead body of Jullo disclosed following ante-mortem injuries: - 1. Gun-shot wound of entry ½ cm.x ½ cm. x cavity deep on the right shoulder 3 cm. behind the top of right shoulder joint. Margins were inverted. 12. On internal examination one bullet was found in the 5th rib on the left side. Both the pleura were found punctured. Bladder was empty and both the intestines were full of gases and faecal matter. Cause of death was opined haemorrhage due to fire-arm injury. 13. After investigation was completed a charge-sheet was submitted against the accused persons under Section 147 , 148 and 302 I.P.C. The prosecution examined Shafi the informant eye witness as P.W.1. Ibrahim another eye witness as P.W.-2. Head constable Yogendra Dutt, who had recorded the first information report was examined as P.W.3, S.I. Prem Singh Nagar, who conducted the inquest, was examined as P.W.4, Badan Singh (Investigating Officer), who had submitted charge-sheet, was examined as P.W.-5, while constable Ramesh Chand, who carried the dead bodies for post-mortem, was examined as P.W.-6. 14. PW.-1 Shafi in his statement disclosed the long-standing enmity between the families of informant and accused including murder of Aas Mohd. in which he was prosecuted for murder and convicted by the trial court. Appeal against the same was pending before the Hon'ble High Court. Reference was also made to the attempt made on his life, which matter was compromised. The said prosecution witness gave a detail account of what he had seen on the fateful day. 15. P.W.-2 also corroborated the story as disclosed by P.W.-1. He narrated eye witness account of incident. The eye witness account of incident, as disclosed by the aforesaid two witness, was fully corroborated and supported by the medical evidence including the post-mortem reports of the three deceased. 15. P.W.-2 also corroborated the story as disclosed by P.W.-1. He narrated eye witness account of incident. The eye witness account of incident, as disclosed by the aforesaid two witness, was fully corroborated and supported by the medical evidence including the post-mortem reports of the three deceased. The formal witnesses proved the first information report, photo lash, challan lash, charge-sheet etc. The Inspector Badan Singh, who has conducted the investigation, has been examined as P.W.-5 and he proved the exhibit, including the site plan. 16. The statement of the accused was recorded under Section 313. They denied to have committed the crime. It was their case that they have been falsely implicated because of the enmity and Partibandi in the village. However, they did not produced any evidence in their defence. They filed seven documents as the defence evidence. 17. During the pendency of the trial Ashraf was murdered and his case was ordered to be abated. Thus, three accused, namely Rabban, Shamim and Taslim, were left to face trial after its committal to the sessions. 18. The trial court, after examining the first information report, ocular evidence of P.W.-1 and P.W.-2 and the medical evidence namely post-mortem reports, found that the prosecution has been able to establish the charge against the accused with certainty. The trial court has, therefore, proceeded to convict the accused of an offence under Section 302 read with Section 149 and sentenced them to life imprisonment. The accused have also been convicted under Section 147 and 148 and have been sentenced for 1 year and 2 years rigorous imprisonment respectively. The trial court has specifically recorded on the basis of the evidence brought on record that the parties were openly against each other. 19. Challenging the findings so recorded by the trial court, counsel for the appellants pointed out the discrepancies in the evidence of the prosecution to the effect that there was a difference in the place where the informant was sleeping on the date of incident as per the site plan prepared by the Sub Inspector and the statement of the prosecution witnesses. The behaviour of the father of three deceased children on the date of incident was unnatural, inasmuch as he did not make any attempt to save the children even when they were fired upon so openly in his presence. 20. The behaviour of the father of three deceased children on the date of incident was unnatural, inasmuch as he did not make any attempt to save the children even when they were fired upon so openly in his presence. 20. It is then contended that the father was also on the same cot along with one of his child on the date and time of incident, as claimed, the accused would have killed the father first if the entire story of the prosecution of enmity is accepted. Since the father of the deceased did not receive any gun shot injury, it at least draw an inference that he was not present at the time of incident. Therefore, his presence becomes doubtful. It is stated that in the first information report there is mention of the wife of informant having reached on the spot but in his evidence he has deliberately skipped over from the presence of his wife at the time of incident. Lastly it is stated that the incident is alleged to have taken place, according to the prosecution, at 1.00 a.m. in the morning when the first information report has been lodged at 6.20 a.m. i.e. after nearly 5 hours and 20 minutes when the police station was only at a distance of 9 kilometres from the place of incident. 21. Learned A.G.A. on the contrary submits that the discrepancies pointed out by the counsel for the appellants are trivial in nature, such trivial discrepancies cannot affect the prosecution case. The first information report has been lodged within reasonable time. The prosecution story is well established by the ocular evidence as per eye witness account as corroborated by the medical evidence. Therefore, the trial court is justified in recording a finding that the prosecution has been able to bring home charge with certainty. The motive for the assault is the long-standing enmity between the parties as is established from the record. 22. We have heard learned counsel for the parties and have examined the records. 23. In our opinion the case pleaded by the counsel for the appellants has no substance. 24. The motive for the assault is the long-standing enmity between the parties as is established from the record. 22. We have heard learned counsel for the parties and have examined the records. 23. In our opinion the case pleaded by the counsel for the appellants has no substance. 24. We have carefully gone through the statements of the first informant, eye witness Shafi P.W.-1 and we find that in his statement he had specifically stated that he was sleeping on the same cot with his son Anees at the time and date of the incident and that he had not disclosed any other place to the Sub Inspector, it is not understandable as to how the Sub Inspector disclosed a wrong place at which the informant is said to be sleeping, in his site plan i.e. inside the Kothe. 25. It is, therefore, clear that the eye witness P.W.-1 had specifically disputed the place shown in the site plan by the Investigating Officer qua the place where he was sleeping on the date of incident. 26. We further find that in his testimony he has specifically stated that when the accused fired, he managed to save himself by slipping from the of cot and by hiding behind the door. The trial court has found nothing unnatural in the conduct of the first informant. When such large number of persons armed with rifle, country made pistol and gun make an assault it is but natural that an attempt shall be made by a human being, who is unarmed, to save himself. 27. We do not find the conduct of the father of the deceased to hide himself behind the door while the accused had opened fire upon his three sleeping children unnatural keeping in mind that the accused were heavily armed with firearm and were 8 in number, while informant was alone and unarmed. We further find that firing had taken place hardly between one to two minutes. The reaction of the first informant, father in the facts of the case, cannot be said to be so unnatural so as to discredit his evidence. 28. We further find that firing had taken place hardly between one to two minutes. The reaction of the first informant, father in the facts of the case, cannot be said to be so unnatural so as to discredit his evidence. 28. We are of the considered opinion that whatever anomalies have been pointed out on behalf of the appellants in the matter of presence of wife of the informant at the site, place from where P.W. 2 had seen the incident are trivial in nature and do not discredit the prosecution story. 29. The Apex Court in the judgment reported in Sampath Kumar vs. Inspector of Police, Krishnagiri (2012) 4 SCC 124 : 2012 (2) ACR 1197 (SC); has held that minor contradictions are bound to appear in statements of truthful witnesses as memory sometimes plays false and sense of observation differs from person to person. 30. What is material omission and material discrepancy, which may be relevant for discrediting the evidence of a prosecution witness, have been explained by the Apex Court in the judgment reported in (2013) 12 SCC 796 ; Mritunjoy Biswas vs. Pranab alias Kuti Biswas and another (para 28). 31. Judged in the said legal background, we find that the discrepancies pointed out by the counsel for the appellants cannot be termed as material omissions or discrepancies so as to discredit the prosecution evidence. 32. We further find that the prosecution witnesses had also explained the time taken in lodging of the first information report, which even otherwise in our opinion is not at all delayed having regard to the time of incident and the distance between the place of incident and the police station as well as mode of transportation available. 33. In the totality of the circumstances as aforesaid, we find no good ground to interfere with the judgment and order of the the trial court. 34. The appellant nos. 1 and 2, namely, Rabban and Shamim have since expired and their appeal has already been abated under order of the Court dated 07.07.2014. 35. The conviction of the appellant no. 3, namely, Tasleem for an offence under Section 302 read with Section 149 I.P.C. for having committed murder of deceased Anees, Idris and Jullo as well as his conviction for an offence under Section 147 and 148 I.P.C. and sentence with rigorous imprisonment of 1 year and 2 years respectively is affirmed. 35. The conviction of the appellant no. 3, namely, Tasleem for an offence under Section 302 read with Section 149 I.P.C. for having committed murder of deceased Anees, Idris and Jullo as well as his conviction for an offence under Section 147 and 148 I.P.C. and sentence with rigorous imprisonment of 1 year and 2 years respectively is affirmed. 36. The appeal lacks merit and is accordingly dismissed. 37. The appellant, namely, Tasleem is on bail. His bail bond is cancelled. Sureties are discharged. He shall be taken into custody forthwith to serve out the sentence so awarded to him by the trial court. 38. The Chief Judicial Magistrate, Saharanpur may ensure compliance of the judgment delivered by this Court today.