JUDGMENT 1. This appeal is directed against the judgment and order of the Additional District and Sessions Judge/Special Judge (E.C. Act), Budaun dated 01.05.1989 passed is Sessions Trial No. 119 of 1986, being Case Crime No. 2 of 1986. 2. Appellant no. 1 Rashid has been convicted of an offence under Section 302 and 323/34 I.P.C. He has been sentenced to undergo rigorous imprisonment for life under Section 302 I.P.C. and 1 month rigorous imprisonment for the offence under Section 323/34 I.P.C. 3. Appellants Adil, Kamil and Nasir have been found guilty of an offence under Section 302/34 I.P.C. and have been sentenced to undergo rigorous imprisonment for life. 4. Appellant Kamil has also been found guilty of an offence under Section 323 I.P.C. and has been sentenced to undergo rigorous imprisonment for one month, while accused Adil and Nasir have been further found guilty of offence under Section 323/34 I.P.C. and have been sentenced for rigorous imprisonment of one month. All the sentences have been directed to run concurrently. 5. The prosecution case, as has been disclosed on the record, is as follows: An oral first information report was lodged by Baboo Khan maternal uncle of deceased Akhlaq on 03.01.1986 at 4.45 p.m. with the police station Kotwali, district Budaun. It was stated that the informant Baboo s/o. Ansar Husain is Shekh Ansari by caste and is a resident of Mohalla-Uparpara, Police Station-Kotwali, Budaun. The accused Rasid, Adil and Nasir sons of Wali Mohammad and Kamil s/o. Banno are Ansari by caste and were also residents of the same Mohalla. On the date of information at around 9.00 a.m. the sister's daughter of the informant Parveen had gone to fetch water from the tank there Rashid and Adil had misbehaved with her. This resulted in hot talks between Akhlaq Husain s/o. Asrar Husain sister's son of informant. However, no further action was taken for the sake of reputation. Today at 4.00 p.m. when the informant along with Akhlaq and nephew Aadil Husain s/o. Rahamat Husain was proceeding from his residence to the timber shop situate at Mohalla-Jogipura and had reached Mandir (temple) near Lalpul crossing when Rashid, Adil, Nasir and Kamil met them. Kamil had a Danda in his hand, Rashid had a knife and Nasir had a Hockey in his hand, they surrounded the informant, Akhlaq and Aadil. Kamil had a Danda in his hand, Rashid had a knife and Nasir had a Hockey in his hand, they surrounded the informant, Akhlaq and Aadil. Kamil stated that in the morning they had used foul language. The nephew of the informant asked to stop abusing otherwise consequences will follow, at this point of time Kamil assaulted Adil with the Danda in his hand. The informant snatched the Danda from the hand of Kamil and tried to retaliate him with the same. At this point of time Nasir and Adil got hold of Akhlaq and Kamil shouted 'finish them'. Immediately, Rashid pierced the knife in the chest of Akhlaq. Akhlaq dropped on the ground because of the injury. The informant shouted for help. Witnesses Jamal Uddin s/o Abdul Gani, r/o. Jaldhari Sarai, Afsar Ali Khan s/o Hashmat Ali Khan r/o. Mushtafaganj and Shamshad r/o. Aljha Sarai, who were having tea at the nearby stall and had seen the incident, ran for help. The accused ran towards west. The knife lay penetrated in the chest of Akhlaq. He was taken to the hospital immediately for treatment on a Rickshaw, where he expired. The dead body and the knife were lying in the hospital. 6. The first information report was registered as Case Crime No. 2 of 1986, police station-Kotwali, district-Budaun. The distance between the place of occurrence and the police station was one kilometer. On registration of the first information report, S.I. Lakhan Singh Yadav rushed to the District Hospital Budaun. The weapon (knife) was taken in possession and sealed in the presence of Dr. R.M.L. Srivastava and compounder Chander Prakash. The memo (Ext. Ka-5) was prepared. The knife was found lying on Patia in front of Outdoor Patient Room. It had been taken out from the chest of deceased by the complainant at the hospital at time the victim was struggling for his life. On 04.01.1986 the S.I. Prepared the inquest report as well as other connected papers and arranged for the dead body to be sent for post-mortem through constable Munish Kumar. The post-mortem of the deceased was performed by Dr. T.N. Sharma. The injuries suffered by Aadil were examined by Dr. R.M.L. Srivastava. The investigation of the case was conducted by S.S.I. Vidha Dhar Pandey, who prepared the site plan and also interrogated the witnesses and also recorded the statements of the complainant and others. The post-mortem of the deceased was performed by Dr. T.N. Sharma. The injuries suffered by Aadil were examined by Dr. R.M.L. Srivastava. The investigation of the case was conducted by S.S.I. Vidha Dhar Pandey, who prepared the site plan and also interrogated the witnesses and also recorded the statements of the complainant and others. The investigation officer submitted the charge-sheet against the accused Rashid, Nasir and Adil (Ext. Ka-14) and on 27.01.1986 he submitted the charge-sheet against accused Kamil (Ext. Ka-15). 7. The case was committed for trial Session. The prosecution in support of its case examined Jamal Uddin the eye witness as P.W.-1, Adil Husain injured witness as P.W.-2, Baboo Khan injured eye witness as P.W.-3, Head constable Om Prakash as P.W.-4, S.I. Lakhan Singh Yadav, who proved the recovery of the knife and inquest report etc., was examined as P.W.-5, Dr. T.N. Sharma, who conducted the postmortem on the dead body of Akhlaq, was examined as P.W.-6, Dr. R.M.L. Srivastava, who examined the injuries suffered by Adil Husain, was examined as P.W.-7, S.I. B.S. Yadav was examined as P.W.-8, he proved the handwriting of the S.S.I. Vidya Dhar Pandey, who had conducted the investigation. Sri Vidya Dhar Pandey could not be produced as he was reported to be suffering from cancer and was at Bombay for his treatment. 8. The injury caused on the person of Adil as per the injury report were as follows: 1. Contusion 2 cm x 1.5 cm on the mid of skull in left parietal bone 1 Cm lateral to saggital sature. The colour of injury was raddish. 2. Contusion 2 cm x 1.5 cm on back of skull in left occipital region. The injury was reported to be red in colour. 9. According to Dr. Srivastava the injured at the time of examination was also complaining of pain on lower part of 1/3rd portion of left leg. According to him all the injuries were simple and were caused by some blunt object. According to him the injuries were fresh at the time of examination. 10. The ante-mortem injuries on the body of the deceased as per the post-mortem report submitted by Dr. T.N. Sharma were as follows: 1. Lacerated wound 11/2 Cm x 0.2 Cm x bone deep on the back of head at the level of occipal. 2. According to him the injuries were fresh at the time of examination. 10. The ante-mortem injuries on the body of the deceased as per the post-mortem report submitted by Dr. T.N. Sharma were as follows: 1. Lacerated wound 11/2 Cm x 0.2 Cm x bone deep on the back of head at the level of occipal. 2. One stabled wound 2.3 Cm x 0.5 Cm x Cavity deep with clean cut margin, obliquely placed at the 6th inter costal space 4.5 Cm below the left nipple at 5 O' clock position under injury inter costed. Walls were found clean cut and a hole of 2 Cm x 0.5 Cm was present in the lower lobe to left lung under the injury. He found a hole 2 Cm x 0.5 Cm x left vertical of the heart. The wound was found directing towards middle and backwards. 11. On internal examination of the body Dr. Sharma found about 2 litres of blood in the cavity of chest. Both chambers of the heart were found empty. 12. According to Dr. Sharma cause of death was due to shock and haemorrhage and on account of ante-mortem injury no. 2 caused on the deceased. 13. Injury no. 2 has been caused by some sharp edged weapon, while injury no. 1 could have been caused by a Danda. Injury no. 2 was sufficient to cause death. The possible time when the injury has been caused on the deceased was recorded as about 4.00 p.m. on 03.01.1986. The clothes worn by the deceased and knife recovered were sent for chemical examination. The chemical examination report recorded that some blood stains were found on these articles. The accused in their statements recorded under Section 313 Cr. P.C. pleaded not guilty and denied their participation in the alleged crime. It was stated that they have been falsely implicated in the case because of enmity. Accused Rashid has submitted that his real sister had come from Pilibhit on the occasion of 'Ghiyarwin Shareef' on the date and time of incident. She was traveling in a rickshaw when Munna, Akhlaq and Waseem took her photographs to which Rashid and his other family members objected. According to him the camera was snatched. Akhlaq, Waseem and Munna made an attempt to take back the camera. He and his brothers were surrounded by them. She was traveling in a rickshaw when Munna, Akhlaq and Waseem took her photographs to which Rashid and his other family members objected. According to him the camera was snatched. Akhlaq, Waseem and Munna made an attempt to take back the camera. He and his brothers were surrounded by them. According to Rashid, he took out the reel from the camera. A quarrel took place between the persons present. Waseem assaulted Rashid with a knife which incidentally hit Akhlaq. The photograph prepared out of the reel were produced before the Court. 14. Accused Kamil pleaded that on the date of occurrence he was out of Budaun. It was also claimed that the witness Jamal Uddin is relative of Baboo Khan and was earlier employed in his timber shop. Accused Nasir and Adil also repeated the same version of defence. 15. The accused produced D.W.-1 Naresh Pal as the defence witness, who claimed that he was residing at about 40-50 steps from three road crossing of Lalpul. At the date and time of incident he was going for tuition, when he reached the three road crossing of Lalpul he saw a cycle-rickshaw carrying three girls. Rashid was following the Rickshaw. Waseem, Akhlaq and Munna took photographs of these girls to which accused Rashid objected. Rashid also tried to snatch the camera from the hands of Akhlaq. The parties got involved in scuffle. Waseem pulled out a knife and tried to assault Rashid. Rashid incidentally escaped unhurt, the knife pierced into the chest of Akhlaq. 16. Shaukat Ali was produced as D.W.-2. He is stated to be Qazi. He produced the record of Nikahnama as per the Nikah Register of 1955 for the purposes of establishing that Jamal Uddin had married one Kanizun Nisah. Copies of the photographs were marked as Ext. Ka-1 and Ext. Ka-2. On behalf of the accused copy of the personal bond filed by Jamal Uddin in case under Section 107/116 was also filed as other documentary evidence. 17. The Trial Court, after considering the evidence led by the parties, specifically held that time and place of occurrence of the incident is not in controversy. Presence of accused Rashid, Adil, Kamil, Nasir and deceased Akhlaq on the spot is also admitted. The weapon, which pierce the heart of the deceased is also not in dispute. 17. The Trial Court, after considering the evidence led by the parties, specifically held that time and place of occurrence of the incident is not in controversy. Presence of accused Rashid, Adil, Kamil, Nasir and deceased Akhlaq on the spot is also admitted. The weapon, which pierce the heart of the deceased is also not in dispute. Death was caused to Akhlaq because of the assault with knife was not in controversy. The only difference between the parties was in the manner in which the incident took place because of which the deceased Akhlaq received the injury. 18. The Trial Court, after considering the evidence tendered by the defence witnesses, found that the story as stated by them was full of discrepancies and therefore he did not accept the same. It has been recorded that while Rashid claimed that his sister had come from Pilibhit, D.W.-1 stated that there were three girls on the Rickshaw and that Rashid was following the Rickshaw. The Court has recorded that if only the sister of Rashid, who came from Pilibhit, was on the Rickshaw, there was no occasion for Rashid to follow the Rickshaw and not to sit on the same. It has further been recorded that if the sister had come from Pilibhit, as suggested by Rashid and P.W.-1, from bus, then there is no reason for Akhlaq, Waseem and Munna to have gone to the place of occurrence in the expectation of her arrival at Budaun with the camera for taking photographs. 19. It has been held that absolutely no explanation could be given as to where the camera has gone. It has also been recorded that if Waseem had actually assaulted Akhlaq with knife then there was no occasion for the informant to have not disclosed the involvement of Waseem in the incident, as he had no relationship with the complainant Baboo Khan. The Trial Court has, therefore, rejected the version of the incident as set up by the defence. 20. So far as the version pleaded by the prosecution is concerned, it has specifically been recorded that the first information report has been lodged within a short duration of 45 minute from the time of accident. The prosecution version is well supported by eye witness account of Jamal Uddin, eye witness account of Adil injured witness and the eye witness account of Baboo Khan (P.W.-3) the informant. The prosecution version is well supported by eye witness account of Jamal Uddin, eye witness account of Adil injured witness and the eye witness account of Baboo Khan (P.W.-3) the informant. It has further been recorded that the ocular evidence of the prosecution is will supported by the medical evidence, specifically the ante-mortem injury suffered by the deceased and the injury report of Adil Husain. The Trial Court has, therefore, come to a conclusion that the prosecution in the facts of the case has been able to establish the charges against the accused with certainty and accordingly it has convicted the accused and has sentenced them for the offences as detailed above. 21. Sri G.S. Hajela, learned counsel for the appellants made an attempt to challenge the findings recorded by the Trial Court by pointing out the minor discrepancies in the statements of the prosecution witnesses. He further submitted that in the facts of the case instigators of the fight were the complainant and not the accused. He repeated the version of the incident as was disclosed by Rashid, Adil and defence witness D.W.-1. Lastly he submitted that even if the entire case of the prosecution is accepted, then Rashid alone could have been convicted of an offence under Section 302 I.P.C. in as much as the blow as alleged to have been inflicted by him upon Akhlaq has proved fatal and it was Rashid who alone had inflicted said blow. He, therefore, submitted that other accused could not have been convicted under Section 302 with the help of Section 34 Cr. P.C., as there has been on premeditated decision between the co-accused nor they had any common intention on the spur of the moment so as to be held proportionally liable under Section 34 I.P.C. 22. Learned A.G.A. on the contrary submits that the first information report has been lodged promptly within 45 minutes of the incident. The prosecution story is well established from the ocular evidence of eye witness P.W.-1, injured eye witness P.W.-2 and informant eye witness Baboo Khan P.W.-3. Ocular evidence is also supported by the medical evidence. Therefore, in the facts of the case the Trial Court has rightly held that the prosecution has been able to establish the charge with certainty. The prosecution story is well established from the ocular evidence of eye witness P.W.-1, injured eye witness P.W.-2 and informant eye witness Baboo Khan P.W.-3. Ocular evidence is also supported by the medical evidence. Therefore, in the facts of the case the Trial Court has rightly held that the prosecution has been able to establish the charge with certainty. He reiterated the reasons recorded in the order of the Trial Court and that the defence version of the incident has rightly not been accepted. 23. We have heard learned counsel for the parties and have gone through the records. 24. We may record that minor discrepancies, which have been sought to be projected by the counsel for the appellants with reference to the testimony of P.W.-1, P.W.-2 and P.W.-3 pertaining to incident in question are only trivial in nature. Trivial discrepancies will not result in the prosecution version being disbelieved, as has been laid down by the Apex Court in the judgment reported in (2012) 4 SCC 124 ; Sampath Kumar vs. Inspector of Police, Krishnagiri. It has been 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. 25. What is material omission and material discrepancy, which may be relevant for discrediting the evidence of a prosecution witness, has 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). 26. It was contended by the counsel for the appellants that the informant only in order to lend colour the story in his statement suggested that the knife was taken out from the body of Akhlaq by him in the hospital, while the deceased was still struggling for his life. It is stated that there was no reason as to why the knife was not taken out from the body of the deceased immediately and why it was permitted to remain in the body of the deceased till the injured reached the hospital. 27. We may record that the challenge so made is not of much substance. How will a witnesses act with in a given situation is not controlled by any settled norms. 27. We may record that the challenge so made is not of much substance. How will a witnesses act with in a given situation is not controlled by any settled norms. If the informant had taken out the knife only in the hospital from the body of the victim, no adverse inference can be drawn in respect of the prosecution story. 28. The Trial Court has rightly recorded that the place of incident, the presence of the victim, accused and injured Adil on the spot is admitted between the parties. It is also admitted to the parties that Akhlaq had expired because of the knife injury suffered by him in his chest. The defence version of the incident was not convincing. The Trial Court has accepted the prosecution story, which was well supported by the ocular evidence and medical evidence and has rightly convicted the accused of the offence under the sections noticed above. 29. So far as the plea of appellant Rashid alone being responsible for causing the injury and ultimate death of deceased Akhlaq and there being no premeditated decision between other co-accused to perform the particular criminal act is concerned, suffice is to record that the other accused have been held guilty on the principle of vicarious liability enshrined by Section 34 of I.P.C. The legal principle in that regard has been explained in the judgment reported in (2013) 12 SCC 294 ; Raghbir Chand and others vs. State of Punjab. 30. We from the records find that on the date and time of incident all the four accused remained in waiting for Akhlaq to teach him a lesson for having behaved in particular manner with Rashid and Adil in the morning of same day. All the four accused have surrounded Akhlaq along with his maternal uncle and injured Adil at 4.00 p.m. at the crossing of Lalpul. At the relevant time Rashid was armed with knife, Adil and Nasir were armed with Danda and Kamil was with them without any arm. 31. It is further established from the record that Akhlaq had been caught hold of by Nasir and Adil. Kamil exhorted Rashid to finish him and at that time Rashid had inflicted the injury on the chest of Akhlaq with the help of knife. 31. It is further established from the record that Akhlaq had been caught hold of by Nasir and Adil. Kamil exhorted Rashid to finish him and at that time Rashid had inflicted the injury on the chest of Akhlaq with the help of knife. It is, therefore, clear that in the facts of the case there had been a premeditated decision between the co-accused and their common intention was to commit the crime. The law as explained in the case of Raghbir Chand (supra) does not support the accused for the facts noticed. 32. For the reasons recorded above, we find no good ground to interfere with the judgment and order passed by the Trial Court dated 01.05.1989. 33. The appellant no. 3, namely, Adil has since expired and his appeal has already been abated under order of the Court dated 04.07.2014. The conviction of the appellant no. 1, namely, Rashid for an offence under Section 302 I.P.C., for having committed murder of deceased Akhlaq, and sentence to undergo rigorous imprisonment for life as well as his conviction for an offence under Section 323/34 I.P.C. and sentence with rigorous imprisonment for a period of 1 month respectively is affirmed. 34. The conviction of appellant nos. 2 and 4, namely, Nasir and Kamil for the offence under Section 302/34 I.P.C. and sentence to undergo rigorous imprisonment for life is affirmed. 35. Conviction of Kamil for the offence under Section 323 I.P.C. and sentence to undergo imprisonment for a term of one month is affirmed. 36. Conviction of Nasir for the offence under Section 323/34 I.P.C. and sentence to rigorous imprisonment for one month is affirmed. 37. The appeal lacks merit and is accordingly dismissed. 38. The appellants, namely, Rashid, Nasir and Kamil are on bail. Their bail bonds are cancelled. Sureties are discharged. They shall be taken into custody forthwith to serve out the sentence so awarded to them by the Trial Court. 39. The Chief Judicial Magistrate, Budaun may ensure compliance of the judgment delivered by this Court today.