JUDGMENT Zaki Ullah Khan: - The instant appeal has been preferred against the judgment and order dated 6.7.1987 passed by I-Additional Sessions Judge, Sultanpur, convicting appellant to undergo life imprisonment for causing murder of Ram Pati Pandey. 2. P.W.1 Ramesh Pandey son of the deceased submitted written report, which is Ext.Ka.2 before the Station Officer of Police Station Gosaiganj, Sultanpur alleging that at about 7.00 a.m., one Udai Raj Yadav, a ploughman of the appellant arrived at Khalihan with oxen of the appellant-Ram Murti Pandey for thrashing the barley crop. The informant and his deceased father Ram Pati Pandey, were present in the Khalihan. The deceased prevented Udai Raj from thrashing. The ploughman thereupon returned and narrated the incident to the appellant and his father. Enraged by the act for refusal to allow ploughman to thrash, the duo, appellant and his father, reached at the spot to settle the score. The appellant was armed with a D.B.B.L. Gun while his father Ram Yagya was having a Pharsa in his hand. The duo challenged the informant and his father. The appellant's father exhorted the appellant to kill both informant and his father so as to close the chapter forever. The appellant, on exhortation, fired shot with his gun to the deceased with intention to kill him. The deceased suffered multiple fire arm injuries over his head and in consequence, he fell down and became unconscious on the spot. The incident was witnessed by co-villagers, Sri Ram Shukla, Ramesh Shukla, Jagdish Singh, Hubdar Singh and others, besides the informant, who was present in the Khalihan and all of them chased the appellant and his father. Because of the intervention of witnesses, assailants took to their heels by firing shots in the air. They, however, could not be apprehended at the spot as a result of terror created by them. The information was recorded at the police station on the same day at 8.00 a.m. on the basis of written complaint, the chick F.I.R. is Ext.Ka.3 and the G.D. prepared on the basis of Chick F.I.R., is Ext.Ka.7. 3. The informant and the appellant are cousins, their houses are adjacent in Village Dihwa hamlet of Nanemau within police circle of Gosainganj of District Sultanpur. 3. The informant and the appellant are cousins, their houses are adjacent in Village Dihwa hamlet of Nanemau within police circle of Gosainganj of District Sultanpur. The deceased was in service of Vigilance Department and superannuated on 31.5.1981 and thereafter he started living in native village and, therefore, the entire cultivation of the informant and the appellant were separated which was initially managed by appellant and his father as the deceased was then in Government service. The informant has five brothers including one Suresh Pandey. The informant's elder brother Suresh Pandey was given in adoption to a pattidar, one Bhagautidin, who owned 5 -6 Bighas of agricultural land and consequently after his death land passed over in succession to Suresh Pandey and his name was mutated in the revenue records. The appellant's father wanted to have share in the plots mutated in favour of Suresh Pandey and was having strained relations on this score. 4. The informant with a view to provide medical aid to his father immediately rushed to arrange a vehicle and he succeeded in bringing a Jeep to Khalihan. The informant accompanied by Prithvi Nath Pandey, Ram Nath Dubey and Ramesh Shukla brought his father to police station Gosainganj in Jeep No.USY 2633 and he prepared a report of the incident in his own hand writing and handed over to the Head Constable Ram Ujagir Singh, who was on duty, Head Constable-P.W.4, Ram Ujagir Singh registered an F.I.R. on the same day under Section 307 I.P.C. at Crime No.49 and made entry in the General Diary. 5. The local police sent the injured to the District Hospital, Sultanpur for medical examination through Constable Ram Shanker Pandey. The injured Ram Pati Pandey was examined by P.W.6, Medical Officer at 9.00 a.m., the Doctor found as many as three injuries on his person, which are reproduced as under : 1. Gun shot injury on the right forehead, 2 cm. above the eye brow. There is single round pellet mark 0.5 cm. X 0.5 cm. X depth not ascertained on a swelling 4 cm. X 4 cm. Fresh bleeding is present. 2. Gun shot injury 2.5 cm. X 0.5 cm. X scalp deep on the left side of head, 7 cm. above the eye brow. Fress bleeding is present. 3. Gun shot injury on left side of head 3 cm. behind the injury no.2 measuring 1.5 cm. X 0.5 cm. X 4 cm. Fresh bleeding is present. 2. Gun shot injury 2.5 cm. X 0.5 cm. X scalp deep on the left side of head, 7 cm. above the eye brow. Fress bleeding is present. 3. Gun shot injury on left side of head 3 cm. behind the injury no.2 measuring 1.5 cm. X 0.5 cm. X scalp deep. Fresh bleeding is present. 6. Since the condition of the injured was precarious hence he was shifted to Medical College, Lucknow, where he expired on 12.5.1982 at 4.25 a.m.; an intimation to this effect was sent by the Doctor to police and in consequence one Sub-Inspector Raghav Ram Yadav was deputed to conduct the inquest proceedings and he prepared inquest report and then made a request for post mortem examination. Post mortem was conducted by P.W.5, Dr.R.C. Asthana, the then Medical Officer of the Civil Hospital, Lucknow on 12.5.1982 at 3.30 p.m. During post mortem examination the ante mortem injuries were recorded as follows: 1. Wound sealed with tincher benxoia over skull in parietal part underneath the sealed would is 2.5 cm. with two stitches 7 cm. above left eye brow vertical, and wound 1.5 cm. with one stitch 1 cm. below injury no.1. 2. Sealed wound, stitched (one) 1 cm. x oblique, 2 cm. above right eye brow on inner part. 3. Abraded contusion 1 cm. over middle part of right pinna. 4. Merohrochrome paint over supra-pubic region and upto middle part of both thighs. Pubic hairs are shaved. On internal examination Dr.Asthana found one wound of entry (firearm) oval 1 cm. x 1 cm. underneath injury no.2, membrane ruptured underneath the wound; Brain matter was lacerated and blood was present on right side of the brain. One large pellet was found lodged 13.5 cm. behind injury no.2 on the right side of the brain matter. 7. The investigation was entrusted to Sub-Inspector Arjun Prasad Shukla, who prepared a site plan, Ext.Ka.4. The Investigating Officer collected blood stains and simple earth and prepared memo thereof, Ext.Ka.5. He searched the assailants but they could not be arrested. The case was already converted under Section 302 I.P.C. after the death of Ram Pati Pandey. The Investigating Officer recorded the statements of P.W.2 and other witnesses and after completing the investigation submitted the charge sheet, Ext.Ka.6 on 17.7.1982. He searched the assailants but they could not be arrested. The case was already converted under Section 302 I.P.C. after the death of Ram Pati Pandey. The Investigating Officer recorded the statements of P.W.2 and other witnesses and after completing the investigation submitted the charge sheet, Ext.Ka.6 on 17.7.1982. The case was committed to the court of sessions for trial and during trial co-accused Ram Yagya Pandey (father of the appellant) expired and the proceedings against him were abated. Only appellant under went trial before the Sessions Court. 8. The prosecution has examined as many as six witnesses to prove its case, P.W.1 is informant and an eye witness. He proved the letter written by his uncle Ram Yagya Pandey to his son the appellant, which has been exhibited as Ext.Ka.1. He has also proved written report submitted to the police, which is Ext.Ka.2. P.W.2, Jagdish Singh is also an eye witness, P.W.3 is the Investigating Officer, who has proved all the formal documents i.e. Ext.Ka.3, F.I.R., Site Plan Ext.Ka.4, Fard blood stained earth Ext.Ka.5 and charge sheet Ext.Ka.6. P.W.4 is Head Constable (Clerk), who has registered The F.I.R. and he proved F.I.R. Ext.Ka.3 as well as well as entry in G.D. Vide Ext.Ka.7 and the other entry in the General Diary on the basis of which, the case has been converted under Section 302 I.P.C. which is Ext.Ka.8, dated 19.6.1982. P.W.5 Dr.R.C. Asthana, Medical Officer, Civil Hospital, Lucknow has proved the post mortem report, which is Ext.Ka.9. P.W.6, Dr. K.N. Singh proved the medical examination report, Ext.Ka.10 when he examined the injured on 9.5.1982 at 9.00 a.m. 9. The appellant Ram Murti Pandey in his statement under Section 313 Cr.P.C. has admitted that he and the informant are living separately in adjoining two houses. He has also admitted that entire cultivation of the parties was separate prior to the incident but alleged false prosecution and pleaded his false implication in the case on account of enmity. He challenged that Udai Raj was not his ploughman and he was not being sent by him. The deceased lived in other district during his service tenure but after retirement he started separate cultivation which was earlier joint with the appellant and his father till his retirement. He challenged that Udai Raj was not his ploughman and he was not being sent by him. The deceased lived in other district during his service tenure but after retirement he started separate cultivation which was earlier joint with the appellant and his father till his retirement. The deceased was attacked in cover of darkness by some one but he has been implicated falsely and to prove his assertions he adduced the evidence witness D.W.1, Charitra Shukla, who is owner of the Jeep, who had admittedly brought the deceased to police station Gosainganj and the District Hospital. 10. The trial court scrutinized each and every aspect of the case and after going through the record convicted the appellant and sentenced him to undergo life imprisonment for causing murder of Ram Pati Pandey, the father of the informant. Aggrieved by the aforesaid judgment and order, the instant appeal has been preferred. 11. Learned counsel for the appellant argued at length. Learned counsel first of all pointed out that the incident did not take place as reported and the time mentioned in the F.I.R. is 7.00 a.m. but the fact is that it is not possible to reach the police station by 8.00 a.m. within a span of one hour only as the police station is about 12 kms. from the place of occurrence. The F.I.R. Ext.Ka.3 was lodged at 8.00 a.m. sharp at police station disclosing the fact that the occurrence took place on 9.5.1982 at 7.00 a.m. in the Khalihan of the informant. Learned counsel for the appellant tried to justify these facts by contending that the incident took place in Village Dihwa and immediately after the incident the informant went to village Raghavpur Shukl to arrange the vehicle to take his father to police station. Raghavpur Shukl is about 3 - 4 kms. from village Dihwa. The vehicle, a jeep belongs to D.W.-1 Ram Charitra, who has stated in his statement before the Court that Jeep was taken upto the place adjacent to school near village and the informant with the help of other persons took his father to the vehicle and then to police station. The vehicle reached the police station at about 7.45 a.m. as per statement of the informant P.W.1. The vehicle reached the police station at about 7.45 a.m. as per statement of the informant P.W.1. The allegations were reduced in writing and then placed before the police for registering the F.I.R. Learned counsel for the appellant pointed out that it is not possible to carry out the whole exercise within a span of one hour. Learned counsel pointed out that occurrence may have taken place between 3.00 to 4.00 a.m. and this fact has been justified in the statement of P.W.6, Dr.K.N. Singh, who confirmed during cross-examination that the injuries could have been caused on 9.5.1982 between 3.00 a.m. to 4.00 a.m. The time of 7.00 a.m. was deliberately mentioned in order to show the presence of the witnesses. 12. Learned counsel for the appellant further pointed out that the F.I.R. has been prepared after thorough exercise and after due consultations and deliberations. The fact is justified by the injury report, Ext.Ka-10 because it does not bear the case crime number of the case. This fact is further justified by the evidence of the informant of P.W.1, who has clearly stated before the Court that after preparing the written report, the police has sent his father to the Sadar Hospital. The simple question is that when he was sent for medical examination after recording the information then why it does not contain the case crime number of the case ? 13. Learned counsel for the appellant thus argued that the F.I.R. has been prepared after due consultations and deliberations. Learned counsel for the appellant cited a decision in the case of Marudanal Augusti v. State of Kerala, reported in (1980) 4 S.C.C. Page 425, in which, Hon'ble Apex Court has held that once the F.I.R. is held to be fabricated or brought into existence long after the occurrence, the entire prosecution case would collapse. 14. Learned counsel for the appellant further pointed that the version mentioned in the F.I.R. is concocted. The fact is that the informant P.W.1 was not present at the place of occurrence. Learned counsel justified this fact on the ground that motive shown in the murder was that the appellant's father wanted to grab the property of the informant and that is why during trial before the Court, the complainant in para - 7 of his statement has alleged that the appellant's father exhorted him to kill the informant and his father. Learned counsel justified this fact on the ground that motive shown in the murder was that the appellant's father wanted to grab the property of the informant and that is why during trial before the Court, the complainant in para - 7 of his statement has alleged that the appellant's father exhorted him to kill the informant and his father. The other facts also suggest that the version of the F.I.R. is concocted. There were no blood stains on the clothes of the informant despite the fact that the informant and witnesses carried him in injured position up to the police station. It was his own statement that his father was bleeding profusely and immediately after the incident he took him to Jeep and then to the Hospital with the help of other persons but there were no blood stains on his clothes. Learned counsel for the appellant pointed out the view of Hon'ble Apex Court in the case of Meharaj Singh Vs. State of U.P., reported in (1994) S.C.C. (Crl.) page 1390 that the absence of blood stains on the clothes of the eye witness leads to the conclusion that the witnesses were not present at the place of occurrence. Learned counsel further pointed out that D.W.1-Ram Charitra Shukla, whose vehicle was used for taking the injured to the police station as well as Hospital as per statement, as stated before the Court that the informant only informed him that his father has been hurt. He did not mention anything regarding being shot. D.W.1 categorically stated that the informant did not disclose the names of any persons, who caused injuries to his father. Learned counsel for the appellant also pointed out that the allegations are that the appellant had fired at the deceased from a D.B.B.L. Gun of his father but the injury report suggests that injuries have been caused by two types of fire arms. The prosecution witness Dr.K.N. Singh stated before the Court that there were three injuries of different margins from different directions which suggests that more than one fire arm was used in the commission of crime as it is apparent from Ext.Ka.10. 15. Learned counsel also pointed out that presence of P.W.2 Jagdish is doubtful. The prosecution witness Dr.K.N. Singh stated before the Court that there were three injuries of different margins from different directions which suggests that more than one fire arm was used in the commission of crime as it is apparent from Ext.Ka.10. 15. Learned counsel also pointed out that presence of P.W.2 Jagdish is doubtful. P.W.2-Jagdish stated before the police in his statement under Section 161 Cr.P.C. that at the time of incident he was at his doorstep and after hearing the commotion he reached the place of occurrence. He narrated that the appellant's father exhorted him and thereupon the appellant fired from his D.B.B.L. Gun to the deceased. During the statement before the Court the witness improved his statement and stated that on the date of incident a tree had fallen at the place on the western side of the field of Ram Asrey Yadav and he had gone to collect the Khinni fruits from the tree when he saw Udairaj thrashing the crops of the deceased Ram Pati Pandey and Ram Pati Pandey forbade him. After Udairaj went back, the appellant and his father reached at the place of occurrence and then he narrated the incident that on exhortation of his father, the appellant fired a shot and caused injuries to the deceased. The improvement in the statement of P.W.2 has not been corroborated by P.W.3- Investigating Officer. The Investigating Officer in para 9 of the statement stated that he does not remember whether there was any Khinni tree at the place of occurrence and this fact has been justified by Ext.Ka.4, the site plan. The site plan clearly depicts that there was no Khinni tree near the place of occurrence and the Investigating Officer further stated that P.W.2-Jagdish has not stated before him that he had gone to pluck Khinni fruits, therefore, there are two versions of P.W.2, one is that he had gone to collect the Khinni fruits, other is that he was at the doorsteps when he heard the conversations and rushed to the place of occurrence. The important fact is that the presence of P.W.2 has not been marked in the site plan, Ext.Ka.4, therefore the presence of P.W.2 is doubtful. 16. The important fact is that the presence of P.W.2 has not been marked in the site plan, Ext.Ka.4, therefore the presence of P.W.2 is doubtful. 16. Learned counsel for the appellant further argued that weapon of assault has not been recovered and the pellets recovered from the injury of the deceased were also not sent for examination to the ballistic expert. These things suggest that entire prosecution story is concocted. Learned counsel further pointed out that Udairaj, the ploughman of the complainant, is very important witness and he could have been produced to prove the prosecution case. The defence has categorically denied that alleged ploughman Udairaj was not his ploughman. The basis of the prosecution case has not been established because the story starts from the role of Udairaj, the ploughman, he was neither interrogated nor produced before the trial court because he was not ready to establish the prosecution case. Learned counsel further pointed out that P.W.5, Dr.R.C. Asthana has stated in his statement before the court that the pellets extracted from the injuries of the deceased were not shown to him, therefore, he was not in a position to disclose the size of the pellets. Summing up the arguments, learned counsel pointed out that the prosecution story is concocted and this fact is justified by the fact that witnesses of the locality have not been produced. P.W.2-Jagdish has clearly stated that persons from Harijan Colony, where the incident took place, namely, Hairani, Partoshi and Vishram have arrived at the place of occurrence but they have not been examined and these persons have not been deliberately examined because they were not ready to support the concocted version of the prosecution. Last but not the least, learned counsel pointed out that investigation of the case is extremely tainted and no reliance could be placed. Glaring lapses were apparent in the investigation. Even motive of murder was not proved. Learned counsel for the appellant submitted that under these conditions, the judgment and order passed by the learned trial court is liable to be set-aside and the appellant is entitled to be acquitted. 17. Smt. Smiti Sahay, learned A.G.A. Pointed out that P.W.1 informant has stated before the court in his examination that Ext.Ka.1 is letter written by appellant's father to appellant and he has discovered this letter shortly after the incident. 17. Smt. Smiti Sahay, learned A.G.A. Pointed out that P.W.1 informant has stated before the court in his examination that Ext.Ka.1 is letter written by appellant's father to appellant and he has discovered this letter shortly after the incident. His uncle Ram Yagya Pandey expressed anguish over the circumstances and he was in depression and he wanted to get rid of the property in dispute because there was a property dispute going on between the deceased and the appellant's father Ram Yagya Pandey. Thus, there is clear motive as is apparent from Ext.Ka.1 that appellant and his father wanted to nip in bud the entire episode and that is why they have committed murder in furtherance of their common intention. P.W.2 is an eye witness who has corroborated the incident. P.W.-3 is the Investigating Officer who, besides proving the formal documents stated on oath that he was satisfied by the evidence of doctors and the autopsy report and that is why he challaned the appellant and his father. The Investigating Officer justified the presence of eye witnesses. Learned A.G.A. further pointed out that in the opinion of the doctor injury no.1 caused to the deceased was grievous injury. Injuries no.2 and 3 though simple but the shape of the injuries was like open drain pipe at the time of examination. The injuries were fresh and were caused by gun shot. The injured was lying unconscious and the left portion of the body had been paralyzed, as a result of, injuries caused to him. However, no tattooing, blackening and scorching around any wound was detected. Learned A.G.A. opined that it is apparent from injury report that injuries were caused from the distance. The injured was immediately shifted to Medical College at Lucknow where he expired on 12.5.1982 at 4.25 a.m. Dr. R.C. Asthana (P.W.5) conducted autopsy and found a sealed wound with tincher benxoin over skull in parietal part underneath the sealed wound measuring 2.5 c.m. with two stitches, 7 c.m. above left eye brow vertical, and wound 1.5 cm. with one stitch 1 cm. below injury no.1. There was another ante mortem injury which was sealed wound stitched 1 cm. X oblique 2 cm. above right right eye brow on inner part. There was abraded contusion 1 cm. over middle part of right pinna. Dr. Asthana during examination revealed that there was fire arm wound of entry 1 cm. with one stitch 1 cm. below injury no.1. There was another ante mortem injury which was sealed wound stitched 1 cm. X oblique 2 cm. above right right eye brow on inner part. There was abraded contusion 1 cm. over middle part of right pinna. Dr. Asthana during examination revealed that there was fire arm wound of entry 1 cm. X 1 cm. underneath injury no.2, one large pellet was found 13.5 cm. behind injury no.2 on the right side of the brain and the opinion of the Doctor the deceased died as a result of ante mortem injuries. 18. Learned A.G.A. also pointed out that the appellant Ram Murti Pandey in his statement under Section 313 Cr.P.C. admitted that he and the informant are pattidars and live separately in two houses. He further admitted that the entire cultivation was separated prior to the incident in question. He somehow admitted that earlier there was joint cultivation and earlier the appellant's father was managing it but after superannuation the deceased started cultivation of his own land and the result was that the appellant and his father were deprived of the management. They nurtured grievance and ultimately killed the deceased due to family feud as they were in no mood to share the property. Learned A.G.A. cited a decision of Hon'ble the Apex Court in the case of Sheo Shanker Singh v. State of Jharkhand and another, reported in 2011 AIR SCW 1845 . Hon'ble the Apex Court in the said case has laid down that motive is not important because the case is based on the evidence of eye witnesses. Learned A.G.A. further pointed out that Hon'ble the Apex Court is also of the view that prompt filing of F.I.R. and prompt medical examination of witness for injuries suffered in incident, negates that witness are planted. Learned A.G.A. pointed out that Hon'ble the Apex Court has also held that delay in the examination of witnesses by the Investigating Officer does not, as an universal rule, render their evidence and prosecution case suspect. 19. Learned A.G.A. also cited another decision of Hon'ble the Supreme Court in the case of Rohtash Kumar v. State of Haryana, reported in 2013 AIR SCW 3208, in which, their Lordships are of the opinion that prosecution need not examine all witnesses and the discretion lies with prosecution whether to tender or not witness to prove its case. 19. Learned A.G.A. also cited another decision of Hon'ble the Supreme Court in the case of Rohtash Kumar v. State of Haryana, reported in 2013 AIR SCW 3208, in which, their Lordships are of the opinion that prosecution need not examine all witnesses and the discretion lies with prosecution whether to tender or not witness to prove its case. Adverse inference against prosecution can be drawn only if withholding of witness was with oblique motive. Learned A.G.A. further pointed out that Hon'ble the Apex Court also expressed the view that while appreciating the evidence of a witness, minor discrepancies on trivial matters which do not affect the core of the case of the prosecution, must not prompt the Court to reject the evidence in its entirety. Hon'ble the Apex Court ruled, therefore, that unless irrelevant details which do not in any way corrode the credibility of a witness, should be ignored. The court has to examine whether evidence read as a whole appears to have a ring of truth. Once that impression is formed, it is undoubtedly necessary for the court to scrutinize the evidence, more particularly keeping in view the deficiencies. Learned A.G.A. showed that Hon'ble Court has ruled that the trial court is not supposed to give undue importance to omissions, contradictions and discrepancies which do not go to the heart of the matter, and shake the basic version of the prosecution witness. Learned A.G.A., therefore, submitted that there is no discrepancy in the judgment and order passed by learned trial court and the appeal is liable to be dismissed. 20. We have heard learned counsel for the appellant, learned A.G.A. and learned Amicus curiae as well as perused the evidence on record. 21. The appellant has been convicted by I-Additional Sessions Judge, Sultanpur and sentenced to undergo life imprisonment for causing murder of his uncle Ram Pati Pandey. As per prosecution version the motive behind the murder is family feud regarding share in property and rights of the cultivation. As per evidence on record, the informant and the appellant are cousins, their houses are adjacent in Village Dihwa hamlet of Nanemau within police circle of Gosainganj of district Sultanpur. As per prosecution version the motive behind the murder is family feud regarding share in property and rights of the cultivation. As per evidence on record, the informant and the appellant are cousins, their houses are adjacent in Village Dihwa hamlet of Nanemau within police circle of Gosainganj of district Sultanpur. The deceased was in service of Vigilance Department and after superannuation on 31.5.1981 he returned back to his native village and the result was that earlier cultivation which was joint now separated after his retirement and that was the cause of annoyance to the appellant and his late father. The other cause of annoyance was that the informant has five brothers including one Suresh Pandey. The informant's elder brother Suresh Pandey was adopted by pattidar Bhagwatidin. Bhagwatidin owned 5 - 6 Bighas of agricultural land and after his death land was succeeded by Suresh Pandey as his adopted son and his name was mutated in the revenue record. The cause of annoyance was that appellant's father wanted to have share of land in the land of Suresh Pandey and he nurtured the grievance because of this fact and had strained relation on this score. 22. The appellant in furtherance of common intention armed with D.B.B.L. gun along with his late father Ram Yagya Pandey armed with a pharsa in his hand reached at Khalihan of the informant. Earlier, they sent their ploughman Udai Raj Yadav to thrash barely crop but the informant and his father prevented him for doing so. The ploughman narrated the incident to the duo appellant and his father and agitated by the behaviour of the informant and the deceased they immediately rushed to the place of occurrence i.e. Khalihan of the informant to settle their scores. The duo after reaching Khalihan, challenged the informant and the deceased. The appellant's father exhorted the appellant to kill both and to close the chapter for ever. The appellant on exhortation fired shot with his gun and with the result of fire arm injury, the deceased fell down and became unconscious on the spot. The incident was witnessed by P.W.2 Jagdish of the village who was present on the Khalihan. They chased the appellant and his father took to their heels by firing shots in the air only to terrorize the persons, who were present there and escaped without being apprehended on the spot. The incident was witnessed by P.W.2 Jagdish of the village who was present on the Khalihan. They chased the appellant and his father took to their heels by firing shots in the air only to terrorize the persons, who were present there and escaped without being apprehended on the spot. The informant, however, with the help of other persons hired the Jeep and lodged the F.I.R. on the same day at 8.00 a.m. which is Ext.Ka.3. The distance of police station is about 12 kms. and the G.D. prepared on the basis of Chick F.I.R. is Ext.Ka.7. 23. The trial court after examining the evidence of eye witness Ramesh Singh P.W.1, the injured and Jagdish Singh-P.W.2 and going through the testimony of both the Doctors, one of whom had initially examined the deceased and stitched the wound and the other Doctor who had conducted autopsy, found the prosecution case proved beyond all reasonable doubts and sentenced the appellant as above. Learned counsel for the appellant, has challenged the judgment of the trial court mainly on the ground that the F.I.R. has been prepared after due consultation and deliberation and it is ante timed, the fact is that it is not possible to reach at the police station at sharp 8.00 a.m. when the occurrence took place at 7.00 a.m. because the police station is at a distance of 12 kms. from the place of occurrence; as per testimony of P.W.1 he had hired a vehicle of D.W.1 and took the injured with the help of other persons and lodged him inside the Jeep and went to the police station and got the F.I.R. prepared outside the police station then handed it over to the police. The Jeep owner was stationed at the distance of 3 to 4 kms. from the place of occurrence. D.W.1, Ram Charitra, in his testimony specified that neither the informant disclosed him regarding the incident nor the Jeep was taken to near the place of occurrence but it was parked adjacent to school near village, therefore, it is not possible to complete all these acts act within a span of one hour. Learned counsel for the appellant suggests that occurrence would have taken place around 3.00 to 4.00 a.m. and this fact has been testified by Dr. Learned counsel for the appellant suggests that occurrence would have taken place around 3.00 to 4.00 a.m. and this fact has been testified by Dr. K.N. Singh, who conducted the autopsy and he conceded that the possibility is that ante mortem injuries would have been caused between 3.00 to 4.00 a.m. Time of 7.00 a.m. was specially mentioned to show the presence of the eye witnesses. There was no mark of blood stains on the clothes of persons, who carried the injured to the vehicle. The informant though familiar with D.W.1, did not disclose the name of the assailants. The other point is that D.B.B.L. gun was neither recovered nor sent for ballistic examination. The site plan too is not in coherence with the statements of P.Ws.1 and 2. No khinni fruit tree was shown in the site plan, Ext.Ka.4. Pellets were not recovered from the place of occurrence. Learned counsel for the appellant also challenged that the other witnesses were also not examined. 24. We have gone through each and every aspect of the arguments raised by learned counsel for the appellant. In the case of Rohtash Kumar v. State of Haryana, reported in 2013 AIR SCW 3208. Hon'ble the Apex Court has clearly mentioned that prosecution need not examine all the witnesses. It is discretion of the prosecution to examine which witness to prove its case. In para 17 Hon'ble the Apex Court has held as under : "17.Thus, the prosecution is not bound to examine all the cited witnesses, and it can drop witnesses to avoid multiplicity or plurality of witnesses. The accused can also examine the cited, but not examined witnesses, if he so desires, in his defence. It is the discretion of the prosecutor to tender the witnesses to prove the case of the prosecution and "the court will not interfere with the exercise of that discretion unless, perhaps, it can be shown that the prosecution has been influenced by some oblique motive." In an extra-ordinary situation, if the court comes to the conclusion that a material witness has been withheld, it can draw an adverse inference against the prosecution, as has been provided under Section 114 of the Evidence Act. Undoubtedly, the public prosecutor must not take the liberty to "pick and choose" his witnesses, as he must be fair to the court, and therefore, to the truth. Undoubtedly, the public prosecutor must not take the liberty to "pick and choose" his witnesses, as he must be fair to the court, and therefore, to the truth. In a given case, the Court can always examine a witness as a court witness, if it is so warranted in the interests of justice. In fact, the evidence of the witnesses, must be tested on the touchstone of reliability, credibility and trustworthiness. If the court finds the same to be untruthful, there is no legal bar for it to discard the same." 25. Hon'ble the Apex Court in the case of Rohtash Kumar v. State of Haryana (Supra) has also observed in para 18, as to how the evidence of prosecution witnesses is to be appreciated. Para 18 of the said judgment is as under : "18. It is a settled legal proposition that while appreciating the evidence of a witness, minor discrepancies on trivial matters which do not affect the core of the case of the prosecution, must not prompt the court to reject the evidence in its entirety. Therefore, unless irrelevant details which do not in any way corrode the credibility of a witness should be ignored. The court has to examine whether evidence read as a whole appears to have a ring of truth. Once that impression is formed, it is undoubtedly necessary for the court to scrutinize the evidence more particularly keeping in view the deficiencies, drawbacks and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence given by the witnesses and whether the earlier evaluation of the evidence is shaken, as to render it unworthy of belief. Thus, the court is not supposed to give undue importance to omissions, contradictions and discrepancies which do not go to the heart of the matter, and shake the basic version of the prosecution witness. Thus, the court must read the evidence of a witness as a whole, and consider the case in light of the entirety of the circumstances, ignoring the minor discrepancies with respect to trivial matters, which do not affect the core of the case of the prosecution. The said discrepancies as mentioned above, should not be taken into consideration, as they cannot form grounds for rejecting the evidence on record as a whole. The said discrepancies as mentioned above, should not be taken into consideration, as they cannot form grounds for rejecting the evidence on record as a whole. (See: State of U.P. v. M.K. Anthony, AIR 1985 SC 48 ; State rep. By Inspector of Police v. Saravanan & Anr., AIR 2009 SC 152 ; and Vijay @ Chinee v. State of M.P., (2010) 8 SCC 191 ). 26. Hon'ble the Apex Court in the case of Sheo Shanker Singh v. State of Jharkhand & another, reported in 2011 AIR SCW 1845 has also held, in paras 42 and 44, that shoddy investigation does not justify total rejection of prosecution case. Paras 42 and 44 are as under : "42. It is true that not only according to Apurba Ghosh (PW16) but also according to Abdul Kudus Ansari (PW1), Lal Mohan Mahto (PW2) and the Investigating Officer, the Tshirt worn by Apurba Ghosh (PW16) was bloodstained which was seized in terms of the seizure memo referred to earlier. It is also true that a reference to the forensic science laboratory would have certainly corroborated the version given by these witnesses about the T-shirt being bloodstained and the blood group being the same as that of the deceased. That no explanation is forthcoming for the failure of the prosecution in making a reference to the forensic science laboratory which could have strengthened the version given by Apurba Ghosh (PW16) too is not in dispute. The question, however, is whether the failure of the investing agency to make a reference would in the circumstances of the case discredit either the version of the witnesses that the T-shirt was bloodstained when it was seized or constitute a deficiency of the kind that would affect the prosecution version. Our answer is in the negative. Failure to make a reference to forensic science laboratory is in the circumstances of the case no more than a deficiency in the investigation of the case. Any such deficiency does not necessarily lead to the conclusion that the prosecution case is totally unworthy of credit. Deficiencies in investigation by way of omissions and lapses on the part of investigating agency cannot in themselves justify a total rejection of the prosecution case. In Ram Bihari Yadav v. State of Bihar and Ors. Any such deficiency does not necessarily lead to the conclusion that the prosecution case is totally unworthy of credit. Deficiencies in investigation by way of omissions and lapses on the part of investigating agency cannot in themselves justify a total rejection of the prosecution case. In Ram Bihari Yadav v. State of Bihar and Ors. (1998) 4 SCC 517 this Court while dealing with the effect of shoddy investigation of cases held that if primacy was given to such negligent investigation or to the omissions and lapses committed in the course of investigation, it will shake the confidence of the people not only in the law enforcing agency but also in the administration of justice. The same view was expressed by this Court in Surendra Paswan v. State of Jharkhand (2003) 12 SCC 360 . In that case the investigating officer had not sent the blood samples collected from the spot for chemical examination. This Court held that merely because the sample was not so sent may constitute a deficiency in the investigation but the same did not corrode the evidentiary value of the eye-witnesses. 44. In the light of the above the failure on the part of the investigating officer in sending the blood stained clothes to the FSL and the empty cartridges to the ballistic expert would not be sufficient to reject the version given by the eye witnesses. That is especially so when a reference to the ballistic expert would not have had much relevance since the weapon from which the bullets were fired had not been recovered from the accused and was not, therefore, available for comparison by the expert." 27. Learned counsel for the appellant also cited the decision in the case of Kali Ram v. State of Himachal Pradesh, reported in 1973 S.C.C. (Cri) 1048, in which, Hon'ble the Apex Court has given ratio regarding the presumption as to facts. In para 23 Hon'ble the Apex Court has held as under : "23. Observations in a recent decision of this Court, Shivaji Sahabrao Bobade & Anr. v. State of Maharashtra(') to which reference has been made during arguments were not intended to make a departure from the rule of the presumption of innocence of the accused and his entitlement to the benefit of reasonable doubt in criminal cases. Observations in a recent decision of this Court, Shivaji Sahabrao Bobade & Anr. v. State of Maharashtra(') to which reference has been made during arguments were not intended to make a departure from the rule of the presumption of innocence of the accused and his entitlement to the benefit of reasonable doubt in criminal cases. One of the cardinal principles which has always to be kept in view in our system of administration of justice for criminal cases is that a person arraigned as an accused is presumed to be innocent unless that presumption is rebutted by the prosecution by production of evidence as may show him to be guilty of the offence with which he is charged. The burden of proving the guilt of the accused is upon the prosecution and unless it relieves itself of that burden, the courts cannot record a finding of the guilt of the accused. There are certain cases in which statutory presumptions arise regarding the guilt of the accused, but the burden even in those cases is upon the prosecution to prove the existence of facts which have to be present before the presumption can be drawn. Once those facts are shown by the prosecution to exist, the court can raise the statutory presumption and it would, in such an event, be for the accused to rebut the presumption. The onus even in such cases upon the accused is not as heavy as is normally upon the prosecution to prove the guilt of the accused. If some material is brought on the record consistent with the innocence of the accused which may reasonably be true, even though it is not positively proved to be true, the accused would be entitled to acquittal." 28. In view of Hon'ble the Apex Court ratio in the above mentioned rulings, it would not be out of place to hold that the prosecution has established its case beyond all reasonable doubts. The accused though adduced defence evidence but could not establish innocence. Normally initial burden is on the prosecution but when the prosecution establishes its case then the onus is on the accused to establish his innocence. In the instance case, the evidence of D.W.1 will not exonerate him from his liability because he came when the incident had taken place and he went up to the police to carry the injured who subsequently died. In the instance case, the evidence of D.W.1 will not exonerate him from his liability because he came when the incident had taken place and he went up to the police to carry the injured who subsequently died. It is not very material that he did not disclose the every minute details to him. Therefore, when the appellant adduced his defence witness then he was duty bound to discharge the onus. 29. It is not established on record that F.I.R. was fabricated. The view of Hon'ble the Apex Court in the case of Marudanal Augusti v. State of Kerala, reported in (1980) 4 S.C.c. 425 is not attracted because Hon'ble the Apex Court reached to the conclusion that the F.I.R. is fabricated. Here F.I.R. has been proved and established on record. We have also gone through the case of Rang Bahadur Singh and others v. State of U.P., reported in 2000 S.C.C. (Cri) 703 wherein Hon'ble the Apex Court, in para 20, has held as under : "20. It is again in the aforesaid context that we have to evaluate the impact of the non-examination of Ram Lakhan Yadav. When four witnesses were examined to speak to the occurrence normally non-examination of one more witness is not a serious flaw. But in this case non-examination of Ram Lakhan Yadav cannot be sidelined with such a reasoning. This is because it was Ram Lakhan Yadav who set fire to the haystack, in the light of which flames the culprits were identified; and it was Ram Lakhan Yadav who was first attacked by the dacoits, and it was Ram Lakhan Yadav who had seen the dacoits earlier than any other person connected with victims' house. What he would have said about the identity of the dacoits cannot now be left in surmise. If he also had said that all the dacoits were unknown persons it would have had a very deleterious impact on the veracity of the four witnesses who pointed to the three appellants as the dacoits." 30. The facts of the aforesaid case are not attracted in the instant case and the ruling of Rohtash Kumar v. State of Haryana (Supra) will be applicable which gives discretion to the prosecution to adduce the evidence of selected witnesses. In the instant case eye witnesses have been examined, therefore, as per Hon'ble Apex Court ratio it will not vitiate the proceedings. In the instant case eye witnesses have been examined, therefore, as per Hon'ble Apex Court ratio it will not vitiate the proceedings. The case of Rang Bahadur Singh and others v. State of U.P. (Supra) relates to on incident of dacoity. 31. On the basis of above discussions, we are of the opinion that the prosecution has established its case beyond all reasonable doubts and the judgment and order passed by learned lower court needs no interference. The appeal is liable to be dismissed. It is accordingly dismissed. 32. The appellant is on bail. His bail is cancelled. The appellant is directed to surrender before the court concerned immediately. The Registrar of this Court will communicate this order to learned lower court for compliance of the order and the appellant be sent to jail to serve out the sentence awarded by the lower court.