JUDGMENT : Janak Raj Kotwal, J. 1. Appellant Suresh Kumar has filed this appeal against Judgment dated 29.06.2010 in File No. 16/Sessions whereby learned Sessions Judge, Reasi has convicted him under Section 302 RPC and 5/27/30 Arms Act and order dated 30.06.2010 whereby he has been sentenced to imprisonment for life in proof of offence under Section 302 RPC and imprisonment for a term of 5 years in proof of offence under Sections 5/27/30 Arms Act. Heard. We have perused the record. 2. Facts of the prosecution case are that on 20.07.2005 in the evening, Krishan Chand (deceased/victim) accompanied by his minor son PW-Sanjeev Kumar had gone for purchasing toffees from shop of PW-Isher Dass falling nearby his house in village, Dhirti, Tehsil, Udhampur. When the victim and his son were returning back to their home after purchasing the toffees, the appellant (accused) fired a shot through his 12 bore SB gun on the victim from behind in his back. The victim fell on the road when the accused fired another shot in his head which ruptured his brain. The victim died on spot. The father of the victim, PW-Badri Nath, lodged written information (Ext.-P1) about the incident at Police Station, Katra at 9 P.M. FIR No. 159/05 under Sections 302 RPC and 3/25 Arms Act was registered and the S.H.O. of the Police Station took up the investigation. The Investigating Officer (I.O.) proceeded to the place of occurrence, prepared the crime scene report 'Report Marg' (Ext. P-38/5) took charge of the dead body of the victim and dispatched it for postmortem. He seized pure earth, blood stained earth, one spent cartridge of a 12 bore gun bearing inscription'--No. 309YOM, 65mm, 12--'and one 'Datta' (air cushioning wad) of a cartridge from the crime scene and sealed them under marks 'A', 'B', 'C' and 'D' respectively. He prepared sketch map of the place of occurrence (Ext. P-38/1). In the course of further investigation the I.O. arrested the appellant (accused) on 21.07.2005. On 23.07.2005, the I.O. recorded disclosure statement (Ext.-P 15-I) of the accused, which lead to discovery of the weapon of offence, a 12 bore gun (SB No. 17909-95) with a spent cartridge bearing No. 309YOM, 65 mm--'in its barrel, which were seized vide seizure memo (Ext.-P 15-II). On 23.07.2005, the I.O. recorded disclosure statement (Ext.-P 15-I) of the accused, which lead to discovery of the weapon of offence, a 12 bore gun (SB No. 17909-95) with a spent cartridge bearing No. 309YOM, 65 mm--'in its barrel, which were seized vide seizure memo (Ext.-P 15-II). The I.O. also seized 12 pallets and one 'Datta' which were found inside the dead body of the victim by the Doctors while performing the postmortem and recorded statements of the witnesses under Section 161 Cr.P.C. 3. The I.O. after investigation found that the informant PW-Badri Nath, and Ram Saran, the grandfather of the appellant (accused), were neighbours and related as cousins in brotherhood. They were nourishing enmity for 8/9 years on account of right to way and water and because of that enmity, the two sides used to quarrel with each other, they were not on talking terms and the appellant had threatened the informant that he will kill his son. In sequel to this enmity the accused shortly before the incident had got himself appointed as retainer of the licensed gun of his grandfather and was in lookout for eliminating the victim. On 20.07.2005, the appellant armed with the said gun had follow the victim to the shop and shot him dead when he accompanied by his son was returning home after purchasing toffees from the said shop. 4. On completion of investigation the S.H.O., Police Station, Katra/I.O. preferred Charge Sheet under Sections 302 RPC & 5/27/30 Arms Act against the accused in the committal court of learned Chief Judicial Magistrate, Udhampur. The case, after committal, came up for trial before the learned Sessions Judge, Udhampur and later was transferred to the Court of learned Sessions Judge, Reasi. 5. Learned trial court after examining the charge sheet and record of the case framed charges under Sections 302 RPC & 5/27/30 Arms Act against the appellant (accused) on 28.01.2006. The appellant denied the charges and claimed to be tried. Prosecution thus, entered its evidence and examined as many as 37 witnesses before the trial court. Learned trial Court recorded statement of the accused under Section 342 Cr.P.C. and the accused produced two witnesses, Nand Lal and Kunj Lal, in his defence. 6. As per the prosecution case and the evidence of PW-Dr. Prosecution thus, entered its evidence and examined as many as 37 witnesses before the trial court. Learned trial Court recorded statement of the accused under Section 342 Cr.P.C. and the accused produced two witnesses, Nand Lal and Kunj Lal, in his defence. 6. As per the prosecution case and the evidence of PW-Dr. J.C. Garidotra, B.M.O., CHC, Tikri, the postmortem on the dead body of the victim was performed by a Board of Doctors comprising, besides Dr. Gandotra, Dr. R.P. Singh, B.M.O., Katra and Dr. K.C. Dogra, M.O., Katra on 21.07.2005 at 11:30 A.M. The Postmortem Examination Report has been proved before the trial court by PW-Dr. J.C. Gandotra as Ex. PW-JG. As per the evidence of Dr. Gandotra read with the postmortem report following two injuries were found on the dead body of the deceased: "(i) A big lacerated wound on left side of head starting from left ear going upwards and backwards covering whole of the left side of the head. Margins irregular and inverted, blackened. Bones over wound are missing, brain substance is partially protruding out and destroyed. Base of skull-there are multiple fractures on left side of skull-bleeding +++. Multiple pallets were found in base of skull-pallets were removed, sealed and sent for analysis." (ii) Lacerated wound 1/2 diameter on right side of back of chest 2-1/2" away from mid-line. Margins are inverted and irregular. A probe was passed along with the wound of entry which went through and through right lung SIX INCHES UPWARDS penetrating right lung. Multiple pallets removed from right lung and right upper abdomen, which were recovered and sealed and sent for chemical analysis." 7. In the opinion of the Medical Board, the victim "died due to injury to brain substance and injury to right lung caused by gunshot" and the time of death was within 24 hours of the postmortem examination. PW-Dr. Gandotra in his deposition opined also that the above injuries were sufficient to cause instant death in the ordinary course of nature. 8. PW-Dr. Gandotra in his deposition opined also that the above injuries were sufficient to cause instant death in the ordinary course of nature. 8. In order to connect the accused with inflicting the two gun shots to the victim causing his death, the prosecution, besides the three family members of the victim, that is, PW-Badri Nath, the father of the victim, PW-Taro Devi, the wife of the victim, PW-Sanjeev Kumar, the minor son of the victim, had cited Gandharab Singh, Rattan Lal, Sukhdev Singh and Bansi Lal as the other eye witnesses of the occurrence. All of them were examined before the learned trial Court. PWs-Gandharab Singh, Rattan Lal, Sukhdev Singh and Bansi Lal, however, did not support the prosecution case to the extent of the involvement of the accused in the incident and prosecution declared them as hostile witnesses. All of them, however, directly or indirectly supported the factum of the death of the deceased on the day of the occurrence in the road at the place of the occurrence. 9. PW Badri Nath, the father of the victim, deposed before the trial court that accused had been nourishing enmity towards the deceased for two/three years prior to the occurrence because of a dispute about path and water. In 2005, accused got gun license of this grandfather transferred in his name and he used to threaten him that he will kill his son. On 20.07.2005 he was bringing his cattle back from the water point to his house by a path running along the shop of Isher Dass whereas deceased accompanied by his son, Sanjeev, was returning from the said shop. He was walking twenty steps behind the deceased. His grandson, Sanjeev cried for help saying that 'mar diya mar diya bachao'. By the time he reached at the spot the first shot had already been fired in the back whereas another shot was fired by the accused in his presence in the temple (above the ear) of the victim. After firing the second shot, accused ran away towards 'Jajjar Nala' along with his gun. The incident had taken place at 7:45 in the evening. He got a report (Ext-P-1) drafted from a teacher and went to Police Station, Katra by a motor cycle. FIR (Ext-P-2) was registered. 10. After firing the second shot, accused ran away towards 'Jajjar Nala' along with his gun. The incident had taken place at 7:45 in the evening. He got a report (Ext-P-1) drafted from a teacher and went to Police Station, Katra by a motor cycle. FIR (Ext-P-2) was registered. 10. PW Taro Devi, the wife of the victim deposed that 10/12 days prior to the occurrence, her husband had objected to construction of a water tank by the accused and his grandfather, Ram Saran. The accused had threatened the victim that he will kill him wherever he meets him. On the day of the occurrence the accused along with his son, Sanjeev Kumar had gone for bringing toffees for their daughter. She was standing outside her house. When he was on his way back from the shop, Sanjeev Kumar raised alarm for help crying 'mar diya bachao, jaldi aao'. She ran to the spot and found that the accused already had fired one shot at her husband and on her reaching there the accused fired another shot which hit his head. Accused ran away. She had reached nearby, when second shot was fired. Victim died on spot. 11. PW Sanjeev Kumar, the minor son of the deceased deposed that he had gone along with his father to a shop for purchasing toffees. They were on their way back and he was walking in front of his father. The accused fired at his father from behind. On hearing the noise he cried. The first shot hit his father in his back and he fell down. Accused fired another shot in the head of his father. His father died on spot. The accused committed this act because of quarrel over water. 12. Learned trial court relied upon the evidence given by the aforementioned three family members of the victim including his minor son. In addition to the direct evidence coming through the depositions of these three family members, learned trial Court found corroboration in supporting evidence like the medical evidence and recoveries of incriminating material including the weapon of offence and found the accused guilty. Learned trial court after scrutiny and appraisal of the evidence arrived at a conclusion that the accused was inimical towards the victim because of a dispute relating to a water tank. Learned trial court after scrutiny and appraisal of the evidence arrived at a conclusion that the accused was inimical towards the victim because of a dispute relating to a water tank. The accused while holding a gun waylaid the victim when he accompanied by his son was returning from the shop of PW-Isher Dass and fired first shot in his back. The victim fell down on the ground and the accused in order to leave no chance fired another shot in his head causing his instant death. 13. The baseline of the appellant's assail to the impugned judgment is that the learned trial court has tailed to appreciate that the prosecution has miserably failed in proving the case beyond reasonable doubt. It is contended that undue credence has been given to the evidence of the three family members of the victim who are interested witnesses and have every reason to falsely implicate the appellant inasmuch all the other eye witnesses cited by the prosecution have excluded their presence at the place of occurrence at the time of the occurrence and there was delay of six days in recording their statements under Section 161 Cr.P.C. It is contended that the child witness PW-Sanjeev Kumar was a tutored witness and his statement should not have been relied upon. It is contended also that the written information lodged by the father of the victim does not show that he had witnessed the incident. 14. We have accorded our consideration to all the important grounds, which were urged before us at Bar by Mr. Anmol Sharma, learned counsel for the appellant. We heard Mr. Sharma and Mr. Ravinder Gupta, AAG at length. We have thoroughly read and carefully analyzed and appraised the evidence on the trial court file. We are taking up the various grounds in the same order in which they were urged before us. Child Witness 15. PW-Sanjeev Kumar, the son of the victim, at the time of recording his evidence in the trial court on 25.05.2007 was 13 and a student of 7th Standard. He, therefore, was 11 years old as at the time of the incident and can be designated as a child witness. Mr. Child Witness 15. PW-Sanjeev Kumar, the son of the victim, at the time of recording his evidence in the trial court on 25.05.2007 was 13 and a student of 7th Standard. He, therefore, was 11 years old as at the time of the incident and can be designated as a child witness. Mr. Sharma, learned counsel for the appellant, sought to assail the evidence of PW-Sanjeev Kumar on the ground that he being a child of tender age was prone to tutoring, which is evident from his reply to a query by the trial court that he had come to the court at the instance of his grandfather, PW-Badri Nath. Per contra, Mr. Ravinder Gupta, learned AAG submitted that no person is debarred from giving evidence on the basis of his tender age and it is for the trial court to determine whether a person should be examined as a witness or not having regard to his capacity of understanding the questions and answering the same. Mr. Gupta submitted that no witness can be discredited on the basis of his age only unless infirmity or untrustworthiness in his evidence is evident from the deposition made by him or attending circumstances. 16. The Evidence Act, 1977 (1920 A.D.) does not prescribe any particular age as a determinative factor to treat a person to be a competent witness nor the Evidence Act contains any term like 'Child Witness'. On the contrary, Section 118 of the Evidence Act envisages that all persons shall be competent to testify, unless the court considers that they are prevented from understanding the questions put to them or from giving rational answers to these questions, because of tender years, extreme old age, disease, whether of body or mind, or any other cause of the same kind. Section 118 on its plain reading would show that the decision on the question whether a person, be it a child or a person of extreme old age or suffering from any other disability, has the capacity to depose as a witness primarily rests with the Presiding Officer of the court in which the evidence is to be given. Section 118 on its plain reading would show that the decision on the question whether a person, be it a child or a person of extreme old age or suffering from any other disability, has the capacity to depose as a witness primarily rests with the Presiding Officer of the court in which the evidence is to be given. It is in order to take such a decision that while dealing with such type of witnesses, the trial judge puts preliminary questions to the witness to ascertain whether his deposition as a witness should be recorded or not and places them on record. The decision of the trial judge may, however, be disturbed by the higher court if from what is preserved in the records, it is clear that the conclusion of the trial judge was erroneous. 17. It is, however, an established principle that child witnesses are dangerous witnesses as they are pliable and liable to be easily influenced, shaken and moulded but it is also an accepted norm that if after careful scrutiny of their evidence the court comes to the conclusion that there is an impress of truth in it, there is no obstacle in the way of accepting the evidence of a child witness. A child of tender age can be allowed to testify if he has intellectual capacity to understand questions and give rational answers thereto. The evidence of a child witness is not required to be rejected per se but the court as a rule of prudence considers such evidence with close scrutiny and only on being convinced about the quality thereof and reliability can record conviction, based thereon. 18. In Dattu Ramrao Sakhare v. State of Maharashtra, (1997) 5 SCC 341 , it has been held: "5. A child witness if found competent to depose to the facts and reliable one such evidence could be the basis of conviction. In other words even in the absence of oath the evidence of a child witness can be considered under Section 118 of the Evidence Act provided that such witness is able to understand the questions and able to give rational answers thereof. The evidence of a child witness and credibility thereof would depend upon the circumstances of each case. In other words even in the absence of oath the evidence of a child witness can be considered under Section 118 of the Evidence Act provided that such witness is able to understand the questions and able to give rational answers thereof. The evidence of a child witness and credibility thereof would depend upon the circumstances of each case. The only precaution which the court should bear in mind while assessing the evidence of a child witness is that the witness must be a reliable one and his/her demeanor must be like any other competent witness and there is no likelihood of being tutored. There is no rule or practice that in every case the evidence of such a witness be corroborated before a conviction can be allowed to stand but, however, as a rule of prudence the court always finds it desirable to have the corroboration to such evidence from other dependable evidence on record." 19. In Radhey Shyam v. State of Rajasthan, 2014 AIR SCW 1398, the Supreme Court has drawn following conclusion in regard to evidence of a child witness in para 9 of the reporting: "9. The conclusion which can be deduced from the relevant pronouncements of this Court is that the evidence of a child witness must be subjected to close scrutiny to rule out the possibility of tutoring. It can be relied upon if the court finds that the child witness has sufficient intelligence and understanding of the obligation of an oath. As a matter of caution, the court must find adequate corroboration to the child witness's evidence. If found, reliable and truthful and corroborated by other evidence on record, it can be accepted without hesitation. We will scrutinize PW-2 Banwari's evidence in light of the above principles." 20. It is noticed from the deposition of PW-Sanjeev Kumar that learned trial judge before recording his deposition had reminded himself about the necessity of arriving at a satisfaction about his competence to testify as a witness having regard to his tender age. Learned judge asked as many as 15 questions to the witness and on the basis of answers to these questions recorded satisfaction that he was in a position to understand the questions and reply them appropriately and decided to record his deposition. We have noticed, as pointed out by Mr. Learned judge asked as many as 15 questions to the witness and on the basis of answers to these questions recorded satisfaction that he was in a position to understand the questions and reply them appropriately and decided to record his deposition. We have noticed, as pointed out by Mr. Sharma, that to one of these questions the witness had answered that he was told by his grandfather that he has to give evidence in the Court. We, however, do not see anything indicative of tutoring in this answer and are not inclined to agree with the learned counsel that witness was tutored by his grandfather. A witness is required to be informed as to when he has to attend the court to give his evidence in a case and it is quite natural that a child witness, whose father has died, is informed through his grandfather and the grandfather accompanies him to the court. We have accorded our consideration to all the preliminary questions asked by the learned trial judge to this witness as also the answers thereto and having done so we could not find any reason to disagree with the decision about his competence taken by the learned trial court. We would rather hold that learned trial judge was right in declaring him as a competent witness and deciding to record his deposition. 21. It needs to be stated that the most effective tool in the hands of defence to impeach and discredit the truthfulness and credibility of a prosecution witness is the right of cross-examination. The defence has a right to ask such questions to a witness which may tend to expose him in case he is not speaking truth before the Court. 22. We have gone through and carefully analyzed the entire deposition including that in cross-examination of PW-Sanjeev Kumar being conscious that a great degree of responsibility is cast on the trial court as well as the appellate court while dealing with evidence of a 'child witness' particularly in the cases involving heinous offences like the one on hand. We have found that similar exercise was undertaken by the learned trial judge. We, however, do not find any reason for not relying upon his evidence. We are rather satisfied that he had been accompanying his father at the time of the occurrence and has deposed in a way he could have without any exaggeration. We have found that similar exercise was undertaken by the learned trial judge. We, however, do not find any reason for not relying upon his evidence. We are rather satisfied that he had been accompanying his father at the time of the occurrence and has deposed in a way he could have without any exaggeration. We may hasten to take note of the arguments of Mr. Sharma that the other eye witnesses cited by the prosecution including the shopkeeper, PW-Isher Dass and the two defence witnesses have excluded the presence of this witness with his father at the time he was shot dead by some unknown persons and that there had been delay in recording his statement under Section 161 Cr.P.C. We would be dealing with these aspects in detail hereafter though we say briefly here that we have found no reason to disbelieve the presence of PW-Sanjeev Kumar with his father at the time when he was shot dead. We are rather satisfied with the truthfulness of his version that he had been accompanying his father and that no exaggeration is evident in the version given by him. Relatives/interested witnesses 23. Mr. Sharma, learned counsel for the appellant, submitted that the learned trial court has erred in placing explicit reliance on the evidence of PW-Taro Devi and PW-Badri Nath and PW-Sanjeev Kumar, who, being family members of the victim are partisan witnesses and were highly interested in false implication of the appellant because of unfriendly ties between the two families. While attempting to draw some support from the sketch map of the place of occurrence (Ext.--P38/1), Mr. Sharma sought to make out that PW-Taro Devi could not have reached at the place of occurrence and seen the incident as according to her it took her three minutes to reach there. Mr. Sharma attempted to do some hair splitting by pointing out that according to PW-Taro Devi, accused had taken half a minute to reload the gun for firing the second shot which means time gap between the two shots was three and a half minutes which is contrary to the evidence led by IO as according to him time gap between two shots was just five seconds. Mr. Mr. Sharma sought to question the credibility of PW-Badri Nath by pointing out that according to him he was walking behind the victim and had seen the accused also carrying the gun but even then he did not raise any alarm and that the first information lodged by him does not indicate that he had witnessed the occurrence. Contextual submission made by Mr. Sharma was that there had been unexplained delay of six days in recording statements of all the three family members under Section 161 Cr.P.C. who later appeared as eye witnesses, which suggests that they were implanted as eye witnesses at a later stage to falsely implicate the accused as none had seen any person firing at the victim. 24. It has quite often been pointed out in various decisions of the Supreme Court and the High Courts and is rather a settled principle that a close relative of victim of an offence and especially victim of murder generally would not screen the real culprit and fabricate a false case even against an innocent person, may be hardest of his adversaries. Generally the close relatives of the victim of a heinous offence like murder have an urge to see that the real culprit is arrested and brought to justice. The theory that the witness being a close relative and consequently being a partisan witness was replied by the Supreme Court as early as in Dalip Singh and Ors. v. State of Punjab AIR 1953 SC 364 . It has been laid down as under: "A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity against the accused, to wish to implicate him falsely. Ordinarily, a close relative would be the last to screen the real culprit and falsely implicate an innocent person. It is true, when feelings run high and there is personal cause for enmity, that there is a tendency to drag in an innocent person against whom a witness has a grudge along with the guilty, but foundation must be laid for such a criticism and the mere fact of relationship far from being a foundation is often a sure guarantee of truth. However, we are not attempting any sweeping generalisation. Each case must be judged on its own facts. However, we are not attempting any sweeping generalisation. Each case must be judged on its own facts. Our observations are only made to combat what is so often put forward in cases before us as a general rule of prudence. There is no such general rule. Each case must be limited to and be governed by its own facts. This is not to say that in a given case a Judge for reasons special to that case and to that witness cannot say that he is not prepared to believe the witness because of his general unreliability, or for other reasons, unless he is corroborated. Of course, that can be done. But the basis for such a conclusion must rest on facts special to the particular instance and cannot be grounded on a supposedly general rule of prudence enjoined by law as in the case of accomplices." 25. Recently in Nagappan v. State, Inspector of Police, the Supreme Court after surveying a series of decisions on the point including that in Dalip Singh's case has in the judgment dated 17th July, 2013, held as under: "As regards the first contention about the admissibility of the evidence of PW-1 and PW-3 being closely related to each other and the deceased, first of all, there is no bar in considering the evidence of relatives. It is true that in the case on hand, other witnesses turned hostile and not supported the case of the prosecution. The prosecution heavily relied on the evidence of PW-1, PW-3 and PW-10. The trial Court and the High Court, in view of their relationship, closely analysed their statements and ultimately found that their evidence is clear, cogent and without considerable contradiction as claimed by their counsel. This Court, in series of decisions, has held that where the evidence of "interested witnesses" is consistent and duly corroborated by medical evidence, it is not possible to discard the same merely on the ground that they were interested witnesses. In other words, relationship is not a factor to affect credibility of a witness. [vide Dalip Singh & Ors. v. State of Punjab, AIR 1953 SC 364 , Guli Chand & Ors. v. State of Rajasthan, (1974) 3 SCC 698 , Vadivelu Thevar v. The State of Madras, AIR 1957 SC 614 , Masalti & Ors. v. The State of U.P., AIR 1965 SC 202 . [vide Dalip Singh & Ors. v. State of Punjab, AIR 1953 SC 364 , Guli Chand & Ors. v. State of Rajasthan, (1974) 3 SCC 698 , Vadivelu Thevar v. The State of Madras, AIR 1957 SC 614 , Masalti & Ors. v. The State of U.P., AIR 1965 SC 202 . The State of Punjab v. Jagir Singh & Ors. (1974) 3 SCC 277 : AIR 1973 SC 2407 , Lehna v. State of Haryana, (2002) 3 SCC 76 , Sucha Singh & Anr. v. State of Punjab, (2003) 7 SCC 643 : 2003 (6) JT SC 348, Israr v. State of U.P., (2005) 9 SCC 616 , S. Sudershan Reddy & Ors. v. State of A.P., (2006) 10 SCC 163 : AIR 2006 SC 2716 and Abdul Rashid Abdul Rahiman Patel & Ors. v. State of Maharashtra JT 2007 (9) SC 194, Waman and Others v. State of Maharashtra, (2011) 7 SCC 295 , State of Haryana v. Shakuntla and Others, (2012) 5 SCC 171 , Raju @ Balachandran & Ors. v. State of Tamil Nadu, 2012 (11) Scale 357 , Subal Ghorai & Ors. v. State of West Bengal, (2013) 4 SCC 607 ]." 26. Plea of false implication by closely related persons, therefore, cannot be entertained unless a strong indication in this regard is available from their evidence or the record of the case. Near relationship with victim of an offence per se is not a ground for branding a person as interested witness and discarding his evidence. Nonetheless, evidence of close relatives of the victim are to be scrutinized and considered with great care to rule out any impression of false implication. Delay in recording statements under Section 161 Cr.P.C 27. Mr. Sharma pointed out from record of the case that statements of PWs-Badri Nath, Taro Devi and Sanjeev Kumar under Section 161 Cr.P.C. in which they implicated the appellant were recorded by the I.O. after six days of the occurrence on 27.06.2005. He also pointed out that one statement each of PW-Badri Nath was recorded by the I.O. on 20.07.2005 and 21.07.2005 which related to taking charge of the dead body and some seizures but in those statements he had not stated anything against the appellant. Mr. He also pointed out that one statement each of PW-Badri Nath was recorded by the I.O. on 20.07.2005 and 21.07.2005 which related to taking charge of the dead body and some seizures but in those statements he had not stated anything against the appellant. Mr. Sharma argued that the victim might have been shot dead by some unknown persons, who could not be traced so the three family members falsely implicated the appellant in connivance with the police to settle score with him for unfriendly relations between the two families. 28. Delay in recording statement of an eye witness' in terms of Section 161 Cr.P.C. per se is not a ground for rejecting his evidence if it is found otherwise trustworthy and reliable. Nonetheless, such a delay is a factor to be accorded consideration along with other factors and circumstances of the case. 29. In Gunnana Penteyya v. State of A.P., 2008 AIR SCW 6132, Supreme Court has relied upon an earlier decision in State of U.P. v. Satish, (2005) 3 SSC 114 where it has been held: "18. As regards delayed examination of certain witnesses, this Court in several decisions has held that unless the Investigating officer is categorically asked as to why there was delay in examination for the witnesses the defence cannot gain any advantage therefrom. It cannot be laid down as a rule of universal application that if there is any delay in examination of a particular witness the prosecution version become suspect. It would depend upon several factors. If the explanation offered for the delayed examination is plausible and acceptable and the court accepts the same as plausible, there is no reason to interfere with the conclusion." "20. It is to be noted that the explanation when offered by I.O. on being questioned on the aspect of delayed examination, by the accused has to be tested by the Court on the touchstone of credibility. If the explanation is plausible then no adverse inference can be drawn. On the other hand, if the explanation is found to be implausible, certainly the Court can consider it to be one of the factors to affect credibility of the witnesses who were examined belatedly. It may not have any effect on the credibility of prosecution's evidence tendered by the other witnesses." 30. On the other hand, if the explanation is found to be implausible, certainly the Court can consider it to be one of the factors to affect credibility of the witnesses who were examined belatedly. It may not have any effect on the credibility of prosecution's evidence tendered by the other witnesses." 30. We have noticed that statements of PWs Badri Nath, Taro Devi and Sanjeev Kumar under Section 161 Cr.P.C. in which they had deposed about involvement of the appellant (accused) in the killing of the victim were recorded on 26.07.2005. We, however, are not inclined to entertain any impression that the appellant was falsely implicated by them six days after the occurrence for the reason that involvement of the appellant was disclosed to the I.O. (S.H.O.) by PW-Badri Nath as early as in the first information report (Ext.-P-I) which was lodged immediately after the occurrence and that the appellant was arrested on 3.7.2005, that is, earlier than recording of the statements of the three family members. We are not inclined to entertain an idea that after seeing the dead body of his son, who had been murdered in a cold blood, on the road it would have got to the mind of the informant to falsely implicate the appellant and ignore the real culprit or not to bother about tracing the real culprit, even if it is presumed that informant had not seen the appellant firing at his son. 31. We have noticed in the cross-examination of the I.O. PW-Shamsher Singh that he had got the knowledge about eye witnesses on 26.07.2005 and was unable to get any information about them prior thereto. Alongside he has also stated that at the time of registering the FIR he had come to know that Sanjeev Kumar, the son of the deceased, was eye witness of the occurrence but he could not record his statement because of the mourning in the family. Alongside he has also stated that at the time of registering the FIR he had come to know that Sanjeev Kumar, the son of the deceased, was eye witness of the occurrence but he could not record his statement because of the mourning in the family. Given that the information about the involvement of the accused in the incident, the manner in which the gruesome act of killing was executed and presence of PW Suresh Kumar at the place of occurrence was disclosed by the informant, PW-Badri Nath, in the FIR, which was lodges immediately after the incident and that the family was in the aftermath of cold blooded murder of the bread winner of the family, we cannot give much importance to six days' delay in recording the statements of these three witnesses as also we do not see any ulterior design in this delay nor do we find any other sufficient ground to discard their evidence on that score. We, therefore feel safe in according consideration to the depositions of these three witnesses on their merit. Hostile and defence witnesses: 32. Mr. Sharma would like the evidence of PWs-Badri Nath, Taro Devi and Sanjeev Kumar to be rejected for the reason that the two defence witnesses and whole lot of other prosecution witnesses related to the occurrence, who were declared hostile, have excluded involvement of the appellant. Mr. Sharma argued that the other eye witnesses produced by the prosecution have clearly excluded the involvement of the appellant as also presence of the family members of the victim at the place of occurrence so the evidence of three family members cannot be relied upon. 33. We have thoroughly read and accorded consideration to the depositions of PWs-Gandharb Singh, Rattan Lal, Sukhdev Singh and Bansi Lal S/o. Raghu Nath whom the prosecution has cited as the other eye witnesses of the incident as also the testimonies of PWs Bansi Lal S/o. Trilok Chand, Subash Chander, Isher Dass, Tirath Ram, Badri Nath S/o. Mansa Ram, Kewal Krishan, Bhushan Kumar, Hans Raj, Punnu Ram, Satpaul, Ram Paul, Jagdish, Hari Dutt and Mohan Lal whom the prosecution has cited as circumstantial witnesses. We have also perused and accorded consideration to the depositions of the two defence witnesses, namely, Nand Lal and Kunj Lal. We have also perused and accorded consideration to the depositions of the two defence witnesses, namely, Nand Lal and Kunj Lal. What we have noticed as a common thread in the evidence of all these witnesses is their knowledge about the killing of the victim by gunshots and their complete ignorance about the person who executed this killing. The brazen ignorance about the culprit shown by these witnesses gives clear indication of the attempt on their part to save the culprit because, having regard to the location of the site and the manner in which killing was executed, it cannot be believed that most of them had not seen the assailant or were not aware as to who he was. Be that as it may, ignorance on their part cannot be used to exclude the presence of the three family members of the deceased and cannot create any doubt about their having witnessed the occurrence in the manner as narrated by them in their evidence and seen the appellant executing the killing. 34. We have scrutinized the depositions of PWs Badri Nath, Taro Devi and Sanjeev Kumar with great care being conscious of the facts that they are the family members of the victim, that there was some delay in recording their statements by the I.O. and also that one of them is a minor (child witness). We have compared these depositions with each other. We have already recorded hereinabove our satisfaction about presence of PW-Sanjeev Kumar with his father at the time when the latter was shot dead. Having regard to the factual position recorded in the sketch map of the place of incident (Ext.-P 38/1) prepared by the I.O. we entertain no doubt in regard to the possibility of PW Taro Devi reaching at the place of occurrence and having seen the accused firing shot in the head of her husband. Similarly, we do not entertain any doubt about presence of PW-Badri Nath for the reason that the version given by him gets sufficient corroboration from the first information report lodged by him immediately after the incident. We, to say in a nut-shell, have no trace of doubt in believing that all the said three witnesses had seen the occurrence in the manner and to the extent as narrated by them in their depositions in the trial court and we have no hesitation in relying upon their versions. We, to say in a nut-shell, have no trace of doubt in believing that all the said three witnesses had seen the occurrence in the manner and to the extent as narrated by them in their depositions in the trial court and we have no hesitation in relying upon their versions. We therefore, held that learned trial court has rightly relied upon their depositions in holding the appellants (accused) guilty. 35. Though we on the basis of the depositions of the aforementioned three eye witnesses alone fell persuaded to accept the conclusion about the guilt of the appellant recorded by the learned trial court, we have accorded consideration to the corroborative evidence on the file of the trial court, which the learned trial judge has ornately discussed. Medical Evidence: 36. We first refer to the medical evidence rendered by PW-Dr. J.C. Gandotra, the then B.M.O. Tikri, who as a member of the Board of Doctors had conducted post mortem on the dead body of the victim and was signatory to the Post Mortem Examination Report (Ex. PWJG) which he has proved before this Court. The injuries found on the dead body of the deceased have been stated hereinabove. In the opinion of the Doctors the death of the victim occurred due to injury to his brain substance and injury to right lung caused by gun shots. The Doctors were also of the opinion that death had occurred within 24 hours of the time of the post mortem, which was conducted on 21.07.2005 at 11.30 A.M. The Medical Evidence corroborates the ocular evidence that the accused had fired two gun shots, one in the back of the deceased and the other in the head and that the injuries caused by these gun shots had caused the instant death of the victim and also justifies the time gap between the occurrence and the post-mortem. 37. Mr. Anmol Sharma, While taking us through the cross-examination of PW-Dr. Gandotra, sought to point out that as per the ocular evidence, gun shots were fired from a distance of 18 to 20 feet whereas the medical evidence mentions about tattooing and scorching of the wounds, which, however, would have been possible only if the fires were shot from a distance up to 4 ft. only. The argument of Mr. Sharma, we may say, is not factually correct. only. The argument of Mr. Sharma, we may say, is not factually correct. We do not find anything in the cross-examination of the Doctor that there was scorching or tattooing around either of the wounds. What Doctor has stated is that 'in wound No. 1 (one) margins were blackened but there was no scorching a tattooing around any wound'. We otherwise do not find any substance in the argument as, having regard to the clarity of ocular evidence, we cannot entertain any contradiction on the basis of medical evidence. We may state briefly that the medical evidence has corroborative value only and cannot prevail upon clear and cogent ocular evidence unless the medical evidence is of the nature which excludes the possibility of injuries having been caused in the manner or by the weapon as alleged by the prosecution/stated by the prosecution witnesses. Supremacy of clear and cogent ocular evidence over the medical evidence is a well settled principle of appraising the evidence, though we may refer to the statement of law made by the Supreme Court in Vijay Pal v. State, 2015 AIR SCW 1679: "13. ....There is no dispute that the value of medical evidence is only corroborative. It proves that the injuries could have been caused in the manner as alleged and nothing more. The use which the defence can make of the medical evidence is to prove that the injuries could not possibly have been caused in the manner alleged and thereby discredit the eye-witnesses. Unless, however the medical evidence in its turn goes so far that it completely rules out all possibilities whatsoever of injuries taking place in the manner alleged by eyewitnesses, the testimony of the eye-witnesses cannot be thrown out on the ground of alleged inconsistency between it and the medical evidence. It is also true that the post-mortem report by itself is not a substantive piece of evidence, but the evidence of the doctor conducting the post-mortem can by no means be ascribed to be insignificant. The significance of the evidence of the doctor lies vis-a-vis the injuries appearing on the body of the deceased person and likely use of the weapon and it would then be the prosecutor's duty and obligation to have the corroborative evidence available on record from the other prosecution witnesses. The significance of the evidence of the doctor lies vis-a-vis the injuries appearing on the body of the deceased person and likely use of the weapon and it would then be the prosecutor's duty and obligation to have the corroborative evidence available on record from the other prosecution witnesses. It is also an accepted principle that sufficient weightage should be given to the evidence of the doctor who has conducted the post-mortem, as compared to the statements found in the textbooks, but giving weightage does not ipso facto mean that each and every statement made by a medical witness should be accepted on its face value even when it is self-contradictory. It is also a settled principle that the opinion given by a medical witness need not be the last word on the subject. Such an opinion shall be tested by the Court. If the opinion is bereft of logic or objectivity, the court is not obliged to go by that opinion. That apart, it would be erroneous to accord undue primacy to the hypothetical answers of medical witnesses to exclude the eyewitnesses' account which are to be tested independently and not treated as the 'variable' keeping the medical evidence as the 'constant'. Where the eyewitnesses' account is found credible and trustworthy, a medical opinion pointing to the alternative possibilities cannot be accepted as conclusive. [See: Solanki Chimanbhai Ukabhai v. State of Gujarat, State of Haryana v. Ram Singh, Mohd. Zahid v. State of T.N., State of Haryana v. Bhagirath and Abdul Sayeed v. State of M.P.]" Weapon of offence/Ballistic Evidence: 38. We now refer to the evidence relating to discovery and seizure of the weapon of offence on the basis of the disclosure statement (Ext.-P 15-I) made by the appellant on 23.07.2015. As per the admissible portion of this statement, the appellant (accused) had stated that he has concealed one 12 bore SB gun containing a spent cartridge in the bushes near Jajjar Nallah and can get it recovered. This matches with the evidence of PW-Badri Nath that the accused had run away towards 'Jajjar Nallah'. The recovery memo (Ext.-P 15-II) reveals that a 12 bore SB gun bearing No. 17909-95 was recovered by the I.O. on the same day from aforementioned place which was identified by the accused. It also reveals that one spent cartridge bearing No. 309YOM, 65mm-KF--'was found in the barrel of this gun. The recovery memo (Ext.-P 15-II) reveals that a 12 bore SB gun bearing No. 17909-95 was recovered by the I.O. on the same day from aforementioned place which was identified by the accused. It also reveals that one spent cartridge bearing No. 309YOM, 65mm-KF--'was found in the barrel of this gun. Supporting evidence to the disclosure statement and the recovery of the gun is provided by I.O. Shamsher Singh, who recorded the disclosure statement and effected the recovery and PW-Shanker Singh. More evidence is provided by informant PW Badri Nath. Another marginal witness, PW-Bansi Lal, however, has turned hostile. Nonetheless, he, while not supporting the disclosure statement or recovery, has admitted his signatures on both the documents without explaining as to how he signed these documents, which indicates he has not spoken complete truth before the court. Prosecution has thus, succeeded in proving recovery of 12 bore gun bearing No. 17909-95 along with empty cartridge in its barrel on the basis of the disclosure statement of the accused on 23.07.2005, that is, three days after the incident. This gun as per the evidence of PW Varinder Salathia, Additional District Magistrate, Udhampur and the Certificate (Ex-PW-VS) issued by him is covered under licence No. 450/ADMU, dated 30.01.1996, issued in the name of Ram Saran S/o. Lashman Dass, that is, grandfather of the appellant and vide No. 5-4-05/68/C, dated 13.01.2005. The appellant was appointed as its retainer. What is thus, proved precisely and cogently is that the licensed gun of the grandfather of the appellant of which the appellant was a retainer along with a spent cartridge in its barrel was found concealed in bushes near 'Jajjar Nallah' in village Dhirti and was recovered from their on the basis of the disclosure statement made by the accused on 23.07.2005. 39. Evidence rendered by the I.O. and informant, PW-Badri Nath, read with seizure memoes (Ext.--P-5) and (Ext.-P38/3) shows that a spent 12 Bore gun cartridge bearing No. 65 MM, 12--309 YOM' and one 'Datta' (Air cushioning wad) of 12 Bore gun cartridge were found at the crime scene by the I.O. when the place of occurrence was inspected by him shortly after the incident and immediately after the registration of the FIR on 20.07.2005. These two articles were seized by the I.O. and sealed under marks 'C' & 'D' respectively. These two articles were seized by the I.O. and sealed under marks 'C' & 'D' respectively. The evidence shows that the 12 Bore Gun No. 17909-95 and the spent cartridge found in its barrel (supra) recovered by the I.O. on 23.07.2005 on the basis of the disclosure statement of the accused were sealed respectively under marks 'F' & 'G'. Evidence rendered by PW-Vijay Kumar, Constable, of Police Station, Katra, would show that the aforementioned four sealed articles were delivered by him in FSL, Jammu on 27.07.2005. Evidence rendered by PW S.H. Bhukhari, Scientific Officer (Ballistics) FSL, Jammu read with the report No. 791/FSL, dated 05.09.2005 (Ext.-P25) issued by him would show that the 12 Bore SBBL Gun found in the packet sealed under mark 'C', which was exhibited as F266/2005 in the FSL, on its ballistic examination by him was found in working condition and bearing signs of discharge. In the opinion of the witness, the two spent cartridges, which had been sealed under marks 'C' & 'G' and were exhibited as F264/2005 and F267/2005 in the laboratory, had been fired through the aforementioned 12 Bore SBBL Gun. The witness was also of the opinion that the 'Datta' sealed under mark 'D', which in the laboratory was marked as exhibit 265/2005, was a component of 12 Bore Gun cartridge. 40. We have not found any serious assail to the evidence in regard to the seizure, sealing and ballistic examination of aforementioned four items and in light of the evidence in this regard no assail, if any, would have been entertained. We thus take all facts relating to the seizure sealing and ballistic examination of the said items as sufficiently proved. 41. Mr. Sharma, however, pointed out that as per the I.O. one 'Datta' was recovered from the site of incident and submitted that as per the Medical Jurisprudence 'Datta' is projected along with other charge and enters the target if the fire is made from a distance up to 3 Mts. from the target. This aspect, submitted Mr. Sharma, indicates that PW-Badri Nath and the assailants were at the same point from where shot was fired. Contextually, Mr. from the target. This aspect, submitted Mr. Sharma, indicates that PW-Badri Nath and the assailants were at the same point from where shot was fired. Contextually, Mr. Sharma pointed out from the cross-examination of the ballistic expert, PW-S.H. Bhukhari, that there were no sufficient tally marks in respect of empty cartridges exhibits (F-264 and F-267) and because of that it could be possible that these cartridges could have been fired through some other gun also. 42. The points raised by learned appellant's counsel are too flimsy to attract a serious discussion and create any doubt in regard to ocular evidence on the basis of ballistic evidence. We, nonetheless, have noticed the vivid account of the physical positions given by PW-Badri Nath in his deposition. In chief-examination, he has stated that he was walking at a distance of 20 steps behind the victim when his grandson had cried for help. In cross-examination, he has explained that four cattle were walking in front of him and the victim was walking at a distance of 20/25 steps ahead of him. The evidence rendered by the three eye witnesses and in particular the description of physical positions given by PW-Badri Nath would make it clear that at the time of firing the first shot the assailant was within a distance of far less than 20/25 steps from the victim whereas the second shot that had hit in the temple of the victim was inflicted from even more close range. No doubt sought to be raised on the basis of one 'Datta' having been found on the scene of incident, that is, not having entered the body of the victim, therefore, can be entertained. It may be stated here that' like medical evidence, evidence of ballistic expert is also an opinion evidence which cannot prevail upon clear and cogent ocular evidence unless it completely excludes use of the fire arm alleged to have been used by the assailant. Opinion of ballistic expert that cartridges could have been projected from some other gun also cannot exclude projection of the said cartridges from the gun got recovered by the appellant. 43. Opinion of ballistic expert that cartridges could have been projected from some other gun also cannot exclude projection of the said cartridges from the gun got recovered by the appellant. 43. Prosecution on the basis of the opinion evidence rendered by the ballistic expert PW-S.H. Bhukhari has succeeded in proving that the licensed gun of the grandfather of the appellant (accused) bearing No. 17909-95, of which the appellant was retainer, which was found hidden and recovered on the basis of a disclosure statement of the accused on 23.07.2015, was in working condition, had signs of discharge and the two spent cartridges, one recovered from the place of occurrence and the other recovered from barrel of the said gun, had been fired through the said gun. Further it has been established that the 'Datta' which had been found at the place of occurrence was a component of a 12 Bore Gun cartridge. The opinion evidence rendered by the ballistic expert, thus, sufficiently corroborates the ocular evidence rendered by the aforementioned three eye witnesses in connecting the appellant with the incident of firing two gun shots at the victim through a gun causing instant death of the victim. Motive: 44. It was argued by Mr. Sharma that prosecution has exaggerated a trivial incident between the two neighbours as a motive on the part of the appellant to eliminate the victim which neither has any substance nor has been proved so the accused cannot be connected with commission of the serious offence of murder on the basis of such a motive. We, however, do not find any substance in the argument of Mr. Sharma. We find sufficient evidence in the depositions of aforementioned three eye witnesses about strained relations between the two sides because of a dispute relating to use of water. We have also found in the evidence of PW-Taro Devi that victim had once objected to construction of a water tank by the accused and his grandfather and accused had threatened the victim that he will kill him. We, however, do not feel necessity of going into and giving much importance to the objection relating to sufficiency of evidence to prove the motive because the motive becomes immaterial when facts proved before the court are clear. We, however, do not feel necessity of going into and giving much importance to the objection relating to sufficiency of evidence to prove the motive because the motive becomes immaterial when facts proved before the court are clear. Legal position in this regard is well settled and we may, however, refer to Bhim Singh v. State of Uttarakhand, 2015 AIR SCW 1118, where their Lordships in para 14 of the reporting, while referring to Mulakh Raj v. Satish Kumar, AIR 1992 SC 1175 , have reiterated that 'when facts are clear, it is immaterial whether motive was proved. Absence of motive does not break the link in chain of circumstances connecting the accused with the crime.' 45. For all that said and discussed above, we do not find any merit in the grounds on which the appellant has assailed the impugned judgment. We have rather found that the learned trial Court has carefully and properly appreciated the evidence and applied settled principles of law while recording conviction against the accused and imposing the sentence. The judgment rendered by the trial Court, therefore, does not deserve any interference in appeal. 46. Viewed, thus, this appeal is dismissed as without any merit and conviction and sentence recorded by the learned trial Court are upheld. 47. Reference for confirmation of the sentence stands answered accordingly. Registry shall send a certified copy of this judgment to the trial Court along with record of the case for follow up action.