Judgment : (Delivered by Hon'ble Arvind Kumar Mishra-I, J.) 1. The instant criminal appeal has been preferred against the judgment and order dated 11.08.1988 passed by II-Additional Sessions Judge, Mathura, in Sessions Trial No.463 of 1987 State Vs. Tano @ Tan Singh and others, arising out of Case Crime No.235 of 1987, under Sections 302, 307, 323 IPC, Police Station Vrindavan, District Mathura whereby accused Mahavir, Brij Nandan and Shanker have been convicted under Sections 302/34 and 323/34 IPC and sentenced to life imprisonment under Section 302/34 IPC and one year rigorous imprisonment under Section 323/34 IPC whereas accused Tano @ Tan Singh has been acquitted of charges giving benefit of doubt. All the sentences have been ordered to run concurrently. 2. Relevant to mention that appellant Shanker died during pendency of the appeal, therefore, his appeal stood abated on 06.10.2015. At present this appeal pertains to the two appellants namely Mahavir and Brij Nandan. 3. The unfolded background facts giving rise to the present appeal as are discernible from the written report (Ext. Ka-10), Chik FIR (Ext. Ka-20) and deposition of fact witnesses during sessions trial are that all three accused are real brothers. The deceased Tej Singh was closely related with them and he used to reside adjacent to the house of the accused persons. The father of the accused persons namely Sukkha and deceased had some joint land. Sukkha, father of the accused is alleged to have mortgaged his portion of joint land to a bank for securing loan and since he could not repay the loan amount, the bank in order to recover the loan amount got the said portion of the land (belonging to Sukkha) auctioned. In the auction, the said land was purchased by one Mahant Keshari Dutt who executed an agreement to sell the said portion of the land to the deceased Tej Singh but after executing the said agreement, Mahant Keshari Dutt died in an accident. However, the wife of Mahant Keshari Dutt instead of selling the said land to the deceased Tej Singh entered into a fresh agreement with the accused after seeking permission of the District Judge. 4. Thereafter the deceased Tej Singh issued a notice to the wife of Mahant Keshari Dutt through his counsel to sell the said land to him. However, the wife of Mahant Keshari Dutt instead of selling the said land to the deceased Tej Singh entered into a fresh agreement with the accused after seeking permission of the District Judge. 4. Thereafter the deceased Tej Singh issued a notice to the wife of Mahant Keshari Dutt through his counsel to sell the said land to him. It has also been alleged that in the year 1969, the deceased Tej Singh had purchased a land measuring 1.92 acre from one Sohan Shanker. Sukkha, father of the accused requested the deceased Tej Singh in the year 1969 itself to give the said land to him as he (Tej Singh) had sufficient land in his name. Accordingly, in the year 1969 itself, the deceased Tej Singh executed an agreement to sell the said land to Sukkha, father of the accused-appellants for a sum of Rs.1700/-. As per the terms and conditions of the agreement, Rs.300/- was paid at the time of execution of the agreement whereas Rs.1400/- was required to be paid by Sukkha within two and half years from the date of execution of the agreement. But even after lapse of two and half years, Sukkha did not pay the said balance amount as a result of which the deceased Tej Singh did not execute the sale deed of the said land in favour of Sukkha, father of the accused. Sukkha instead of paying the balance amount, as per terms and conditions of the agreement to sell filed a civil suit, against the deceased Tej Singh which proceeded for some time but later on the civil suit was dismissed in default. Thereafter, Sukkha moved an application for recalling the order dismissing the suit in default. The order dismissing the civil suit in default was recalled and the civil suit was restored to its original number. 5. Because of the above dispute between Sukkha, father of the accused-appellants and the deceased Tej Singh, there was ill-will and enmity between the two families, and due to which the deceased Tej Singh had made a report against Sukkha and some other persons on 06.08.1981 and he had moved also an application to the Superintendent of Police, Mathura, in the year 1981. 6. 6. On 17.06.1987 at about 3:30 p.m. when the deceased Tej Singh was going to market and was passing from in front of the house of the accused-appellants then the accused Tano @ Tan Singh armed with a country-made pistol, accused Mahavir armed with a ballam, accused Brij Nandan and Shanker armed with Lathies came out of their house and started beating him with Ballam and Lathi with an obvious intention to commit murder. On hearing shrieks of the deceased Tej Singh, his brother Mahipal Singh, his son Taran Singh and his widowed daughter-in-law Smt. Beena arrived at the scene of occurrence from their house. When they tried to intervene, Smt. Beena and Taran Singh were also given lathi blows. When the other persons arrived/gathered at the spot then the accused-appellants ran away from the scene of the occurrence. Thereafter, the injured Tej Singh (deceased) along with injured Taran Singh and Smt. Beena Devi were taken to the Police Station Vrindavan by Mahipal Singh, brother of the deceased where Mahipal Singh lodged the written report at 4:20 p.m. The deceased and the two other injured Taran Singh and Smt. Beena Devi were referred to I.D. Hospital, Vrindavan for medical examination but the deceased Tej Singh died around 4:35 p.m. as a result of injuries which were sustained by him in the alleged incident. Consequently case under Section 302 IPC was registered at the Police Station Vrindavan in the relevant G.D. at 18:30 Hrs. on 17.06.1987. 7. S.I. Shambhu Dayal, Police Station Vrindavan prepared panchayatnama (Ext. Ka-11) and other connected papers (Ext. Ka-12 to Ext. Ka-19) in respect of the dead body of the deceased Tej Singh and sent the dead body to the mortuary in a sealed cover for post mortem examination. 8. Dr. B.K. Gupta conducted post mortem examination on the cadaver of the deceased Tej Singh on 18.06.1987 at 4:00 p.m. at Civil Hospital, Mathura and found the following external ante mortem injuries on the body of the deceased. (i) Incised wound 5 cm x 2.5 cm x bone deep horizontal in direction on the top of head 9 cm from right ear. (ii) Abrasion .5 cm x .5 cm on the front of forehead middle area. (iii) Multiple abrasion in an area 3 cm x 2 cm on right cheek below and adjoining the eye. (i) Incised wound 5 cm x 2.5 cm x bone deep horizontal in direction on the top of head 9 cm from right ear. (ii) Abrasion .5 cm x .5 cm on the front of forehead middle area. (iii) Multiple abrasion in an area 3 cm x 2 cm on right cheek below and adjoining the eye. (iv) Abrasion in side of left knee joint .5 cm x .5 cm. (v) Incised wound 2 cm x 1 cm x muscle deep on inner side middle of left leg. (vi) Incised wound 1 cm x .3 cm x muscle deep 4 cm below injury no.5. (vii) Incised wound 2 cm x 1 cm muscle deep on outer side of right thigh in upper half part. (viii) Incised wound 1 cm x .5 cm x muscle deep 6 cm below injury no.7. (ix) Contusion 24 cm x 12 cm on back of right buttock and adjoining part of back of abdomen. Cause of death was reported to be coma resulting from ante mortem head injury. 9. Dr. G.P. Dabakara, I.D. Hospital Vrindavan had medically examined the injured Taran Singh on 17.06.1987 at 4:30 p.m. and found the following injuries on his person: (i) Lacerated wound 6 cm x 0.5 cm up to bone on right forehead 7 cm above from right eyebrow. Bleeding present. (ii) Traumatic swelling over an area of 4 cm x 2 cm on right forehead up to right eyebrow. (iii) Contusion 14 cm x 2 cm on right scapula region obliquely. (iv) Contusion 8 cm x 2 cm on right upper arm front and outer aspect. (v) Contusion 3.5 cm x 2 cm on right forearm just above wrist joint on back aspect. (vi) Lacerated wound 6 cm x 0.8 cm up to bone on right leg front aspect 8 cm above and away from right ankle joint. Bleeding present. (vii) Contusion 5 cm x 3 cm on outer aspect of right ankle joint. (viii) Abrasion 1 cm x 0.5 cm on front aspect of right knee joint. (ix) Contusion 12 cm x 2 cm on outer aspect of right thigh upper part. (x) Contusion 8 cm x 3 cm on left side of outer aspect 6 cm above knee joint. (xi) Contusion 9 cm x 2 cm on the left thigh 3 cm above injury no.10. Colour of all contusions were reddish. (ix) Contusion 12 cm x 2 cm on outer aspect of right thigh upper part. (x) Contusion 8 cm x 3 cm on left side of outer aspect 6 cm above knee joint. (xi) Contusion 9 cm x 2 cm on the left thigh 3 cm above injury no.10. Colour of all contusions were reddish. All injuries were simple except injury nos.6 and 7. Injury nos.6 and 7 kept under observation. Advised x-ray, right ankle joint including lower half of right leg AP & AL view for injury nos.6 and 7. All injuries were caused by hard and blunt object. Duration fresh. 10. Dr. G.P. Dabakara, I.D. Hospital Vrindavan had also medically examined the injured Smt. Beena Devi on 17.06.1987 at 4:45 p.m. and found the following injuries on her person: (i) Traumatic swelling over an area of 10 cm x 7 cm on back of left elbow joint. (ii) Contusion 6 cm x 2 cm on left buttock. (iii) Contusion 5 cm x 1 cm on left thigh outer aspect 8 cm above knee joint. Injury nos.2 and 3 were described simple in nature. Injury no.1 was kept under observation. Advised x-ray of left elbow joint. AP & AL view for injury no.1. Injuries caused by hard and blunt object. Duration fresh. Colour of all contusions reddish. 11. The case was registered at Case Crime No.235 of 1987 under Sections 307, 323 IPC, Police Station Vrindavan, District Mathura, in the presence of Inspector Tejeswa Pal Singh, Station House Officer, at Police Station Vrindavan who immediately proceeded to the scene of occurrence along with the complainant, He arrived at the scene of the occurrence and he prepared the site plan, collected simple and blood stained pieces of cement from the scene of the occurrence and he also collected two pieces of blood stained rod alleged to have been used in the commission of the offence and prepared memo (Fard) of the same. After completion of the investigation, he filed charge sheet against the accused-appellants. Thereafter the case of the accused-appellants was committed to the court of Sessions where the case was posted for hearing on framing of charge. 12. After completion of the investigation, he filed charge sheet against the accused-appellants. Thereafter the case of the accused-appellants was committed to the court of Sessions where the case was posted for hearing on framing of charge. 12. The trial court after hearing the prosecution and the accused persons found prima facie ground existing against the accused persons for framing charges under sections 302/34 and 323/34 I.P.C. Accordingly, charges were framed against the accused persons on 29.10.1987 and the same were read over and explained in Hindi to them, to which they pleaded not guilty and claimed to be tried. 13. The prosecution in order to prove its case examined as many as nine witnesses namely Mahipal Singh PW-1, Taran Singh PW-2, Smt. Beena Singh PW-3, Constable Tejeshwa Pal Singh PW-4, Sub-Inspector Shambhu Dayal PW-5, Head Constable Radheyshyam Sharma PW-6, Dr. G.P. Dabakara PW-7, Dr. B.K. Gupta PW-8, In-charge Inspector Tejeshwa Pal Singh PW-9. 14. Mahipal Singh PW-1 is the complainant who is brother of the deceased Tej Singh. He gave in detail the prosecution version. He explained the interse relationship of the accused-appellants and also stated that they are related to him. He testified about the details regarding the purchase of the land by the deceased Tej Singh from Sohan Shanker in the year 1969 and agreement to sell of the said land between the deceased and father of the accused-appellants Sukkha for a sum of Rs.1700/-. He has filed the certified copy of the agreement to sell (Ext. Ka-1), the certified copy of the application moved on behalf of the father of the accused-appellants for restoration of the civil suit filed by him in respect of the said agreement to sale (Ext. Ka-2), the certified copy of the order of the civil court Ext. Ka-3 in the said civil suit, carbon copy of NCR lodged by the deceased Tej Singh against Sukkha and others on 06.06.1981 (Ext. Ka-4) and a copy of the application moved by the deceased Tej Singh before the Superintendent of Police, Mathura (Ext. Ka-5). He had further given the details of the auction sale of the portion of the land of Sukkha, father of the accused-appellants at the instance of the bank and agreement to purchase the said share by the deceased Tej Singh with Mahant Keshari Dutt. Ka-5). He had further given the details of the auction sale of the portion of the land of Sukkha, father of the accused-appellants at the instance of the bank and agreement to purchase the said share by the deceased Tej Singh with Mahant Keshari Dutt. He has further stated that in spite of the said agreement, the wife of Mahant Keshari Dutt entered into a fresh agreement to sell the said land to the deceased Tej Singh. He filed a certified copy of the agreement to sell the land in question with Mahant Keshari Dutt (Ext. Ka-6), a copy of the notice given on behalf of the deceased by his court to the widow of Mahant Keshari Dutt (Ext. Ka-7), a copy of the receipt issued by by the post office (Ext. Ka-8) and a certified copy of the consolidation form (Akar Patra 23) showing that family of the deceased and family of the accused had joint land. He has further given the details of the assault caused by the accused-appellants upon the deceased who were armed with pistol, Lathis and Pharsa. He along with Taran Singh PW-2 and Smt. Beena Devi PW-3 arrived at the scene of the occurrence. Taran Singh and Smt. Beena Devi were also assaulted with Lathis by the accused-appellants. He has proved the FIR (Ext. Ka-10). 15. Taran Singh PW-2 is the son of the deceased Tej Singh who allegedly sustained injuries. He corroborated the statement of Mahipal Singh PW-1 in material particulars regarding the details of the present occurrence. 16. Similarly PW-3 Smt. Beena Devi, daughter-in-law of the deceased Tej Singh is also an injured eyewitness of the occurrence; she has deposed more or less on the same line as PW-1 and PW-2. 17. Constable Tejeshwa Pal Singh PW-4 has stated that he along with another constable took the dead body of the deceased to the mortuary at Mathura for post mortem examination on 17.06.1987. So long as the dead body remained with them, no body had an opportunity to touch or tamper with the same. 18. Sup-Inspector Shambhu Dayal has stated that he had prepared panchayatnama (Ext. Ka-11) and other connected papers relating to the dead body of the deceased (Ext. Ka-12 to Ext. Ka-19) at I.D. Hospital, Vrindavan. 19. Head Constable Radhey Shyam Sharma PW-6 is the scribe of Chik report (Ext. Ka-20) and corresponding G.D. Entry (Ext. Ka-21). 18. Sup-Inspector Shambhu Dayal has stated that he had prepared panchayatnama (Ext. Ka-11) and other connected papers relating to the dead body of the deceased (Ext. Ka-12 to Ext. Ka-19) at I.D. Hospital, Vrindavan. 19. Head Constable Radhey Shyam Sharma PW-6 is the scribe of Chik report (Ext. Ka-20) and corresponding G.D. Entry (Ext. Ka-21). He has also proved the certified copy of the G.D. entry by which special report of the present occurrence was sent to the concerned authorities through constable Ashok Kumar, copy of which is Ext. Ka-22. 20. Dr. G.P. Dabakara PW-7 has stated that on 17.06.1987 at 4:30 p.m. and 4:45 p.m., he had medically examined Taran Singh and Smt. Beena Devi and has proved their injury reports Ext. Ka-23 and Ext. Ka-24 respectively. In his opinion, injuries on the person of the two injured could have been caused on 17.06.1987 at about 3:30 p.m. 21. Dr. B.K. Gupta PW-8 has stated that on 18.06.1987 about 4:00 p.m., he conducted post mortem examination on the dead body of the deceased Tej Singh and has proved the post mortem examination report (Ext. Ka-25). In his opinion, injury no.3, 4 and 9 found on the body of the deceased could have been caused by pieces of Danda (Ext 1 and Ext. 2), injury nos.1, 5, 6, 7 and 8 could have been caused by a flat ballam provided only its one side hit the body of the deceased and the deceased could have died on 17.06.1987 at about 3:00 p.m. to 3:30 p.m. 22. Incharge-Inspector Tejashwa Pal Singh PW-9 is the Investigating Officer of the case. He has stated that the present case was registered at Police Station Vrindavan in his presence and at the police station itself, he recorded statements of the Head Moharrir who prepared the Chik report and also statement of the complainant Mahipal Singh. Thereafter he went to the scene of occurrence where he prepared site plan (Ext. Ka-27), Fard of the blood stained and simple pieces of cement and also Fard of two pieces of Danda collected from the scene of the occurrence (Ext. Ka-28 and Ext. Ka-29). The Investigating Officer also stated that he recorded statements of the other prosecution witnesses as well as the accused persons. After completion of the investigation, the Investigating Officer filed charge sheet (Ext. Ka-30) against the accused-appellants. Ka-28 and Ext. Ka-29). The Investigating Officer also stated that he recorded statements of the other prosecution witnesses as well as the accused persons. After completion of the investigation, the Investigating Officer filed charge sheet (Ext. Ka-30) against the accused-appellants. In his cross-examination, the Investigating Officer has also proved the report of the chemical examiner (Ext. Ka-26) which had been tendered in evidence by the prosecution. 23. Thereafter the case for the prosecution was closed and was posted for recording statement of the accused persons under section 313 Cr.P.C. In their statement under section 313 Cr.P.C, the accused persons have stated that they have been falsely implicated in this case due to enmity. The accused-appellant Tano @ Tan Singh has stated that his in-laws used to reside in Balkeshwar Colony Agra and on the alleged day of occurrence, he and his brother Shanker had gone over to Agra to take his wife back. He stated that since the deceased had illegitimate connection with the injured Smt. Been Devi, in fact some scuffle took place between Smt. Beena Devi and Taran Singh. He also stated that the husband of Smt. Beena Devi committed suicide because of her illegitimate relationship with the deceased and the deceased Tej Singh had turned out his wife from the house. He also stated that he and his brothers have been falsely implicated in the present case because the complainant and other persons want to grab their land. The accused Shanker has stated that he is a student of B.A. final and on the alleged day of the occurrence he had gone over to Agra along with his brother Tan Singh to take back his sister-in-law. The accused Brij Nandan has stated that he is a student of B.A. first year. 24. In their defence, the accused-appellants examined as many as five defence witnesses. Sri Chandra Prakash Saxena, J.A. II Collectorate Mathura DW-1 has stated that special report was endorsed to him by the District Magistrate on 18.06.1987 and he also stated that the endorsement is under the signature of the District Magistrate, Sri G. Patnaik dated 18.06.1987. 25. Laxmi Narain Sharma DW-2, JM-I, District Magistrate Office, Mathura has stated that on the basis of the record of the Collectorate, Mathura, no wireless message relating to the present occurrence seems to have been received in the office. 26. 25. Laxmi Narain Sharma DW-2, JM-I, District Magistrate Office, Mathura has stated that on the basis of the record of the Collectorate, Mathura, no wireless message relating to the present occurrence seems to have been received in the office. 26. H.C. Radhey Shyam Sharma DW-3 has stated that a wireless set was installed at Police Station Vrindavan for the last five and seven years. He has stated that no record is available at the police station for the information in regard to the present occurrence through wireless message. 27. Sri Jaswant Singh, DW-4 Advocate Civil Court at Agra has stated that the accused-appellant Tan Singh was married with Saroj in the same Mohalla in which he used to reside with his wife. He further stated that on 17.06.1987, the accused Tan Singh and Shanker had gone to Agra for taking the wife of Tan Singh. He also stated that next date at about 10:00 or 11:00 a.m., the accused Brij Nandan also reached over there and told that on 17.06.1987 there was some altercation between the deceased Tej Singh and his brothers as a result of which they have falsely implicated him and his brothers in the present case. 28. Anand Swarup Desh Bhakt, DW-5 Local Correspondent of newspapers 'Amar Ujala' published from Agra has proved the report of the present occurrence published in the said newspaper on 18.06.1987. He filed a copy of the said newspapers (Ext. Kha-7) and the said news item is (Ext. Kha-8). 29. The learned trial court examined the two court witnesses in the present case. CW-1 Yaduvir Singh Tomar, Station Officer Control Room, Police Line Mathura, who has stated that no copy of the wireless message regarding the present occurrence is available in his office and he has also filed a standing order in respect of maintenance of the radiograms, copy of which is CW1/1. CW-2 Sudarshan Singh SHO Vrindavan has stated that in cases where special report is sent, sometimes wireless message is also given and sometime oral information on wireless is given. He has also stated that no copy of the wireless message relating to the present occurrence is available in the record of Police Station Vrindavan. 30. From the side of the accused-appellants, following documents were also filed in their defence: (A) A certified copy of the plaint in Case No.272 of 1972 (Ext. Kha-9). He has also stated that no copy of the wireless message relating to the present occurrence is available in the record of Police Station Vrindavan. 30. From the side of the accused-appellants, following documents were also filed in their defence: (A) A certified copy of the plaint in Case No.272 of 1972 (Ext. Kha-9). (B) Original agreement to sale in respect of the portion of share purchased by Mahant Keshari Dutt executed by his widow in favour of the present accused-appellants (Ext. Kha-10). (C) A certified copy of the order of the District Judge permitting Smt. Beena Devi to enter into the said agreement (Ext. Kha-11). (D) A certified copy of the order sheet of the Court of Munsif Mathura, in Original Suit No.272 of 1972 Sukkha Vs. Tej Singh (Ext. Kha-12). (E) The accused-appellants Shanker Singh and Brij Nandan also filed their identity cards to show that they were students of Kishori Raman College, Mathura and Institute of Oriental Philosophy, Vrindavan Mathura, in 1988 and 1987-88. 31. We have heard the respective submission of both the sides and perused the record. 32. The moot point involved for determination of this appeal pertains to the effect as to whether the occurrence took place in the manner as stated by the prosecution witnesses and the charges have been proved beyond reasonable doubt? 33. Learned counsel for the accused-appellants raised the arguments that the prosecution has not been able to prove the charges framed against the accused-appellants beyond reasonable doubt. Firstly, it has been contended by the learned counsel for the accused-appellants that the first information report lodged against the accused-appellants was anti timed. In this regard, learned counsel for the accused-appellants has argued that Chik report (Ext. Ka-20) shows that initially the case was registered at Police Station Vrindavan at 4:20 p.m. under Sections 307 and 323 IPC. However, in Majroobi Chitthi (Ext. Ka-1 and Ext Ka-2), it was shown that the case was registered under Section 308 and 323 IPC while in the site plan (Ext. Ka-27), the case was shown to have been registered under Sections 307, 323, 302 IPC and in special report (Ext. Ka-3) Section 302 IPC is written by ink while other sections viz 307 and 323 IPC are in carbon. Ka-27), the case was shown to have been registered under Sections 307, 323, 302 IPC and in special report (Ext. Ka-3) Section 302 IPC is written by ink while other sections viz 307 and 323 IPC are in carbon. In Majroobi Chitthi, the case was shown to be registered under Section 308 IPC while in the site-plan, the same has been shown to be registered under Section 302 IPC and in special report (Ext. Ka-3), the fact that Section 302 IPC has been written by ink leads to the conclusion that by the time, these documents were prepared, Chik report of the case had not been prepared. The argument carries no force, for the reason that the facts and circumstances of the case are placed in a manner which would apparently justify above irregularities appearing on papers while mentioning various sections of Indian Penal Code. 34. It is important to note that Chik report Ext. Ka-20 shows that the case was registered at Police Station Vrindavan at 4:20 p.m. Thereafter, immediately the injured Taran Singh and Smt. Beena Devi and injured Tej Singh (deceased) were sent to I.D. Hospital for their medical examination and injury report of Taran Singh (Ext. Ka-23) shows that he was medically examined there at 4:30 p.m. i. e. within 10 minutes of the lodging of the first information report while Smt. Beena Devi was medically examined at 4:45 p.m. and it was not disputed that the deceased died at 4:35 p.m. i.e. within 15 minutes of recording of Chik report. No doubt, the case was converted into one under Section 302 IPC around 06:00 or 6:30 p.m. at Police Station Vrindavan, but it is important to take note of fact and circumstance that the place of occurrence is Vrindavan town itself and since the deceased died within 15 minutes of lodging of the first information report; Inspector Tejeshwa Pal Singh PW-9 left for the scene of the occurrence after recording statement of the complainant and the Head Constable at the police station itself. Here under such circumstance, possibility cannot be ruled out that when he left the police station, informal report might have been received at the police station that the deceased had died, which explains as to why in the site-plan (Ext. Ka-27), Section 302 IPC has been shown. 35. Inspector Tajeshwa Pal Singh explained that Ext. Kha-1 and Ext. Here under such circumstance, possibility cannot be ruled out that when he left the police station, informal report might have been received at the police station that the deceased had died, which explains as to why in the site-plan (Ext. Ka-27), Section 302 IPC has been shown. 35. Inspector Tajeshwa Pal Singh explained that Ext. Kha-1 and Ext. Kha-2 are in the hand writing of Sub-Inspector Shambhu Dayal and possibility cannot be ruled out that since the condition of the deceased was serious, immediately on receipt of the written report, Majroobi Chitthi of the two injured and the deceased were prepared and they were forwarded to I.D. Hospital and thus if in Majroobi Chitthi in place of Section 307 IPC, Section 308 IPC has been written, undue importance cannot be attached to this faulting fact, which under context appears to be insignificant and arising out of oversight. 36. In the present case as discussed above, medical examination of Taran Singh took place at 4:30 p.m. and that of the other injured namely Smt. Beena Devi took place at 4:45 p.m. and since the deceased died at 4:35 p.m. and special report was sent at about 8:00 p.m. as is evident from copy of G.D. Entry (Ext. Ka-22), there is hardly any possibility of the first information report having been made anti timed because the occurrence itself is alleged to have taken place at 3:30 p.m., thus undue importance cannot be given to the fact that in Majroobi Chitthi (Ext. Kha-1) and (Ext. Kha-2), the case has been shown to have been registered under Section 308 IPC while in site-plan Ext. Ka-27 also, Section 302 IPC has been mentioned. Lack of any explanation as to why in special report, copy of which is Ext. Kha-3, Section 302 IPC has been written in handwriting also not material and does not, under circumstances belie the incident as narrated by the prosecution because Ext. Ka-3 is nothing but a carbon copy of Chik report. This slip might have been result of hurried activity at the police station where the condition of the deceased Tej Singh was serious and he died in a short while after lodging of FIR at about 4:35 p.m. 37. In so far as fact regarding the FIR being anti-timed is concerned, there is no concrete circumstance or evidence alluding to inference that the FIR in question is anti timed. In so far as fact regarding the FIR being anti-timed is concerned, there is no concrete circumstance or evidence alluding to inference that the FIR in question is anti timed. On the other hand circumstance and evidence as discussed above will clarify itself that FIR was duly lodged at the particular point of time at 4:20 p.m. soon after the incident (3:30 p.m.) and the incident took place in city Vrindavan itself. Argument raised by the learned counsel for the accused-appellants that the first information report is anti timed, is not sustainable and is, accordingly, discarded. 38. Learned counsel for the accused-appellants has next contended that copy of G.D. Entry (Ext. Ka-21) shows that Head Constable Radhey Shyam Sharm PW-6 found two injuries on the body of the deceased Tej Singh at the police station whereas according to the post mortem examination report as many as nine external injuries were found on his body and similarly according to (Ext. Ka-21), injuries on the body of Taran Singh as seen by Head Constable were confined to two in number, whereas, according to his injury report Ext. Ka-23 as many as 11 injuries were found on his body by the doctor. Similarly, according to Ext. Ka-21, number of injuries shown on the person of Smt. Beena Devi is much less than the number of injuries found on her person by the doctor as is evidenced from Ext. Ka-24. Therefore, above discrepancies show that number of injuries shown in the post mortem examination report and in injury reports of the two injured is not correct and benefit of this fact should be given to the accused-appellants. 39. In this context, evidence, facts and circumstances on record engage our attention to the fact that Taran Singh was medically examined by Dr. G.P. Dabakar PW-7 at 4:30 p.m. i.e. after one hour whereas Smt. Beena Devi was medically examined by him at 4:45 p.m. i.e. whithin one hour and fifteen minutes of the occurrence. Similarly, Panchayatnama (Ext. Ka-11) was prepared at 8:20 p.m. and in the said Panchayatnama, number of external injuries on the body of the deceased has been shown to be eight. Under circumstances it is possible that Head Constable Radhey Shyam Sharma PW-6 did not record all the injuries which were found on the body of the deceased as well as on injured Taran Singh and Smt. Beena Devi. Under circumstances it is possible that Head Constable Radhey Shyam Sharma PW-6 did not record all the injuries which were found on the body of the deceased as well as on injured Taran Singh and Smt. Beena Devi. Here his personal negligence will not overthrow actual facts already appearing in evidence of doctor witness. PW-6 recorded in Chik report (Ext. Ka-21) only bleeding injuries of the deceased and the two injured. Therefore, mis-description of injuries by constable will not negate actual facts. It appears that constable (PW-6) himself has acted perfunctorily in negligent manner. 40. Circumstances of the case indicate that since local police was in a hurry to send the deceased and the two injured to the hospital, Head Constable Radhey Shyam Sharma PW-6 did not make a minute examination of injuries of the deceased and the two injured and that is why misdescription of number of injuries might have resulted. Therefore, the above specific argument hardly carries any force. 41. In so far as the point of actual incident is concerned, proper appraisal of evidence and circumstances on record lead us to the following analysis that according to the prosecution version, the accused-appellant Mahavir was armed with Ballam and he assaulted deceased with the said Ballam. Normally a Ballam causes punctured wound, but admittedly there was no punctured wound on the body of the deceased as is evident from post mortem examination report (Ext. Ka-25) of the deceased. The deceased had four incised wounds on his body. Before the learned trial court, PW-1 to PW-3 have deposed that the accused-appellant Mahavir used the said Ballam as a Lathi and assaulted in that manner, therefore, injuries were caused to the deceased by the use of Ballam from its sharp portion and not from its pointed portion. However, admittedly the fact that Ballam was used as Lathi has not been mentioned either in written FIR (Ext. Ka-10) or in the statement of PW-1 to PW-3 and in the above background, the learned counsel for the accused-appellants submits that it is doubtful if the deceased was assaulted with a Ballam. The argument is intensified by contending that presence of incised wounds on the body of the deceased shows that the deceased was given beating with a Farsa. 42. Under the context, it is established that point of enmity between the complainant side and the accused side was in existence. The argument is intensified by contending that presence of incised wounds on the body of the deceased shows that the deceased was given beating with a Farsa. 42. Under the context, it is established that point of enmity between the complainant side and the accused side was in existence. Therefore, motive to commit crime is very much proved under facts and testimony placed on record. 43. It has been testified by the prosecution witnesses of fact that Ballam was used as Lathi from its sharp side. Thus the blow so caused will result in incised wounds and will not cause any punctured wound. The above conclusion can be easily drawn on account of clear cut testimony of doctor witness (PW-8), B.K. Gupta who described injuries no.1, 5, 6, 7 and 8 in his testimony as incised wounds. The doctor witness has not been specifically confronted by the defence that the above injuries cannot be so caused by use of Ballam. Thus the very above specific incised wounds in the facts and circumstances are proved to have been caused by use of Ballam as stated by the prosecution witnesses. 44. Both the injured witnesses have categorically stated that the Ballam was not used from its pointed side but it was used like a Lathi. 45. More so, nothing adverse has been brought to our notice about non-presence of the prosecution witnesses on the spot. More so, the evidence after cross-examination of the prosecution witnesses of fact very much establishes their presence on the spot as natural one. 46. The two injured witnesses Taran Singh and Smt. Beena Devi have testified to the effect that they were also given Ballam blows by the assailants, but on their medical examination, injuries caused by blunt object was discovered. In this regard it can be easily inferred that to the above extent, testimony of PW-2 and PW-3 appears to be exaggerating one. But that alone will not be suffice to throw away their entire testimony for the reason that their testimony regarding manner of assault is found to be reliable one after strenuous cross-examination by the defence. 47. Discrepancy, whatever appearing in the testimony of PW-2 and PW-3 cannot be termed as material one on point of mentioning words like "Lathi" and "Danda". In so far as manner of assault being caused is concerned, the same appears under circumstances reliable and consistent. 47. Discrepancy, whatever appearing in the testimony of PW-2 and PW-3 cannot be termed as material one on point of mentioning words like "Lathi" and "Danda". In so far as manner of assault being caused is concerned, the same appears under circumstances reliable and consistent. If testimony of injured eyewitnesses inspires confidence then minor discrepancies as a measure of caution are to be overlooked. 48. Tejeshwa Pal Singh PW-9 has testified in innocuous terms that he found blood stained Danda (pieces) at the place of occurrence. He has also stated that he recorded statement of one witness Ram Baran who had stated to have seen the incident but he refused to testify to the same in Court. Thus non-production of any independent witness, under circumstances and facts of the case will not minimize creditworthiness of the prosecution witnesses. 49. Report of serologist about human blood on Danda also proves its use in the incident which was collected by the Investigating Officer from the place of occurrence and sent for chemical examination. 50. A careful scrutiny of testimony of PW-9 (Investigating Officer) establishes that he did not come across any fact which may establish illicit relationship between the deceased and his daughter-in-law Beena Devi (PW-3). Besides, it has also been specifically stated that during investigation he (PW-9) did not come across any material which might show that prior to any such occurrence there was some 'Marpit' interse between the members of the complainant side. Thus the very suggestion of Marpit interse as attributed to the prosecution witnesses virtually admits the actual Marpit by the accused-appellants themselves. More so, the suggestion of any prior Marpit interse between members of complainant prior to the actual incident has been specifically denied by the prosecution witnesses of fact. 51. In so far as the contention, regarding deviation in sending special report by wireless to the authorities concerned, as raised by counsel for appellants is concerned, this much can be conveniently observed that mere some deviation in sending report by wireless will not ipso facto minimize the actual occurrence as has been established by the cogent evidence of the prosecution witnesses. Lapse on the part of the police personnel and non-production of such procedural record would not suffice to throw away veracity of the prosecution case. Arguments against above fact are accordingly not significant but the same is raised to be ignored for above reason. 52. Lapse on the part of the police personnel and non-production of such procedural record would not suffice to throw away veracity of the prosecution case. Arguments against above fact are accordingly not significant but the same is raised to be ignored for above reason. 52. The various trivial anomalies pointed out in the prosecution case by the learned counsel for the appellants do not hit at the root of the case. These anomalies and aberrations are on the face procedural one and due to laches being committed by the police personnel. These by itself do not weaken the prosecution version as is the case in hand. 53. In a catena of cases, the Hon'ble Apex Court has expounded categorical legal proposition that triavial matters not touching the core of the case, hyper-technical approach by taking version/sentence torn out of context here or there from evidence, attaching importance to some technical errors committed by the Investigating Officer not going to the root of the matter would not ordinarily permit rejection of evidence as a whole. 54. Here in this case we after careful scrutiny of evidence may observe that even honest and truthful witnesses may differ in some details unrelated to the main incident because the power of observation, retention and reproduction differs from person to person and cross-examination is an unequal duel between a rustic witness and a refined lawyer. 55. We may conveniently sum up that evidence of PW-2 and PW-3 if read as a whole proves the case of the prosecution beyond reasonable doubt leading to irresistible conclusion that there is no discrepancy in the evidence of PW-2 or PW-3 on any material point and there is no apparent or inherent flaw in their testimony. So far as evidence of Mahipal Singh PW-1 is concerned, he is also a natural witness in the sense that he also reached at the scene of the occurrence from the same house from where PW-2 and PW-3 had come. Since he lodged the FIR (Ext. Ka-10) in lesser than one hour of the occurrence, his presence at the spot cannot be doubted though he might not have been in better position than PW-2 and PW-3. On careful appraisal of his entire testimony we discover no material discrepancy in his evidence. 56. Since he lodged the FIR (Ext. Ka-10) in lesser than one hour of the occurrence, his presence at the spot cannot be doubted though he might not have been in better position than PW-2 and PW-3. On careful appraisal of his entire testimony we discover no material discrepancy in his evidence. 56. Consequently, the contention raised by the learned counsel for the appellant are devoid of force and the various grounds urged in support of the appeal are not sustainable. Conviction of the appellants recorded by the trial court is hereby upheld. Appellants Mahavir and Brij Nandan are on bail. Their personal and surety bonds are cancelled and they are directed to be taken into custody and lodged in jail to serve out remaining part of their sentence imposed upon them herein above. The appeal is devoid of merits and the same is dismissed. 57. Let a copy of the judgment be certified to the trial court for it's intimation.