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2016 DIGILAW 2159 (ALL)

Hari Lal alias Shambhoo v. State of U. P.

2016-06-07

SHASHI KANT, SURENDRA VIKRAM SINGH RATHORE

body2016
JUDGMENT Surendra Vikram Singh Rathore, J. – Both these aforesaid criminal appeals arise out of a common judgment, hence both are being disposed of together. 2. Criminal Appeal No. 572 of 2008 has been preferred by convicted appellant Hari Lal alias Shambhu while Criminal Appeal No. 409 of 2008 has been preferred by appellant Tulsi Ram. 3. Heard Mr. P.K. Pandey, learned counsel for the appellants, Mr. Mohd. Yusuf Ansari, learned A.G.A. for the State and perused the lower court record. 4. Under challenge in both the aforesaid appeals is the judgment and order dated 22.1.2008 passed by learned Additional Sessions Judge, Court No. 5, Unnao in Sessions Trial No. 38 of 2005, arising out of Case Crime No. 391 of 2004, Police Station Gangaghat, District Unnao and Sessions Trial No. 39 of 2005 arising out of Case Crime No. 392 of 2004 under Section 3/25 of the Arms Act, Police Station Gangaghat, whereby appellant Hari Lal alias Shambhu was convicted under Section 302 I.P.C. and was sentenced with imprisonment for life and also with fine of Rs. 3,000/- with default stipulation of one year simple imprisonment and was further convicted under Section 307 I.P.C. and was sentenced with rigorous imprisonment for a period of ten years and also with fine of Rs. 1,000/- with default stipulation of six months additional simple imprisonment. He was further convicted under Section 3/25 of the Arms Act and was sentenced with rigorous imprisonment for a period of one year and also with fine of Rs. 500/- with default stipulation of three months additional simple imprisonment. Appellant Tulsi Ram was convicted under Sections 302/109 I.P.C. and was sentenced with imprisonment for life and also with fine of Rs. 3,000/- with default stipulation of one year simple imprisonment and was further convicted under Section 307/109 I.P.C. and was sentenced with rigorous imprisonment for a period of ten years and also with fine of Rs. 1,000/- with default stipulation of six months additional simple imprisonment. Both the sentences of the appellants were directed to run concurrently. However, by the same judgment accused Raju was acquitted of all the charges levelled against him. 5. 1,000/- with default stipulation of six months additional simple imprisonment. Both the sentences of the appellants were directed to run concurrently. However, by the same judgment accused Raju was acquitted of all the charges levelled against him. 5. In brief the case of the prosecution was that complainant Chhote Lal lodged an F.I.R. of this case at Police Station Gangaghat, which was at a distance of 16 kilometers, on 8.9.2004 at 18: 30 hours alleging therein that on that day at about 3: 00 p.m., he along with his son Nanha aged about 12 years and Kallu were coming from Village Shekhpur, which was his Sasural to his house. When they reached in between village Bhatpurwa and Langdapurwa then appellant Hari Lal alias Shambhu, Raju sons of Tulsi Ram and Tulsi Ram residents of Langdapurwa asked them to stop and said that you have killed his dog and your wife has badly abused them so they will not spare him. On the exhortation of Tulsi Ram, Hari Lal alias Shambhu fired with his country-made pistol on the complainant due to which the complainant and his son Nanha sustained injuries. Hearing the noise, several persons of the vicinity reached there. With the help of all these persons Hari Lal alias Shambhu was apprehended on spot along with his country-made pistol. However, Raju and Tulsi Ram were successful in making good their escape. The complainant along with arrested accused Hari Lal with country-made pistol went to the police station and lodged the F.I.R. of this case where the case was registered and the complainant and his son were send for their medical examination to District Hospital Unnao. Medical examination of complainant Chhote Lal was conducted in the District Hospital, Unnao on 8.9.2004 at 7: 00 p.m. However, his son Nanha succumbed to the injuries while on way to the hospital. After reaching the District Hospital Unnao, he was declared dead and the information of his death was sent to police station concerned on phone. On the basis of which, the case was converted under Section 302 I.P.C., which was initially registered under Sections 307, 323, 504 and 506 I.P.C., and the information of death of Nanha was also sent through Sweeper of the District Hospital to the local police station. On the basis of the said information, the following day, inquest proceedings were conducted on the body of deceased Nanha. On the basis of the said information, the following day, inquest proceedings were conducted on the body of deceased Nanha. Postmortem on the body of the deceased was conducted on 9.9.2004 at 5: 35 p.m. The duration of death was reported to be about one day and following ante mortem injuries were reported by the doctor: - (i) Multiple lacerated wound of firearm injury of entry over front of forehead and front of Nose of different size about 0.5 cm x 0.5 cm x brain cavity deep, margins were inverted and blackening was present around the wound. On dissection fracture of nasal bone, fracture of both frontal bone was found. Six deformed small pellets were recovered from the brain cavity. In the opinion of the doctor, the cause of death was shock and hemorrhage as a result of ante-mortem injuries. Complainant Chhote Lal, who was also injured, was also medically examined on 8.9.2004 at 7: 00 p.m. and following ante-mortem injuries were reported by the doctor: - (i) Lacerated wound 2 cm x 0.5 cm x skin deep on left side head, 5 cm above left eye brow. Clotted blood present and x-ray of skull was advised. (ii) Lacerated wound 1 cm x 0.2 cm x skin deep on left side head, 1 cm above, injury no. (i), x-ray of skull was advised. (iii) Lacerated wound 1.5 cm x 0.5 cm x skin deep on left nipple, x-ray of chest was advised. (iv) Lacerated wound 1 cm x 0.2 cm x skin deep on front of left shoulder. X-ray of left shoulder was advised. The injuries were kept under observation, caused by friction of blunt weapon/object and duration was fresh. 6. After registration of the case, investigation was taken up by S.I. Kalyan Singh, who went to the place of occurrence, as none was present there so no progress in the investigation could be made in the night. On the telephonic information of death of Nanha, the case was converted under Section 302 I.P.C. and thereafter the investigation was handed over to S.H.O. Surya Nath Singh (PW-9). The second Investigating Officer inspected the place of occurrence on 10.9.2004. From the place of occurrence, bloodstained and plain soil was recovered and its memo was prepared. An empty cartridge was also recovered from the place of occurrence on 10.9.2004 and its memo was prepared on. The second Investigating Officer inspected the place of occurrence on 10.9.2004. From the place of occurrence, bloodstained and plain soil was recovered and its memo was prepared. An empty cartridge was also recovered from the place of occurrence on 10.9.2004 and its memo was prepared on. The country-made pistol, which was used as a weapon of offence by accused Hari Lal and after his arrest, which was deposited at police station at the time of registration of the case, was formally taken into custody and its memo was prepared. One live cartridge was also recovered along with the said country-made pistol from appellant Hari Lal. 7. After completing the investigation, charge sheet was filed against all the named accused persons. 8. The defence of appellant Tulsi Ram was that brother of Chhote Lal named Agnu has criminal history and the persons having enmity with Agnu and Chhote Lal have murdered Nanha and he has been falsely implicated because of the family enmity. Accused Hari Lal alias Shambhu has stated that he has not shot any fire. He was arrested by complainant and villagers and was taken to police station and false recovery of country-made pistol and cartridge was shown against him. He has also stated that he was coming back from Kanpur after completing his work. Near Sanisaray, police and public persons apprehended him and he has been falsely implicated in this case. Thus two contradictory defence have been taken by appellant Hari Lal himself in his statement under Section 313 Cr.P.C. 9. In order to prove its case, the prosecution has examined PW-1 complainant Chhote Lal, who is an injured witness and father of the deceased. PW-2 Kallu, an eyewitness of this incident and brother of the deceased. PW-3 Constable Surendra Bahadur, who has prepared chik report and G.D. of this case and also G.D. of conversion of the case under Section 302 I.P.C. PW-4 Dr. Pawan Kumar, who has conducted postmortem on the body of deceased Nanha. PW-5 S.I. Kalyan Singh, initial Investigating Officer of this case, who has investigated the case till its conversion under Section 302 I.P.C. PW-6 S.I. Gul Jannat Siddiqui, who on the information received from the District Hospital, Unnao has conducted the inquest proceedings. PW-7 S.I. Dhirendra Singh has proved the sanction and other papers relating to Arms Act. PW-8 Dr. A.K. Agarwal, who has medically examined complainant Chhote Lal. PW-7 S.I. Dhirendra Singh has proved the sanction and other papers relating to Arms Act. PW-8 Dr. A.K. Agarwal, who has medically examined complainant Chhote Lal. PW-9 S.I. Surya Nath Singh, the Investigating Officer of this case. 10. No evidence in defence was adduced on behalf of the appellants. 11. After appreciating the evidence available on record, the trial court has granted benefit of doubt to accused Raju and has convicted both the aforesaid appellants, hence these criminal Appeals. 12. The main submission of learned counsel for the appellants was that in the instant case, country-made pistol, which is alleged to have been found from the possession of appellant Hari Lal at the time of his arrest at the place of occurrence, was sent to Forensic Science Laboratory. Empty cartridge, which was recovered from the place of occurrence, was also sent to Forensic Science Laboratory and the report of Forensic Science Laboratory is to the effect that the recovered 12 bore cartridge was not fired by the country-made pistol, recovered from the possession of appellant Hari Lal and on this strength, it is argued that entire case becomes doubtful. It has also been argued that both the witnesses are related witnesses and are chance witnesses. No independent witness could be produced by the prosecution in support of its case. He has also argued that the evidence of exhortation is a weak type of evidence and appellant Tulsi Ram has been assigned the only role of exhortation. Similar role was also assigned during trial by PW-2 Kallu to accused Raju also but he has been acquitted, therefore, on the basis of the same evidence, appellant Tulsi Ram cannot be convicted and the trial court has not considered this aspect of the matter. 13. Learned A.G.A. has argued that appellant Hari Lal was arrested by the public on the spot along with country-made pistol while he was trying to re-load his pistol. He was taken to the police station and a separate case under the Arms Act has also been registered against him. He is the main accused, who has been assigned the role of fire and causing death of deceased Nanha. The complainant is also an injured witness, who has sustained gunshot injuries on his face, therefore, his presence on the place of occurrence cannot be doubted. He is the main accused, who has been assigned the role of fire and causing death of deceased Nanha. The complainant is also an injured witness, who has sustained gunshot injuries on his face, therefore, his presence on the place of occurrence cannot be doubted. The prosecution story stands fully corroborated by the medical evidence and also by the evidence of PW-2 Kallu. The prosecution has furnished valid explanation of their presence at the place of occurrence, so the trial court has rightly convicted the accused appellants. Regarding appellant Tulsi Ram, it has been argued that he has been assigned the role of exhortation only and has also conceded that PW-2 Kallu has also assigned similar role during trial to accused Raju, who has already been acquitted. 14. In view of the rival submissions, we will have to analyse the evidence. The prosecution has come with a definite case that the complainant along with his two sons had gone to village Shekhpur, which was his in-laws village on the occasion of Janmashtmi festival. After 2 - 3 days of the said festival, he was coming back on cycle. The complainant and deceased Nanha were on one cycle and PW-2 Kallu was on another cycle. It has come in evidence that the cycle of PW-2 Kallu was little behind the cycle of his father. PW-1 complainant Chhote Lal and Nanha, who was aged about 12 years only, was sitting on the front rod of the cycle. PW-1 complainant Chhote Lal was pulling cycle on foot as there was Gitti on the road. Likewise PW-2 Kallu was also pulling his cycle on foot due to Gitti on the road. The incident has taken place on the Khadanja road which goes from Bhatpurwa to Village Langdapurwa near the Chilbil tree. Village Langdapurwa is the village of the complainant and the accused persons. It has come in evidence that father of Tulsi Ram and father of complainant Chhote Lal were real brothers. Appellant Hari Lal and Raju are sons of Tulsi Ram. It has also been suggested on behalf of the appellants that Tulsi Ram had raised a wall near the cattle shed of complainant due to which he was nursing grudge against him and prior to this incident he had lodged a false case in which Tulsi Ram was subsequently acquitted. 15. It has also been suggested on behalf of the appellants that Tulsi Ram had raised a wall near the cattle shed of complainant due to which he was nursing grudge against him and prior to this incident he had lodged a false case in which Tulsi Ram was subsequently acquitted. 15. When we go through the F.I.R. of this case, then it is clear that F.I.R. of this case was lodged with utmost promptness. The incident of this case is alleged to have taken place at 3: 00 p.m. Sometime must have been consumed in apprehending the accused. Thereafter a cot was arranged from the nearby village and on the said cot injured Nanha was taken to village Shankarpur on foot from-there he was taken on a tempo to police station. After reaching the police station, F.I.R. of this case was scribed and thereafter the same was given at the police station, which was registered at 6: 30 p.m. Thus the F.I.R. was lodged with utmost promptness. Thereafter the complainant and injured Nanha were sent to District Hospital, Unnao. Complainant Chhote Lal was medically examined on the same day just after half an hour of the registration of the case. The medical examination of complainant Chhote Lal took place on the letter issued by the police station, which shows that by that time, the F.I.R. was registered at the time as claimed by the prosecution. A prompt F.I.R. lends credence to the prosecution case because a prompt F.I.R. eliminates all the chances of cooking up of a false story. Hon'ble the Apex Court in the case of Meharaj Singh v. State of U.P. reported in (1994) 5 SCC 188 while emphasising the importance of recording a prompt FIR the Supreme Court observed as under: - "FIR in a criminal case and particularly in murder case is a vital and valuable piece of evidence for the purpose of appreciating evidence led at the trial. The object of insisting upon prompt lodging of the FIR is to obtain earliest information regarding the circumstance in which the crime was committed, including the names of the actual culprits and the parts played by them, the weapons, if any, used, as also the names of the eye witnesses if any. Delay in lodging FIR often result in embellishment, which is a creature of an afterthought. Delay in lodging FIR often result in embellishment, which is a creature of an afterthought. On the account of delay, the FIR not only gets bereft of the advantage of spontaneity, danger also creeps in of the introduction of a coloured version of exaggerated story." Hon'ble the Apex court in the case of Nanhe v. State of Uttar Pradesh reported in 1973 (3) SCC 317 has held that a prompt F.I.R. eliminates the chances of cooking up of a false story. 16. In this case, PW-1 complainant Chhote Lal is an absolutely rustic witness. He has not even been able to put his signature. PW-2 Kallu is also a rustic witness though he is capable of putting his signature. Law is settled on the point that the evidence of such rustic, illiterate villagers has to be scrutinised with a different yardstick. The same standard of appreciation of evidence which the court adopts while appreciating the evidence of an educated witness cannot be adopted while appreciating the evidence of such a rustic witness. Reference on this point may be made to the pronouncement of Hon'ble the Apex Court in the case of Govindaraju v. State of Karnataka reported in (2009) 14 SCC 236 wherein Hon'ble the Apex Court in paragraph no. 27 has observed as under: - "27. The High Court has appreciated the evidence very deeply and in our opinion, the Sessions Judge had gravely erred in not accepting the evidence of this witness without any justifiable reason. It is a basic principle that the evidence of witness has to be appreciated as a whole, when the evidence of an ordinary witness, who is not much educated and comes from a poor strata of society not having the advantage of education. The Court has to keep in mind all these aspects. The witness is not expected to remember every small thing, more particularly when he faces the shock of the untimely death of his near relative." Hon'ble the Apex Court in the case of State of Uttar Pradesh v. Krishna Master and others reported in (2010) 12 SCC 324 has held in paragraph no. 23 and 24 as under: - "23. .............A rustic witness, who is subjected to fatiguing, taxing and tiring cross-examination for days together, is bound to get confused and make some inconsistent statements. 23 and 24 as under: - "23. .............A rustic witness, who is subjected to fatiguing, taxing and tiring cross-examination for days together, is bound to get confused and make some inconsistent statements. Some discrepancies are bound to take place if a witness is cross-examined at length for days together. Therefore, the discrepancies noticed in the evidence of a rustic witness who is subjected to grueling cross-examination should not be blown out of proportion. To do so is to ignore hard realities of village life and give undeserved benefit to the accused who have perpetrated heinous crime. 24. The basic principle of appreciation of evidence of a rustic witness who is not educated and comes from a poor strata of society is that the evidence of such a witness should be appreciated as a whole. The rustic witness as compared to an educated witness is not expected to remember every small detail of the incident and the manner in which the incident had happened more particularly when his evidence is recorded after a lapse of time. Further, a witness is bound to face shock of the untimely death of his near relative(s). Therefore, the court must keep in mind all these relevant factors while appreciating evidence of a rustic witness." Hon'ble the Apex Court in the case of Sukhwinder Singh v. State of Punjab reported in (2014) 12 SCC 490 has observed in paragraph no. 13 as under: - "13. ................... They are rustic witnesses. Their evidence must be read bearing their simple background in mind. PW-2 Labh Singh had lost his daughter. Besides, they were deposing in 1994, almost three years after the incident. Hence, allowance must be made for minor discrepancies, if any, in their evidence." 17. It is true that both the eye-witnesses are father and son and deceased was also son of the complainant and brother of PW-2 Kallu. According to the case of the prosecution, several other persons had assembled at the place of occurrence. Pyare was the person, who apprehended appellant Hari Lal at the place of occurrence. The complainant during trial has also named some other persons, who had reached the place of occurrence. Admittedly none of them could be examined by the prosecution. According to the case of the prosecution, several other persons had assembled at the place of occurrence. Pyare was the person, who apprehended appellant Hari Lal at the place of occurrence. The complainant during trial has also named some other persons, who had reached the place of occurrence. Admittedly none of them could be examined by the prosecution. Nowadays people avoid to become a witness of a crime as they consider it as a civil dispute between the two parties and in order to avoid the enmity of the criminals, they refrain themselves from being a part of court proceedings. The cardinal principle of appreciation of evidence is that the evidence has to be appreciated keeping in view the ground realities. The evidence of a related witness if his presence is found on the place of occurrence and his evidence is found to be reliable cannot be discarded only on the ground that they are related witnesses and independent witnesses have not been examined. Conviction can legally be recorded on such evidence. On this point reference may be made to the pronouncement of Hon'ble the Apex Court in the case of Kuria and another v. State of Rajasthan reported in (2012) 10 SCC pg 433 had held in paragraph no.34 as under: - "The testimony of an eyewitness, if found truthful, cannot be discarded merely because the eyewitness was a relative of the deceased. Where the witness is wholly unreliable, the court may discard the statement of such witness, but where the witness is wholly reliable or neither wholly reliable nor wholly unreliable (if his statement is fully corroborated and supported by other ocular and documentary evidence), the court may base its judgment on the statement of such witness. Of course, in the latter category of witnesses, the court has to be more cautious and see if the statement of the witness is corroborated. Reference in this regard can be made to Sunil Kumar v. State of Punjab, (2003) 11 SCC 367 , Brathi v. State of Punjab (1991) 1 SCC 519 and Alagupandi v. State of T.N. (2012) 10 SCC 451 ." In a recent judgment in the case of Gurjit Singh v. State of Haryana reported in (2015) 4 SCC 380 Hon'ble the Apex Court has observed that statement of a relative cannot be discarded on the ground that he is a relative. 18. 18. Law is settled on the point that it is only the quality of evidence and not the quantity of evidence, that is required to prove a particular case. In the instant case, two witnesses of fact have fully supported the case of the prosecution. So even if Makkhan Singh has not been examined, will have no adverse bearing on the case of the prosecution. Reference on this point may be made to the pronouncement of Hon'ble the Apex Court in the case of (i) Manga alias Man Singh v. State of Uttarakhand reported in 2013 (7) SCC 629 , (ii) State of Haryana v. Shakuntala and others reported in 2012 (5) SCC 171 and (iii) Prathipal Singh etc. v. State of Punjab and another etc. reported in 2012 (1) SCC 10 . We would like to quote paragraph no. 49 of the judgment of Prithvipal Singh's case (supra), which reads as under: - "49. This Court has consistently held that as a general rule the Court can and may act on the testimony of a single witness provided he is wholly reliable. There is no legal impediment in convicting a person on the sole testimony of a single witness. That is the logic of Section 134 of the Evidence Act. But if there are doubts about the testimony, the court will insist on corroboration. In fact, it is not the number or the quantity, but the quality that is material. The time-honoured principle is that evidence has to be weighed and not counted. The test is whether the evidence has a ring of truth, is cogent, credible and trustworthy or otherwise. The legal system has laid emphasis on value, weight and quality of evidence, rather than on quantity, multiplicity or plurality of witnesses. It is, therefore, open to a competent court to fully and completely rely on a solitary witness and record conviction. Conversely, it may acquit the accused in spite of testimony of several witnesses if it is not satisfied about the quality of evidence. (See: Vadivelu Thevar v. The State of Madras, AIR 1957 SC 614 ; Sunil Kumar v. State Govt. Conversely, it may acquit the accused in spite of testimony of several witnesses if it is not satisfied about the quality of evidence. (See: Vadivelu Thevar v. The State of Madras, AIR 1957 SC 614 ; Sunil Kumar v. State Govt. of NCT of Delhi (2003) 11 SCC 367 ; Namdeo v. State of Maharashtra (2007) 14 SCC 150 ; and Bipin Kumar Mondal v. State of West Bengal AIR 2010 SC 3638 )." (Underlined by us) Law insists on the quality of evidence rather on the quantity of evidence. Even if evidence of only one eyewitness is found to be wholly reliable, then conviction can be based on the solitary testimony of that one witness and non examination of other witness would not adversely affect the case of the prosecution. Reference may be made to the pronouncement of Hon'ble the Apex Court in the case of Nand Kumar v. State of Chhattisgarh reported in (2015) 1 SCC 776 . Hon'ble the Apex Court has observed in paragraph no. 32 as under: - "32. The law does not say that the prosecution must examine all the eyewitnesses cited by the prosecution. When the evidence of two eyewitnesses, PWs-1 and 3 was found worthy of acceptance to prove the case then it was not necessary for the prosecution to examine any more eyewitnesses. It is for the prosecution to decide as to how many and who should be examined as their witnesses for proving their case. Therefore, we find no merit in this submission." 19. So mere non-examination of other witnesses would not adversely affect the case of the prosecution. The presence of two witnesses stands clearly established by their evidence. The prosecution has come with a definite case that PW-1 complainant Chhote Lal was coming back from Shekhpur and was going towards his village. The complainant has also sustained injuries, so his presence at the place of occurrence cannot be doubted. PW-8 Dr. A.K. Agarwal in his evidence has stated that the injuries sustained by this witness could have been caused by the pellets of the fire. 20. The arrest of appellant Hari Lal at the place of occurrence stands proved by the fact that he was admitted at the police station on the same day. PW-8 Dr. A.K. Agarwal in his evidence has stated that the injuries sustained by this witness could have been caused by the pellets of the fire. 20. The arrest of appellant Hari Lal at the place of occurrence stands proved by the fact that he was admitted at the police station on the same day. Appellant Hari Lal has come with two contradictory defence theories; one was that he was arrested at the place of occurrence by the public and complainant and false recovery was shown against him and has also taken the defence that while he was coming back from Kanpur then near Sanisaray, public and police arrested him and falsely implicated him in this case. Thus appellant Hari Lal himself was not sure as to what defence he has to take. At one place, he has admitted his arrest by the public at the place of occurrence but has only denied that country-made pistol was not recovered from him at that point of time. Not even a single witness on behalf of the defence could be examined to support that he was taken into custody by the police at some other place while he was coming back from Kanpur after completing his work. Specific role of firing and causing injuries to deceased Nanha and to complainant Chhote Lal has been assigned to appellant Hari Lal. It has also come in the evidence of PW-2 Kallu that at that time, he was under slight influence of liquor but this by itself does not absolve the appellant from his liability in view of the provisions of Section 86 I.P.C. 21. Great emphasis of learned counsel for the appellants was on the report of Forensic Science Laboratory whereby it was reported that recovered empty cartridge was not fired by the country-made pistol recovered from the possession of appellant Hari Lal. Admittedly empty cartridge was recovered after about two days of the incident from the place of occurrence by the second Investigating Officer Surya Nath Singh. The place of occurrence is a public way. No empty cartridge was found by the complainant or by any other person present at the time of incident. Perusal of the impugned judgment shows that during trial, it was argued on behalf of appellant Hari Lal that a false recovery of empty cartridge has been shown by the police. The place of occurrence is a public way. No empty cartridge was found by the complainant or by any other person present at the time of incident. Perusal of the impugned judgment shows that during trial, it was argued on behalf of appellant Hari Lal that a false recovery of empty cartridge has been shown by the police. It does not appeal to reason that empty cartridge would remain lying on a road for a period of two days. The possibility cannot be ruled out that it was not an empty cartridge of fire, which was shot by the country-made pistol, which was recovered from the possession of appellant Hari Lal. The possibility also cannot be ruled out that said empty cartridge might have been placed by the other family members of the appellant Hari Lal to mislead the police. Therefore, keeping in view the time gap of recovery of empty cartridge, it cannot be said with certainty that it was the empty cartridge of the same fire shot by appellant Hari Lal due to which the injured and the deceased had sustained injuries. Therefore, in the peculiar facts of this case, no adverse effect of the report of Forensic Science Laboratory would be on the prosecution case. In our considered view ocular testimony in this background must prevail over Forensic Science Laboratory. Learned counsel for the appellants has drawn the attention of this Court towards some minor contradictions. Every contradictory statement cannot be a ground to throw away the prosecution case. Law is settled that only such contradiction, which goes to the root of the case are material. Reference may be made to the pronouncement of Hon'ble the Apex Court in the case of State of U.P. v. Naresh and others reported in (2011) 4 SCC 324 and has held as under: "In all criminal cases, normal discrepancies are bound to occur in the depositions of witnesses due to normal errors of observation, namely; errors of memory due to lapse of time or due to mental disposition such as shock and horror at the time of occurrence. Where the omissions amount to a contradiction, creating a serious doubt about the truthfulness of the witness and other witnesses also make material improvement while deposing in the court, such evidence cannot be safe to rely upon. Where the omissions amount to a contradiction, creating a serious doubt about the truthfulness of the witness and other witnesses also make material improvement while deposing in the court, such evidence cannot be safe to rely upon. However, minor contradictions, inconsistencies, embellishments or improvements on trivial matters which do not affect the core of the prosecution case, should not be made a ground on which the evidence can be rejected in its entirety. The court has to form its opinion about the credibility of the witness and record a finding as to whether his deposition inspires confidence. Exaggerations per se do not render the evidence brittle. But it can be done of the factors to test credibility of the prosecution version, when the entire evidence is put in a crucible for being tested on the touchstone of credibility. Therefore, mere marginal variations in the statements of a witness cannot be dubbed as improvements as the same may be elaborations of the statement made by the witness earlier. The omissions which amount to contradictions in material particulars i.e. go to the root of the case/materially affect the trial or core of the prosecution's case, render the testimony of the witness liable to be discredited." 22. It is unbelievable that a father, who himself has sustained injuries, would spare the real assailants of his own son and falsely implicate other member of his own family only because of some earlier petty enmity. Therefore, trial court was absolutely right in concluding that appellant Hari Lal has caused the murder of Nanha and has injured complainant Chhote Lal, therefore, his conviction recorded by the trial court was in accordance with law and needs no interference. 23. It is true that appellant Tulsi Ram has been assigned only the role of exhortation. The evidence of exhortation has been held to be a weak type of evidence. Reference on this point may be made to the pronouncement of Hon'ble the Apex Court in the case of Jainul Haque v. State of Bihar, reported in (1974) 3 SCC 543 , at page 545 and Hon'ble Apex Court has observed as under: "The part attributed to the appellant according to the first information report is that he had exhorted the other accused to assault Leyaquat, while according to the evidence adduced at the trial the appellant actually joined in the assault on Leyaquat. The High Court did not accept the prosecution evidence on the point that the appellant had joined in the assault on Leyaquat. All the same, the High Court convicted the appellant because it was of the view that the appellant had exhorted the other accused to assault Leyaquat. In the absence of any substantive and cogent evidence adduced at the trial that the appellant had exhorted the other accused to assault Leyaquat, the High Court, in our opinion, should not have convicted the appellant for the offence under Section 323 read with Section 114 of the Indian Penal Code. The High Court has found the evidence of the eyewitnesses to be unsatisfactory. It has also found that the eyewitness were prone to exaggerate things and to involve as many accused as possible. In the circumstances it was, in our opinion, not safe to base the conviction of the appellant on the aforesaid evidence. The evidence of exhortation is, in the very nature of things, a weak piece of evidence. There is quite often a tendency to implicate some person, in addition to the actual assailant, by attributing to that person an exhortation to the assailant to assault the victim. Unless the evidence in this respect be clear, cogent and reliable, no conviction for abetment can be recorded against the person alleged to have exhorted the actual assailant." Reference on this point may also be made to the pronouncement of Hon'ble the Apex Court in the case of Anand Mohan v. State of Bihar, (2012) 7 SCC 225 and Hon'ble Apex Court has observed in para 69 as under: "69. This Court has held in Jainul Haque v. State of Bihar (supra) that evidence of exhortation is in the very nature of things a weak piece of evidence and there is often quite a tendency to implicate some person in addition to the actual assailant by attributing to that person an exhortation to the assailant to assault the victim and unless the evidence in this respect is a clear, cogent and reliable, no conviction for abetment can be recorded against the person alleged to have exhorted the actual assailant." 24. Apart from it, during trial PW-2 Kallu has stated that it was Raju and Tulsi Ram, both who exhorted appellant Hari Lal to kill. Admittedly accused Raju has already been granted benefit of doubt. Apart from it, during trial PW-2 Kallu has stated that it was Raju and Tulsi Ram, both who exhorted appellant Hari Lal to kill. Admittedly accused Raju has already been granted benefit of doubt. So on the basis of the same evidence, in our considered view, benefit of doubt should also be granted to appellant Tulsi Ram. 25. In view of the discussion made above, Criminal Appeal No. 572 of 2008 preferred by appellant Hari Lal alias Shambhu sans merits and deserves to be dismissed and Criminal Appeal No. 409 of 2008 preferred by appellant Tulsi Ram deserves to be allowed extending him benefit of doubt. 26. Accordingly Criminal Appeal No. 572 of 2008 is dismissed. The judgment and order dated 22.1.2008 passed by learned Additional Sessions Judge, Court No. 5, Unnao in Sessions Trial No. 38 of 2005 so far as it relates to appellant Hari Lal alias Shambhu is hereby affirmed. He is in jail. He shall serve out the sentence as awarded by the trial court. 27. Criminal Appeal No. 409 of 2008 is hereby allowed. Appellant Tulsi Ram is acquitted of the charges levelled against him. He is on bail. He need not to surrender. His bail is cancelled and sureties discharged. 28. Office is directed to certify this order to the court concerned forthwith to ensure compliance and also to send back the lower court record. Order accordingly.