JUDGMENT : Raghvendra Kumar, J. 1. Heard Sri K. P. Shukla and Sri A. K. Dwivedi, learned counsel for the appellants and Sri Chandrajeet Yadav, learned Additional Government Advocate for the State of U. P. 2. Under assail in this criminal appeal is the judgment and order dated 7.12.1982 passed by Sessions Judge, Hamirpur in Sessions Trial No.218 of 1981 (State Vs. Drigpal Singh & others) u/s 148, 302/149 IPC, P. S. Kharela, District-Hamirpur whereby accused-appellants have been convicted u/s 148 and 302/149 IPC and sentenced each of them to 2 years R. I. for the offence u/s 148 IPC and imprisonment for life to each of them for the offence u/s 302/149 IPC. Both the sentences were ordered to run concurrently. Being aggrieved by the aforesaid judgment and order, the instant appeal is before this Court. 3. Vide order dated 8.5.2012 the appeal filed on behalf of appellant Gyasi @ Gayadin has been abated due to his death. 4. Briefly stated the prosecution story is as following : According to the prosecution, Shivnath Singh and Mulayam Singh were real brothers and they were living separately in their own houses. About five year ago, one Dharam Singh was murdered in which Raja Bhaiyya was challaned and subsequently, he was convicted and is languishing in jail undergoing the sentence. The widow of Dharam Singh is grief stricken and is living in her own house. Her devar Drigpal Singh in order to take revenge of the murder of his brother and to satisfy his sister-in-law (bhabhi) was trying to commit the murder. Informant Tej Singh had purchased a cow and visited the place of the deceased Mardan Singh to make the payment of balance amount of the cow along with one Balkishun Bhurji. He was informed that Mardan Singh had gone to enjoy the fair and his younger brother had gone on his routine labour work. The informant Tej Singh stayed at the house of deceased. The mother of deceased and his younger brother and sister came out of the house. Mardan Singh directed the informant to make the payment to his mother. At about 2 pm he saw that Drigpal Singh equipped with gun, Maiku equipped with farsa and one other accused equipped with farsa and two other accused persons equipped with ballam came in front of the house of deceased Mardan. Mardan Singh directed the informant to make the payment to his mother. At about 2 pm he saw that Drigpal Singh equipped with gun, Maiku equipped with farsa and one other accused equipped with farsa and two other accused persons equipped with ballam came in front of the house of deceased Mardan. At that time Mardan was sitting on an earthen wall, he rose from the wall and raised alarm. In the meantime, Drigpal discharged a fire shot at him and on his exhortation other accused persons, started assault. While accused Drigpal Singh discharged the second fire shot, deceased Mardan Singh fell down. Other accused persons assaulted him with farsa and ballam. The family members of deceased raised alarm but none came to their rescue. Accused-appellant Drigpal Singh continously extended threat of life with warning that if anyone would come to rescue then he would have to loose his life. Accused persons left the place saying that deceased Hari Singh is to be murdered. Hari Singh was working on a 'bandha' as labour. The informant and family members of deceased also followed the accused persons secretly to the place where Hari Singh was working as a labour. At 2.30 pm Hari Singh was surrounded and was murdered by the accused persons. Thereafter the accused persons along with others left the place. Accused Gyasi, Maiku were equipped with farsa and Prahlad and Govind Singh were equipped with ballam and Drigpal Singh was equipped with gun. 5. After registration of FIR, the investigation proceeded in accordance with law. 6. The inquest report of deceased Mardan Singh and Hari Singh was prepared. After documentation the corpuses of deceased were sent for autopsy in a sealed condition. The recovery memo of empty cartridge recovered from the spot and the blood stained soil and ordinary soil and a pair of shoes, lungi was prepared. The items recovered by the I. O. were sent to Government Chemical Analyst, who noted blood stains on the shirt of deceased Hari Singh. The report of Serologist is available on record. After collecting the material during the course of investigation the police report u/s 173 (2) Cr. P. C. was filed in the shape of charge sheet. 7. After complying with the statutory legal procedure the case was committed to the Court of Sessions. The report of Serologist is available on record. After collecting the material during the course of investigation the police report u/s 173 (2) Cr. P. C. was filed in the shape of charge sheet. 7. After complying with the statutory legal procedure the case was committed to the Court of Sessions. The trial Court after hearing both the sides and the material placed before it framed the charge. The accused persons have taken a defence that one Dharam Singh was murdered by Raja Bhaiyya and out of enmity Drigpal Singh and others have been falsely implicated and they are innocent. 8. In order to substantiate the allegations, the prosecution has examined Dr. G. D. Pandey as PW1, who conducted autopsy on 19.1.1981 at about 2.30 pm upon the corpus of Hari Singh aged about 18 years and noted that rigor mortis had passed of from the upper limbs but was present on the lower limbs. Abdomen was slightly distended. The stomach contained 6 ozs. of semi digested food. Gases and faecal matters were found in large intestine. Following ante mortem injuries on the person of Hari Singh were found : (i) Incised wound 14 cm x 2 cm x bone deep in left side of face, below left ear, starting form mid of cheek upto back of neck, horizontally placed. Fracture of underneath left mandibular bone. (ii) Incised wound 13 cm x 6 cm at middle of neck, starting from front going upto back on left, horizontally placed. Skin muscles, great vessels of neck, oesophagus, trachea and cervical vertebra from 4th to 6th in communicated fracture and cut. (iii) Incised wound 11 cm x 3 cm in left supraclavicular fossa upside down depth upto muscles. (iv) Stab wound 5 cm x 1 cm x 4½cm in left border of sternum at upper end, direction downwards and towards right above ribs and below sc tissues (v) Incised wound 10 cm x 9 cm x bone deep in right shoulder joint, fracture of right humerous at neck. (vi) Multiple gun shot wounds of entry in back at thorasic region covering 10 cm x 8 cm area x muscle deep, size varying from 1 cm x 1 cm to½cm x½cm, margins black. (vii) Abrasion 6 cm x 3 cm in right great trochanter. (vi) Multiple gun shot wounds of entry in back at thorasic region covering 10 cm x 8 cm area x muscle deep, size varying from 1 cm x 1 cm to½cm x½cm, margins black. (vii) Abrasion 6 cm x 3 cm in right great trochanter. Injury no.(i), (ii), (iii) and (v) might have been caused by a weapon like pharsa, injury no.(iv) by weapon like ballam, injury no.(vi) by a fire arm and injury no.(vii) by friction against some hard object. PW1 has mentioned the cause of death of deceased Hari Singh due to shock and haemorrhage as a result of ante mortem injuries. He has further opined that the ante mortem injuries were sufficient to cause death of deceased in ordinary course of nature. He has proved the autopsy report as Ext Ka 1. At about 3.30 pm on the same day, he conducted post mortem examination on the dead body of deceased Mardan Singh, aged about 22 years and noted that rigor mortis had passed on from the upper limbs but was present on the lower limbs and the abdomen was slightly distended. The stomach contained about 8 ozs of semi digested food and the large intestine contained gases and faecal matter. Following ante mortem injuries on the body of Mardan Singh were noted : (i) Gun shot wound of entry 5 cm x 3 cm in centre of right shoulder blade. Margins lacerated and blackened. Wounds traverses, shoulder blade intercostal musculature fracturing underneath ribs, pleura, lung and finally coming out of anterior chest wall leading to three wounds of exit at right side of chest one at 2 cm left to right nipple (2 ½cm x 1 cm) and two in 4th to 6th intercostal space in anterior axillary line each measuring 1 cm x ½ cm lying 3 ½ cm apart. Four pellets recovered from anterior chest wall were sealed. Plenty of black material seen in pathway. Fracture of 4th rib in anterior chest wall. (ii) Multiple gun shot wounds muscle deep in area 30 cm x 23 cm in back with abrasion measuring from 1 cm x 1 cm to ½cm x ½cm, margins blackened. No wound of exit. (iii) Gun shot wound 2 cm x 1 cm x muscle deep, margins black in centre of right upper arm. No exit wound outer aspect. (ii) Multiple gun shot wounds muscle deep in area 30 cm x 23 cm in back with abrasion measuring from 1 cm x 1 cm to ½cm x ½cm, margins blackened. No wound of exit. (iii) Gun shot wound 2 cm x 1 cm x muscle deep, margins black in centre of right upper arm. No exit wound outer aspect. (iv) Gun shot wound 1 ½cm x 1 cm x muscle deep in right upper arm, below deltoid at middle. No exit. (v) Incised wound 4 cm x 3 cm x bone deep in right fore arm inner aspect, anterior and above wrist joint. (vi) Incised wound 13 cm x 3 cm x bone deep in left iliac crest. (vii) Incised wound 13 cm x 3 cm x bone deep in right knee joint, outer aspect. (viii) Incised wound 8 cm x 2 ½cm x bone deep in right temporal region, underlying bone having depressed fracture. Clots over membranes seen. (ix) Incised wound 14 cm x 10 cm in left side of neck. Skin muscles, great vessels of neck, trachea, rd oesophagus and cervical vertebrae from to 6th crushed and cut. (x) Incised wound 5 cm x 2 cm x bone deep, horizontal above left ear. (xi) Incised wound 6 cm x 3 cm x bone deep, left shoulder, front to back over acromian process. (xii) Incised wound 1 cm x½cm x muscle deep in left calf outer aspect below knee joint Injury no.(i), (ii), (iii) and (iv) were caused by some fire arm and injury no.(v), (vi), (vii), (viii), (ix), (x), (xi) and (xii) by some sharp edged weapon, which may be even pharsa. PW1 has mentioned the cause of death of deceased Mardan Singh due to shock and haemorrhage as a result of ante mortem injuries. He has further opined that the ante mortem injuries were sufficient to cause death of deceased in ordinary course of nature. He has proved the execution of post mortem examination report as Ext Ka 2. 9. The prosecution has further examined PW2 Tej Singh (informant), PW3 Bal Kishan, PW4 Vinod, PW5 Phoola Rani (widow of Mulayam Singh), PW6 S. I. Satya Narayain Singh, PW 7 I. O. Ram Acchaibar. 10. PW 2 to PW5 are the witnesses of fact. 11. He has proved the execution of post mortem examination report as Ext Ka 2. 9. The prosecution has further examined PW2 Tej Singh (informant), PW3 Bal Kishan, PW4 Vinod, PW5 Phoola Rani (widow of Mulayam Singh), PW6 S. I. Satya Narayain Singh, PW 7 I. O. Ram Acchaibar. 10. PW 2 to PW5 are the witnesses of fact. 11. PW6, who is a police officer, has proved the execution of Chik FIR and relevant entries in the G. D. and has conducted the investigation, examined the witnesses and filed charge sheet against the accused persons Drigpal, Maiku and Gyasi @ Gayadin and submitted final report against Prahlad and Govind. 12. PW7 Ram Acchaibar has conducted the inquest proceedings and after due documentation sealed the dead body of deceased persons for post mortem examination and proved the execution of documents. 13. C. W. Om Prakash Dubey, a police official has been examined as a Court witness, who has proved the execution of one N. C. R. u/s 498 IPC lodged against the deceased Mardan Singh. PW6 & 7 are the formal witnesses. Their testimonies is confined to their roles during the course of investigation. The prosecution has closed the prosecution evidence. 14. After closure of prosecution evidence, all the incriminating materials and all the circumstances appearing during the course of trial was placed before the accused persons-appellants by way of their examination u/s 313 Cr. P. C. and the accused-appellant Drigpal has stated the facts to be wrong and has stated that his brother was murdered. The prosecution was lodged, and out of the said enmity the witnesses have deposed against them. 15. Appellant Maiku has also denied the prosecution version saying it to be wrong and stated that he had deposed in the murder case of Dharam Singh against accused Raja Bhaiyya and out of enmity the witnesses have deposed against him. Accused-appellant Gyasi @ Gayadin has also denied the prosecution version and stated that out of enmity with the police the prosecution was lodged and the witnesses have deposed at the instance of police. 16. The accused-appellants have not examined anyone on oath before the Court in defence. 17. After scrutinizing and appreciating the evidence available on record, the learned Court below vide its judgment and order dated 7.12.1982 recorded the findings of conviction against accused-appellants, hence this appeal. 18. 16. The accused-appellants have not examined anyone on oath before the Court in defence. 17. After scrutinizing and appreciating the evidence available on record, the learned Court below vide its judgment and order dated 7.12.1982 recorded the findings of conviction against accused-appellants, hence this appeal. 18. It has been submitted by the learned counsel for accused-appellant that the murder of Dharam Singh was committed by one Raja Bhaiyya out of said enmity the accused persons have been roped in for commission of murder of Mardan Singh and Hari Singh. Further contention is that the testimony of informant Tej Singh PW 2, the eye witness is not of worth reliance since he being a chance witness. He is favourite of police officials and has been a witness is many other cases on behalf of the police and he had deposed too, as such, his testimony as an independent witness is not reliable. Further contention is that the testimony of PW 3 Bal Kishan has not been relied by the trial Court. He is not an eye witness. Further submission is that PW 4 Vinod who is brother of deceased is a small child. A primary examination was conducted by the Court and his statement was recorded. For want of administration of oath his statement cannot be relied upon. The next contention is that PW 5 Smt. Phoola Rani is the mother of deceased persons who is a highly interested and related witness. Her testimony has been assailed on the ground that after assault of Mardan Singh she did not take care to see the injured deceased Mardan Singh and followed the accused persons-appellants by hiding themselves from a different route to the place of incident where assault of Hari Singh was committed. After assault of Hari Singh she also did not take care to know whether Hari Singh was aliver or not. Further contention is that the FIR was registered against deceased Mardan Singh for the offence u/s 498 IPC, which was lodged by one complainant Ram Krishna. Further contention is that from the testimony of prosecution witnesses it is evident that accused persons namely Prahlad and Govind, who were assigned ballam have not participated in the assault whereas one of the ante mortem injury noted by the doctor on the person of deceased Hari Singh was in the nature of stab wound. Further contention is that from the testimony of prosecution witnesses it is evident that accused persons namely Prahlad and Govind, who were assigned ballam have not participated in the assault whereas one of the ante mortem injury noted by the doctor on the person of deceased Hari Singh was in the nature of stab wound. The prosecution has not given any explanation with respect to the injury of stab wound. There is also no mention of assault of deceased Hari Singh in the FIR by fire arm. Further contention is that if the accused Drigpal wanted to take revenge the murder of his brother, he could have safely implicated the deceased Mardan Singh and Hari Singh. Further contention is that the I. O. has not conducted the investigation fairly. He has not even taken the dhoti and bangles in his custody from the room. Further submission is that the I. O. has not taken any steps for recovery of the weapon of assault. Further contention is that the motive of false implication is clear because one of the appellant Maiku had deposed against Raja Bhaiyya who has been convicted and is incarcerating in connection with the murder of Dharam Singh, who was brother of appellant Drigpal Singh. Further contention is that both the deceased persons were womanizer and against one of the deceased a FIR was also lodged for the offence u/s 498 IPC. Further contention is that the murder has been committed some times in the night by someone else and the accused persons have been falsely implicated on the pretext of enmity. Further contention is that the FIR is ante timed. The murder might have taken place in the night and the FIR has been lodged showing the incident to be a broad day light. 19. Learned A. G. A. has submitted that it is an incident of broad day light murder. The case is based on direct evidence. There is coherence and consistency in the testimony of witnesses of fact, PW2, PW3, PW4 and PW5 with respect to date, time, place and manner of assault as well as by whom the assault has been committed. Further contention is that it is a case based on direct evidence hence, the motive is not of much significance. There is coherence and consistency in the testimony of witnesses of fact, PW2, PW3, PW4 and PW5 with respect to date, time, place and manner of assault as well as by whom the assault has been committed. Further contention is that it is a case based on direct evidence hence, the motive is not of much significance. Further contention is that the incident has taken place on 17.1.1981 between 2 to 2.30 pm whereas the FIR of the incident had been lodged on the same day at 4.30 pm. Thus, the FIR is prompt. In reply to the submission of defence, it has been submitted by the learned A. G. A. that since no adult male member was left hence the FIR of the crime was lodged by PW2. Further contention is that PW2 was related to the deceased and even if he be treated as a chance witness he has been put to a lengthy cross-examination for adjudging veracity of his testimony and the witness remained intact throughout his cross-examination. He being the eye witness cannot be discarded mere on the score of levelling him as a chance witness. 20. Further contention is that even if the PW 3 has not been relied upon by the trial Court it would not be an impediment for the Appellate Court to appreciate his testimony as per the established legal norms. 21. The mother of deceased PW 5 Phoola Rani's conduct has been assailed that she did not respond like mother. The argument of the defence cannot be sustained. Further contention is that the factum of lodging of FIR against Mardan Singh u/s 498 IPC for argument sake is taken to be true it is not of any avail since the offence u/s 498 IPC being a non cognizable offence. 22. Further contention is that mere not taking of the bangles and dhoti into possession by the I. O. would not amount to defective investigation. Further contention is that no recovery of farsa has been made and the farsa of different shapes and sizes are prevalent in the society. In absence of the recovery of weapon of assault mere on the score of non explanation of the stab wound to deceased Hari Singh would not be sufficient ground to discard the entire prosecution version. Farsa of a particular shape may cause the injury in the nature of stab wound. 23. In absence of the recovery of weapon of assault mere on the score of non explanation of the stab wound to deceased Hari Singh would not be sufficient ground to discard the entire prosecution version. Farsa of a particular shape may cause the injury in the nature of stab wound. 23. Further submission is that the accused-appellant Drigpal Singh was not even major at the time of murder of his brother. Moreso, deceased Mardan Singh and Hari Singh were also minors at the relevant time, therefore, the deceased were not implicated in the murder of Dharam Singh. 24. Further submission is that the child witness is not a tutored witness and is a reliable witness. 25. Hon'ble the Apex Court has been pleased to lay down the guidelines for High Court for exercising Appellate jurisdiction in criminal side while deciding criminal appeals from time to time. The Hon'ble Apex Court has propounded the following principles in Padam Singh Vs. State of U.P. reported in 2000 (1) SCC 621 which is quoted here : "it is the duty of an appellate court to look into the evidence adduced in the case and arrive at an independent conclusion as to whether the said evidence can be relied upon or not and even if it can be relied upon, then whether the prosecution can be said to have been proved beyond reasonable doubt on the said evidence. The credibility of a witness has to be adjudged by the appellate court in drawing inference from proved and admitted facts. It must be remembered that the appellate court, like the trial court, has to be satisfied affirmatively that the prosecution case is substantially true and the guilt of the accused has been proved beyond all reasonable doubt as the presumption of innocence with which the accused starts, continues right through until he is held guilty by the final court of appeal and that presumption is neither strengthened by an acquittal nor weakened by a conviction in the trial court.” 26. Further guidelines have been issued by the Hon'ble Apex Court in case of Rama & others vs. State of Rajasthan reported in 2002 (4) SCC 571 which is as under: "It is well settled that in a criminal appeal, a duty is enjoined upon the appellate court to reappraise the evidence itself and it cannot proceed to dispose of the appeal upon appraisal of evidence by the trial court alone especially when the appeal has been already admitted and placed for final hearing. Upholding such a procedure would amount to negation of valuable right of appeal of an accused, which cannot be permitted under law." 27. The guidelines have been issued by three Judges Bench of the Hon'ble Apex Court in case of Majjal Vs. State of Haryana, 2013 (6) SCC 798 which is as under: “It was necessary for the High Court to consider whether the trial court's assessment of the evidence and its opinion that the appellant must be convicted deserve to be confirmed. This exercise is necessary because the personal liberty of an accused is curtailed because of the conviction. The High Court must state its reasons why it is accepting the evidence on record. The High Court's concurrence with the trial court's view would be acceptable only if it is supported by reasons. In such appeals it is a court of first appeal. Reasons cannot be cryptic. By this, we do not mean that the High Court is expected to write an unduly long treatise. The judgment may be short but must reflect proper application of mind to vital evidence and important submissions which to to the root of the matter." 28. The aforesaid observations have been quoted by the Hon'ble Apex Court in a very recent judgment in the case of Kamlesh Prabhudas Tanna and Anr V. State of Gujarat reported in 2014 Cr.LJ 443. 29. Keeping in view the propositions cited above, the Court is to scrutinize the evidence available before it and to draw the inference accordingly, bearing in mind the presumption of innocence of accused unless otherwise is established from evidence available on record without being influenced by the findings of conviction recorded by learned trial court. 30. 29. Keeping in view the propositions cited above, the Court is to scrutinize the evidence available before it and to draw the inference accordingly, bearing in mind the presumption of innocence of accused unless otherwise is established from evidence available on record without being influenced by the findings of conviction recorded by learned trial court. 30. It has been contended on behalf of the appellants that the murder of Dharam Singh (i.e. the brother of appellant Drigpal Singh) was committed by Raja Bhaiyya in which the appellant Maiku was one of the witnesses and after the trial Raja Bhaiyya was convicted and sentenced and is presently languishing in jail. Because of aforesaid enmity, the accused-appellants have been falsely implicated. Even if, for argument sake the plea of false implication on the score of enmity is presumed, enmity is a double edged weapon. Out of enmity, the chances of false implication cannot be ruled out, but at the same time enmity may be an important factor for committing murder. The evidence has been led to the effect that to satisfy her sister-in-law, who was grief stricken because of the murder of Dharam Singh, her husband, the offence is alleged to have been committed by the accused-appellants. The plea of enmity taken by the appellant can be interpreted either way. Hence, the Court is expected to analyze the evidence carefully to draw an inference about the complicity of the accused-appellants without being swayed by the plea of enmity on the basis of the material available on record. 31. It has been contended on behalf of the accused-appellants that the testimony of PW 2 Tej Singh being a chance witness cannot be relied upon until his presence is established to be natural. The matter of consideration of testimony of a chance witness has been considered by the Hon'ble Apex Court time and again. In the case of Rana Partap and Ors. vs. State of Haryana, AIR 1983 SC 680 at paragraph 3, the Hon'ble Apex Court has held as under : “3. There were three eye witnesses. One was the brother of the deceased and the other two were a milk vendor of a neighbouring village, who was carrying milk to the dairy and a vegetable and fruit hawker, who was pushing his laden cart along the road. There were three eye witnesses. One was the brother of the deceased and the other two were a milk vendor of a neighbouring village, who was carrying milk to the dairy and a vegetable and fruit hawker, who was pushing his laden cart along the road. The learned Sessions Judge and the learned Counsel described both the independent witnesses as chance witnesses implying thereby that their evidence was suspicious and their presence at the scene doubtful. We do not understand the expression 'chance witnesses'. Murders are not committed with previous notice to witnesses; soliciting their presence. If murder is committed in a dwelling house, the inmates of the house are natural witnesses. If murder is committed in a brothel, prostitutes and paramours are natural witnesses. If murder is committed in a street, only passersby will be witnesses. Their evidence cannot be brushed aside or viewed with suspicion on the ground that that they are mere chance witnesses'. The expression 'chance witnesses' is borrowed from countries where every man's home is considered his castle and every one must have an explanation for his presence elsewhere or in another man's castle. It is a most unsuitable expression in a country whose people are less formal and more casual. To discard the evidence of street hawkers and street vendors on the ground that they are 'chance witnesses' even where murder is committed in a street is to abandon good sense and take too shallow a view of the evidence.” 32. Further the principle of appreciation of evidence of a chance witness has been dealt by Hon'ble the Apex Court in the case of Baby and Ors. vs. Circle Inspector of Police, Adimaly in Criminal Appeal no.952 of 2010 decided on 26.7.2016 and it has been propounded that it is a well settled legal principle that the evidence of a chance witness cannot be brushed aside simply because he is a chance witness, but his presence at the place of occurrence must be satisfactorily explained by the prosecution so as to make his testimony free from doubt and thus, reliable . 33. From the above proposition of law, it can safely be discerned that the concept of a chance witness has been borrowed from other country. The principle is not strictu sensu and is not attracted in the context of our country. 33. From the above proposition of law, it can safely be discerned that the concept of a chance witness has been borrowed from other country. The principle is not strictu sensu and is not attracted in the context of our country. More so, the Hon'ble Apex Court has given an illustrative example of a chance witness being a natural witness in the ruling cited above. The Hon'ble Apex Court has further put a safeguard for appreciating the evidence of a chance witness. The evidence of PW 2, who is alleged to be the eye witness as well as a chance witness, is to be scrutinized and appreciated further bearing in mind the above principles of law. 34. So far as the contention relating to PW 3 Bal Kishan is concerned, it is vehemently been contended that the testimony of PW 3 has been discarded by the trial Court and he is not an eye witness. It is noteworthy that the witness being a prosecution witness has been cross-examined by the defence counsel, though the witness was not declared hostile. 35. It has time and again been enunciated by the Hon'ble Apex Court that while exercising the appellate jurisdiction, the High Court is required to appraise the evidence afresh without being influenced by the inference drawn by the trial Court. As such, there is no impediment for us to appraise the evidence of PW 3 Bal Kishan afresh. What is required is that the Appellate Court is expected to carefully scrutinize the testimony of PW 3 and to identify the portions of evidence, which in its estimation is found to be credible and trustworthy. Mere the witness not being relied by the trial Court, would not put any legal embargo upon the Appellate Court to consider the evidence in accordance with the established principles of evidence. The argument in this behalf cannot be sustained. 36. The testimony of PW 4 Vinod, who is a child witness, has been assailed on the ground that his statement was recorded by the trial Court without administering oath to him. As such, his testimony cannot be relied upon. 37. The principle of appreciation of a child witness has been considered by the Hon'ble Apex Court on several occasions. 36. The testimony of PW 4 Vinod, who is a child witness, has been assailed on the ground that his statement was recorded by the trial Court without administering oath to him. As such, his testimony cannot be relied upon. 37. The principle of appreciation of a child witness has been considered by the Hon'ble Apex Court on several occasions. In the case of State of Rajasthan vs. Chandgi Ram and Ors., (2014) 12 SCC 596, at paragraph 14 the Hon'ble Apex Court has discussed this aspect relying upon the decision in the case of Shivasharanappa v. State of Karnataka, (2013) 5 SCC 705 , as follows : “17. Thus, it is well settled in law that the court can rely upon the testimony of a child witness and it can form the basis of conviction if the same is credible, truthful and is corroborated by other evidence brought on record. Needless to say, the corroboration is not a must to record a conviction, but as a rule of prudence, the court thinks it desirable to see the corroboration from other reliable evidence placed on record. The principles that apply for placing reliance on the solitary statement of the witness, namely, that the statement is true and correct and is of quality and cannot be discarded solely on the ground of lack of corroboration, apply to a child witness, who is competent and whose version is reliable.” 38. The aspect of appreciation of a child witness was also considered by the Hon'ble Apex Court in the case of Rajkumar vs. State of Madhya Pradesh, (2014) 5 Supreme Court Cases 353. The relevant paragraph 19, which deals with the approval of principle enunciated in the case of State of M. P. v. Ramesh, (2011) 4 SCC 786 is being reproduced hereinunder : “14. In view of the above, the law on the issue can be summarised to the effect that the deposition of a child witness may require corroboration, but in case his deposition inspires the confidence of the court and there is no embellishment or improvement therein, the court may rely upon his evidence. The evidence of a child witness must be evaluated more carefully with greater circumspection because he is susceptible to tutoring. Only in case there is evidence on record to shows that a child has been tutored, the court can reject his statement partly or fully. The evidence of a child witness must be evaluated more carefully with greater circumspection because he is susceptible to tutoring. Only in case there is evidence on record to shows that a child has been tutored, the court can reject his statement partly or fully. However, an inference as to whether child has been tutored or not, can be drawn from the contents of his deposition.” 39. From the above propositions of law, it can safely be deduced that the testimony of a child witness can be relied upon if it is found to be credible, reliable, trustworthy and inspiring confidence. Bearing the basic principles of appreciation of evidence, the testimony of child witness PW 4 Vinod, would be discussed in the later part of the judgment. 40. The testimony of PW 5 Smt. Phoola Rani has been assailed on the ground that being the mother, she is a highly interested witness and her testimony cannot be relied upon. The matter relating to appreciation of interested or related witness has time and again been considered by the Hon'ble Apex Court. 41. Great emphasis has been laid by learned counsel for the appellants that in this case, the incident is alleged to have taken place in broad day light but not even a single independent witness has been cited as a witness. While appreciating the evidence, the Court cannot ignore the ground realities because in the present day world, people avoid to become a witness of a case and we would not have to travel a long way to seek reasons for this apathy of the public. They simply wanted to avoid enmity of the accused persons. Reference may be made on this point and the pronouncement of Hon'ble Apex Court in the case of Shiv Ram and Anr. vs. State of U.P. reported in 1998 1 SCC Pg 149 has considered this aspect and was of the view that nowadays it is a common tendency that no outsider would like to get involve in a criminal case much less in the crime of present magnitude. Therefore it is quite natural that no independent witness will come forward to assist the prosecution. Therefore it is quite natural that no independent witness will come forward to assist the prosecution. It is well settled that the evidence of witnesses cannot be discredited only on the ground that they are close relatives of the deceased persons but what is required in such situation is that the Court must scrutinize the evidence of such witnesses with utmost care and caution. 42. In another case Appabhai and another vs. State of Gujarat, AIR 1988 SC Pg 696, Hon'ble Apex Court observed that 'Experience reminds us that civilized people are generally insensitive when crime is committed even in their presence. They withdraw from both, victim and vigilant. They keep themselves away from the Court. They take crime as a civil dispute. This kind of apathy of general public is indeed unfortunate but it is everywhere whether in village life or town and city. One cannot ignore this handicap. Evidence of witnesses has to be appreciated keeping in view such ground realities. Therefore, the Court instead of doubting the prosecution case where no independent witness has been examined must consider the broad spectrum of the prosecution version and then search for the nugget of truth with due regard to probability, if any suggested by the accused. 43. From the above proposition of law, an inference can be drawn that in appreciation of evidence of a related or an interested witness, the Court has been enjoined with an onerous duty to scrutinize the testimony of such witness with utmost caution and care and after such scrutiny if it inspires confidence and found to be reliable then there is no legal impediment in placing reliance upon the testimony of such witness. The law has also been crystallized to the effect that mere on the ground of a witness being related or interested, his testimony cannot be discarded. 44. Bearing the above propositions in mind the testimony of PW 5 would be discussed in the later part. 45. The law has also been crystallized to the effect that mere on the ground of a witness being related or interested, his testimony cannot be discarded. 44. Bearing the above propositions in mind the testimony of PW 5 would be discussed in the later part. 45. The next contention of learned counsel for the appellant is that there was a FIR against Mardan Singh and PW 4 Vinod has also admitted this fact and the I. O. has taken the possession of dhoti, but has not taken the possession of bangles etc, thus, the case comes under defective investigation and the learned counsel for the appellant has placed reliance upon the case of Sunil Kundu and Another vs. State of Jharkhand reported in 2013 (4) SCC 422 wherein it has been held as follows : “This Court has laid down that the lapses or irregularities in the investigation could be ignored subject to a rider. They can be ignored only if despite their existence, the evidence on record bears out the case of the prosecution and the evidence is of sterling quality. If the lapses or irregularities do not go to the root of the matter, if they do not dislodge the substratum of the prosecution case, they can be ignored.” 46. The principle of law, thus, is clear from the above proposition that the irregularities amounting to defective investigation would have oblique impact upon the prosecution version, if it goes to the root of prosecution case. Simple irregularities amounting to defective investigation, which does not goes to the root of the prosecution case, would be not of much consequence. 47. So far as the FIR u/s 498 IPC is concerned, mere lodging of the FIR is of no significance since offence u/s 498 IPC is a non cognizable offence and even if for argument sake the allegations made therein are taken to be true, it would have the effect of assailing the conduct of deceased Mardan Singh. 48. It has further been submitted that the injury in the nature of stab wound has not been explained and the persons who have been assigned ballam namely Prahlad and Govind have not participated in the commission of offence as is evident from the testimonies of prosecution witnesses. 48. It has further been submitted that the injury in the nature of stab wound has not been explained and the persons who have been assigned ballam namely Prahlad and Govind have not participated in the commission of offence as is evident from the testimonies of prosecution witnesses. Learned A. G. A. has submitted that farsa of different shapes and sizes are prevalent in different parts of the country, which is alleged to be the weapon of assault and more so, farsa has not been recovered. Until farsa would have been recovered, no definite inference can be drawn about the use of farsa in causing the stab wound. Even if it is presumed that the injury in the nature of stab wound has not been explained, it would not be sufficient to hold that no such incident has taken place. The evidence of Pws finds support from medical evidence except the stab wound. 49. The next contention is that the weapon has not been recovered by the I. O. and it creates doubt upon the prosecution version. It is a case of direct evidence, if the complicity of appellants is established from the evidence on record, the non recovery of weapon of assault would have no oblique impact. 50. It has been conteded that if the revenge was to be taken by appellant Drigpal, he could have safely implicated the deceased person in the murder of his brother Dharam Singh. Learned A. G. A. has submitted that Drigpal and deceased persons were minor at the time of murder of Dharam Singh, brother of appellant Drigpal and no useful purpose could have been solved, hence, the submission of the counsel for the appellant does not appeal to reason. 51. It has been submitted that the murder has been committed in the night and the FIR is ante timed and the deceased persons being womanizers which was the cause of their murder and the complainant of offence u/s 498 IPC did not lodge any prosecution against the deceased by instituting the complaint and the complainant could have been the most aggrieved person. When she did not lodge the prosecution by instituting a complaint, hence, the womanizing being the cause of murder cannot be sustained. 52. It is a case of direct evidence and it is a broad day light murder. When she did not lodge the prosecution by instituting a complaint, hence, the womanizing being the cause of murder cannot be sustained. 52. It is a case of direct evidence and it is a broad day light murder. The incident took place on 17.1.1981 between 2 to 2.30 pm and the FIR has been lodged at 4.30 pm on the same day. The FIR appears to be prompt. 53. It is a settled principle of law that a prompt FIR rules out the chances of concoction. The object of insisting upon a prompt FIR is to obtain the earliest information regarding the circumstances in which the crime was committed, including the names of actual culprits and the part played by them, the weapons, if any, used as also the names of the witnesses, if any. The prompt FIR, thus, rules out the concoction, exaggeration and deliberations, if any. 54. In view of aforesaid principles, the argument that the FIR was ante timed and the murder was committed sometimes in the night do not appeal to reason. Bearing the aforesaid basic principles of law discussed above, the testimonies of witnesses of fact is being appreciated. 55. PW 2 Tej Singh has categorically explained his presence at the place of occurrence and has also stated the purpose for which he visited the place of deceased Mardan Singh. Even after payment of amount due for the purchase of cow, to mother of the deceased, he was given a light refreshment outside the house. Nothing appears unnatural in this regard which establishes his presence as well. 56. PW 2 has categorically stated about the place where Mardan Singh was sitting. He has deposed about the presence of PW 4 and PW 5 as well as the sister of the deceased Mardan Singh on the open piece of land where they were sitting and the light refreshment was served to him. He has assigned the fire arm weapon to Drigpal and farsa to appellants Maiku and Gyasi. Ballam has been assigned to Prahlad and Govind. He has deposed that appellant Drigpal discharged a shot from his fire arm whereas appellants Maiku and Gyasi assaulted deceased Mardan Singh by farsa. The place of murder of Mardan and his brother Hari Singh being different and at some distance as well has also been deposed by him. Ballam has been assigned to Prahlad and Govind. He has deposed that appellant Drigpal discharged a shot from his fire arm whereas appellants Maiku and Gyasi assaulted deceased Mardan Singh by farsa. The place of murder of Mardan and his brother Hari Singh being different and at some distance as well has also been deposed by him. PW 2 along with PW 4 and PW 5 secretly followed the appellants while they were on the way for commission of murder of Hari Singh and he (PW 2) along with PW 4 & PW 5, witnessed the murder of deceased Hari Singh. He has also assigned the use of fire arm and the farsa respectively to accused-appellants Drigpal, Maiku and Gyasi. This witness has been put to a lengthy cross-examination. The purpose of cross-examination is to test the veracity of a witness. The witness has categorically denied the involvement of accused Prahlad and Govind, who were assigned the ballam. Nothing could be elicited from this witness by way of examination in the shape of admission, which may create any doubt upon his testimony. The testimony of PW 2 remained consistent throughout the examination-in-chief and in the cross-examination. 57. The testimony of PW 2 has also been assailed on the ground that he had close connection with police and has been witness on behalf of police in several cases. Even if, for argument sake it is taken to be true, then the requirement of law would be to scrutinize the testimony of this witness cautiously. 58. The defence has failed to bring to our notice any material contradiction in the examination-in-chief and cross-examination of the witnesses so as to discredit the testimony of PW 2. On critical appraisal of the testimony of PW 2, we do not find any material discrepancy, which may be sufficient to discard his testimony. 59. The presence of the witness on the spot was with a purpose and his presence could not be shaken by way of cross-examination and more so, the statement that he being a chance witness, the principles of appreciation of a chance witness has already been dealt above. There is complete consistency in the entire testimony of PW 2. 59. The presence of the witness on the spot was with a purpose and his presence could not be shaken by way of cross-examination and more so, the statement that he being a chance witness, the principles of appreciation of a chance witness has already been dealt above. There is complete consistency in the entire testimony of PW 2. His testimony does not disclose any material contradiction on the point of time, date, place, manner and the weapon used in commission of the offence as well as the complicity of the accused persons-appellants in the alleged crime. This witness has fully supported the prosecution story set up by way of FIR. PW 2 was cross-examined at two occasions. Even if, discrepancies in the testimony of PW 2 are presumed, those are of natural and of trivial nature keeping in view PW 2 was not cross-examined at one stretch on the date of which his examination-in-chief was recorded. Such discrepancies or variations for argument sake, if any, in examination-in-chief and cross-examination even if taken to be true, being natural and trivial in nature do not have any bearing on the credibility of the witness. 60. It has also been argued that PW 2 being the relative of deceased, hence, he is a highly interested witness. The testimony of this witness has been scrutinized on the basis of principles discussed above and is found to be reliable. 61. Over all appraisal of PW 3 Bal Kishan clearly supports the testimony of PW 2 and speaks about the role and weapon assigned to the accused-appellants. This witness has also stated about the time, date, place and manner of commission of offence and the use of weapon assigned to accused-appellants. He has also not assigned any role to accused Prahlad and Govind, who were equipped with ballam. Even if, for argument sake, the testimony of this witness is discarded, even then the testimonies of PW 4 and PW 5 remains on record for scrutiny. 62. PW 4 Vinod is the real brother of deceased and he has categorically stated about his presence at the place of occurrence, which appears to be natural. He has deposed about the date, time and place of occurrence and the involvement of accused-appellants and the weapons assigned to them and the manner in which they had committed the offence. This witness has been put to a lengthy cross-examination. He has deposed about the date, time and place of occurrence and the involvement of accused-appellants and the weapons assigned to them and the manner in which they had committed the offence. This witness has been put to a lengthy cross-examination. His age at the time of examination-in-chief was between 1012 years. 63. Non administration of oath to this witness, would not mean that the statement given by the witness should be out rightly thrown away from the record. In such circumstance, the burden is cast upon the Court to appreciate the statement of a child witness in the light of testimony of other witnesses and the Court has to see as to whether the statement given by the child witness is in coherence with the testimony of other witnesses with respect to the date, time, place and manner of assault and by whom and with which weapon, the offence was committed. 64. The Court should bear in mind the capability, the power of understanding of the child witness, who is aged about 1012 years. The witness was subjected to cross-examination to adjudge the veracity of his statement. The witness has categorically denied the involvement of accused Govind and Prahlad, who were assigned ballam. There is complete consistency in the statement of PW 4 with the story of FIR. There is no material contradiction with respect to time, date and place of occurrence and also with the manner in which the appellants have committed the murder and the weapons they have used in commission of the murder of his two brothers Mardan Singh and Hari Singh. 65. If the witness would have been tutored, then he could have safely not made any admission about a lady being present in their home or about the kidnapping of a lady by the deceased. On critical appraisal of the testimony of this witness, we are of the firm opinion that there are no material contradictions on the point of involvement of the accused persons-appellants and the weapon assigned to them as well as the time, date, place and manner of occurrenc. Even if, some variations appearing in the deposition, are taken to be true, these variations appear to be natural and do not raise a question mark on the veracity of the statement made by him. 66. PW 5 Phoola Rani is the mother of deceased. Even if, some variations appearing in the deposition, are taken to be true, these variations appear to be natural and do not raise a question mark on the veracity of the statement made by him. 66. PW 5 Phoola Rani is the mother of deceased. She has also disclosed the purpose for which PW 2 visited her place and made payment to the balance amount of the cow to her. She has also stated the purpose for which PW 2 visited her place on the date of incident. She has deposed that firstly, Drigpal discharged a shot at deceased Mardan Singh. She has categorically assigined the weapon of assault to all the accused persons namely, Drigpal, Maiku, Gyasi, Prahlad and Govind. Fire arm to Drigpal, farsa to Maiku and Gyasi, ballam to Prahlad and Govind. She has stated that after commission of murder of Mardan Singh, accused persons-appellants proceeded towards Hari Singh, by saying that he would not be spared. PW 2, PW 4 and PW 5 secretly followed the assailants, who committed the murder of Hari Singh at bandha. She has categorically stated that Drigpal fired upon Hari Singh and other accused persons assaulted him by means of the weapons, which were in their hands. This witness has been put to a lengthy cross-examination. She has categorically denied in her cross-examination about the involvement of accused Prahlad and Govind, who were respectively assigned the ballam. She has categorically admitted in her examination-in-chief and the cross-examination about the part played by Drigpal, Maiku and Gyasi in the commission of offence with the weapons assigned to them on the date, time and place of incident. Even after a detalied cross-examination on behalf of accused-appellants, nothing could be extracted by way of cross-examination from this witness, which may be termed as admission in contradiction to the story set up in the FIR or in contradiction to the statement in examination-in-chief by the witness. 67. The principle of appreciation of a related or an interested witness has already been discussed above. 67. The principle of appreciation of a related or an interested witness has already been discussed above. After critical appraisal, we find that the testimony of PW 5 is in complete coherence with the story set up in the FIR as well as the deposition made by PW 2 and PW 4 with respect to the date, time, place and manner of murder of Mardan Singh and Hari Singh at two different places with the use of weapons assigned to them. 68. On critical appraisal of the story set up in the FIR and the statement made by PW 2, PW 4 and PW 5, there is complete coherence about the date, time, place, manner of commission of offence, the weapons used therein and the complicity of the appellants. 69. Now it appears expedient that the testimonies of witnesses of fact, who are alleged to be eye witnesses, should be tested on the touchstone of the medical evidence. PW 1 G. D. Pandey is the doctor, who conducted the autopsy on the persons of deceased Mardan Singh and Hari Singh. The injuries found on the persons of Mardan Singh and Hari Singh discloses the injury in the nature of gun shot wound and incised wound. The witnesses of the fact has also stated that both the deceased have sustained the injuries by fire arm, which was caused by Drigpal Singh by use of fire arm and the incised wound by use of farsa assigned to Maiku and Gyasi. The doctor has categorically opined that the injuries in the nature of incised would may be caused by farsa, which fortifies the testimony of witnesses of facts. 70. The reason and purpose assigned by PW 2 for the visit to the place of deceased Mardan Singh finds complete corroboration from the testimony of PW 4 Vinod and PW 5 Smt. Phoola. The appraisal of evidence of PW 2, 4 and 5 proves the presence of PW 2 on the place of occurrence to be natural with purpose. 71. The next limb of argument is that the independent witness has not been examined. All the witnesses of fact are related witness. The aspect of non-examination of an independent witness has recently been considered by the Supreme Court in the case of Sadhu Saran Singh v. State of U. P, (2016) 4 SCC 357 . 71. The next limb of argument is that the independent witness has not been examined. All the witnesses of fact are related witness. The aspect of non-examination of an independent witness has recently been considered by the Supreme Court in the case of Sadhu Saran Singh v. State of U. P, (2016) 4 SCC 357 . The relevant para is being reproduced here-in-below : “21.(vi) As far as the non-examination of any other independent witness is concerned, there is no doubt that the prosecution has not been able to produce any independent witness. But, the prosecution case cannot be doubted on this ground alone. In these days, civilized people are generally insensitive to come forward to give any statement in respect of any criminal offence. Unless it is inevitable, people normally keep away from the Court as they feel it distressing and stressful. Though this kind of human behaviour is indeed unfortunate, but it is a normal phenomena. We cannot ignore this handicap of the investigating agency in discharging their duty. We cannot derail the entire case on the mere ground of absence of independent witness as long as the evidence of the eyewitness, though interested, is trustworthy.” 72. From the principle enunciated by the Hon'ble Apex Court it can safely be said that mere absence of an independent witness would not have the effect of derailment of the entire prosecution case. The psychology of the public at large has changed to a greater extent and no one wants to afford the annoyance of other side by being a witness. Mere on the score of absence of an independent witness the entire prosecution cannot be discarded or disbelieved. 73. On critical appraisal of the testimony of PW 2, PW 4 and PW 5, who are alleged to be related and interested witness, we find inter se complete coherence in their testimonies with respect to the date, time, place and manner of occurrence and by whom as well as with what weapon, the crime has been committed. The testimonies of these witnesses corroborates the story disclosed in the FIR. The FIR is to be appreciated bearing in mind that it is not supposed to be the encyclopaedia and it is not expected to contain all the minute details. Even if, for agrument sake there is any ommission in the FIR, it would not materially affect the prosecution case. The FIR is to be appreciated bearing in mind that it is not supposed to be the encyclopaedia and it is not expected to contain all the minute details. Even if, for agrument sake there is any ommission in the FIR, it would not materially affect the prosecution case. Time and again the Hon'ble Apex Court has stated that the FIR is not supposed to be a substantive piece of evidence and it is used only for the purpose of corroboration and contradiction. Any ommission would not adversely affect the prosecution case. 74. On the basis of aforesaid discussions, we are of the opinion that the findings of conviction recorded by the learned Court below are well founded on the materials available on record and no error has been committed by the learned Court below in appreciating the evidence and in recording the findings of conviction against the accused-appellants. There appears no justification to interfere with the findings of conviction recorded by the learned Court below. 75. In view of aforesaid reasons, the judgment and order dated 7.12.1982 passed by the learned Court below convicting and sentencing the accused persons-appellants as mentioned above, is hereby affirmed. 76. This appeal is bereft of merits and is, accordingly, dismissed. 77. Let the lower Court's record be transmitted back to the Court concerned forthwith along with a copy of this judgment for necessary compliance. ———————