Hon'ble Bharat Bhushan,J. Hon'ble Alok Kumar Mukherjee,J. (Delivered by Hon. Bharat Bhushan, J.) 1. This criminal appeal on behalf of surviving appellant Mukesh assails judgment and order dated 24.2.1983 passed by the then Additional Sessions Judge, Meerut in Sessions Trial No. 198 of 1982 (State versus Sanjay and another) whereby sole surviving appellant Mukesh and late appellant Sanjay were convicted under section 302 read with section 34 Indian Penal Code (in short, IPC) and sentenced to undergo imprisonment for life. 2. During pendency of this appeal, appellant Sanjay died, therefore, his appeal stands abated. This Court is now concerned with the appeal of sole surviving appellant Mukesh only. 3. Appellant Mukesh and late appellant Sanjay were brothers. Deceased Brijesh Mohan Sharma and informant Dharmesh Mohan Sharma (PW-1) were brothers too. Both, accused-appellants and deceased used to reside in Shivpuri locality though houses of deceased and appellants were situated on Hapur and Garh road respectively. Smt. Vimla, Bua (father's sister) of deceased and wife of veterinary doctor used to reside at the residence provided within compound of veterinary hospital situated at Hapur-Garh road, Meerut. On the day of incident (5.2.1982), informant Dharmesh Mohan Sharma (PW-1) and his elder brother Brijesh Mohan Sharma left their residence at about 3:45pm for visiting their Bua Smt. Vimla, then living in the compound of veterinary hospital. PW-2 Rajendra also met and joined them. As soon as, they reached near the house of Sri Ram Kumar Sharma, owner of National Book Depot, his son, namely, Mukesh (appellant) and Sanjay (deceased appellant) accosted them. Appellant Mukesh was armed with spear (bhala) and late appellant Sanjay was wielding knife. Both of them expressed their annoyance at the alleged use of foul language by deceased against accused persons and threatened to kill him. Appellant Mukesh first advanced towards deceased Brijesh Mohan Sharma aiming spear at him but caught by PW-1 Dharmesh Mohan Sharma (informant). Both of them scuffled with each other. In the meantime, late appellant Sanjay attacked deceased Brijesh with knife and caused injuries. PW-1 Dharmesh Mohan Sharma pushed appellant Mukesh away and tried to grab accused-appellant Sanjay who pushed the informant back and then struck deceased Brijesh Mohan Sharma several times with knife whereupon already injured deceased fell on the ground. Mukesh also attacked deceased with handle part of Spear (Bhala). PW-1 Dharmesh Mohan Sharma pushed appellant Mukesh away and tried to grab accused-appellant Sanjay who pushed the informant back and then struck deceased Brijesh Mohan Sharma several times with knife whereupon already injured deceased fell on the ground. Mukesh also attacked deceased with handle part of Spear (Bhala). The blood sprinkled over cover of the car of accused persons and some blood also scattered on the ground. A crowd also gathered there whereupon both the accused fled from the spot. 4. Injured deceased was initially admitted to Pyare Lal Sharma Hospital (in short, P.L.Sharma Hospital) and later shifted to Medical College, Meerut. In the meantime, a report was scribed by Dinesh Mohan Sharma at the dictation of Dharmesh Mohan Sharma (PW-1) and lodged at Police Station (in short, P.S.) Civil Lines, Meerut at 4:55pm. The place of occurrence was situated at 1 ½ kms. away from the P.S. Civil Lines, Meerut. The deceased was examined by Dr. Sharvan Kumar (PW-6), who found the following injuries on the person of deceased :- 1. Incised wound 3 cm. X ¾ cm. X depth not probed. Over Rt. Side of chest 6 cm. from the nipple- tailed outer side. 2. Incised wound 4 cm. X 2 cm. X depth not probed on Lt. Side of chest over 11 cm. above the left nipple-tailed outer part. 3. Incised wound 1/8 cm. X 1/8 x muscle deep on outer front part of Rt. thigh upper part. 4. L. wound 3 cm. X ½ x scalp deep on Lt. side of head 8 cm. Above the head. 5. Deceased then succumbed to the injuries and died therefore, the case was converted to section 302 IPC and relevant entries were made in General Diary (in short, G.D.) at the P.S.Civil Lines. Initial investigation was conducted by one S.I. Pooran Singh Sagar (PW-5). He recorded statements of Dharmesh (eye-witness) and Head Moharrir Kripal Singh (PW-7) visited P.L.Sharma Hospital where he was apprised by Constable Pramod Kumar that injured Brijesh Mohan Sharma had already been sent to Medical College, Meerut for further treatment. He took clothes and shoes of the deceased in his possession from P.L.Sharma Hospital. He prepared site-plan (Ex. Ka-3) and also took samples of blood stained earth and plain earth. 6. Meanwhile cadaver of deceased was sent for postmortem which was conducted by Dr. He took clothes and shoes of the deceased in his possession from P.L.Sharma Hospital. He prepared site-plan (Ex. Ka-3) and also took samples of blood stained earth and plain earth. 6. Meanwhile cadaver of deceased was sent for postmortem which was conducted by Dr. N.S.Pal (PW-4), who found the following ante-mortem injuries on the person of deceased :- 1. Incised wound 2.5 cm. X 2 cm. X chest cavity deep in front of upper part of chest left side 10 cm. above left nipple at 12 O' clock position. The wound is 'L' shaped, direction down wards & back ward. 2. Incised wound 2 cm. X 1 cm. X muscle deep on Rt. side front of chest 4 cm. below Rt. nipple at 8 O'clock position obliquely placed. 3. Incised wound 1.5 cm. X 0.5 cm. X muscle deep front of lower part of abdomen 10 cm. below umbilicus at 6 O' clock position. 4. Lacerated wound 4 cm. X 1 cm. X bone deep on left side head 11 cm. above left ear. 5. Lacerated wound 2 cm. X 0.5 cm. X scalp deep on left side of head 3 cm. behind injury no. 4. 6. Partially healed wound 2 cm. X 1 cm. on front of left leg upper part. 7. Scabbed abrasion 2.5 cm. X 1.5 cm. front of Rt. Knee lower part. Scab partially fallen off. 7. Doctor opined that injury nos. 1 to 3 were caused by sharp edged weapon while injury nos. 4 and 5 were caused by blunt object. The time of death was ascertained between 5:00pm to 6:00pm on 5.2.1982. The postmortem report is available on record as Ex.Ka-2. 8. After conversion of this case under section 302 IPC, the investigation was then taken over by Inspector Kripal Singh (PW-7) on 6.2.1982. During investigation, Inspector tried to apprehend the accused persons but they absconded, therefore, a report was filed for issuance of process under sections 82 and 83 Cr.P.C. against them but accused surrendered in the court and were sent to jail. After recording their statements, a charge-sheet was filed against appellant Mukesh and his late brother Sanjay (Ex.Ka.7). 9. Trial Judge charged appellants Mukesh and late Sanjay under section 302 read with Section 34 IPC. They pleaded not guilty and desired to be tried. 10. After recording their statements, a charge-sheet was filed against appellant Mukesh and his late brother Sanjay (Ex.Ka.7). 9. Trial Judge charged appellants Mukesh and late Sanjay under section 302 read with Section 34 IPC. They pleaded not guilty and desired to be tried. 10. During the course of trial, prosecution adduced three witnesses of fact, namely, PW-1 Dharmesh Mohan Sharma, PW-2 Rajendra (eyewitness) and PW-3 Yashvir Singh (eye-witness). In addition to them, formal witnesses were also produced, namely, Dr. N.S.Pal (PW-4), S.I. Pooran Singh Sagar (PW-5), Dr. Sharvan Kumar (PW-6) who conducted autopsy, Inspector Kripal Singh (PW-7) who conducted investigation, Head Constable Tirpal Singh (PW-8), Constable Karan Singh (PW-9) and Head Constable Tripal Singh (PW-10). Statement of accused persons were recorded under section 313 Cr.P.C. wherein late Sanjay admitted the factum, of altercation with informant Dharmesh Mohan Sharma and deceased Brijesh Mohan Sharma and claimed that they were in fact attacked by deceased Brijesh Mohan Sharma and informant Dharmesh Mohan Sharma with knives. He defended himself and snatched knife from informant Dharmesh Mohan Sharma and used it in his defence. 11. Sole surviving appellant Mukesh has denied his presence on the spot and claimed that he has been falsely implicated on account of his relationship with Sanjay. Appellant produced one witness Dr. D.P. Arora (DW-1) who had examined late appellant Sanjay at Muzaffarnagar. It appears that Sanjay had gone to Muzaffarnagar after the incident and appeared before Dr. D.P.Arora in the night of 6/7th of February, 1982 at about 2:15am and a medical report was prepared. Incidentally, Dr. D.P.Arora did not communicate this information either to local police or police at Meerut. He has opined that injuries were 1 ½ days old and could have been caused on 5.2.1982 at about 3:45pm. Interestingly, one injury was shown towards left side of body but during the course of evidence, DW-1 Dr. D.P.Arora conceded that this injury existed on right side of chest of late Sanjay. Both injuries were reported to be caused by knife and both of them were simple. Doctor also concluded that he did admit injured in the hospital as general condition of patient was good. Doctor also conceded that no one identified the injured to him. 12. D.P.Arora conceded that this injury existed on right side of chest of late Sanjay. Both injuries were reported to be caused by knife and both of them were simple. Doctor also concluded that he did admit injured in the hospital as general condition of patient was good. Doctor also conceded that no one identified the injured to him. 12. Trial Judge heard counsel for both the parties and thereafter, concluded that there was sufficient evidence to hold both appellant Mukesh and late Sanjay guilty of offence under section 302 read with section 34 IPC and accordingly both of them were convicted under the aforesaid sections and sentenced to undergo life imprisonment vide impugned judgment and order dated 24.2.1983. This judgment is under challenge before this Court. 13. Heard Sri Anoop Trivedi, learned counsel for the sole surviving appellant and Sri Syed Ali Murtuza, learned Additional Government Advocate (in short, AGA). 14. Before we embark to dwell upon the merits of rival case, it would be appropriate for this Court to briefly examine the entire prosecution evidence. 15. In the instant case, the report was lodged by real brother of deceased, Dharmesh, Mohan Sharma, informant (PW-1) on 5.2.1982 at about 4:55pm. According to PW-1 Dharmesh Mohan Sharma, he along with deceased Brijesh Mohan Sharma, his elder brother left their residence for visiting Vimla (Bua) residing in the compound of Veterinary Hospital, Hapur-Garh Road, Meerut. He has explained that for visiting the residence of Bua, deceased and his brother had to inevitably cross the residence of accused persons. 16. Both informant and his brother deceased Brijesh Mohan Sharma went to veterinary Hospital for meeting their Bua on 5.2.1982 at about 3:30pm. As soon as they came out of their residence, PW-2 Rajendra, who was resident of a house located across the house of deceased also joined them. He too was going to veterinary hospital, therefore, all three persons simultaneously crossed the house of appellant Mukesh and late Sanjay (now dead) for visiting veterinary hospital. Suddenly, both appellants Mukesh and late Sanjay accosted them. Appellant Mukesh was holding spear and late appellant Sanjay was wielding knife. Both of them admonished deceased Brijesh Mohan Sharma for his alleged use of foul language against appellants earlier. Both of them threatened the deceased to eliminate him. Appellant Mukesh advanced towards Brijesh Mohan Sharma aiming spear. Suddenly, both appellants Mukesh and late Sanjay accosted them. Appellant Mukesh was holding spear and late appellant Sanjay was wielding knife. Both of them admonished deceased Brijesh Mohan Sharma for his alleged use of foul language against appellants earlier. Both of them threatened the deceased to eliminate him. Appellant Mukesh advanced towards Brijesh Mohan Sharma aiming spear. Informant Dharmesh Mohan Sharma (PW-1) grabbed him in order to save his brother. A scuffle broke out between Mukesh (appellant) and Dharmesh Mohan Sharma (informant). Meanwhile, accused late Sanjay inflicted knife injuries on the person of the deceased. Seeing this, informant pushed back Mukesh and tried to nab Sanjay. Mukesh in turn pushed back informant whereupon Sanjay knifed Brijesh Mohan Sharma couple of times. Appellant Mukesh also assaulted deceased Brijesh Mohan Sharma with wooden handle of his spear effectively using it as lathi. This witness Dharmesh Mohan Sharma (PW-1) has further stated that several persons including his father and Rajendra Chaudhary arrived on the spot. Injured was rushed to P.L.Sharma Hospital. A First Information Report (in short, FIR) (Ex.Ka-1) was scribed by Dinesh Mohan Sharma and thereafter, report was lodged. Brijesh Mohan Sharma succumbed to his injuries on the same day. As stated earlier, PW-2 Rajendra had also accompanied deceased and informant to the place of occurrence. He has testified as PW-2 and he reinforced the story of PW-1 Dharmesh Mohan Sharma. Rajender is not related to deceased. 17. PW-3 Yashvir Singh owns a medical store. He too was going to his shop after having lunch at his residence. He witnessed the entire incident. He has stated that appellant Mukesh was using spear and late Sanjay was using knife. He has testified that appellant Mukesh and late Sanjay came out of their house and first threatened deceased and his brother and thereafter attacked them with their respective weapons. He has supported the prosecution story by saying that surviving appellant Mukesh used Bhala (spear) as lathi at least twice. 18. Dr. Sharvan Kumar (PW-6) initially examined deceased but after death of Brijesh Mohan Sharma, autopsy was conducted by Dr. N.S.Pal. A careful examination of record would reveal that prosecution has adduced evidence of three eye-witnesses including informant. Both doctors, who conducted initial medical examination of deceased and who later on conducted autopsy have been produced. 19. Three eye-witnesses produced by prosecution are credible and trustworthy. N.S.Pal. A careful examination of record would reveal that prosecution has adduced evidence of three eye-witnesses including informant. Both doctors, who conducted initial medical examination of deceased and who later on conducted autopsy have been produced. 19. Three eye-witnesses produced by prosecution are credible and trustworthy. Two eyewitnesses were, in fact, present at the place of occurrence since inception of the incident. Entire incident occurred before their eyes. PW-1 Dharmesh Mohan Sharma is the brother of the deceased. His evidence is natural, consistent with normal human conduct and trustworthy. This incident occurred in broad daylight in presence of several persons. The factual evidence is highly trustworthy. There is absolutely no reason why prosecution witnesses would lie about the incident especially, informant Dharmesh Mohan Sharma who is the brother of the deceased. There is absolutely no reason for him to spare the real culprits and falsely implicate the appellants. 20. It is argued on behalf of the appellant that there are several discrepancies and contradictions in the evidence of prosecution. Learned counsel for the appellant has argued that these contradictions create suspicion about veracity and credibility of prosecution evidence. He has especially drawn attention of this Court towards the fact that there is absolutely no evidence to support the claim of PW-2 Rajendra that he took injured to P.L.Sharma Hospital. Before analyzing this argument advanced on behalf of appellant, it would be appropriate to dwell upon the story advanced on behalf of appellant. Late appellant Sanjay has specifically put forth a positive case by virtually admitting the entire incident and involvement of rival parties in it. During course of statement under section 313 Cr.P.C. the following admission was made by late Sanjay :- ^^5@2@82 dks eSa lhesaUV dh rjkbZ dj jgk FkkA czts'k /kesZ'k ogak vk;s bu nksuksa ds gkFk ij pkdw Fkk bUgksaus ;g dg dj fd lkys rq>s ml fnu dk etk p[kkrs gSa] pkdqvksa ls geyk fd;k eSusa /kesZ'k eksgu dk pkdw Nhu fy;k] /kesZ'k ogka ls Hkkx x;kA czts'k us blh nkSjku gedks pkdw ekjk] eSusa vius cpko esa /kesZ'k dk Nhuk gqvk pkdw pyk;kA gesa pkdw ls pksVsa vk;h FkhA bl ?kVuk ds ckjs esa eSusa rkj eq[;ky; esa Hkst fn;k D;ksafd iqfyl us esjh fjiksVZ ugha fy[kh FkhA esjh pksVksa dh MkDVjh gq;hA^^ 21. A perusal of aforesaid admission would reveal that as far as factum of incident is concerned, even appellants have no quarrel with their rival. The claim that they were attacked by informant and deceased with knife and that Sanjay snatched knife from Dharmesh and used it against Brijesh in defence while informant fled from the spot. This claim of late Sanjay establishes the factum of incident. He has not raised any dispute regarding time and place of occurrence also. His only defence is that incident occurred other way round. Deceased and (PW-1) Dharmesh Mohan Sharma attacked them with knife and he retaliated in defence. This admission on the part of Sanjay reinforces the prosecution story and evidence as far as factum of incident and involvement of rival parties are concerned. 22. Sole surviving appellant Mukesh has also not denied factum of incident. He claims that incident occurred between late appellant Sanjay and deceased Brijesh and informant Dharmesh. He has been falsely implicated due to his relationship with late Sanjay. He claims that he was not present on the spot. 23. The claim of appellant Mukesh can not be accepted for the simple reason that three eye-witnesses have narrated his involvement in the incident in a very trustworthy manner. There is nothing on record to demonstrate that appellant Mukesh was not present on the spot in the light of very cogent and trustworthy evidence of prosecution. The mere fact that some discrepancies can be pointed-out in their evidence is not ground to reject their testimony. The prosecution evidence especially of eyewitnesses have reinforced prosecution story on material particulars. 24. It is pertinent to point-out that every discrepancy, contradiction, and variation in prosecution evidence may not be sufficient to adversely affect the prosecution case. Sometimes, variation merely indicates that witnesses have not been tutored. So long core of prosecution evidence is intact and trustworthy, minor discrepancies in the prosecution evidence are not sufficient to discard otherwise trustworthy testimony of prosecution witnesses. Hon'ble Apex Court in Meharban Singh and others versus State of Madhya Pradesh, 1997 Cr.L.J. (S.C.) has held that it is the duty of courts to evaluate the discrepancy and to see whether minor discrepancy in fact adversely affect the trustworthy character of evidence or not. If the courts can believe the trustworthy character of evidence, then minor discrepancies are not sufficient to discard the evidence of otherwise trustworthy witnesses. 25. If the courts can believe the trustworthy character of evidence, then minor discrepancies are not sufficient to discard the evidence of otherwise trustworthy witnesses. 25. Learned counsel has argued that prosecution has not been able to establish the visit of deceased to P.L.Sharma Hospital and this demolishes the prosecution case entirely. We are afraid, the appellants are merely creating castle in the air as far as this claim is concerned. The record reveals that the FIR was lodged almost within 70 minutes. The incident occurred suddenly and mental condition of a younger distraught brother can only be imagined. They intended to visit a family relation and suddenly a murderous assault was made on the brother in broad daylight. Elder brother was assassinated in presence of younger brother without any warning. The fact of the matter is that informant Dharmesh Mohan Sharma also could have been seriously injured in the same attack. At one hand, he was trying to save his brother and on the other hand, he was probably thinking of his own self at least on subconscious level. There was no occasion or opportunity for the prosecution to invent the story of visit of deceased Brijesh Mohan Sharma to P.L.Sharma Hospital. There was, in fact, no reason for them to invent this story. 26. PW-1 Dharmesh Mohan Sharma has categorically stated that at first deceased was taken to P.L.Sharma Hospital and there is absolutely no reason to disbelieve it. Same fact was reiterated by PW-2 Rajendra, who is not related to informant or deceased. Both, in fact, belonged to two different social groups as admitted by PW-2 Rajendra himself. In paragraph-11 of his statement, he has stated that he went to P.L.Sharma hospital along with informant Dharmesh Mohan Sharma and stayed there only few minutes and then they took injured Brijesh Mohan Sharma to Medical College. PW-3 Yashvir Singh directly went to medical college and found Brijesh dead there. It is not merely witnesses of fact, who have deposed about initial visit of deceased to P.L.Sharma Hospital for treatment but PW-5 Pooran Singh Sagar also went to P.L.Sharma Hospital and acquired clothes and shoes of the deceased from there. This witness also visited the Medical College. Inquest report was prepared on the same day at about 6:45pm. Entire documentation regarding death of deceased Brijesh was done on the same day. This witness also visited the Medical College. Inquest report was prepared on the same day at about 6:45pm. Entire documentation regarding death of deceased Brijesh was done on the same day. There are many documents on record to belie the ante-timing of FIR. The relevant entries had been made in General Diary of Police (Ex. Ka-9) in the wake of incident and subsequent to registration of FIR. 27. We have carefully examined all the material on record and believe that argument of learned counsel for appellant on this score has no basis. Fact of matter is that there was no reason for the appellant to invent the story of P.L.Sharma Hospital. There was no doubt that deceased died in the incident occurred at the stated place of occurrence. There is no doubt that deceased died later on in Medical College on account of injuries sustained in the same attack. If deceased had not been taken to P.L.Sharma Hospital, then prosecution could have simply said that they directly went to Medical College and that would not have adversely affected the prosecution case at all. 28. Learned counsel for the appellant has also argued that FIR is faulty and ante-timed and it does not contain essential features of incident. It was argued that use of spear as lathi has not been mentioned. The name of PW-3 Yashvir is missing in the FIR. We are afraid, this argument is not sustainable. FIR is primarily used for setting the criminal justice machinery in motion. The FIR was lodged immediately in aftermath of the incident at 4:55pm. Dharmesh Mohan Sharma waited for his brother, a budding lawyer at that time. It was quite natural on his part to seek the assistance of his brother. FIR was reduced into writing by Dinesh Mohan Sharma on the dictation of Dharmesh Mohan Sharma (PW-1). Disclosure of names of all the witnesses and narration of minute details in the FIR was not required. Primarily role of FIR is to move the Police machinery in motion. 29. The Full Bench Allahabad High Court in Gopal versus State, 1999 Cr.L.J. 2501 has held that FIR can not be treated as encyclopedia. Hon'ble Supreme Court in Pandurang Chandrakant Mhatre and others versus State of Maharashtra (2010) 1 SCC (Cri) 413 has held that FIR has a limited value during criminal trial and it merely sets the criminal law in motion. Hon'ble Supreme Court in Pandurang Chandrakant Mhatre and others versus State of Maharashtra (2010) 1 SCC (Cri) 413 has held that FIR has a limited value during criminal trial and it merely sets the criminal law in motion. FIR is not expected to be encyclopedia of events. So long FIR discloses the commission of cognizable offence and its details, it is sufficient for the purpose of criminal trial. 30. In the present case, FIR was lodged within 70 minutes of the incident. FIR contains all significant details of events but mention of names of every witness is not required therein. Use of weapon and names of accused persons, time, place and manner of incident are enshrined in the FIR. This Court is convinced that FIR (Ex. Ka-1) contains all the necessary ingredients and we believe that contents of FIR can not be discarded at any ground. 31. Learned counsel for the appellant has claimed that they did not have any motive to commit the crime. We believe that question of motive is one of perception. The motive is usually lie locked in the heart of aggressor and others can only make guess about it. In this case, complainant party believes that deceased was attacked because appellants believed that deceased was using filthy and foul language against them behind their back. It is difficult to prove this kind of perception but this incident occurred in broad day light. The statement of appellant during the course of 313 Cr.P.C. discloses that rival parties believed that they were on antagonistic terms. Informant says that they were attacked on account of enmity and sole surviving appellant also believes that he had been implicated on account of previous enmity. Therefore, it is apparent that both the rival parties at least, have admitted the existence of inimical relationship between them. Whether existence of enmity would impel any one of them to the extent of committing murder is purely an academic question which need not be answered for the simple reason that human behavior or reactions to events and incidents can not be categorized into tight compartments. They vary from person to person. Time, Opportunity, availability of tools etc. do influence the outcome. 32. An argument has also been raised that incident occurred in broad day light. There were various shops around the place of occurrence and only interested witnesses have been introduced. They vary from person to person. Time, Opportunity, availability of tools etc. do influence the outcome. 32. An argument has also been raised that incident occurred in broad day light. There were various shops around the place of occurrence and only interested witnesses have been introduced. It is said that informant Dharmesh is real brother of deceased. PW-2 Rajendra was accompanying them and PW-3 Yashvir has also been denounced as partisan witness. We are not impressed by this argument. PW-2 Rajendra belongs to Jat community while informant and deceased belong to Bhahmin community. Of course, they are neighbors and were going together to the place of occurrence. Had PW-2 Rajendra been not produced then prosecution would have been accused of withholding the best evidence. Both PW-1 Dharmesh and PW-2 Rajendra are best witnesses for establishing the case of prosecution and they have supported the prosecution case to the hilt. Simultaneously PW-3 Yashvir too has supported the prosecution evidence and there is no significant and material discrepancy in the testimonies of these witnesses. He has narrated the incident in trustworthy manner. 33. Courts can not be oblivious of reluctance of general public to help the Police or victims of crime. The trial judge has noted that realities by saying that citizens are averse to depose for couple of reasons. Firstly, involvement of risk from criminals and secondly, it is a thankless job. We believe that brother of deceased Brijesh in fact is better witness as far as murder of his brother is concerned. Ordinarily there is no reason for him to spare the real murderers of his brother. We do not, therefore, give much credence to the argument of learned counsel for the appellant that evidence of PW-1 Dharmesh Mohan Sharma and PW-2 Rejendra can not be taken into consideration because of their relationship with deceased and evidence of PW-3 Yashvir because his name had not been mentioned in the FIR. We are afraid, the question of relationship of witnesses with deceased or injured is no longer reason for discarding their testimony. We believe that Court has to appreciate the evidence given by close relative of deceased with greater care but we also believe that mechanical rejection of evidence of witnesses on sole ground of relationship would result in failure of justice. 34. We believe that Court has to appreciate the evidence given by close relative of deceased with greater care but we also believe that mechanical rejection of evidence of witnesses on sole ground of relationship would result in failure of justice. 34. Apex Court in Pandurang Chandrakant Mhatre and others versus State of Maharashtra (2010) 1 S.C.C. (Cri) 413 has held that the dominant question to be considered is whether the witnesses, despite being interested, have spoken the truth and are creditworthy. Once it is found by the court, subsequent to analysis of such evidence that there is no reason to disbelieve such witnesses then the mere fact that the witnesses are interested, is not enough to reject the prosecution case on this ground alone. 35. Hon'ble Supreme Court in common judgment in Hardev Singh Vs Harbhej Singh and others/Suba Singh and others 1997 SCC (cri), has held that evidence of close relations cannot be rejected merely on the ground that they happened to be relatives. However, evidence of such witnesses should be scrutinized carefully. If the court is convinced that evidence of such witnesses is sufficient to establish the guilt of accused then the fact of interestedness alone cannot be a ground for rejecting the evidence of prosecution witnesses. 36. Hon'ble Supreme Court in Bhupendra Singh and others Vs State of UP (2010) 1 SCC (Cri) 275, has held that merely because eye witnesses are family members, their evidence cannot per se be discarded. When there is allegations of interestedness, the same has to be established. Mere statement that being relatives of deceased they are likely to falsely implicate accused, cannot be a ground to discard the evidence, which is otherwise cogent and credible. 37. We believe that testimony of PW-1 Dharmesh Mohan Sharma can not be rejected on the ground of his relationship with deceased. In any case, we believe that PW-2 Rajendra and PW-3 Yashvir are independent and trustworthy witnesses and failure of mentioning the name of PW-3 Yashvir in FIR would not rob his evidence any credibility. 38. Learned counsel for the appellant also argued that Investigating Officer has examined some of the witnesses with delay and that delay would effect the prosecution case adversely. We are afraid that delay in examination of the witnesses is not necessarily a negative factor. It depends upon circumstances of each case. 38. Learned counsel for the appellant also argued that Investigating Officer has examined some of the witnesses with delay and that delay would effect the prosecution case adversely. We are afraid that delay in examination of the witnesses is not necessarily a negative factor. It depends upon circumstances of each case. There can be various reasons for delay in examination of the witnesses. In the instant case, first investigation was entrusted to PW-5 Pooran Singh Sagar who immediately started investigation. After conversion of case under section 302 IPC, the investigation was entrusted to PW-7 Kripal Singh, Inspector of Police and he continued with investigation. It is pertinent to point-out that most of the witnesses were examined within reasonable time. It is true that investigation could have been done with little more enthusiastically. The argument has been raised that FIR was not promptly transmitted to the Magistrate. We believe that FIR should have been transmitted to the Magistrate with little haste but that by itself would not necessarily affect the prosecution case adversely. We believe that no irregularity was committed during investigation though Investigating Officer could have sent blood for chemical examination or used forensic evidence but in our opinion, these weakness in investigation are not so serious enough to render the entire prosecution case unworthy or unreliable. 39. The Full Bench of this Court in Gopal and etc. Vs State of UP, 1999 Cr.L.J.2501 has already established the following principle:- "At the very outset, we want to say that it is very easy to find fault with anything. Even accurate computers are prone to commit faults and mistakes. Not only this, human mind cannot be read. Sometimes it works in the direction that it becomes adamant to help one party and tries its level best to spoil the case. It is well known, at least by the police officers, who investigate the case, also know that they should take prompt action and should immediately record the statement of the witnesses. They should not make cuttings and over-writings etc. in the police papers so as to create suspicion about the sanctity of the papers. They should fairly prepare the inquest report and police papers and should write the case diary with accuracy and correctly. These propositions of law and facts cannot be doubted. They should not make cuttings and over-writings etc. in the police papers so as to create suspicion about the sanctity of the papers. They should fairly prepare the inquest report and police papers and should write the case diary with accuracy and correctly. These propositions of law and facts cannot be doubted. But if the police officers deliberately sleep over the matter, try to spoil the case and do not record the evidence of the witnesses immediately, the poor dead persons who have been killed cannot come out to say why you are spoiling the case. The bereaved family and the witnesses have only to remain silent spectators to what the police officers do. If they intervene, a judicial notice of the fact can be taken that they are humiliated, even beaten and implicated in false cases. Fear of police atrocities keeps them mum. They are also ignorant of the fact that what shall be the effect of delay and discrepancy. Therefore, also, they have nothing to intervene with the investigation. In our view, investigation of the case, if faulty, even mischievous or collusive should not be a ground to reject the ocular testimony of the informant who lodged the F.I.R. promptly. If the FIR is recorded soon or is recorded after four or five hours, why should the prosecution or the persons who have died 'suffer'. Each and every case has to be decided on its intrinsic evidence. If the eye-witnesses are believable the mere weakness of the investigation should not be a ground to reject their testimonies." 40. Apex Court in its judgment Bishundeo Poddar and others Vs The State of Bihar, 2003 Crl. L. J. 1558 has held thus:- "Be that as it may, the fate of the case does not depend on what the Investigating Officer or the prosecutor ought to have done and evidence ought to have been filed. The fate depends on the evidence which is on record." 41. Similarly, the Apex Court in its judgment of Amar Singh Vs Balwinder Singh, 2003 Crl. L.J. 1282 has held that every failure or omission of Investigating Officer cannot render prosecution case doubtful or unworthy of belief. 42. Learned counsel for the appellant has also submitted that according to prosecution, deceased was done to death by late co-accused Sanjay by using knife. L.J. 1282 has held that every failure or omission of Investigating Officer cannot render prosecution case doubtful or unworthy of belief. 42. Learned counsel for the appellant has also submitted that according to prosecution, deceased was done to death by late co-accused Sanjay by using knife. It is said that main attack had been attributed to accused Sanjay while appellant Mukesh has merely been assigned passive role. Learned counsel for the appellant has argued that appellant Mukesh used spear merely as a lathi inasmuch as claim of prosecution is that Mukesh used spear from wooden handle side, therefore, sole surviving appellant Mukesh can not be convicted under section 302 read with the aid of section 34 IPC because there is no evidence to suggest that surviving appellant Mukesh shared common intention with his late brother Sanjay. We are not convinced with this argument for the simple reason that entire prosecution story discloses prior meeting of minds. Prosecution story says that both attackers came out simultaneously while extending threats to eliminate deceased. Surviving appellant Mukesh was using more dangerous weapon but he was caught by informant Dharemesh, therefore, he could not use spear with force. It appears that in the scuffle, he managed to use spear from handle side because he failed to use more dangerous side of spear. If we have carefully examine all the evidence adduced by the eye-witnesses, it would reveal that surviving appellant Mukesh used spear (Bhala) from handle side on deceased Brijesh Mohan Sharma inasmuch as he could not swing spear (Bhala) with full force because he was caught by informant. In fact, evidence reveals that he was first off the block as far as attack was concerned. Appellant Mukesh in fact initiated the attack though later on injuries caused by late Sanjay proved to be fatal. Medical report indicates that deceased sustained injuries caused by blunt weapon as well. The testimony of PW-4 Dr. N.S.Pal reveals that lacerated wound 4 cm. X 1 cm. X bone deep on left side head 11 cm. above left ear and lacerated wound 2 cm. X 0.5 cm. X scalp deep on left side of head 3 cm. behind above injury. Doctor has opined that both these injuries were caused by blunt object i.e. wooden side of spear. Both these injuries are on vital part of the body. X bone deep on left side head 11 cm. above left ear and lacerated wound 2 cm. X 0.5 cm. X scalp deep on left side of head 3 cm. behind above injury. Doctor has opined that both these injuries were caused by blunt object i.e. wooden side of spear. Both these injuries are on vital part of the body. Both injuries were caused on head which indicates the intention of appellant Mukesh. 43. The aforesaid discussion indicates that requirement of provision is sharing of common intention upon being present on the place of occurrence. Section-34 applies where two or more accused are present and at least two factors are established. Participation of accused persons in the crime and common intention. We believe that despite absence of overt act, the section can still be invoked. In the present case, participation in crime and presence of both the appellants at the place of occurrence have been established. The consistent attempt of surviving appellant Mukesh to assault Brijesh Mohan Sharma is evident. He did give massive blow on the head of deceased from the wooden side of spear. He failed to use spear from its dangerous side merely because he was simultaneously involved in scuffle with informant as well, prohibiting him from using spear with full force and because of that he could only use spear from handle side. We believe that but for the attempt of informant, appellant Mukesh would have used spear from dangerous side. 44. We have carefully examined all material on record. We believe that prosecution has established his case by direct testimony of the eye-witnesses. Ocular testimony is consistent with medical evidence. We also believe that every failure or omission of Investigating Officer can not render prosecution case doubtful or unworthy of belief. We believe that prosecution has proved the offence against the accused with trustworthy evidence. Criminal trial envisages the proof beyond reasonable doubt. It does not require proof beyond every shadow of doubt as it is possible to have fanciful doubts just about anything in the world. We believe that surviving appellant committed the crime with which he is charged. In our opinion, accused Mukesh is guilty of section 302 read with section 34 IPC. 45. In view of the aforementioned discussion, we are of the view that the appeal lacks merit and deserves to be dismissed. It is accordingly dismissed. We believe that surviving appellant committed the crime with which he is charged. In our opinion, accused Mukesh is guilty of section 302 read with section 34 IPC. 45. In view of the aforementioned discussion, we are of the view that the appeal lacks merit and deserves to be dismissed. It is accordingly dismissed. Impugned judgment and order dated 24.2.1983 passed by the then Additional Sessions Judge, Meerut in Sessions Trial No. 198 of 1982 (State versus Mukesh and others) arising out of Case crime no. 95 of 1982, Police Station Civil Lines, District Meerut, is affirmed. Appellant, Mukesh,who is on bail, is directed to surrender immediately. His bail is cancelled and sureties discharged. Trial court is also directed to get him arrested and send him to jail to serve out the remaining sentence awarded by trial court and affirmed by this Court. 46. Office will certify this order to the court concerned through the Sessions Judge within 15 days. Trial court shall communicate compliance of this judgment within 30 days thereafter.