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2016 DIGILAW 3383 (ALL)

NAND LAL YADAV @ NANDA v. STATE OF U. P.

2016-10-04

ARVIND KUMAR MISHRA I, BALA KRISHNA NARAYANA

body2016
JUDGMENT : (Delivered by Hon'ble Bala Krishna Narayana, J.) Heard Sri Rajiv Lochan Shukla assisted by Sri Chandra Jeet Yadav learned counsel for the appellant and Sri Saghir Ahmad, Sri J.K. Upadhyay, Sri Irfan Chaudhary and Sri Syed Hasan Shaukat Abidi learned AGA in opposition. Appellant Nand Lal Yadav @ Nanda has preferred this appeal under Section 374(2) Cr.P.C. against the judgment and order dated 12.6.2012 passed by the Additional Sessions Judge Court no. 5, Azamgarh in S.T. No. 499 of 2006 (State vs. Nand Lal @ Nanda and three others), by which the appellant has been convicted under Section 302 read with Section 34 I.P.C. and sentenced to imprisonment for life and fine of Rs. 5000/- and in default of payment of fine two months additional imprisonment. The facts of this case in brief are that the complainant Hira Lal Yadav, son of Shobhnath, resident of village-Siswa, Post-Bacchwal, P.S. Mehnagar, district-Azamgarh gave a written complainant (Ext.Ka-1) at police station-Mehnagar, district-Amazgarh on 02.10.2004 at about 6:30 p.m., stating therein that his father's elder brother, Laxman Yadav, son of Barkhandi Yadav, resident of village-Siswa was sitting in front of the house of one Adalat Nat, son of Jagga Nat on 02.10.2004 along with Shivpujan Yadav, son of late. Judawan Yadav and Kamlesh Yadav, son of Raghunath Yadav who are the residents of same village and making preparations for smoking tobacco. At about 5:45 p.m. accused Nand Lal Yadav @ Nanda Yadav armed with the licensed gun of his uncle Triveni Yadav, son of Sahbali Yadav, came to the place where Laxman Yadav was sitting, on a motorcycle along with his two companions and fired at him with the licensed single barrel gun as a result of which Laxman Yadav died on the spot. At the time of incident large number of villagers including Ram Narayan Yadav, son of Satiram Yadav and Sudarshan Yadav, son of late. Markandey Yadav etc. were present at the place of incident and had witnessed the same. After shooting his father's brother Laxman Yadav, the accused Nand Lal Yadav ran towards south while his companions went towards Singhpur on the motorcycle. Markandey Yadav etc. were present at the place of incident and had witnessed the same. After shooting his father's brother Laxman Yadav, the accused Nand Lal Yadav ran towards south while his companions went towards Singhpur on the motorcycle. The murder of Laxman Yadav was orchestrated by one Triveni Yadav who along with the appellant suspected that on the advise of the deceased Laxman Yadav his cousin brother Bechan Yadav had stopped the work of laying the pipe line under the Kharanja which was being constructed under the B.D.C. quota for discharge of water of hand pump installed near the house of Nand Lal into the 'Pokhari' as proposed by him. On account of the aforesaid dispute Triveni Yadav got Laxman Yadav killed in pursuance of a conspiracy hatched by him with his nephew Nand Lal Yadav and his companions. On the basis of the written complaint (Ext.Ka-1) chek F.I.R. (Ext.Ka-2) was prepared and registered as Case Crime no. 315 of 2004 under Sections 302/34 and 120B I.P.C., P.S. Mehnagar, district-Azamgarh (State vs. Nand Lal Yadav and others) and relevant G.D. entry was made vide rapat no. 38 on 02.10.2004 at 6:30 p.m., carbon copy whereof is on record as (Ext.Ka-3). After registration of the case, the Investigating Officer PW4 Devendra Kumar Pathak swung into action and after copying the contents of F.I.R. in the case diary, he recorded the statement of the complainant Hira Lal Yadav. He conducted the inquest of the dead body of the deceased and prepared the inquest report in his own hand writing and the other related papers namely, Form 10 (Ext.Ka-3/1), photonash (Ext.Ka-4), letter addressed to R.I., C.M.O. and Medical Officer (Ext.Ka-5, Ext.Ka-6 and Ext.Ka-7) respectively. He inspected the place of incident and prepared the site plan (Ext.Ka-8). He also collected plain and blood stained earth and grass and prepared recovery memo (Ext.Ka-9). The postmortem of the dead body of the deceased was conducted by PW5 Dr. Ram Prakash on 3.10.2004 at 3:15 p.m. who prepared the postmortem report (Ext.Ka-13). During the course of investigation the Investigating Officer of the case PW4 Devendra Kumar Pathak arrested the accused Triveni Yadav on 03.10.2004 and got the crime weapon, recovered by him from a room of his house hidden under a heap of straw at about 19 hours on the same day and prepared its recovery memo. During the course of investigation the Investigating Officer of the case PW4 Devendra Kumar Pathak arrested the accused Triveni Yadav on 03.10.2004 and got the crime weapon, recovered by him from a room of his house hidden under a heap of straw at about 19 hours on the same day and prepared its recovery memo. He also recovered one empty cartridge of 12 bore from the barrel of the gun and five live cartridges of 12 bore from the butt cover and prepared recovery memo (Ext.Ka-10). Empty and live cartridges recovered from the barrel and butt cover of the gun were sealed and the S.B.B.L. Gun allegedly used in the commission of crime was also seized. Site plan of the place of recovery was prepared by the Investigating Officer and brought on record as Ext.Ka-11. After completion of investigation he submitted charge sheet against the appellant, Triveni Yadav, Pankaj Singh and Monu Yadav under Sections 302/34 and 120B I.P.C. before the Chief Judicial Magistrate, Azamgarh. The accused were brought before the Magistrate who after complying with the provisions of Section 207 Cr.P.C. committed the case for trial of the accused to the Court of Session as the offences enumerated in the charge sheet were exclusively triable by Court of Session, whereupon the case was registered as S.T. No. 315 of 2004 and transferred to the court of Additional Sessions Judge, Court no. 5, Azamgarh. Charge was framed against the accused under Section302/34 and 120B I.P.C. The accused pleaded not guilty and claimed trial. The prosecution in order to prove its case examined PW1 Hira Lal Yadav, PW2 Shiv Poojan Yadav and PW6 Bechan as witnesses of fact, PW7 Moti Yadav, witness of inquest and PW3 Constable Shivji Chaurasiya, PW4 Devendra Kumar Pathak, S.H.O. Mehnagar, PW5 Dr. Ram Prakash as formal witnesses. After scrutinizing the evidence on record and considering the submissions made by learned counsel for the parties, the learned Additional Sessions Judge vide impugned judgment and order dated 12.6.2012 convicted the appellant alone under Section 302/34 I.P.C. and sentenced him to imprisonment for life and fine of Rs. 5000/- together with default clause while the other accused namely, Triveni Yadav, Pankaj Singh and Monu Singh were acquitted of all the charges. 5000/- together with default clause while the other accused namely, Triveni Yadav, Pankaj Singh and Monu Singh were acquitted of all the charges. Sri Rajiv Lochan Shukla, learned counsel for the appellant submitted that considering the time of the occurrence and the distance between the police station and the place of incident and the time at which the F.I.R. was registered, the first information report in this case is anti timed. The prosecution has miserably failed to prove that the incident had taken place at the time mentioned in the F.I.R. and that the appellant had any motive to commit the ghastly crime. In the facts and circumstances of the case the inability of the prosecution to establish any motive for the appellant to commit the murder of the deceased, the appellant's conviction can not be sustained. He next submitted that according to the prosecution case itself the incident had taken place in a busy market area and there were several shops near the crime scene which were open at the time of incident but strangely prosecution failed to examine even a single witness who was either a resident of the locality where the crime was committed or owned a shop there including the owner of the shop from where the complainant claimed to have witnessed the incident. Both PW1 and PW2 are chance witnesses and their presence at the place of incident is neither natural nor probable. From the perusal of the testimonies of PW1 and PW2 it is clearly proved that none of them had seen the incident. Some unknown persons had shot the deceased who had a large number of enemies in the village and when his dead body was found, after due deliberations, consultations and with the advise of police personnel, who had arrived at the crime scene before the F.I.R. was lodged on receiving information about the occurrence from some other source, PW1 scribed the F.I.R. of the incident containing absolutely false and concocted allegations falsely implicating the appellant. The evidence of the two eye witnesses examined on behalf of the prosecution for proving the guilt of the appellant is full of contradictions, inconsistencies and embellishments which create a very strong doubt regarding the veracity of the facts stated by them in their testimonies. The evidence of the two eye witnesses examined on behalf of the prosecution for proving the guilt of the appellant is full of contradictions, inconsistencies and embellishments which create a very strong doubt regarding the veracity of the facts stated by them in their testimonies. Such being the state of evidence, the conviction of the appellant under Section 302/34 I.P.C. and life sentence awarded to him recorded by the court below vide impugned judgment and order can not be sustained and is liable to be set aside. Per contra, Sri Sagir Ahmad, learned A.G.A. submitted that the prosecution case as spelt out in the F.I.R. stands proved to the hilt from the ocular testimonies as well as the medical evidence on record. The F.I.R. of the incident was lodged promptly within forty five minutes of the incident hence there was no opportunity for the PW1 to engage himself in any deliberation or consultation with a view to implicate the appellant and the other accused falsely. The inconsistencies and contradictions if, any in testimonies of the two witnesses of fact with regard to the description of the incident are minor and natural discrepancies and the same do not go to the core of the prosecution case so as to render the same unreliable. The conviction of the appellant recorded by the trial court is based upon cogent evidence and the sentence awarded to him is supported by relevant considerations. This appeal which is devoid of merit, is liable to be dismissed. We have heard the learned counsel for the parties and scanned the entire lower court record. The only question which arises for our consideration in this case is that whether the prosecution has been able to prove its case beyond all reasonable doubts or not. This appeal which is devoid of merit, is liable to be dismissed. We have heard the learned counsel for the parties and scanned the entire lower court record. The only question which arises for our consideration in this case is that whether the prosecution has been able to prove its case beyond all reasonable doubts or not. The credibility of the F.I.R. in this case has been challenged by the learned counsel for the appellant on the ground that considering the time of the occurrence and the distance of 8 k.m. between police station and the place of occurrence it was humanly impossible for the complainant PWI to have lodged the F.I.R. of the incident at 6:30 p.m. which had allegedly taken place at 5:45 p.m. He has further stated that the evidence of PW1 Hira Lal Yadav and PW4 Devendra Kumar Pathak, Investigating Officer of this case unequivocally indicates that the deceased Laxman Yadav was shot dead by some unknown persons and upon receiving the information of the incident from some other source, PW4 had arrived at the place of incident and PW4 upon being informed by someone about the murder of his father's elder brother had reached the place of incident after a considerable delay which is proved from the fact that none of the documents prepared by the Investigating Officer at the place of incident including the inquest report (Ext.Ka-2) were signed by him. The first information report was thereafter fabricated by the prosecution falsely implicating the appellant and the other co-accused due to previous enmity and the same was registered anti timed. In support of his aforesaid contentions learned counsel for the appellant invited our attention to the examination-in-chief of PW1 Hira Lal Yadav (page 14) of the paper book and submitted that in his entire examination-in-chief PW1 has failed to disclose the mode of transport by which he had gone from the place of incident to the police station covering the distance of 8 km. within half an hour as he in his cross-examination on page 24 of the paper book he had deposed that he had remained at the place of incident which had taken place at about 5:45 p.m. for twenty minutes which means he had left the place of incident at about 18:05 hours and reached the police station and got the F.I.R. scribed and registered at 6:30 p.m. Learned counsel for the appellant next took us through the cross-examination of PW1 on page 21 of the paper book, in which he had stated that upon getting the News Darogaji had immediately arrived and page 24 of his cross-examination on which PW1 has stated that the I.O. had recorded his statement in the police station while PW4, Investigating Officer of this case D.K. Pathak in his examination-in-chief on page 48 of the paper book has deposed that he had recorded the statement of the complainant Hira Lal on the spot. Learned counsel for the appellant invited our attention again to the examination-in-chief of the complainant PW1 on page 24 of the paper book, in which he has stated that he had met the I.O. at the police station who had made inquiries from him and then registered the F.I.R. and thereafter he had returned to the place of incident with the I.O. However, the Investigating Officer PW4 Devendra Kumar Pathak on page 53 of the paper book in his examination-in-chief has categorically deposed that the case was registered in his absence while he was patrolling and he had reached the place of incident at about 7:45 p.m. Learned counsel for the appellant once again invited our attention to page 25 of the paper book, in which PW1 in his cross-examination denied the suggestion given to him by the defence counsel that he had not met the I.O. at the police station and the I.O. had arrived at the place of incident on receiving information from R.T. set while the police force had come to the crime scene from the police station. He also denied the suggestion given to him by the defence counsel that by the time PW1 had reached the place of incident, the inquest had already been conducted. He also denied the suggestion given to him by the defence counsel that by the time PW1 had reached the place of incident, the inquest had already been conducted. Learned counsel for the appellant has also pointed out several other circumstances which according to him indicate that the F.I.R. is ante timed namely, although the F.I.R. was lodged on 2.10.2004 but the chek F.I.R. was presented before the Magistrate on 5.10.2004; the challanlash and the photolash prepared by the Investigating Officer on the spot neither bear the number of case nor the sections under which the case was registered. Refuting the submissions made by learned counsel for the appellant that the F.I.R. in this case is ante timed, Sri Sagir Ahmad, learned A.G.A. has invited our attention to the evidence of PW3 S.I. Shivji Chaurasiya who on the date of incident was posted as Head Constable in police station-Mehnagar and submitted that from the evidence of PW3 it is fully proved that on the basis of written complaint given by the complainant Hira Lal Yadav PW1 to PW3. Chek F.I.R. (Ext.Ka-2) was prepared by him in his own hand writing and relevant entry in the G.D. was also made by him vide Rapat no. 28 on 02.10.2004 at 18:3 hours which was proved by him as Ext.Ka-3. He further submitted that the defence counsel has not given any suggestion either to PW1 or to PW3 that the F.I.R. of the case was not registered at the time recorded in the G.D. and the same was ante timed. A perusal of the testimonies of PW1 and PW3 reflects that the submission made by learned A.G.A. has force and the F.I.R. in this case can not be held to be ante timed on the basis of the submissions made by learned counsel for the appellant in this regard. A perusal of the testimonies of PW1 and PW3 reflects that the submission made by learned A.G.A. has force and the F.I.R. in this case can not be held to be ante timed on the basis of the submissions made by learned counsel for the appellant in this regard. The next ground on which the learned counsel for the appellant has challenged the conviction of the appellant is that the prosecution has miserably failed to prove by any cogent evidence that the incident had taken place at the time and in the manner as spelt out in the F.I.R. According to the F.I.R. (Ext.Ka-2) which was lodged by PW1 Hira Lal Yadav on 02.10.2004 at about 6:30 p.m. at police station-Mehnagar, district-Azamgarh, the appellant Nand Lal Yadav @ Nanda came with his two accomplices on a motorcycle to the place of incident, in front of house of Adalat Nat where the deceased Laxman Yadav was sitting with Shivpujan Yadav and Kamlesh Yadav and making preparations for smoking tobacco and shot him from the single barrel licensed gun of his uncle Triveni Yadav at about 5:45 p.m. as a result of which Laxman Yadav died on the spot. The appellant and the other accused ran away from the place of incident thereafter in different directions. Postmortem of the dead body of the deceased was conducted by PW5 Dr. Ram Prakash at about 3:15 p.m. on 03.10.2004 who noted following antemortem injuries on the dead body :- "(1) multiple fire arm wounds of entrance (15) in number on the anterior aspect of chest and upper part of abdomen in an area of 20 cm x 12 cm x 5 cm below the external notch. Each of size 0.4 cm x .4 cm depth variable from superficial skin deep to cavity deep. Blackening of margin of each injury. (2) Lacerated wound 7 cm x 4 cm bene deep on the right side palm with webs of thumb and index finger margin of wound blackened underlying thumb and index finger fractured from its lower end." According to his opinion the deceased had died as a result of hemorrhage and shock due to antemortem injuries. (2) Lacerated wound 7 cm x 4 cm bene deep on the right side palm with webs of thumb and index finger margin of wound blackened underlying thumb and index finger fractured from its lower end." According to his opinion the deceased had died as a result of hemorrhage and shock due to antemortem injuries. The deceased according to him had died about one day before which fully corroborates the time of incident mentioned in the F.I.R. In the F.I.R. it was specifically stated that the appellant had shot Laxman Yadav with the single barrel licensed gun of his uncle Triveni Yadav. The postmortem report of the deceased denotes 15 fire arm wounds of entrance and one lacerated wound. Thus the F.I.R. version that the deceased was shot by a firearm stands fully corroborated from the evidence of PW5. The manner of assault has been assailed by the learned counsel for the appellant on the ground that although according to the F.I.R. only shot was fired by the appellant but the postmortem report of the deceased shows two ante mortem firearm injuries. The first ante mortem injury comprises of multiple firearm wounds (15) in number on the anterior aspect of chest and upper part of abdomen over an area of 20 cm x 12 cm x 5 cm below external notch, each of size 0.4 cm x .4 cm depth variable from superficial skin deep to cavity deep with blackening of margin of each multiple fire arm wound. He also contended that the absence of blackening around the margin of second ante mortem injury indicates that both the ante mortem fire arm injuries found on the deceased's dead body could not have been caused by a single shot. Thus the contradiction between medical evidence and the ocular version with regard to the number of shots fired by the assailant at the deceased unequivocally indicates that neither PW1 nor PW2 who have consistently deposed that the appellant had fired only one shot were neither present at the place of incident nor they had witnessed the same. Learned A.G.A. strenuously tried to impress upon us that even it is assumed for the sake of argument that the second ante mortem injury found on the dead body of the deceased is also a fire arm injury, even in that case both the ante mortem injuries could have been inflicted from a single shot. Learned A.G.A. strenuously tried to impress upon us that even it is assumed for the sake of argument that the second ante mortem injury found on the dead body of the deceased is also a fire arm injury, even in that case both the ante mortem injuries could have been inflicted from a single shot. Advancing his argument in this regard further learned A.G.A. submitted that it was quite possible that the deceased on noticing that the appellant was aiming his shot at him took a reflex defensive action by trying to protect himself by extending his hand with his palm facing the gun and in the process one of the pallets which had dispersed from the bullet fired by the appellant from his S.B.B.L. Gun either inflicted the lacerated wound found on the palm of the deceased before the other pallets got embedded in the anterior aspect and the upper portion of the deceased or vice verca. The absence of blackening around the margins of second ante mortem injury and presence of blackening around the margins of the first ante mortem injury do not in any manner prove that two of the shots fired, one fired from a long distance and the other a close shot as the distance between the spot where the deceased was sitting at the time of incident and the place from where the shot was fired by the appellant as indicated in the site plan can not be treated as exact and accurate distance between the two points and can not be made basis for disbelieving the eye witness account which otherwise appears to be reliable. It is true that the prosecution case consistently has been that only single shot was fired and the postmortem report of the deceased indicates two ante mortem injuries. PW1 in his cross-examination on page 35 of the paper book has categorically deposed that the deceased had received both the injuries, one on his chest and the other on his palm from the same shot. The first injury has been specifically described by PW5 in the postmortem report of the deceased as multiple fire arm wound while the second ante mortem injury has been referred to him as a lacerated wound on the palm of the deceased with fracture in index finger. The first injury has been specifically described by PW5 in the postmortem report of the deceased as multiple fire arm wound while the second ante mortem injury has been referred to him as a lacerated wound on the palm of the deceased with fracture in index finger. PW5 was cautious enough not to describe the second ante mortem injury also a fire arm injury, although in his cross-examination on page 64 of the paper book he without assigning any reason for his opinion has described the second ante mortem injury also as a fire arm wound. He however, in his cross-examination has clearly stated that he was not in a position to state whether the ante mortem injury no. 2 and ante mortem injury no. 1 were result of a single shot or two shots. Thus, even if we assume that the second ante mortem injury noted on the dead body of the deceased was also inflicted by a fire arm even in that case, considering the submissions made by learned A.G.A. and it can not be said that the ante mortem injuries found on the dead body of the deceased under no circumstances could have been caused by a single shot. As far as the contention of learned counsel for the appellant that considering the distance between the point where the deceased was sitting and the point from where the shot was fired by the appellant, as depicted in the site plan (about 5 kadams-12.1/2 ft.) there could have been no blackening around the margins of first ante mortem injury found on the dead body of the deceased and the presence of blackening around the margins of the first ante mortem injury found on the deceased's dead body clearly indicates that he was shot from a close range, perhaps 4-5 ft. as opined by PW5 and hence the testimony of the eye witnesses on the point of manner of assault does not inspire confidence and is liable to be disbelieved. as opined by PW5 and hence the testimony of the eye witnesses on the point of manner of assault does not inspire confidence and is liable to be disbelieved. It is settled law that the distance shown in the site plan between two points at the place of occurrence is not the exact and accurate distance as normally such incident occur within a split of second and it cannot be expected of the persons who witness the occurrence to remember each and every detail pertaining to the incident minutely and to give a precise description of the incident including the exact distance between the place where the victim was present at the time of assault and the place from where the shot was fired. There are bound to embellishments, improvements, exaggerations and variations on material particulars. The law is settled that whenever there is a inconsistency between the ocular version and the medical evidence it is the ocular version which will prevail unless the inconsistencies are wholly irreconcilable. In the present case it can not be said that the inconsistency between the medical evidence and the ocular testimony pointed out by the learned counsel for the appellant is irreconcilable rather they corroborate each other. Thus we have no hesitation in holding that the prosecution has fully succeeded in proving that the assault was made in the manner as spelt out in the F.I.R. Learned counsel for the appellant has next submitted that since the prosecution has failed to prove that appellant had any motive to commit the murder of the deceased and the eye witness account in this case appears to be wholly untrustworthy, the appellant's conviction can not be sustained. On the point of motive, we find that in the FIR it has been alleged that there was a dispute between the appellant, Triveni Yadav and Benchan Yadav on the point of direction in which the water flowing from the hand pump installed near the house of Nand Lal Yadav should be discharged through the pipeline which was to be laid under the kharanja which was being laid under the BDC Quota. Triveni Yadav wanted the water to be discharged into village pokhari to which Bechan Yadav did not agree and since Triveni Yadav suspected that Bechan Yadav was acting on the advise of his cousin brother Laxman Yadav (deceased) he got him murdered by hatching a conspiracy with his nephew Nand Lal Yadav and his accomplices. In order to prove the motive the prosecution had produced Bechan Yadav as PW6 but he in his evidence tendered before the trial court did not say even a single word against the appellant or Trivani Yadav either being inimical towards him or having any animus with him. He also did not depose that the deceased was murdered by the appellant pursuant to any conspiracy hatched by Trivani Yadav with his nephew, Nand Lal Yadav (appellant) and his companions. Thus, we do not find that the prosecution has succeeded in proving the motive. However absence of motive can not disprove a charge of murder when there is direct evidence and it would be unsafe to hold that no criminal act can be presumed unless motive is proved. In the State of U.P. v. Nawab Singh, it was observed that in a murder case when there is direct evidence, motive looses its importance. Some omissions in the statement under Section 161, Cr.P.C. are not sufficient to discard the truthful and creditworthy evidence of the witness and also failure of the witness to give direction from which side the accused came caused due to illiteracy or lack of knowledge of the witness. We now come to the last ground on which the learned counsel for the appellant has castigated the impugned judgment and order. It has been contended by learned counsel for the appellant that the presence of PW1 Hira Lal Yadav and PW2 Shiv Poojan Yadav on the crime scene at the time of incident was neither natural nor probable and in view of the glaring inconsistencies, discrepancies, contradictions and improvements in the evidence of the two fact witnesses who are close relatives of the deceased and hence highly interested, partisan and also inimical towards the appellant and the conviction of the appellant recorded on the basis of their testimonies is liable to be scored out and the appellant acquitted. It has also been contended by learned counsel for the appellant that the failure of PW1 to nominate in the F.I.R. the two accomplices of the appellant who had come to the place of incident along with appellant on the motorcycle, by their names, although he knew them previously and to state therein that before the appellant had shot the deceased, sound of another gun shot was heard by him and PW2 having escaped unhurt in the assault although according to his own evidence he was sitting at a distance of about one meter from the deceased clearly indicates that neither of the two witnesses were present at the place of incident nor they had seen the occurrence. Learned counsel for the appellant has invited our attention to several portions of the testimonies of PW1 and PW2 highlighting the discrepancies and inconsistencies in their statements which suggest that none of the two witnesses were present at the place of incident. We now proceed to analyse the evidence of PW1 and PW2 on the touchstone of the objections canvased by learned counsel for the appellant with regard to the credibility of the prosecution witnesses. In the F.I.R. of the incident which was lodged by the PW1, he stated that after committing the murder of the deceased the appellant ran on foot towards south while his accomplices escaped on the motorcycle towards village-Singhpur. However on page 9 of his examination-in-chief he stated that after the occurrence the appellant had gone up to the Harijan Basti on the same motorcycle on which he had come and had got off from the motorcycle there and then walked towards south while his accomplices drove towards village-Singhpur on the motorcycle. PW2 on page 36 of his examination-in-chief deposed that all the assailants after committing the crime had gone on the motorcycle towards Harijan Basti where the appellant got down from the motorcycle and ran towards 'taal'. PW2 on page 36 of his examination-in-chief deposed that all the assailants after committing the crime had gone on the motorcycle towards Harijan Basti where the appellant got down from the motorcycle and ran towards 'taal'. Learned counsel for the appellant apart from inviting our attention to the aforesaid discrepancy in the evidence of PW1 and PW2 on the point of the direction and the manner in which the accused had escaped after committing the murder which in our opinion does not appear to be a material discrepancy, took us through the cross-examination of PW1 on page 25 of the paper book in which he has stated that the Investigating Officer on reaching the place of incident had first examined the dead body then prepared its recovery memo and thereafter proceeded to hold the inquest and submitted that from the aforesaid statement of fact it is clear that the inquest had not taken place in his presence otherwise he would have not described the inquest proceedings in a revers manner by deposing that the dead body of the deceased was first examined by the I.O. then its recovery memo prepared and thereafter the inquest started. On the same page PW1 has further admitted that he had not signed any paper prepared on the spot and apart from his signature on the F.I.R. there is no other proof of his presence at the place of incident. On the same page PW1 has further admitted that he had not signed any paper prepared on the spot and apart from his signature on the F.I.R. there is no other proof of his presence at the place of incident. In view of the aforesaid inconsistencies in the testimony of PW1 Hira Lal Yadav, it is crystal clear that he had reached the place of incident after the police had already arrived and completed the inquest proceeding and he was neither present at the time of occurrence at the place of incident nor he had witnessed the same and the statement of fact made by him in his examination-in-chief that after witnessing the incident he had gone to the police station for lodging the F.I.R. and thereafter returned to the place of incident with the Investigating Officer stands totally falsified from the evidence of Investigating Officer PW4 Devendra Kumar Pathak who on page 53 of the paper book in his examination-in-chief has deposed that the case was registered in his absence while he was patrolling and he had reached the place of incident at about 7:45 p.m. Yet on page 25 of the paper book PW1 in his cross-examination denied the suggestion given to him by the defence counsel that he had not met the Investigating Officer at the police station and the I.O. had arrived at the place of incident on receiving information from R.T. Set. He also denied the suggestion given to him by the defence witness that by the time he had reached the place of incident, the inquest had already been conducted. The failure of PW1 to nominate the two persons who had accompanied the appellant to the place of incident although they were known to him previously has been emphasized by learned counsel for the appellant as an additional factor indicating that PW1 was not present at the place of incident. PW1 in his cross-examination on page nos. 30 and 31 of the paper book has categorically stated that he had failed to nominate the two accomplices of the appellant, Pankaj Singh and Naveen Singh by name as he was extremely agitated at the time of occurrence and he could not remember their names. PW1 in his cross-examination on page nos. 30 and 31 of the paper book has categorically stated that he had failed to nominate the two accomplices of the appellant, Pankaj Singh and Naveen Singh by name as he was extremely agitated at the time of occurrence and he could not remember their names. In our considered view the testimony of PW1 can not be held to be untrustworthy and unreliable and liable to be discarded merely because he failed to nominate by name the two persons who had accompanied the appellant to the place of incident for committing the murder of the deceased, although they were known to him previously, specially when he has given a satisfactory explanation for the aforesaid omission. As far as the challenge to presence of PW2 on the place of incident by the learned counsel for the appellant on the ground that his presence at the time of incident at the place of incident was neither natural nor probable in view of he himself having admitted in his cross-examination that he was neither a ganja addict although he smoked ganja occasionally nor there was any previous plan to assemble in front of house of Adalat Nat for smoking ganja on the date of the occurrence and it was just a coincidence that he had gone to the house of Adalat Nat on the date of incident for smoking ganja with the deceased although before the date of incident he had never visited the house of Adalat Nat and his having not received any injury in the incident although he was sitting at a distance of about one meter from the deceased is concerned the same is without any substance. After having very carefully scrutinized the evidence of two eye witnesses examined on behalf of the prosecution to prove its case against the appellant, we find that PW2 in his evidence recorded before the trial court has fully corroborated the evidence of PW1 on all material aspects including the time, place and the manner in which the occurrence had taken place as spelt out in the F.I.R. The discrepancies which have been pointed out by the learned counsel for the appellant to which we have already referred to herein above, are apart from being minor discrepancies which do not effect the core of the prosecution case so as to render the same unbelievable, pertain mainly to post incident acts. The incident had taken place on 02.10.2004 at about 5:45 p.m. At that time in the month of October there is sufficient natural light around which would have enabled to PW1 and PW2 to identify the assailants. Defence has not come up with the case that the incident had taken place in darkness. The explanation given by PW1 and PW2 for their being present at the place of incident at the time of occurrence appears to be perfectly natural and acceptable. On page 34 of the paper book, PW1 in his cross-examination had deposed that he had gone to the market on the date of the incident for having a cup of tea and reading news paper, while PW2 in his cross-examination on page 40 of the paper book had stated on oath that on the date of occurrence he had himself purchased tobacco and then he had gone to the house of Adalat Nat with the deceased and Sudarshan to smoke ganja. In view of the above, we do not find any reason to doubt their presence on the place of incident at the time of occurrence. In State of Rajasthan v. Smt. Kalki, it was held that in the depositions of witnesses, there are always normal discrepancies however honest and truthful they may be. These discrepancies are due to normal errors of observations, normal errors of memory, due to laps of time, due to mental dispositions such as shock and horror at the time of the occurrence and the like material discrepancies are those which are not normal or not expected of a normal person. These discrepancies are due to normal errors of observations, normal errors of memory, due to laps of time, due to mental dispositions such as shock and horror at the time of the occurrence and the like material discrepancies are those which are not normal or not expected of a normal person. In Chand Khan v. State of U.P., it was observed that minor discrepancies in evidence of eye-witnesses who have given convincing and reliable evidence with regard to details and manner of assault will not affect their evidentiary value. Absence or insufficiency of motive is immaterial if the incident is proved by evidence of eye-witnesses. The theory of two shots sought to be proved by the learned counsel for the appellant by referring to the cross-examination of PW1 on page 28-29 of the paper book in which he had stated it was in his knowledge that before the occurrence another shot was fired but he did not mention the aforesaid fact in the F.I.R. as he did not consider the same of any relevance stands totally demolished from the fact deposed by him on the same page that he had not heard the sound of the first shot himself but one Balchand Yadav had told him about it. The defence counsel despite having subjected both PW1 and PW2 to grueling cross-examination has failed to elicit anything from them which may even remotely create a doubt in our mind regarding the veracity of the facts stated by them on oath. Although the learned counsel for the appellant has urged that both the eye witnesses of the incident PW1 Hira Lal Yadav and PW2 Shiv Poojan Yadav apart from being close relatives of the deceased were also inimical towards the appellant and had hence given false evidence against him, he has not been able to bring us to our notice any evidence which may prove the existence of previous enmity between the appellant and PW1, PW2 and the deceased especially in view of the evidence of PW6 Bechan recorded before the trial court in which he has not deposed that there was any enmity between him or the appellant and the deceased. The issues whether the evidence of close relatives is liable to be ignored on the ground of their being interested witnesses and whether the prosecution case is liable to be disbelieved for it's failure to examine even a single independent witnesses are no longer res-integra and stand settled by a series of judgments of the Apex Court. On the point of interested witnesses, the Hon'ble Supreme Court in State of U.P. v. Jagdeo, observed that only on the ground of interested or related witnesses, their evidence cannot be discarded. Most of the times eye witnesses happen to be family members or close associates because unless a crime is committed near a public place, strangers are not likely to be present at the time of occurrence. In Mst. Dalbir Kaur v. State of Punjab, following observations were made : (i) Interested witness:- Relatives who are natural witnesses are not interested witnesses and their testimony can be relied upon. The term "interested" postulates that the person concerned must have some direct interest in seeing that the accused is somehow or the other is convicted either because he had some animus with the accused or for some other reason. In the reported case the incident took place at midnight inside the house, the only natural witnesses who could be present to see the assault were the persons present in the house at that time. No outsider can be expected to have come at that time because the attack was sudden. Moreover a close relative who is a very natural witness cannot be regarded as an interested witness. (ii) .......... (iii) Witness who gives details with absolute accuracy is trustworthy. Hon'ble Supreme Court in Waman and others v. State of Maharashtra, has observed in paragraph no. 9 which reads as follows: "In Balraje alias Trimbak v. State of Maharashtra, this Court held that the mere fact that the witnesses were related to the deceased cannot be a ground to discard their evidence. It was further held that when the eye- witnesses are stated to be interested and inimically disposed towards the accused, it has to be noted that it would not be proper to conclude that they would shield the real culprit and rope in innocent persons. It was further held that when the eye- witnesses are stated to be interested and inimically disposed towards the accused, it has to be noted that it would not be proper to conclude that they would shield the real culprit and rope in innocent persons. The truth or otherwise of the evidence has to be weighed pragmatically and the court would be required to analyze the evidence of related witnesses and those witnesses who are inimically disposed towards the accused. After saying so, this Court held that if after careful analysis and scrutiny of their evidence, the version given by the witnesses appears to be clear, cogent and credible, there is no reason to discard the same." It has been further observed in Waman (supra) that relationship cannot be a factor to affect the credibility of a witness. The evidence of a witness cannot be discarded solely on the ground of his relationship with the victim of the offence. The plea relating to relatives' evidence remains without any substance in case the evidence has credence and it can be relied upon. In such a case the defence has to lay foundation if plea of false implication is made and the Court has to analyse evidence of related witnesses carefully to find out whether it is cogent and credible. The same view has been reiterated in State of U.P. v. Naresh and others. Thus in view of the settled law on the issue, the evidence of PW1 and PW2 can not be discarded only on account of their being close relatives of the deceased which we have found to be trustworthy and reliable with regard to details and manner of assault and the identity of the perpetrators of the crime. The prosecution case is further not liable to be disbelieved on account of failure of the prosecution to examine any independent witness for proving the charge of murder against the appellant in view of the observations made by the Hon'ble Apex Court in the case of "Mst. Dalbir Kaur that withholding or keeping back of witnesses is not unfair and adverse inference can not be drawn." There is no witnesses who might have been gained over by accused and even if those witnesses are not produced by the prosecution, there is nothing to stop accused from applying to the Court for examining such witnesses. Dalbir Kaur that withholding or keeping back of witnesses is not unfair and adverse inference can not be drawn." There is no witnesses who might have been gained over by accused and even if those witnesses are not produced by the prosecution, there is nothing to stop accused from applying to the Court for examining such witnesses. In the present case the two eye witnesses examined on behalf of the prosecution have satisfactorily explained their presence at the place of incident and given details of the occurrence with almost absolute accuracy. We find their evidence unimpeachable and trustworthy for the purpose of convicting the appellant. Thus, in view of the forgoing discussion, we do not find that the trial Judge has committed any illegality or infirmity in convicting the appellant and sentencing him to life imprisonment under Section 302 I.P.C. However, the appellant's conviction recorded by the trial court under Section 34 I.P.C. in the face of acquittal of all other co-accused is wholly misconceived and cannot be sustained as conviction under Section 34 I.P.C. necessarily postulates commission of a crime with common intention by more than one person. Accordingly the conviction of the appellant recorded by the trial court under Section 34 I.P.C. is scored out. The appeal stands allowed to the extent indicated herein above. Impugned judgment and order stands modified accordingly.