JUDGMENT Hon’ble Shamsher Bahadur Singh, J.—This appeal challenges the judgment and order dated 14.1.1983 passed by 2nd Additional Sessions Judge, Hamirpur in S.T. No.60 of 1979 (State v. Manna Singh and others) arising out of Case Crime No.205 of 1978, under Section 302 IPC, P.S. Sumerpur, District Hamirpur, whereby the accused-appellants namely Manna Singh, Ganpat Singh, Lallu Singh and Subedar Singh have been convicted and sentenced to undergo imprisonment for life under Section 302 read with Section 34 IPC. 2. In pursuance of the order of this Court dated 7.5.2015, a report has been submitted by learned C.J.M. Hamirpur on 22.5.2015, mentioning therein that the appellant No. 2 Ganpat Singh and appellant No. 3 Subedar Singh have died, therefore, the appeal filed on behalf of appellant Nos. 2 and 3 stand abated. 3. The deceased Ram Sanehi Singh son of Bhagwan Deen Singh was resident of village Pachkhura Mahan within the jurisdiction of Police Station Sumerpur, District Hamirpur. Accused Manna Singh, Ganpat Singh @ Mihi Lal and Subedar Singh are real brothers and accused Lallu Singh is their cousin and all of them are residents of the same village. 4. The prosecution case, in brief, is that before the date of incident the deceased Ram Sanehi Singh had purchased a ‘Bakhri’ (house) of one Jaitpal Khori, a portion of which was in possession of accused Manna Singh. The dispute led to a prolonged civil litigation which terminated in favour of the deceased. Manna Singh was upset by this judicial defeat, his ego was lacerated and the fire of revenge was smouldering in his heart. On 9.12.1978 after mid-day meal Binda Singh, Manni Lal Shukla @ Manni, Chhote Singh and the deceased Ram Sanehi Singh were basking in the sun and playing cards sitting on the eastern ‘chabutra’ situate in front of the house of Manni Lal Shukla. At about 1.30 p.m. accused Manna Singh armed with a double barrel gun, Ganpat Singh @ Mihilal with a rifle, Lallu Singh with a single barrel gun came there and watched the play for a while. In the meantime, Subedar Singh armed with a ‘Lathi’ also reached there from the western side and exhorted the other accused to eliminate the enemy as it was a good opportunity. Thereupon, all the gun men rained multiple gun shots on Ram Sanehi Singh. In the meantime, Subedar Singh armed with a ‘Lathi’ also reached there from the western side and exhorted the other accused to eliminate the enemy as it was a good opportunity. Thereupon, all the gun men rained multiple gun shots on Ram Sanehi Singh. Several shots were fired from a very close range which grievously wounded Ram Sanehi Singh and he succumbed to the injuries then and there. Manni Lal Shukla, Binda Singh and others entreated the accused to forbear but they were intimidated by the accused with dire consequence. After commission of the murder all the accused escaped towards the west. At the time of incident Raja Bhaiya Singh son of the deceased was at his door. The sound of gun shots hijacked his attention and he alongwith Pratap Singh and Lallu Singh rushed towards the scene of occurrence and on his way witnessed the four accused, with their weapons, fleeing away by the same pathway. Raja Bhaiya Singh saw the corpse of his father lying in a pool of blood on the ‘chabutra’ of Manni Lal Shukla. Manni Lal Shukla and others playing the cards narrated the details of the incident to him and he went back to his house and scribed the report Ext. Ka-2 and transmitted the same through Sheo Prasad, Chowkidar of the village, to the reporting Chowki Surauli of the Police Station Sumerpur. The written report was submitted at 5.30 p.m. on the same day at Police Chowki Surauli situate at a distance of about three miles from the village. The written report was received by constable Moharrair Jodha Singh who prepared the Chik report Ext. Ka-4 and registered the crime at serial number 9 of the General Diary Ext. Ka-5. The information of the crime was sent to Shri Babu Singh Sengar, Station Officer, through Constable Govind Ram and Constable Moharrair Jodha Singh left for the scene of occurrence to keep vigil over the corpse. Information of the crime was received by the Station Officer the next day in village Terha, wherefrom he proceeded to the place of incident direct. He held inquest at 8.30 A.M. on 10.12.1978 vide Ext. Ka-6, inter alia, recovered the dead body of the deceased and two blood-stained playing cards lying under the corpse of the deceased, plain and blood-stained earth, tiklies of cartridges and pellets from the spot and prepared a memo ext. Ka-7. He held inquest at 8.30 A.M. on 10.12.1978 vide Ext. Ka-6, inter alia, recovered the dead body of the deceased and two blood-stained playing cards lying under the corpse of the deceased, plain and blood-stained earth, tiklies of cartridges and pellets from the spot and prepared a memo ext. Ka-7. Photo of the dead body Ext. Ka-8 and challan of the corpse ext. Ka-9 were prepared. The corpse was sealed and sent for autopsy. Statements of the witnesses were recorded and a site plan Ext. Ka-10 was prepared. Autopsy on the corpse was conducted by Dr. T.D. Singh of District Hospital, Hamirpur on 11.12.1978 from 10.15 A.M. onward and the autopsy report is Ext. Ka-1. 5. The following ante mortem injuries were found on the person of the deceased; 1. Gun shot wound of inlet with scorched margin and also blackening and tattooing of margin present 4 cm x 3 cm x c.c. deep on the medial part of left clavicle. Direction front to backwards and slightly downwards. Fracture of the left clavicle and 1st to 4th ribs anteriorly present under the wound. Wadding material found on the track. It severely lacerates the upper lobe of the left lung. It communicates with wound No. 20 (exit wound). 2. Gun shot wound of inlet 4 ½ cm x 3 ½ cm x abdominal cavity deep, on the left costal margin at 7 O’clock position, 7 cms away from the left nipple. Margin scorched, blackened and tattooed. Direction left to right and slightly downwards. An scorched area size 5 cm x 3 ½ cms present above the wound contiguous with it. Fracture of the 10th anterior rib of the left side present, under the wound. It perforates the stomach through and through and extensively lacerated the liver. Wadding pieces found on the stomach and liver. 3. Gun shot wound of inlet 6 ½ cm x 2 cm x muscle deep left side of the abdomen horizontally disposed between 12 to 1 O’clock position 4 ½ cms above the umbilicus. Margin scorched and blackened and tattooed. Direction left to right and horizontally. 4. Gun shot wound of outlet 2 cm x 1 ½ cm x muscle deep right side of the abdomen at 11 O’clock position 7 cm away from the umbilicus. Edges everted. Wadding material found on the muscle plane. It communicate to injury No.3. 5. Margin scorched and blackened and tattooed. Direction left to right and horizontally. 4. Gun shot wound of outlet 2 cm x 1 ½ cm x muscle deep right side of the abdomen at 11 O’clock position 7 cm away from the umbilicus. Edges everted. Wadding material found on the muscle plane. It communicate to injury No.3. 5. Gun shot wound of inlet 4 cm x 3 cm x muscle deep. Margins scorched, blackened and tattooed right side of the abdomen lower part 3 cm above the right iliac crest. Direction left to right and slightly upward in the muscle plane. 6. A grazed and scorched area closely lateral to the wound No. 5. 7. Gun shot wound of exit 1 ½ cm x 1 ½ cm x 1 ½ cm x communicating to the wound No. 5. Margin everted right side of the abdomen lower part. It is 3 cm away from the wound No. 5 lateral to it. Margin everted. 8. Gun shot wound of exit 1 cm x ½ cm x communicating the wound No. 5. Margins everted 4 cm lateral to injury No. 5. 9. Gun shot wound of exit 2 cm x 1 ½ cm x communicates with injury No. 5. Margin everted on the right lower abdomen. 10. Gun shot wound of exit 1 cm x ½ cm x communicating to the injury No. 5. Margin everted. It is 10 cm lateral to the injury No. 5. 11. Gun shot wound of exit 1 cm x ½ cm x communicating with injury No. 5. Margin everted. It is 14 cm away and lateral to the injury No. 5. 12. Gun shot wound of exit 1 ½ cm x ½ cm x communicating with wound No. 5. Margin everted. It is 9 ½ cm away and lateral to the injury No. 5. 13. Gun shot wound of exit 1 cm x ½ cm x communicating with injury No. 5. Margin everted. It is 9 cm away lateral and downwards to the injury No. 5. 14. A grazed and scorched area size 2 cm x 1 ½ cm at 7 O’clock position 13 cm away from the umbilicus. 15. Two grazed and scorched spots 1 cm x 1 cm on the right iliac crest. They are 14 cm apart. 16. Margin everted. It is 9 cm away lateral and downwards to the injury No. 5. 14. A grazed and scorched area size 2 cm x 1 ½ cm at 7 O’clock position 13 cm away from the umbilicus. 15. Two grazed and scorched spots 1 cm x 1 cm on the right iliac crest. They are 14 cm apart. 16. A grazed, scorched spot 5 cm x 1 cm right side of the thigh front aspect 14 cms below right iliac crest. 17. Gun shot wound of exit 1 cm x ½ cm x c.c. Deep right side of the back on the posterior axillary line 1-8 cm below the right armpit. 18. Gun shot wound of exit 5 cm x 4 cm x c.c. deep on the left scapula. Margin everted. Fracture of the 4th and 5th posterior ribs and scapula present. It is an exit of injury No. 1. 19. Confluent gun shot wound of entry and exit (grazing) 23 cm x 5 cm x muscle deep left back lower part obliquely disposed. Margin scorched, tattooed and blackened. A scorched and blackened area size 11 cm x 4 cm is present above the wound continuous with it. Another scorched and blackened are size 6 cm x 3 cm present below the wound in continuation. 20. A gun shot wound of entry 5 cm x 4 cm x pelvic cavity deep on the right buttock, upper part. Direction back to front and medially wadding material found on the track. Four gun shots found on the right ground and iliac crest. Right iliac crerst fractured and bladder perforated through and through. 6. In the opinion of the doctor, the death occurred due to shock and haemorrhage as a result of the firearm injuries mentioned above. 7. The first I.O. was transferred and the remaining investigation was conducted by the Sub-Inspector Ravendra Kumar who submitted the charge-sheet Ext. Ka-11. Thereafter, the case was committed to the Court of Session on 6.4.1979. To the charge under Section 302/34 IPC, the accused pleaded not guilty and attributed their prosecution to enmity with the deceased and with the witnesses. 8. To bring home guilt of accused, the prosecution has examined as many as six witnesses. Out of them PW 1 Dr. T.D. Singh, PW 5 Constable Moharrair Jodha Singh and PW 6 Babu Singh Senger, Station Officer are formal witnesses. 8. To bring home guilt of accused, the prosecution has examined as many as six witnesses. Out of them PW 1 Dr. T.D. Singh, PW 5 Constable Moharrair Jodha Singh and PW 6 Babu Singh Senger, Station Officer are formal witnesses. PW 2 Manni Lal Shukla, P.W. 4 Binda Singh are the eye witnesses and PW 3 Raja Bhaiya Singh son of the deceased is scribe of the First Information Report Ext. Ka-2. He has also stated that while coming to the scene of occurrence he witnessed the four armed accused escaping by the same pathway. He has further proved the motive for murder of his father as mentioned in the First Information Report. 9. We have heard Sri R.P. Singh, learned counsel for the appellants, learned AGA for the State and perused the evidence and material available on record as well the impugned judgment. 10. The First Information Report was promptly lodged on the same day at 5.30 P.M. It mentions the names of the accused, a rifle and two guns used in the commission of offfence, date, time and place of occurrence, motive for the crime and names of the witnesses present at the time of incident. Thus, the F.I.R. corroborates the version of the prosecution. The medical evidence (statement of Dr. T.B. Singh and autopsy report prepared by him) establishes the fact that the deceased died of multiple gunshots injuries and his death was neither natural nor accidental. 11. The First Information Report, the ocular evidence of eye witnesses and the evidence of Investigating Officers, coupled with the site plan, leave no room for doubt that the death of the deceased was caused on the eastern ‘chabutara’ situate in front of the main door of the house of Manni Lal Shukla wherefrom the corpse of the deceased Ram Sanehi Singh was recovered. The date, time and scene of occurrence have not been challenged by the defence. 12. According to the prosecution version, Manni Lal Shukla, Binda Singh, Chhote Singh and deceased Ram Sanehi Singh were playing cards on the eastern ‘Chabutara’ of Manni Lal Shukla, when Ram Sanehi Singh was done to death by the multiple gunshots rained on him by the three accused Manna Singh, Ganpat Singh and Lallu Singh who were all armed with firearms. According to the prosecution version, Manni Lal Shukla, Binda Singh, Chhote Singh and deceased Ram Sanehi Singh were playing cards on the eastern ‘Chabutara’ of Manni Lal Shukla, when Ram Sanehi Singh was done to death by the multiple gunshots rained on him by the three accused Manna Singh, Ganpat Singh and Lallu Singh who were all armed with firearms. PW 2 Manni Lal Shukla whose presence on the scene of occurrence cannot be doubted by any stretch of imagination, has confirmed the prosecution version. He has frankly admitted that he is ‘purohit’ (family priest) of both accused Manna Singh and the deceased Ram Sanehi Singh. Manna Singh wanted to retrieve the land already given to Manni Lal Shukla by his family. There was a prolonged litigation before the consolidation Court between Manni Lal Shukla and the accused in which Ram Sanehi Singh had appeared as his witness. This witness has also stated that when the accused were aiming at Ram Sanehi Singh to fire, he had entreated them with folded hands to forbear but the accused did not relent, intimidated him with dire consequence and culminated their design. The testimony of this witness is natural, convincing and devoid of any concealment. 13. PW 4 Binda Singh while corroborating the version of the prosecution has admitted that after this incident a case under Section 107 of the Cr.P.C. was instituted between his brothers and the accused. The element of animosity is also manifest in the statement of PW 2 Manni Lal Shukla who has deposed that Binda Singh and Parasuram are real brothers and Parasuram’s daughter is married to Ram Narain Singh son of deceased Ram Sanehi Singh. 14. PW 3 Raja Bhaiya Singh who is son of deceased Ram Sanehi Singh has proved the motive that impelled the accused to eliminate the deceased. He has specifically stated that on hearing the sound of gun shots while he was proceeding to the scene of occurrence he saw all the four armed accused at the door of Jagmohan coming from opposite direction. He ascertained the facts from Manni Lal Shukla, Binda Singh and Chhote Singh and prepared the written report Ext. Ka-2. Thus, this witness has corroborated the evidence of the eye witnesses Manni Lal Shukla and Binda Singh regarding participation of the accused in the commission of the offence of murder. 15. He ascertained the facts from Manni Lal Shukla, Binda Singh and Chhote Singh and prepared the written report Ext. Ka-2. Thus, this witness has corroborated the evidence of the eye witnesses Manni Lal Shukla and Binda Singh regarding participation of the accused in the commission of the offence of murder. 15. The ocular testimony of all the above three witnesses i.e. Manni Lal Shukla, Binda Singh and Raja Bhaiya Singh is natural and straightforward and the conscience of the Court is convinced about its veracity. The medical evidence corroborates the ocular evidence of the eye witnesses and there is no conflict between the medical evidence and the eye witnesses account. 16. The eye witnesses and the accused are sworn enemies of each other and resident of the same village. The incident occurred in bright sun shine, and therefore, possibility of any mistake in identification of accused is out of question. 17. The learned counsel for the appellants has vehemently contended that if the eye witnesses Manni Lal Shukla and Binda Singh and the deceased were playing cards sitting on a small ‘chabutra’ in close physical proximity and multiple gunshots were fired at the deceased then the eye witnesses examined and Chotey Singh (not examined) must have sustained gunshot injuries and absence of any such injuries on the persons of above three witnesses, renders their presence on spot at the time of occurrence very doubtful. The argument is attractive but an analysis of the eye witness account and human conduct make it without strength. Both Manni Lal Shukla and Binda Singh have made specific mention that they tried their best to dissuade the accused from assaulting Ram Sanehi Singh but the accused threatened them with dire consequence to move away. As they were only fair-weather-friends and not blood relation of the deceased, it was very natural for them to have left the deceased to his fate. Moreover, the accused had no intention to harm the witnesses and therefore they isolated the deceased and ensured that the witnesses kept away. 18. The next contention on behalf of the appellants is that both the eye witnesses are inimical to the accused and they have falsely stated before the trial Court to implicate the accused. It is noteworthy that the evidence of witnesses cannot be discarded solely on this basis. 18. The next contention on behalf of the appellants is that both the eye witnesses are inimical to the accused and they have falsely stated before the trial Court to implicate the accused. It is noteworthy that the evidence of witnesses cannot be discarded solely on this basis. The Hon’ble Apex Court in case of Dilabar Singh v. State of Haryana, (2015) 1 SCC 737 ; Dhari v. State of U.P., AIR 2013 SC 308 and Ramesh Harijan v. State of U.P., 2012 (5) SCC 777 and Dharamveer v. State of U.P., AIR 2010 SC 1378 propounded that the enmity of the witnesses with the accused is not a ground to reject their testimony and if on proper scrutiny, the testimony of such witness is found reliable, the accused can be convicted. However, the possibility of falsely involving some persons in the crime or exaggerating the role of some of the accused by such witnesses should be kept in mind and ascertained on the facts of each case. As has been enunciated above, though there is some enmity between the accused and witnesses prior to and after the incident but the evidence of eye witnesses i.e. Manni Lal Shukla and Brinda Singh is natural, straightforward and trustworthy, and therefore, the same is fit to be relied on for conviction. They are residents of the same village and their houses are in the close proximity of the scene of occurrence, therefore, their presence on spot was quite probable. 19. Further in support of above contention, it was contended that Chhote Singh who has no enmity with the accused had been purposely withheld by the prosecution apart from non-examination of Kunj Bihari, Laxmi Prasad, Guru Prasad Langra, Babu Singh, Jagmohan and others who have their houses in the vicinity of the place of occurrence. The presence of above neighbours at the scene of occurrence was natural, and their non-examination by prosecution renders the prosecution case doubtful. This contention has no legs to stand as most of the villagers are usually reluctant to get themselves involved in an occurrence specially when the accused are desperadoes and no blame can be laid at the prosecution for not examining other witnesses. It is nor the case of prosecution or defence that above neighbors were present at the scene of occurrence. It is nor the case of prosecution or defence that above neighbors were present at the scene of occurrence. So far as non-examination of independent witnesses and its effect are concerned, the Hon’ble Apex Court in the case of Kripal Singh v. State of Haryana, AIR 2013 SC 286 ; Sandeep v. State of U.P., (2012) 6 SCC 107 and Mano Dutt and another v. State of U.P., 2012 77 ACC 2009 SC propounded that if a witness examined in the Court is otherwise found reliable and trustworthy, the facts sought to be proved by that witness need not be further proved through other witnesses though there may be other witnesses available who could have been examined but were not examined. Non-examination of material witness is not mathematical formula for discarding the weight of testimony available on record however, natural, trustworthy and convincing it may be. It is settled law that non-examination of eye witness cannot be pressed into service like a ritualistic formula for discarding the prosecution case with a stroke of pen. Court can convict an accused on statement of sole witness even if he is relative of deceased and non-examination of independent witness would not be fatal to the case of prosecution. 20. In view of above as has been discussed above, the evidence of eye witnesses examined by prosecution cannot be discarded only on the ground that Chhote Singh and other neighbour witnesses were not examined. 21. Learned counsel for the appellants further submitted that only two playing cards were found on spot and there is no trace of the remaining cards and therefore the theory of playing cards on ‘chabutra’ appears to be manufactured and concocted. There is no force in this submission because recovery of two blood-stained playing cards was effected on the next day at 8.30 A.M. from the place of occurrence and that too from beneath the corpse. In natural course the remaining cards could not remain in their original place as there are several agents like children, animals and wind to disturb their status quo. 22. It has been further submitted that place of occurrence is doubtful as no empty cartridges were recovered from the spot. In natural course the remaining cards could not remain in their original place as there are several agents like children, animals and wind to disturb their status quo. 22. It has been further submitted that place of occurrence is doubtful as no empty cartridges were recovered from the spot. It is essential to mention that PW 6 Babu Singh Sengar who investigated the case, has deposed that, inter alia, he recovered pellets and ticklies from the scene of occurrence and this fact is specified in recovery memo Ext. Ka-7. Moreover, there is no suggestion by defence to the eye witness account that Ram Sanehi Singh was done to death elsewhere. Therefore, contention loses strength. 23. No other point has been highlighted before us nor mentioned during the course of argument. 24. To appreciate the testimony of eye witness, it has to be kept in mind whether the witness is credible and his presence on spot is probable and he has seen the incident. In this background, the witnesses examined by the prosecution are consistent in their version despite searching cross examination and there is no material contradiction or inconsistency which may militate against their credibility or trustworthiness. Further, the evidence of the eye witnesses is strengthened by medical evidence on record. The motive for crime is also proved by PW 3 Raja Bhaiya Singh son of the deceased Ram Sanehi Singh. The prosecution has proved its case beyond reasonable doubt and verdict of conviction is legally and factually justified by the evidence on record. 25. Being the Court of first appeal, we have carefully scrutinized the case from every angle. The Court below has rightly appreciated the evidence available on record and rightly recorded the finding of conviction against the accused appellants. We do not find any justification for interference in the impugned judgment and sentence and the same deserves to be confirmed. 26. The appeal against Manna Singh and Lallu Singh is sans merit and deserves to be dismissed and is hereby dismissed. The conviction and sentence awarded by trial Court against the accused Manna Singh and Lallu Singh is confirmed. 27. So far as accused Ganpat Singh and Subedar Singh are concerned, their appeals have been abated due to their death. 28. The appellants/ accused Manna Singh and Lallu Singh shall surrender before the trial Court immediately to serve out the sentence awarded by the trial Court. 29. 27. So far as accused Ganpat Singh and Subedar Singh are concerned, their appeals have been abated due to their death. 28. The appellants/ accused Manna Singh and Lallu Singh shall surrender before the trial Court immediately to serve out the sentence awarded by the trial Court. 29. The copy of the Judgment and entire record be transmitted back to the learned trial Court for compliance. ——————