Judgment : (Delivered by Hon'ble Arvind Kumar Mishra-I, J.) 1. Heard Sri Satish Trivedi, learned Senior Advocate assisted by Sri Ajay Kumar Pandey, Advocate appearing for the appellant no.2 Munkad and Sri K.K. Mishra, learned counsel appearing for the appellant no.5 Farahim and Sri A.N. Mulla, learned A.G.A. on behalf of the State and perused the record. 2. The instant criminal appeal has been preferred by the appellants against the judgment and order of conviction dated 21.04.1988 passed by Vth Additional Sessions Judge, Meerut, in Sessions Trial No. 423 of 1980 arising out of Case Crime No. 301 of 1980, under Section 147, 148, 307, 302 IPC, P.S. Parikshitgarh, District Meerut, whereby the surviving appellant Farahim was sentenced to life imprisonment under Section 302 IPC and two years' rigorous imprisonment under Section 148 IPC. Accused Munkad was sentenced to life imprisonment under Section 302 IPC read with Section 149 IPC and two years rigorous imprisonment under Section 148 IPC. All the sentences were directed to run concurrently. 3. It is pertinent to mention here that initially this criminal appeal was preferred by five appellants namely Fakira, Munkad, Daud, Maqsood and Farahim. Appellants Fakira, Daud and Maqsood died during pendency of this appeal, therefore, their appeal abated by order of this Court dated 09.02.2016. Now this appeal is confined to the two surviving appellants Munkad son of Sadatt and Farahim son of Daud. 4. Facts of this appeal as discernible from the record appears to be that first informant Atma Ram son of Amba Prasad, resident of Dayalpur, P.S. Parikshitgarh, District Meerut lodged written report Exhibit Ka-2 at P.S. Parikshitgarh, District Meerut on 30.09.1980 at 9.20 p.m. to the effect that about 25 days ago, Abid son of Daud resident of Village Shaudat had lodged a false case against his father and himself. It was due to lodging of aforesaid case, that the accused/appellants became inimical towards complainant's father deceased Amba Prasad. The complainant's father along with other co-villagers Jaikaran Singh son of Tikam Singh, Leeley Singh son of Preetam Singh, Jaipal son of Khub Chandra and complainant were returning home on 30.09.1980 from Village Narangpur after purchasing buffalo. It was due to lodging of aforesaid case, that the accused/appellants became inimical towards complainant's father deceased Amba Prasad. The complainant's father along with other co-villagers Jaikaran Singh son of Tikam Singh, Leeley Singh son of Preetam Singh, Jaipal son of Khub Chandra and complainant were returning home on 30.09.1980 from Village Narangpur after purchasing buffalo. On the fateful day, it was around 6.00 p.m. in the evening, when they reached towards the southern side jungle of their village about one furlong from Chaupala situated at Agwanpur (in the vicinity of their village), the present appellants in company with other three co-accused/assailants (Fakira, Daud and Maqsood) appeared on the spot from a sugarcane field and caught hold of the complainant's father, who was walking 15 steps ahead of the complainant on foot with his bicycle and said to his father that he had got assaulted Abid, today they will take revenge for the same. Fakira gripped his neck, Daud caught his father's right hand, Maqsood caught his left hand and Munkad threatened pointing his gun towards the complainant and in the meanwhile Farahim fired on the back of his father. Munkad also fired with his gun on the complainant. Due to gun shot, complainant's father fell in the roadside drainage (Nali). The assailants made their escape good in and through the sugarcane field. The complainant's father died on the spot. His dead body and bicycle were lying on the spot. Report be lodged and appropriate action be taken. 5. On the basis of this written report, relevant entries were made in the chik FIR at crime no. 301 of 1980, under Section 147, 148, 307, 302 IPC, P.S. Parikshitgarh, District Meerut on 30.09.1980 at 21.20 hrs. This chik FIR is Exhibit Ka-11. Thereafter, investigation took place and the Investigating Officer prepared various memos; say memo of bicycle and shoes of deceased are Exhibit Ka-9. Memo of simple and blood stained soil from the spot, currency worth Rs. 450.40, a receipt of Khadi Gramodyog, Manpada, Agra, a receipt of purchase of buffalo and memo of receipt for rent of Kolhu were prepared. The Investigating Officer also got prepared the inquest report of deceased Amba Prasad on 01.10.1980 which is Exhibit Ka-4 on record. Thereafter relevant papers were prepared for sending the dead body for post mortem examination. 450.40, a receipt of Khadi Gramodyog, Manpada, Agra, a receipt of purchase of buffalo and memo of receipt for rent of Kolhu were prepared. The Investigating Officer also got prepared the inquest report of deceased Amba Prasad on 01.10.1980 which is Exhibit Ka-4 on record. Thereafter relevant papers were prepared for sending the dead body for post mortem examination. Reference may be made of Exhibit Ka-5 letter to Medical Officer, Exhibit Ka-6 letter to R.I., Exhibit Ka-7 Photo Nash and Exhibit Ka-8 Chalan of dead body exhibit Ka-8. Post mortem examination on the dead body of Amba Prasad was conducted by Dr. P.N. Khanna, on 01.10.1980 at 1:00 p.m. in the mortuary at Meerut. The following ante-mortem injuries were found on the body of deceased Amba Prasad: 1. Gun shot wound of entry 2cm x 1 cm x cavity deep on the middle of left side of back 1-1/2 cm from the mid line. B.S.T. Present. Margins are lacerated and inverted. 2. Abrasion 1cm x 1/2 cm on the left side of top of shoulder. 3. Abrasion 1cm x 1/2 cm on the left side of neck 3 cm above pomum adami. 4. Linear abrasion 4cm x 1/4 cm on the lower part of right side neck. The cause of death is said to be syncope as a result of gun shot injury. This post mortem examination report is exhibit Ka-20. 6. The Investigating Officer also recorded statements of various persons and prepared the site plan of the incident Exhibit Ka-19 and after completing various formalities, submitted charge sheet against the appellants at Case Crime No. 301 of 1980, under Section 147, 148, 307, 302 IPC, P.S. Parikshitgarh, District Meerut. Charge sheet is Exhibit Ka-22. 7. Thereafter, the case was committed to the Court of Sessions from where it was made over for trial to Vth Additional Sessions Judge, Meerut. 8. The appellants were heard on the point of charge and prima-facie ground was found existing for framing charges under Section 147, 148, 307/149 and 302/149 IPC against accused-appellants. Accordingly, charges were framed and read to the accused-appellants in Hindi who abjured charges and opted for trial. 9. Prosecution was called to adduce its testimony whereupon prosecution produced as many as 12 witnesses. P.W.-1 is complainant Atma Ram, he has proved the first information report and the incident in question. Accordingly, charges were framed and read to the accused-appellants in Hindi who abjured charges and opted for trial. 9. Prosecution was called to adduce its testimony whereupon prosecution produced as many as 12 witnesses. P.W.-1 is complainant Atma Ram, he has proved the first information report and the incident in question. P.W.-2 is Jaipal, he is an eye witness, P.W.-3 is Jaikaran Singh, he is also an eye witness and has proved the receipt for sale and purchase of buffalo as Exhibit Ka-1. P.W.-4 is constable Shishu Pal who has completed the inquest report and also sealed the dead body and has proved his act as such. P.W.-5 is Bhola Ram, he has testified about some quarrel and altercation which took place two days prior to murder of Amba Prasad in the house of Atma Ram, the complainant. He has also identified his signature on the inquest report Exhibit Ka-4. P.W.-6 is Sub-Inspector A.P. Devli, he has deposed to the effect that he proceeded to the spot after receiving the information along with M.P. Tyagi and S.O. at about 9.30 p.m. and remained on the spot till morning. He prepared the inquest report at the instance of S.O. on 01.10.1980. He has also proved Exhibits Ka-5 to Ka-8. Besides, he has also proved material Exhibit 1, 2 and 3 and Exhibit Kha-1. P.W.-7 is Bhopal Singh, he has testified to the effect that the deceased, complainant and Jaipal Singh had come to him for purchasing his buffalo for Rs. 2200/- and the buffalo was purchased by Amba Prasad and a write up/description of buffalo was entered and prepared in form of receipt Exhibit Ka-1. P.W.-8 is Ramesh Chandra, he has testified to the fact that Investigating Officer collected blood stained soil and simple soil from the spot and proved the same as Exhibit Ka-10. P.W.-9 is constable Dhoom Singh, he has prepared the chik as Exhibit Ka-11, has also proved relevant G.D. Rapat No. 30 dated 30.09.1980 as Exhibit Ka-13. He has also proved Exhibit Ka-14, Ka-15 and Ka-16, Ka-17 and Ka-18. P.W.-10 is Sub Inspector Mahendra Prakash Tyagi, the Investigating Officer who has proved the site plan Exhibit Ka-19. He has also described the various steps taken by him for completing the investigation. P.W.-11 is Dr. P.N. Khanna who has proved the post mortem report of deceased Amba Prasad as Exhibit Ka-20. P.W.-10 is Sub Inspector Mahendra Prakash Tyagi, the Investigating Officer who has proved the site plan Exhibit Ka-19. He has also described the various steps taken by him for completing the investigation. P.W.-11 is Dr. P.N. Khanna who has proved the post mortem report of deceased Amba Prasad as Exhibit Ka-20. P.W.-12 is Rajendra Singh, the second Investigating Officer who took over investigation from the first Investigating Officer (Mahendra Prakash Tyagi) and completed the rest of the formalities and proved material Exhibit 6 and Exhibit Ka-21 and the charge sheet Exhibit Ka-22. 10. Thereafter evidence for the prosecution was closed and statement of appellants was recorded under Section 313 Cr.P.C. In their statement, appellants have denied their involvement in the crime and have termed their implication false. Appellant Farahim has produced defence testimony by proving certain papers. These papers are Exhibit Kha-1 to Kha-5. No ocular testimony has been led by the defence. Thereafter, evidence for both the parties was closed and the case was posted for arguments. 11. After hearing both the sides on the merits of the case, the learned Trial Court passed aforesaid judgment and order of conviction and imposed aforesaid sentences against both the appellants. Consequently this appeal. 12. It has been urged on behalf of both the appellants that the incident was not witnessed by anyone, death of Amba Prasad was caused somewhere else in the darkness of night and the appellants have been deliberately dragged in, in this case for no plausible reason. Motive to commit crime is very week, the compromise in question had already been arrived at between the parties and there was no point for causing death. More so, there are glaring contradictions in the testimony of the so-called eye witnesses of the incident. Witnesses of fact being relatives are highly interested witnesses. FIR is ante time and tutored one. On behalf of appellant Munkad, it has been specifically urged that there was no reason or motive for him to join the company of other assailants to commit crime. If the fire was caused on the spot by Munkad then empty cartridge, Tikli etc could have been found on the spot but the Investigating Officer has not found any such cartridge, tikli etc. This goes to show hollowness of the prosecution story. As per the prosecution story, three persons caught hold of the deceased when firing was made. If the fire was caused on the spot by Munkad then empty cartridge, Tikli etc could have been found on the spot but the Investigating Officer has not found any such cartridge, tikli etc. This goes to show hollowness of the prosecution story. As per the prosecution story, three persons caught hold of the deceased when firing was made. This conduct is highly unnatural in view of the fact that the deceased was, as per prosecution case, surrounded by the assailants and in such a situation it is hardly imaginable to fire on the deceased as that will in all likelihood cause injuries to the other assailants also. 13. Confronting aforesaid arguments on behalf of the appellants, Sri A.N. Mulla, learned AGA has vehemently claimed that presence of eye witnesses on the spot cannot be doubted. Their presence is most natural, even the bicycle and certain receipts have been recovered from the spot and memo of the same was prepared by the Investigating Officer. Every witness has come forward with solitary description of the incident. The very motive imputed regarding failure of compromise between the two sides is sufficient cause for causing death. FIR is as prompt as anything in the facts and circumstances of the case. The person who sold out buffalo to the deceased (Amba Prasad) was Bhopal Singh. He has been examined as P.W.-7 and he has proved the sale-purchase transaction followed by a receipt/write up of the transaction. In the presence of eye-witness account testimony, the motive becomes insignificant. Even then the immediate motive for committing crime was failure to get the compromise fructified on the part of the appellants and the same has been specifically proved in this case. Simple and blood stained earth has been collected from the spot which fact very much proves place of incident. 14. Considered the above submissions. 15. In view of the above rival contentions and the grounds urged in support of appeal, the moot point involved for consideration relates to fact whether the prosecution has been able to prove its charges against the present appellants beyond reasonable doubt? 16. In this case, the very genesis of the problem can be addressed to the claim laid by the prosecution that prior to the incident in question, some incident (marpeet and loot) had taken place wherein report was lodged at crime no. 16. In this case, the very genesis of the problem can be addressed to the claim laid by the prosecution that prior to the incident in question, some incident (marpeet and loot) had taken place wherein report was lodged at crime no. 274 of 1980 under Section 393 IPC by the complainant Rakesh son of Harsaran Sharma wherein allegations were made against Abid son of Daud and the litigation was pending. This lodging was through instrumentality of Amba Prasad and the complainant. It is reflected from the record that even Abid son of Daud had lodged FIR at Case Crime No. 274-A of 1980 under Section 147, 148, 324 IPC against the informant of the above case namely Rakesh, Atma Ram, Ambe and four other unknown persons. Copies of chik FIR's of both these cases, got registered at the instance of complainant Rakesh and Abid, are Exhibit Ka-16 and Ka-17 respectively and the same have been proved by P.W.-9 Dhoom Singh. In both these cases, the incident alleged is dated 05.09.1980 and the present incident in question took place on 30.09.1980 at about 6.00 p.m. It has been claimed on behalf of the prosecution that the accused persons who were relatives inter-se and partymen of co-accused Daud somehow tried to force compromise in the above cases, which compromise was initially accepted by the complainant Atma Ram but the same was subsequently refused by deceased Amba Prasad and he refused to go to the police station for entering into compromise in the aforesaid two cases and this gave rise to enmity on the part of the appellants and they tried to retaliate for the same. 17. In the factual scenario, we have perused and considered the entire testimony and circumstances of the case in order to assess authenticity and veracity of the prosecution case. A bare perusal of FIR reveals that the incident allegedly took place on 30.09.1980 at about 6.00 p.m. in the jungle situated in the vicinity of the village (Dayalpur). As per the description, the deceased at that point of time was walking on foot with his bicycle about 15 steps ahead of complainant and the other prosecution witnesses, when the appellants accompanying the other co-accused persons, appeared on the spot from a sugarcane field, caught hold of the deceased and Farahim fired on the back of deceased Amba Prasad. As per the description, the deceased at that point of time was walking on foot with his bicycle about 15 steps ahead of complainant and the other prosecution witnesses, when the appellants accompanying the other co-accused persons, appeared on the spot from a sugarcane field, caught hold of the deceased and Farahim fired on the back of deceased Amba Prasad. The deceased fell down on the roadside drainage and died. The witnesses tried to intervene but Munkad threatened by pointing his gun towards them. It has been specifically mentioned that at the time of causing incident, assailants were saying "Tumne Abid ko Pitwaya tha, Aaj uska Badla lenge". After committing the crime, the assailants made their escape good. 18. The distance of police station from the place of incident is said to be 5 km. P.W.-1 Atma Ram was examined by the prosecution to prove the incident. He has testified to the effect that his father was murdered on 30.09.1980 and 25 days prior to this incident, Abid had looted watch of Rakesh and had pressed his neck. His father asked him to inform telephonically about the incident to the concerned police station. He telephonically informed the police station about the incident. A case was registered against Abid son of Daud at police station Parikshitgarh and it has also come in his testimony that Abid also lodged a false case against his father, Rakesh and himself. On complaint being made at the instance of his father, investigation in this case (by Abid) against his father was stopped. Daud and accused persons were wishing that some compromise may be entered into in both the criminal cases (Exhibit Ka-16 and Exhibit Ka-17). It has also come in his testimony that two days prior to the incident, Daud and Fakira had come to him and initially compromise was accepted and it was decided that the matter will be settled in the police station on the very next day. Daud and Fakira went away from his house. Meanwhile, in the evening when his father (deceased) came to home and he was told about the compromise, he flatly refused for the same. On very next morning, Daud and Fakira came to him and asked him and his father to come to police station for compromise but the same was refused by his father and he did not visit the police station. 19. On very next morning, Daud and Fakira came to him and asked him and his father to come to police station for compromise but the same was refused by his father and he did not visit the police station. 19. In view of above particular background of this case the very grudge and enmity imputed on the appellants is perceptible as the motivating proclivity for committing the crime. It has been testified by P.W.-1 Atma Ram that on the fateful day i.e. on 30.09.1980, he was coming from village Narangpur along with deceased and Jaipal Singh after purchase of buffalo. They purchased one buffalo from Bhopal Singh of village Narangpur and a description/receipt/write up was also prepared regarding the sale-purchase transaction. This receipt/description was written by Jaipal Singh and he has also proved the same in court as Exhibit Ka-1 and this receipt has been specifically proved by another prosecution witness Jaipal Singh P.W.-2 in his testimony also and a reference of the same will be worthy of mention at this stage. 20. P.W.-2 Jaipal Singh has stated that he is well acquainted about verities of buffalo, therefore, the deceased asked him to accompany him for purchasing buffalo in village Narangpur. He has specifically stated that the buffalo was purchased on payment of Rs. 2,200/- in cash and before sale fructified, milk of buffalo was milched out and tested. He has further clarified that the name of the purchaser was written as Amba Prasad and this description was written by him and a receipt ticket was so appended and endorsed on a revenue stamp of 20 paise. Relevant to mention that Exhibit Ka-1 is original receipt/write up dated 30.09.1980. Therefore, purchase of buffalo from Bhopal Singh of village Narangpur stands vindicated by the testimony of this (P.W.-2) prosecution witness alone. Consistent testimony has come forth from PW-1 and PW-2 to the effect that after purchase of buffalo, they performed return journey to their village when they met with Jaikaran Singh and Leeley Singh on way. Therefore, purchase of buffalo from Bhopal Singh of village Narangpur stands vindicated by the testimony of this (P.W.-2) prosecution witness alone. Consistent testimony has come forth from PW-1 and PW-2 to the effect that after purchase of buffalo, they performed return journey to their village when they met with Jaikaran Singh and Leeley Singh on way. It was around 6.00 p.m. in the evening when they reached to the southern side of forest located at Agwanpur Chaupala (in the vicinity of their village), the accused persons appeared on the scene wading through a sugar cane field and caught his father on the eastern side patari of the road and said "Tumne Abid ko Pitwaya tha, Aaj uska Badla lenge", Daud and Maqsood caught hold of two hands of his father and Fakira gripped his father's neck and Farahim fired on the back of his father. The deceased fell down in the drainage adjoining the road and died. It was also come in the testimony of both the eye witnesses that they tried to rescue the deceased but Munkad threatened them pointing his gun towards them. After committing the crime, the accused made their escape good. They went near the deceased, the blood was oozing out from the wound and was seeped on the clothes worn by deceased and spilled on ground. After the incident, report was written on the spot by PW-1 and lodged at the concerned P.S. Parikshitgarh at 9.20 p.m. on 30.09.1980 which written report has been proved as Exhibit Ka-2. Entries of the same were taken down in the chik FIR which has been proved by PW-9 constable Dhoom Singh and he has also testified fact regarding relevant entry, of the same, being made in the relevant G.D. no.30 dated 30.09.1980 and has proved the same as Exhibit Ka-13. 21. It has been suggested on behalf of the appellants that the deceased might have been killed somewhere else and the complainant side brought his dead body on the spot and they were not present on the spot and their presence on the spot is not natural. 21. It has been suggested on behalf of the appellants that the deceased might have been killed somewhere else and the complainant side brought his dead body on the spot and they were not present on the spot and their presence on the spot is not natural. The contention so raised is fit to be discarded, for the reason that the very place of occurrence has been proved by PW-8 Ramesh Chandra by stating that the Investigating Officer took blood stained soil in his presence besides taking simple soil on the spot and has proved his signature on Exhibit Ka-10. In addition to above, the witnesses have also proved the receipt/ write up regarding sale and purchase of buffalo as Exhibit Ka-1 which was said to have been recovered from the pocket of the deceased itself. At this stage, specific observation can be conveniently made regarding signature of Bhopal Singh on revenue stamp on this receipt, who has been examined as PW-7 in this case and he has also corroborated the version of the other prosecution witnesses say PW-1 Atma Ram and PW-2 Jaipal Singh regarding purchase of buffalo. In his testimony, Bhopal Singh has categorically stated that a receipt/ write up regarding sale and purchase of buffalo for Rs. 2,200/- was written up by Jaipal Siingh and has also accorded sanction to his signature on it in the trial court as Exhibit Ka-1. Therefore, contention so raised regarding death of deceased at somewhere else caused by unknown persons is negated by exuberance of prosecution evidence. Careful scrutiny of testimony of PW-1, PW-2 and PW-7 when taken cumulatively establishes fact that the deceased Amba Prasad went to Bhopal Singh in the village Narangpur on the fateful day (30.09.1980) and the very receipt/ write up regarding the sale-purchase transaction for buffalo was executed and the same was found from the pocket of Kurta worn by the deceased at the time of his death and memo of the same was prepared on 01.10.1980 and which (memo) has been proved as Exhibit Ka-9. 22. Contention raised to the extent that this write up/receipt regarding sale and purchase of buffalo from Bhopal Singh is cooked up and manufactured one subsequently to the incident to give colour to the sale-purchase transaction is ruled out by the testimony of PW-7 Bhopal Singh and PW-2 Jaipal Singh. 22. Contention raised to the extent that this write up/receipt regarding sale and purchase of buffalo from Bhopal Singh is cooked up and manufactured one subsequently to the incident to give colour to the sale-purchase transaction is ruled out by the testimony of PW-7 Bhopal Singh and PW-2 Jaipal Singh. How and why the police personnel are acting in collusion with the complainant is not obvious. Therefore, argument raised to the extent has no force to hold ground. Therefore, story of receipt/write up regarding purchase of buffalo by the deceased on 30.09.1980 is very much proved under the facts and circumstances of the case. At this stage, an alternative contention has been suggested that evidence has come on record that there was some short cut road from village Narangpur to the village of deceased i.e. Dayalpur and the route followed by the deceased on the fateful day was the longer distance than the route chosen by the deceased for his return journey. 23. We are unable to comprehend as to what the learned counsel means by suggesting such alternative contention because the road used by deceased itself is directly connected to the village (of deceased) and it is obvious that the deceased was not all alone, but he was being accompanied by at least three-four persons including the complainant and it is the personal convenience of the deceased that he chose the particular road which he found convenient for him at that point of time. The version of incident narrated by PW-1 Atma Ram is virtually corroborated in material particulars by another eye witness PW-2 Jaipal Singh, the scribe of the sale purchase transaction. There is no material difference in the eye account testimony of both the witnesses (PW-1 and PW-2) of fact produced by the prosecution. Though we have already observed yet we can refer again at the cost of repetition that the very genesis and motive for committing the crime was stated to be failure of settlement/ compromise sought on behalf of the co-accused Daud. The fact of pendency of criminal cases between the parties, say the informant and the accused side has been proved satisfactorily, therefore, non settlement of dispute particularly in contest when the deceased being instrumental for such non-settlement is obvious. The fact of pendency of criminal cases between the parties, say the informant and the accused side has been proved satisfactorily, therefore, non settlement of dispute particularly in contest when the deceased being instrumental for such non-settlement is obvious. In so far as presence of the prosecution witnesses on the spot is concerned, the same is very much found to have been established by the ample testimony of all the prosecution witnesses including the Investigating Officer and other police personnel who have been examined by the prosecution in this case on its behalf. At this stage, it would be pertinent to take note of fact that PW-9 Dhoom Singh has been cross examined by the defence wherein also nothing adverse has come out as to suggest any apparent or inherent infirmity in his testimony regarding the lodging of the FIR Exhibit Ka-2 by complainant Atma Ram at police station Parikshitgarh. Relevant to take note of fact that Exhibit Ka-1, the sale purchase transaction/write up also bears certain blood marks on its back. In this context, a plea was raised by the defence as to how and why this paper was not sent to forensic laboratory for examination, so that things could be properly assessed and ascertained about presence or absence of human blood on it. 24. Here a mention can be made regarding testimony of Sub Inspector Mahendra Prakash Tyagi firstly on point that in his cross examination, he has specifically testified that blood marks were present on the aforesaid write up (Exhibit Ka-1) regarding sale-purchase transaction and the same was not sent by him to forensic laboratory, for the reason that the investigation was taken over by S.O. Sri Rajendra Singh as soon as he completed initial formalities of investigation. At this stage, we may dip into the testimony of PW-12 Rajendra Singh, the subsequent Investigating Officer who submitted charge sheet in this case. He has been asked in his cross examination specific question as to how and why he did not send the sale-purchase transaction write up/ description for test once it contained blood stains on its back. At this stage, we may dip into the testimony of PW-12 Rajendra Singh, the subsequent Investigating Officer who submitted charge sheet in this case. He has been asked in his cross examination specific question as to how and why he did not send the sale-purchase transaction write up/ description for test once it contained blood stains on its back. A reply has been aptly given by PW-12 Rajendra Singh that the very Kurta (worn by deceased) bore blood stains and the same had been sent for chemical examination, therefore, he did not find it convenient to send the write up / description Exhibit Ka-1 for chemical examination which was itself recovered from one of the pockets of Kurta. One thing is obvious that in the testimony of witnesses of fact and particularly in the testimony of both the Investigating Officers PW-10 S.I. Mahendra Prakash Tyagi and PW-12 Rajendra Singh, fact of existence of blood stains on the back of Exhibit Ka-1 has been proved and established. 25. We may also take note of the testimony of PW-11 Dr. P.N. Khanna who conducted the post mortem examination on the dead body of the deceased Amba Prasad on 01.10.1980. He has described the ante-mortem injuries and injury no. 1 has been stated to be gun shot wound of entry 2 cm x 1 cm x cavity deep on the middle of left side of back 1 1/2 cm away from mid line BST present, injury no.2 has been stated to be Abrasion 1 cm x 1/2 cm on the left side of top of shoulder, injury no.3 is abrasion 1 cm x 1/2 cm on the left side of neck and injury no.4 is linear abrasion 4 cm x 1/4 cm on the lower part of right side of neck. Obviously before the gun shot was fired on the back of the deceased, he was manhandled and his neck was also gripped by one of the co-accused and the incident as has been narrated by the prosecution witnesses shows that after the fire hit the deceased, he was left free and he fell down in the drainage adjoining the road side. This process of falling down can be construed for causing abrasion on shoulder and injury nos. 3 and 4 are abrasion and linear abrasion on neck which injuries may have been caused by manhandling of deceased by the accused persons. This process of falling down can be construed for causing abrasion on shoulder and injury nos. 3 and 4 are abrasion and linear abrasion on neck which injuries may have been caused by manhandling of deceased by the accused persons. 93 pellets have been recovered from inside the dead body of the deceased by the doctor. Doctor has made categorical statement that death of deceased is possible at 6.00 p.m. on 30.09.1980. Various suggestions have been given by defence in cross examination to the doctor regarding the cause of death and nature of injuries and possibility of short survival of deceased, but no specific challenge as has been made regarding claim of the doctor that the death of deceased is possible at 6.00 p.m. on 30.09.1980. Further, nothing adverse has come on record which may place any doubt on the time of death of the deceased as suggested by the doctor. Therefore, the medical testimony also gives corroboration to the eye account testimony of the prosecution witnesses of fact. 26. It is no point for consideration that the shot fired on the back of the deceased did not hit any other assailants while they had surrounded the deceased, for the reason that it is the skill and the position of shooter which is determinative of these factors and defence has not suggested any peculiar stagnant situation which may show that in case any shot, if fired in such a situation then injuries may be caused to the other co-accused persons who have closely surrounded the deceased. Similarly fire shot by Munkad on the occasion for threatening the prosecution witnesses did not cause any injury on them, is not by itself explanatory of non presence of the prosecution witnesses. The motive for committing the crime on careful analysis of entire facts and circumstances of the case and after taking the holistic view of the entire incident and in the light of prosecution testimony and the circumstances brought on record, it is well established that the very cause for committing the crime was pending litigation between the complainant side and the accused and failure of compromise as sought by the accused persons had resulted into commission of the crime. 27. 27. No doubt, certain trivial or minor contradictions have surfaced in the testimony of prosecution witnesses, both of facts and formal witnesses but that trivial contradictions are not sufficient to thrown away case of the prosecution. These contradictions are not material contradictions. The prosecution testimony on the whole is creditworthy, consistent and corroborating incident in each material particulars. Certain papers regarding some chik report Exhibit kha-1, application Exhibit Kha-2, copy of application Exhibit Kha-3, copy of x-ray report Exhibit Kha-4, injury report of Abid Exhibit Kha-5 by itself proves pendency of litigation between the parties. However, production of these exhibits by the defence cannot be said to be the motivating factor for false implication of the appellants. More so, the eye account testimony is innocuous and inspiring confidence and the same cannot be brushed aside merely on the basis of aforesaid documents Exhibit Kha-1 to Exhibit Kha-5. 28. We may also take note of fact that the distance of police station from the place of incident is stated to be 5 km and it has been very much proved by PW-1 Atma Ram that the report was written on the place of occurrence after the incident at 6.00 p.m. on 30.09.1980 and the distance was covered on foot by the informant and the report was lodged at 9.20 p.m. which cannot be termed to have been lodged at inordinate delay. Argument has been advanced by the defence that as per testimony of police personnel, it has been stated that the informant had come to lodge report on bicycle, whereas, the same fact was denied by the informant. The contention so raised does not carry any force because there may be some confusion regarding conveyance means used by the informant for covering distance from the place of occurrence to the police station and again back to the place of incident, but this fact is extraneous one and will not by itself throw any doubt on the veracity of the incident which has been reasonably proved against the accused persons and particularly the present appellants Farahim and Munkad. Obviously the offence was committed by a company of five accused persons among whom three (Fakira, Daud and Maqsood) have died and only two surviving appellants are before us namely Farahim and Munkad as described above in the body of the judgment. 29. Obviously the offence was committed by a company of five accused persons among whom three (Fakira, Daud and Maqsood) have died and only two surviving appellants are before us namely Farahim and Munkad as described above in the body of the judgment. 29. In this view of the matter, we also notice that the learned trial court has taken a holistic view of the entire incident and has rightly considered the various aspects of the case in reasonable and consistent manner and has rightly recorded conviction against all the accused persons including the present appellants which conviction and order of sentence is found to be based on positive material and record and the same is sustained by us. We may consequently sum up that the finding of conviction and sentence can not be faulted with at this stage. In so far as sentencing under Section 302 IPC is concerned, a lesser punishment of life imprisonment has been awarded to the present appellants Farahim. Similarly, conviction of Munkad has been recorded under Section 302/149 IPC and has been sentenced, inter-alia, under the aforesaid sections with lifer. 30. Before parting with the judgment, we may summarize that the prosecution has been able to prove the charges against the present appellants beyond reasonable doubt and it is proved that the incident in question was caused by the accused persons including the present appellants on 30.09.1980 at 6.00 p.m. in the forest of village Dayalpur and the very motive for commission of the offence was non settlement of criminal dispute in another matter which took place on 05.09.1980 between the two sides and had culminated into offence of death of Amba Prasad. 31. Hon'ble Supreme Court in Waman and others Vs. State of Maharashtra 2011 Crl.L.J. 4827 has observed in paragraph no.9 which reads as follows: "In Balraje @ Trimbak Vs. State of Maharashtra, (2010) 6 SCC 673 ; (2010 AIR SCW 3707), this Court held that 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 analyse the evidence of related witnesses and those witnesses who are inimically disposed toward 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. Vs. Naresh and others (2011) 4 SCC 324 . 32. It is settled principle of criminal jurisprudence that the testimony of relatives cannot be brushed aside merely on the asking, for the reason that the witnesses happen to be close relatives of the deceased, but their testimony is to be scrutinized with caution and circumspection in order to ascertain whether the same inspires confidence and corroborates the prosecution allegations and their presence on the spot is natural or not? We have analyzed and scrutinized the entire testimony viz-a-viz attendant circumstances of the case whereby it emerges out that the presence of prosecution witnesses on the spot is natural one and their testimony does inspire confidence. 33. Consequently, the contentions raised by the learned counsel for the appellants are devoid of force and the various grounds urged in support of the appeal are not sustainable. Conviction of the appellants recorded by the trial court is hereby upheld. Appellants Farahim and Munkad are on bail. 33. Consequently, the contentions raised by the learned counsel for the appellants are devoid of force and the various grounds urged in support of the appeal are not sustainable. Conviction of the appellants recorded by the trial court is hereby upheld. Appellants Farahim and Munkad are on bail. Their personal and surety bonds are cancelled and they are directed to be taken into custody and lodged in jail to serve out remaining part of their sentence imposed upon them. The appeal is devoid of merits and the same is dismissed. 34. Let a copy of the judgment be certified to the trial court for it's intimation and compliance. ———————