JUDGMENT 1. This Judgment shall also dispose off Criminal Appeal No.400/2007 filed by Mantoli @ Mantola alias Raghvendra Singh. 2. These Criminal Appeals have been filed against the judgment and sentence dated 22.3.2007 passed by Special Judge (Atrocities), Gwalior in Special Sessions Trial No.122/2005, by which the appellants have been convicted under section 302/34 of IPC and have been sentenced to undergo the life imprisonment and a fine of Rs. 5,000/- with default imprisonment. 3. The necessary facts for the disposal of the present appeals in short are that a FIR was lodged by Purshottam Arya, on 18.8.2005 at about 6:30 a.m., alleging that at about 6 a.m., he along with his brother Raju and Mohan were going to take milk and Mohan was walking ahead of them. The moment, Mohan reached near the sweet shop, the appellants who were already there, stopped Mohan and appellant Godila @ Dharmsingh took out a country made pistol and appellant Mantola took out a knife. Appellant Godila, with an intention to kill Mohan fired at him three to four times, whereas appellant Mantola assaulted the deceased Mohan several times as a result of which, Mohan fell down. The complainant and Raju found that Mohan had already expired. Thereafter, the appellants Godila and Mantola ran away. It was also alleged that on earlier occasion, both the appellants had quarrelled with Mohan on the question of vacating the house and demand of money, therefore, they have killed Mohan. The incident was seen by Gopal, Umesh, Premnarayan and others. The police after registering the FIR, started investigation. The spot map was prepared. Plain and bloodstained earth was seized. Inquest report was prepared. The dead body of Mohan was sent for postmortem. The appellants were arrested. One knife was seized from the possession of Mantola, whereas one country made pistol was seized from the possession of Godila. Knife was sent to FSL, Sagar, which opined that the cut marks on the shirt of the deceased and the size and shape of the knife suggests that the incised wounds were caused by knife as the nature of cut marks on the shirt are similar to that of knife. The pistol was also found to be in working condition. Knife was sent to FSL, Sagar, which opined that the cut marks on the shirt of the deceased and the size and shape of the knife suggests that the incised wounds were caused by knife as the nature of cut marks on the shirt are similar to that of knife. The pistol was also found to be in working condition. The police after completing the investigation, filed the charge sheet against the appellants for offence under section 302/34 of IPC, under sections 3(1)(x), 3(2)(v) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, and under section 25/27 of Arms Act. 4. The trial Court by order dated 15.12.2005, framed charges under section 302/34 of IPC and under sections 3(2)(v) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act. Later on, by order dated 14.12.2006, charge under section 25 of Arms Act was also framed. 5. The appellants abjured their guilt and sought trial. 6. The prosecution in order to prove its case, examined Sultan Singh (PW1), Premnarayan (PW2), Dr. Yogendra Singh (PW3), Lal Singh (PW4), Purshottam (PW5), Ram Pratap Singh (PW6), Sitaram (PW7), Gopal Arya (PW8), Prakash Singh (PW9), Ravikant Jain (PW10). The appellants did not examine any witness in their defence. 7. The trial Court by Judgment dated 22.3.2007 passed in Special Sessions Trial No.122/2005 convicted the appellants for offence under section 302/34 of IPC and awarded life sentence and a fine of Rs.5,000/- with default imprisonment, and acquitted the appellants for charge under section 3(2)(v) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, and also for charge under section 25(1-B) of Arms Act. 8. It was held by the trial Court that the evidence of Premanaryan (PW2) is not reliable and the prosecution has failed to prove the seizure of country-made pistol from the possession of appellant Godila. It was further held that the prosecution has also failed to prove that the knife seized from the possession of appellant Mantola was used for committing crime. However, relying on the sole testimony of Purshottam (PW5), the appellants were convicted by the trial Court. 9. It was further held that the prosecution has also failed to prove that the knife seized from the possession of appellant Mantola was used for committing crime. However, relying on the sole testimony of Purshottam (PW5), the appellants were convicted by the trial Court. 9. Challenging the judgment and sentence passed by the trial Court, it is submitted by the counsel for the appellants that there is nothing on record to suggest that the appellants were sharing common intention to cause death and the act of the appellants, at the most, can be said to be culpable homicide not amounting to murder. Further, the trial Court itself has acquitted the appellant Godila for offence under section 25(1-B) of Arms Act, therefore, it is clear that the weapon seized from the possession of the appellants were not used for committing offence and therefore, the prosecution version becomes highly doubtful. It is further submitted that according to the FIR, the incident was also seen by Purshottam and Raju who are the real brothers of deceased Mohan, but since, they did not try to intervene in the assault, clearly show that they were not present on the spot. None of the independent witness has supported the prosecution case and even the appellant Mantola could not be arrested on spot and he had surrendered later on. It is further submitted that so far as the case of Mantola is concerned, it is clear that the deceased Mohan fell down after suffering gun shot injury and had died therefore, at the most it can be said that the appellant Mantola had caused injuries on the dead body of deceased Mohan, therefore, the appellant Mantola cannot be convicted under section 302 of IPC. Further, there is nothing on record to show any motive on the part of the appellants. It is further submitted that the whole prosecution case rests upon the solitary eye witness account of Purshottam (PW5) and since, he is the real brother of the deceased and is interested witness, therefore, his evidence is not worth reliance. 10. Per contra, it is submitted by the counsel for the State that the FIR was lodged promptly within 30 minutes from the incident which rules out any possibility of false implication. 10. Per contra, it is submitted by the counsel for the State that the FIR was lodged promptly within 30 minutes from the incident which rules out any possibility of false implication. Further, the manner in which the incident took place and the number of incised wounds caused by the appellant Mantola, it is as clear as noon day that the intention on the part of the appellants was to kill the deceased Mohan. It is further submitted that in the case of direct evidence, absence of motive cannot be a ground to discard the ocular evidence. Further, the ocular evidence finds full corroboration with the medical evidence as several incised wounds were found on the body of the deceased Mohan. It is submitted that if it is assumed that the weapon of offence was not seized, even then, the direct evidence cannot be discarded. 11. Heard the learned counsel for the parties. 12. The first question for determination is that whether the deceased Mohan had died a homicidal death or not? 13. Dr. Yogendra (PW3) had conducted the post-mortem of the dead body of the deceased Mohan and had found the following injuries : “(1) Incised wound 1×0.25× 0.5 cm over anterior upper part of right shoulder. (2) Firearm wound of entrance 1.2×1.2 cm circular with inverted margin 2 cm below right areola and 6 cm away from mid-line anterior chest right tearing right lung, fracture SL 6th ribs followed wound of exit 3×3 cm at level of 4 -5 thoracic vertebrae 4 cm away towards lateral right with everted margins. Tattooing mid chest dots pointing sized more dense at periphery of wound. (3) Wound of entry incised vertically 1.5×0.5× through and through the thoracic cavity over × gephoid process, tearing left lobe of liver 1.5 × ¼ × 1cm, blood in cavity. (4) Incised wound 1.5× ½ × 3cm obliquely posterolateral part of right upper arm mid. (5) Linear abrasion 2 cm × ¼ cm obliquely placed over mid right upper arm. (6) Incised wound 1 ½ × 0.5 × skin deep up to mid sternum. (7) Incised wound 2 × 1× skin facial deep posterolateral part of the left forearm 3 cm below elbow left. (5) Linear abrasion 2 cm × ¼ cm obliquely placed over mid right upper arm. (6) Incised wound 1 ½ × 0.5 × skin deep up to mid sternum. (7) Incised wound 2 × 1× skin facial deep posterolateral part of the left forearm 3 cm below elbow left. (8) Two incised wounds parallaly placed posterior part left upper arm 2 cm above left elbow distended 1 cm in between size 2× 0.5× skin deep and 2 × 0.5 × skin deep obliquely. (9) A. Incised wound transversely nasal bridge 1.2 ×. 25 × through fracture nasal bone. B. Incised wound vertically 2 × ½ × through tearing upper right canine gum. C. Incised wound obliquely 1×0.5× through teering upper incisor gums. D. Incised wound obliquely 1×.0.5× through tearing canine gum upper E. Incised wound vertically 1× 0.5 through tearing lower canine gum. F. Incised wound vertically 2 × 1 × skin deep. G. Incised wound obliquely 1.× × 1 × skin deep H. Incised wound transversely 2 × 1.5 × skin deep of face and skin. I. Incised wound transversely upper ¼ neck 4 × 1× facial deep over mid-neck anterior upper part.” The cause of death of the deceased was shock and haemorrhage due to fire arm injury to chest and vital organs. The post-mortem report of the deceased Mohan is Ex.P-6. 14. Thus, in all 15 incised wounds were found on the different parts of the body of the deceased Mohan. Out of 15 incised wounds, 9 incised wounds were on the face and 3 incised wounds were on left hand. One incised wound was on right shoulder whereas one incised wound was found on left elbow and one incised wound was found on mid of sternum. All the incised wounds were caused by appellant Mantola whereas one entry wound and exit wound was found on the dead body of deceased Mohan which was caused by appellant Godila. 15. Dr. Yogendra (PW3) has specifically opined that the death of the deceased Mohan was homicidal in nature and considering the nature of injuries caused to the deceased Mohan, it is held that the death of deceased Mohan was homicidal in nature. 16. The next question for determination is that whether the appellants Godila and Mantola have caused injuries to the deceased Mohan and if yes, what offence has been committed by the appellants. 17. 16. The next question for determination is that whether the appellants Godila and Mantola have caused injuries to the deceased Mohan and if yes, what offence has been committed by the appellants. 17. The prosecution has examined Premnarayan (PW2), Purshottam (PW5), and Gopal Arya (PW8). Although the name of Raju, another brother of the deceased Mohan, was also mentioned in the FIR as an eye-witness and he was cited as a witness also, but later on during the trial, he was given up by the prosecution as two eye witnesses were already examined on the same point. 18. Gopal Arya (PW8) is the independent eye witness, however, he has not supported the prosecution case and was declared hostile. However, nothing could be elicited from his cross-examination, which may support the prosecution case. 19. Premnarayan (PW2) is the real brother of the deceased Mohan. However, the trial Court has disbelieved the evidence of Premnarayan (PW2). 20. The whole prosecution case rests upon the solitary eye witness account of Purshottam (PW5).This witness has stated that the deceased Mohan was his eldest brother. On 18.8.2005, he and his brother Raju were going for a morning walk whereas the deceased Mohan was going for purchasing milk. The deceased Mohan was walking ahead of them. The moment deceased Mohan reached the sweet shop, the appellants were already present there. The appellant Godila took out a pistol and challenged the deceased. He fired three or four times at the deceased and one gun shot hit on the chest of the deceased. The appellant Mantola also took out a knife and started assaulting the deceased. Several incised wounds were caused as a result of which the deceased fell down. Thereafter, the appellants ran away towards Glass Factory. He found that his brother had already expired. As they were afraid of the appellants, therefore, they did not intervene. Thereafter, he lodged a FIR. which is Ex.P-8. When he came back to the spot, by that time, the police had already shifted the dead body of deceased Mohan to J.A. Hospital, Gwalior. Spot Map Ex.P-9 was prepared. Plain and blood-stained earth was seized by seizure memo Ex.P-10. His statement was recorded on the date of incident itself. The police arrested the appellant Godila and this witness along with Raju were called. Spot Map Ex.P-9 was prepared. Plain and blood-stained earth was seized by seizure memo Ex.P-10. His statement was recorded on the date of incident itself. The police arrested the appellant Godila and this witness along with Raju were called. Godila had made a confessional statement which is Ex.P-11 and at the instance of appellant Godila, the police had seized one country-made pistol vide seizure memo Ex.P-12. At the police station, the bloodstained shirt, jeans pant and one bloodstained ring were also seized from the possession of the appellant vide seizure memo Ex.P-13. The witness was cross-examined in detail. This witness has stated that the incident took place at a distance of near about 100-150 ft from his house. The deceased Mohan had left the house at about 5:30-5:45 a.m. The Aligarh Sweet Shop is situated near Patali Hanuman Temple. At the time of incident, he was going for morning walk. One gunshot had hit the deceased on his chest. As the appellant Godila was having a pistol whereas the appellant Mantola was having knife, therefore, he could not intervene in the assault. His brother Raju had shouted, but due to the terror of the appellants, no body came forward to save the deceased. This witness has further denied the factum of enmity. The Police Station is about 1 ½ kms. from the place of incident. This witness has further stated that earlier he was tried for offence under section 307 of IPC. on the report of the appellant Godila but later on, the matter was compromised. Four empty cartridges were also seized. It is further admitted by this witness, that Hazira Road is a busy road, however, it was denied that in the morning, several persons were on the road. He further admitted that one petrol pump is situated at a distance of 30-40 fts. from the sweet shop and the distance of petrol pump from the place of incident is 10-15 steps. This witness has further stated that Rameshwar was not present on the spot at the time of incident and he had reached on the spot later on. However, Rameshwar accompanied him to Police Station for lodging FIR. As his brother had already expired, therefore, they did not think it proper to shift his brother to Hospital. This witness has further stated that Rameshwar was not present on the spot at the time of incident and he had reached on the spot later on. However, Rameshwar accompanied him to Police Station for lodging FIR. As his brother had already expired, therefore, they did not think it proper to shift his brother to Hospital. He further stated that there is a police outpost at Hazira square where one police personnel was present who instructed this witness to immediately go to the Police Station. He further denied that this witness has engaged a private lawyer. This witness further admitted that he is the tenant of Kashiram Koli and a dispute between Kashsiram Koli and the deceased Mohan was going on with regard to vacating the house. This witness has specifically denied that because of enmity, he has falsely implicated the appellants. 21. Thus, from the evidence of this witness, it is clear that nothing could be elicited from his cross-examination, which may make his evidence unreliable. Further, this witness has lodged the FIR, Ex. P-8 within a period of 30 minutes. The police station is situated at a distance of 1 ½ kms from the place of incident. This witness went to police station by running. Every minute detail with regard to the incident is mentioned in the FIR. It was also mentioned that the appellant Mantola had assaulted the deceased by means of knife for several times and the appellant Godila had fired at the deceased. The case diary statement of this witness was also recorded on the same day. The spot map was prepared at 7:15 a.m. In the post-mortem report, as many as 15 incised wounds were found on the body of the deceased Mohan whereas one entry and exit wounds were also found. Thus, it is clear that the FIR Ex.P-8, lodged by Purshottam (PW5) within 30 minutes of the incident finds full corroboration with the post-mortem report. 22. It is submitted by the counsel for the appellants that since, Purshottam (PW5) was prosecuted for offence under section 307 of IPC on the report of the appellant Godila, therefore, he has falsely implicated the appellant Godila. Purshottam (PW5) has admitted in his cross-examination that he was prosecuted for offence under section 307 of IPC but later on, the matter was compromised. This fact was not further disputed by the appellants. Purshottam (PW5) has admitted in his cross-examination that he was prosecuted for offence under section 307 of IPC but later on, the matter was compromised. This fact was not further disputed by the appellants. Thus, it is clear that dispute between the appellant Godila and Purshottam (PW5) had already come to an end. Furthermore, enmity is a double edged weapon. If a person can be falsely implicated because of enmity, then at the same time, a person may commit offence because of enmity. 23. The Supreme Court in the case of Ruli Ram v. State of Haryana, reported in [ (2002)7 SCC 691 ] held as under : ''7. So far as the acceptability of evidence is concerned, the trial Court and the High Court analysed the evidence in detail and have held it to be plausible and acceptable, and that it suffers from no infirmity. It has been noted that in a faction-ridden village, independent witnesses, as submitted by the learned counsel for the accusedappellant, are difficult to get. Enmity is a doubleedged sword. While it can be a basis for false implication, it can also be a basis for the crime. The Court has to weigh the evidence carefully and if after doing so, holds the evidence to be acceptable, the accused cannot take the plea that it should not be acted upon. When a plea of false implication is advanced by the accused, foundation for the same has to be established. We do not find any reason to differ from the Courts below on the factual aspects.'' In the case of Sushil v. State of U.P., reported in 1995 Supp. (1) SCC 363, it has been held by the Supreme Court as under : ''8. Learned counsel for the appellants next contended that there was enmity between the complainant and the appellants and therefore the appellants have been falsely implicated. It was submitted that the prosecution witnesses are related to the deceased and since they are interested witnesses their evidence should not be accepted. There is no doubt that the relations between complainant party and the accused persons were strained and they were on inimical terms. It was submitted that the prosecution witnesses are related to the deceased and since they are interested witnesses their evidence should not be accepted. There is no doubt that the relations between complainant party and the accused persons were strained and they were on inimical terms. Admittedly some litigation was going on between them and it is also clear from the evidence of Hoshiyar Singh, (PW1) the father of the deceased that a day earlier to the occurrence there was an altercation between Jai Prakash and the accused/appellants Sushil, Tapeshwar and Ram Niwas when the appellants had threatened him saying that the deceased was responsible for some miscreants beating their grandfather. When after the prosecution closed its evidence the appellants were examined under section 313 of the Code of Criminal Procedure wherein they also admitted their enmity with the complainant from which it is apparent that the parties were on inimical terms. It goes without saying that enmity is a double-edged weapon which cuts both ways. It may constitute a motive for the commission of the crime and at the same time it may also provide a motive for false implication. In the present case there is evidence to establish motive and when the prosecution adduced positive evidence showing the direct involvement of the accused in the crime, motive assumes importance. The evidence of interested witnesses and those who are related to the deceased cannot be thrown out simply for that reason. But if after applying the rule of caution their evidence is found to be reliable and corroborated by independent evidence there is no reason to discard their evidence but it has to be accepted as reliable. We shall, therefore, examine the prosecution evidence applying the said rule of caution.'' In the case of Matibar Singh v. State of U.P., reported in (2015)16 SCC 168 , it has been held by the Supreme Court as under : ''14. That brings us to the question whether there is any room for our interference with the conviction of Matibar Singh, appellant, as recorded by the High Court in the impugned judgment. We must, at the outset, say that the High Court’s judgment, which has been read out at length before us, has dealt with the evidence adduced at the trial as also the submissions made by the learned counsel for the parties with commendable clarity. We must, at the outset, say that the High Court’s judgment, which has been read out at length before us, has dealt with the evidence adduced at the trial as also the submissions made by the learned counsel for the parties with commendable clarity. We have, therefore, no hesitation in affirming the reasoning and the conclusions arrived at by the High Court. The fact that there was previous enmity between the complainant’s party and the rival group of which the accused happen to be members or sympathisers is a factor that need to be taken as adverse to the prosecution. Enmity is a doubleedged weapon. It was because of the said enmity that the victim was assaulted while he was on his way to attend the function. The existence of such enmity lends support to the prosecution case rather than demolish the same. The trial Court was obviously in error in taking a contrary view which the High Court has rightly corrected by the impugned judgment. So also, the High Court was, in our opinion, perfectly justified in holding that the deposition of the victim and the eye-witnesses examined at the trial had not been shaken in cross-examinations to render it unsafe for the Court to rest an order of conviction against the accused persons.'' 24. Thus, enmity cannot be a sole ground to discard the evidence of witnesses, as enmity may also lend support to the prosecution case. If the ocular evidence is clinching and worth reliance, then the enmity in fact further corroborates the ocular evidence, as it provides motive to the accused to commit offence. 25. It is next contended by the Counsel for the appellants, that Purshottam (PW5) is the real brother of the deceased and hence his is an interested witness, therefore, his evidence is not worth reliance. 26. The submission made by the Counsels for the appellants cannot be accepted and hence, rejected. 27. The Supreme Court in the case of Mohd. Ishaque v. State of W.B. reported in (2013)14 SCC 581 , has held as under : ''14. We also fully endorse the view of the High Court that the mere fact that some of the witnesses are interested witnesses, that by itself is not a ground to discard their evidence, the evidence taken as a whole supports the case of the prosecution. 15. We also fully endorse the view of the High Court that the mere fact that some of the witnesses are interested witnesses, that by itself is not a ground to discard their evidence, the evidence taken as a whole supports the case of the prosecution. 15. In Hari Obula Reddy v. State of A.P. [ (1981) 3 SCC 675 ], this Court laid down certain broad guidelines to be borne in mind, while scrutinising the evidence of the eye witnesses; in para 13 of the judgment, this Court held as follows : (SCC pp. 683-84) “13. ...But it is well settled that interested evidence is not necessarily unreliable evidence. Even partisanship by itself is not a valid ground for discrediting or rejecting sworn testimony. Nor can it be laid down as an invariable rule that interested evidence can never form the basis of conviction unless corroborated to a material extent in material particulars by independent evidence. All that is necessary is that the evidence of interested witnesses should be subjected to careful scrutiny and accepted with caution. If on such scrutiny, the interested testimony is found to be intrinsically reliable or inherently probable, it may, by itself, be sufficient, in the circumstances of the particular case, to base a conviction thereon. Although in the matter of appreciation of evidence, no hard-and-fast rule can be laid down, yet, in most cases, in evaluating the evidence of an interested or even a partisan witness, it is useful as a first step to focus attention on the question, whether the presence of the witness at the scene of the crime at the material time was probable. If so, whether the substratum of the story narrated by the witness, being consistent with the other evidence on record, the natural course of human events, the surrounding circumstances and inherent probabilities of the case, is such which will carry conviction with a prudent person. If the answer to these questions be in the affirmative, and the evidence of the witness appears to the Court to be almost flawless, and free from suspicion, it may accept it, without seeking corroboration from any other source. If the answer to these questions be in the affirmative, and the evidence of the witness appears to the Court to be almost flawless, and free from suspicion, it may accept it, without seeking corroboration from any other source. Since perfection in this imperfect world is seldom to be found, and the evidence of a witness, more so of an interested witness, is generally fringed with embellishment and exaggerations, however true in the main, the Court may look for some assurance, the nature and extent of which will vary according to the circumstances of the particular case, from independent evidence, circumstantial or direct, before finding the accused guilty on the basis of his interested testimony. We may again emphasise that these are only broad guidelines which may often be useful in assessing interested testimony, and are not iron-cased rules uniformly applicable in all situations.” 16. PW1, PW2, PW4 in the present case sustained serious injuries and their evidence was believed by the Court. It is trite law that the testimony of injured witnesses is entitled to great weight and it is unlikely that they would spare the real culprit and implicate an innocent person. Of course, there is no immutable rule of appreciation of evidence that the evidence of injured witnesses should be mechanically accepted, it should also be in consonance with probabilities (Ref: Makan Jivan v. State of Gujara [ (1971)3 SCC 297 ], Machhi Singh v. State of Punjab [ (1983)3 SCC 470 ], Jangir Singh v. State of Punjab [ (2000) 10 SCC 261 ]). 17. In this respect, reference may be made to the judgment of this Court in Jaishree Yadav v. State of U.P. [ (2005)9 SCC 788 ] wherein this Court held that whether witnesses are interested persons and whether they had deposed out of some motive cannot be the sole criterion for judging credibility of a witness, but the main criterion would be whether their physical presence at the place of occurrence was possible and probable.'' The Supreme Court in the case of Bhagwan Jagannath Markad v. State of Maharashtra, reported in (2016)10 SCC 537 has held as under : ''19. While appreciating the evidence of a witness, the Court has to assess whether read as a whole, it is truthful. While appreciating the evidence of a witness, the Court has to assess whether read as a whole, it is truthful. In doing so, the Court has to keep in mind the deficiencies, drawbacks and infirmities to find out whether such discrepancies shake the truthfulness. Some discrepancies not touching the core of the case are not enough to reject the evidence as a whole. No true witness can escape from giving some discrepant details. Only when discrepancies are so incompatible as to affect the credibility of the version of a witness, the Court may reject the evidence. section 155 of the Evidence Act enables the doubt to impeach the credibility of the witness by proof of former inconsistent statement. section 145 of the Evidence Act lays down the procedure for contradicting a witness by drawing his attention to the part of the previous statement which is to be used for contradiction. The former statement should have the effect of discrediting the present statement but merely because the latter statement is at variance to the former to some extent, it is not enough to be treated as a contradiction. It is not every discrepancy which affects the creditworthiness and the trustworthiness of a witness. There may at times be exaggeration or embellishment not affecting the credibility. The Court has to sift the chaff from the grain and find out the truth. A statement may be partly rejected or partly accepted [Leela Ram v. State of Haryana (1999)9 SCC 525 ]. Want of independent witnesses or unusual behaviour of witnesses of a crime is not enough to reject evidence. A witness being a close relative is not enough to reject his testimony if it is otherwise credible. A relation may not conceal the actual culprit. The evidence may be closely scrutinized to assess whether an innocent person is falsely implicated. Mechanical rejection of evidence even of a “partisan” or “interested” witness may lead to failure of justice. It is well known that principle “falsus in uno, falsus in omnibus” has no general acceptability [Gangadhar Behera v. State of Orissa, (2002)8 SCC 381 ]. On the same evidence, some accused persons may be acquitted while others may be convicted, depending upon the nature of the offence. The Court can differentiate the accused who is acquitted from those who are convicted. On the same evidence, some accused persons may be acquitted while others may be convicted, depending upon the nature of the offence. The Court can differentiate the accused who is acquitted from those who are convicted. A witness may be untruthful in some aspects but the other part of the evidence may be worthy of acceptance. Discrepancies may arise due to error of observations, loss of memory due to lapse of time, mental disposition such as shock at the time of occurrence and as such the normal discrepancy does not affect the credibility of a witness.'' The Supreme Court in the case of Namdeo v. State of Maharashtra, reported in [ (2007) 14 SCC 150 ] has held as under : ''16. Having heard the learned counsel for the parties, in our opinion, no interference is called for in exercise of power under Article 136 of the Constitution. It is no doubt true that there is only one eye witness who is also a close relative of the deceased viz. his son. But it is well settled that it is quality of evidence and not quantity of evidence which is material. Quantity of evidence was never considered to be a test for deciding a criminal trial and the emphasis of Courts is always on quality of evidence. 17. So far as legal position is concerned, it is found in the statutory provision in section 134 of the Evidence Act, 1872, which reads: “134. Number of witnesses —No particular number of witnesses shall in any case be required for the proof of any fact.” 18. Let us now consider few leading decisions on the point. 19. Before more than six decades, in Mohd. Sugal Esa Mamasan Rer Alalah v. R. [ AIR 1946 PC 3 ], one M together with his brother E caused murder of his half-brother A. The trial Court convicted M and sentenced him to death acquitting his brother E. The conviction was confirmed by the appellate Court. It was contended before the Privy Council that the conviction was solely based on unsworn evidence of a girl aged about 10-11 years. The trial Court found her competent to testify, but was of the view that she was not able to understand the nature of an oath and, therefore, oath was not administered. It was contended before the Privy Council that the conviction was solely based on unsworn evidence of a girl aged about 10-11 years. The trial Court found her competent to testify, but was of the view that she was not able to understand the nature of an oath and, therefore, oath was not administered. It was contended by the accused that no conviction could be recorded on a solitary witness and that too on an unsworn evidence of a tender aged girl of 10-11 years without corroboration. Considering the question raised before the Judicial Committee, leave was granted. Their Lordships considered the legal position in England and in India. It was held that such evidence is admissible under Indian law “whether corroborated or not”. 20. Lord Goddard, speaking for the Board stated : (AIR p. 6) “Once there is admissible evidence a Court can act upon it; corroboration, unless required by statute, goes only to the weight and value of the evidence. It is a sound rule in practice not to act on the uncorroborated evidence of a child, whether sworn or unsworn, but this is a rule of prudence and not of law. In a careful and satisfactory judgment the Judge of the Protectorate Court shows that he was fully alive to this rule and that he applied it, and Their Lordships are in agreement with him as to the matters he took into account as corroborative of the girl’s evidence.” 21. In Vadivelu Thevar v. State of Madras [ AIR 1957 SC 614 ] referring to Mohd. Sugal [ AIR 1946 PC 3 ], this Court stated: (AIR pp. 618-19, para 10) “On a consideration of the relevant authorities and the provisions of the Evidence Act, the following propositions may be safely stated as firmly established: (1) As a general rule, a Court can and may act on the testimony of a single witness though uncorroborated. One credible witness outweighs the testimony of a number of other witnesses of indifferent character. (2) Unless corroboration is insisted upon by statute, Courts should not insist on corroboration except in cases where the nature of the testimony of the single witness itself requires as a rule of prudence, that corroboration should be insisted upon, for example in the case of a child witness, or of a witness whose evidence is that of an accomplice or of an analogous character. (3) Whether corroboration of the testimony of a single witness is or is not necessary, must depend upon facts and circumstances of each case and no general rule can be laid down in a matter like this and much depends upon the judicial discretion of the judge before whom the case comes.” 22. Quoting section 134 of the Evidence Act, Their Lordships stated (at AIR p. 619, para 11) that “we have no hesitation in holding that the contention that in a murder case, the Court should insist upon plurality of witnesses, is much too broadly stated”. The Court proceeded to state: (AIR p. 619, para 11) “It is not seldom that a crime has been committed in the presence of only one witness, leaving aside those cases which are not of uncommon occurrence where determination of guilt depends entirely on circumstantial evidence. If the legislature were to insist upon plurality of witnesses, cases where the testimony of a single witness only could be available in proof of the crime, would go unpunished. It is here that the discretion of the Presiding Judge comes into play. The matter thus must depend upon the circumstances of each case and the quality of the evidence of the single witness whose testimony has to be either accepted or rejected. If such a testimony is found by the Court to be entirely reliable, there is no legal impediment to the conviction of the accused person on such proof. Even as the guilt of an accused person may be proved by the testimony of a single witness, the innocence of an accused person may be established on the testimony of a single witness, even though a considerable number of witnesses may be forthcoming to testify to the truth of the case for the prosecution. The Court also stated: (AIR p. 619, para 12) “There is another danger in insisting on plurality of witnesses. Irrespective of the quality of the oral evidence of a single witness, if Courts were to insist on plurality of witnesses in proof of any fact, they will be indirectly encouraging subornation of witnesses. Situations may arise and do arise where only a single person is available to give evidence in support of a disputed fact. Irrespective of the quality of the oral evidence of a single witness, if Courts were to insist on plurality of witnesses in proof of any fact, they will be indirectly encouraging subornation of witnesses. Situations may arise and do arise where only a single person is available to give evidence in support of a disputed fact. The Court naturally has to weigh carefully such a testimony and if it is satisfied that the evidence is reliable and free from all taints which tend to render oral testimony open to suspicion, it becomes its duty to act upon such testimony. The law reports contain many precedents where the Court had to depend and act upon the testimony of a single witness in support of the prosecution. There are exceptions to this rule, for example, in cases of sexual offences or of the testimony of an approver; both these are cases in which the oral testimony is, by its very nature, suspect, being that of a participator in crime. But, where there are no such exceptional reasons operating, it becomes the duty of the Court to convict, if it is satisfied that the testimony of a single witness is entirely reliable.” 23. In the leading case of Shivaji Sahebrao Bobade v. State of Maharashtra [ (1973) 2 SCC 793 ] this Court held that even where a case hangs on the evidence of a single eye witness it may be enough to sustain the conviction given the sterling testimony of a competent, honest man although as a rule of prudence Courts call for corroboration. “It is a platitude to say that witnesses have to be weighed and not counted since quality matters more than quantity in human affairs.” (SCC p. 807, para 19) 24. In Anil Phukan v. State of Assam [ (1993) 3 SCC 282 ] the Court observed : (SCC p. 285, para 3) “Indeed, conviction can be based on the testimony of a single eye witness and there is no rule of law or evidence which says to the contrary provided the sole witness passes the test of reliability. So long as the single eye witness is a wholly reliable witness the Courts have no difficulty in basing conviction on his testimony alone. So long as the single eye witness is a wholly reliable witness the Courts have no difficulty in basing conviction on his testimony alone. However, where the single eye witness is not found to be a wholly reliable witness, in the sense that there are some circumstances which may show that he could have an interest in the prosecution, then the Courts generally insist upon some independent corroboration of his testimony, in material particulars, before recording conviction. It is only when the Courts find that the single eye witness is a wholly unreliable witness that his testimony is discarded in toto and no amount of corroboration can cure that defect.” 25. In Kartik Malhar v. State of Bihar [ (1996) 1 SCC 614 ] referring to several cases, this Court stated : (SCC pp. 619-20, para 7) “7. On a conspectus of these decisions, it clearly comes out that there has been no departure from the principles laid down in Vadivelu Thevar case [ AIR 1957 SC 614 ] and, therefore, conviction can be recorded on the basis of the statement of a single eye witness provided his credibility is not shaken by any adverse circumstance appearing on the record against him and the Court, at the same time, is convinced that he is a truthful witness. The Court will not then insist on corroboration by any other eye witness particularly as the incident might have occurred at a time or place when there was no possibility of any other eyewitness being present. Indeed, the Courts insist on the quality, and, not on the quantity of evidence.” 26. In Chittar Lal v. State of Rajasthan [ (2003)6 SCC 397 ], this Court had an occasion to consider a similar question. In that case, the sole testimony of a young boy of 15 years was relied upon for recording an order of conviction. Following Mohd. Sugal [ AIR 1946 PC 3 ] and reiterating the law laid down therein, this Court stated: (SCC p.400, para 7) “The legislative recognition of the fact that no particular number of witnesses can be insisted upon is amply reflected in section 134 of the Evidence Act, 1872 (in short ‘the Evidence Act’). Administration of justice can be affected and hampered if number of witnesses were to be insisted upon. Administration of justice can be affected and hampered if number of witnesses were to be insisted upon. It is not seldom that a crime has been committed in the presence of one witness, leaving aside those cases which are not of unknown occurrence where determination of guilt depends entirely on circumstantial evidence. If plurality of witnesses would have been the legislative intent, cases where the testimony of a single witness only could be available, in number of crimes the offender would have gone unpunished. It is the quality of evidence of the single witness whose testimony has to be tested on the touchstone of credibility and reliability. If the testimony is found to be reliable, there is no legal impediment to convict the accused on such proof. It is the quality and not the quantity of evidence which is necessary for proving or disproving a fact.” (Emphasis supplied) 27. Recently, in Bhimappa Chandappa Hosamani v. State of Karnataka [ (2006)11 SCC 323 ], this Court held that testimony of a solitary witness can be made the basis of conviction. The credibility of the witness requires to be tested with reference to the quality of his evidence which must be free from blemish or suspicion and must impress the Court as natural, wholly truthful and so convincing that the Court has no hesitation in recording a conviction solely on his uncorroborated testimony.'' 28. Thus, the evidence of Purshottam (PW5) cannot be rejected merely on the ground that he is the real brother of the deceased. Further more, there is nothing on record to suggest that why the real brother by sparing the real culprit would falsely implicate the appellants. 29. It is next contended by the counsel for the appellants that in the inquest report Ex.P-2, the name of the assailants have not been mentioned therefore, it is clear that Purshottam (PW5) had not seen the incident. The contention raised by the Counsel for the appellants cannot be accepted. The inquest report was prepared in the Mortuary of the J.A. Hospital, Gwalior at 10 a.m. Secondly, the purpose of preparing inquest report is to find out that whether the death is homicidal, accidental or natural. It is no where provided under the law that each and every details of offence are to be mentioned in the inquest report. 30. The inquest report was prepared in the Mortuary of the J.A. Hospital, Gwalior at 10 a.m. Secondly, the purpose of preparing inquest report is to find out that whether the death is homicidal, accidental or natural. It is no where provided under the law that each and every details of offence are to be mentioned in the inquest report. 30. The Supreme Court in the case of Guiram Mondal v. State of W.B. reported in [ (2013)15 SCC 284 ] has held as under : ''12. The inquest report normally would not contain the manner in which the incident took place or the names of eye witnesses as well as the names of accused persons. The basic purpose of holding an inquest is to report regarding the cause of death, namely, whether it is suicidal, homicidal, accidental, etc. Reference may be made to the judgments of this Court in Pedda Narayana v. State of A.P. [ (1975)4 SCC 153 ] and Amar Singh v. Balwinder Singh [ (2003)2 SCC 518 ]. 13. In Radha Mohan Singh v. State of U.P. [ (2006)2 SCC 450 ] this Court held that the scope of inquest is limited and is confined to ascertainment of apparent cause of death. Inquest is concerned with discovering whether in a given case the death was accidental, suicidal or homicidal, and in what manner or by what weapon or instrument the injuries on the body appear to have been inflicted. The details of overt acts need not be recorded in the inquest report. The High Court has rightly held that the manner and approach of the trial Court in disbelieving the prosecution story by placing reliance on the inquest report was erroneous and bad in law.'' 31. It is next contended by the Counsel for the appellants that since Purshottam (PW5) is the solitary eye witness and he did not try to save his brother, clearly shows that he was not present on the spot, otherwise, there was no reason for him, not to make an attempt to save his brother. The submission made by the Counsel for the appellants cannot be accepted and hence rejected. Purshottam (PW5) has explained his conduct of not intervening in the assault. The submission made by the Counsel for the appellants cannot be accepted and hence rejected. Purshottam (PW5) has explained his conduct of not intervening in the assault. He has specifically stated that as one of the appellant was having pistol who had fired gun shot also and another appellant was having knife who was continuously assaulting the deceased, therefore, this witness got frightened of the appellants, so he did not intervene in the matter. In a given set of circumstances, different persons would react differently. No straight forward jacket formula can be laid down to ascertain that what should be the reaction of the relative of the deceased. Where one person is having pistol and had fired at the deceased and another was having knife who was furiously assaulting the deceased, thereby causing as many as 15 incised wounds within a short span of time, the explanation given by Purshottam (PW5) of not making an attempt to save his brother cannot be said to be unrealistic. 32. The Supreme Court in the case of Daya Ram v. State of Haryana reported in [ (2015)12 SCC 373 ] has held as under : ''19. The learned counsel for the appellants has strenuously argued that the prosecution having miserably failed to adduce any cogent and convincing evidence in support of the charge, they (the appellants) ought to have been acquitted. According to the learned counsel, the prosecution case is liable to be rejected on the ground of unexplained delay in the lodging of the FIR. Further the version of (PW3) being wholly unreliable, on that count as well, he being the only witness, the Courts below ought to have rejected the charge against the appellants, he urged. Mr P.N. Kush argued as well that (PW3) being the sole eye witness, his testimony ought to have been scrutinized with all rigour and as his version does unmistakably fail such test, conviction of the appellants should not have been based thereon. Without prejudice to these pleas, the learned counsel has insisted that the acquittal of three of the seven accused persons charged with the same offence, did destroy the substratum of the prosecution case and that therefore, the appellants are entitled to be acquitted. * * * * * * 22. Without prejudice to these pleas, the learned counsel has insisted that the acquittal of three of the seven accused persons charged with the same offence, did destroy the substratum of the prosecution case and that therefore, the appellants are entitled to be acquitted. * * * * * * 22. We are not inclined to reject the testimony of (PW3) on the ground that his conduct had been unusual at the place of the occurrence, he having kept himself aloof therefrom instead of attempting to save his brothers who were under murderous attack by a group of assailants. As rightly observed by the Courts below that, on being confronted with such an unforeseen and sudden situation, it is quite likely that individuals would react differently and if (PW3), being petrified by such unexpected turn of events, being in the grip of fear and alarm, as a matter of reflex hid himself from the assailants, his version of the episode, in our estimate, is not liable to be discarded as a whole as the same is otherwise cogent, coherent and compact.'' 33. It is next contended by the counsel for the appellants that the prosecution has failed to prove motive on the part of the appellants to commit murder of the deceased Mohan and therefore, in absence of motive, the eyewitness Purshottam (PW5) should be disbelieved. The submissions made by the counsel for the appellants cannot be accepted and hence rejected. It is well established principles of law that where the prosecution is based on direct evidence, then absence of motive is irrelevant. 34. The Supreme Court in the case of Bikau Pandey v. State of Bihar, reported in [ (2003)12 SCC 616 ] has held as under : "13. Therefore, section 149 has been rightly applied when the factual position as highlighted by the eyewitnesses is considered. Even if the absence of motive as alleged is accepted that is of no consequence and pales into insignificance when direct evidence establishes the crime. The first information report was lodged almost immediately and whatever elaboration has been done is really very minor in nature. Mere seemingly inconsistencies which are not contradictions or omissions or are of trivial nature do not affect the substratum of the prosecution version. That is the situation in the case at hand. The number of injuries even if not correlated to the number of assailants is not material. Mere seemingly inconsistencies which are not contradictions or omissions or are of trivial nature do not affect the substratum of the prosecution version. That is the situation in the case at hand. The number of injuries even if not correlated to the number of assailants is not material. (See Leela Ram v. State of Haryana,[ (1999)9 SCC 525 ]. The Supreme Court in the case of Major Singh v. State of Punjab, reported in [ (2006)10 SCC 499 ] has held as under : ''8 ...It is well settled in criminal law that motive is not very material in a case of direct evidence but it is very important in a case of circumstantial evidence......'' The Supreme Court in the case of State of U.P. v. Krishna Master, reported in (2010)12 SCC 324 has held as under : ''70. Further, it is well settled that the prosecution is not supposed to prove motive when prosecution relies on direct evidence i.e. evidence of eye witnesses. In this case, the prosecution has examined the first informant as (PW1) who has lost his brother in the incident as well as (PW2) Madan Lal who lost five members of his family. Their evidence is found to be trustworthy and unimpeachable. As observed earlier, their evidence does not suffer from major contradiction and/or improvements nor noticeable embellishments have been made by them. As the prosecution has led acceptable eye witnesses’ accounts of the incident, this Court is of the firm opinion that failure to establish motive would not entitle the respondents to claim acquittal.'' 35. Thus, it is clear that absence of motive, cannot be a ground to discard the direct evidence. 36. It is next contended by the Counsel for the appellants that the trial Court itself has acquitted the appellant Godila for offence under section 25 (1-B) of Arms Act, whereas the trial Court has also held that the prosecution has failed to prove that the knife seized from the possession of the appellant Mantola was used in the crime, therefore, it gives deep dent to the prosecution case. The submission made by the counsel for the appellants cannot be accepted and hence it is rejected. It is well established principle of law that even if the weapon of offence is not recovered or wrong weapon was seized, then it would not be fatal to the prosecution case. 37. The submission made by the counsel for the appellants cannot be accepted and hence it is rejected. It is well established principle of law that even if the weapon of offence is not recovered or wrong weapon was seized, then it would not be fatal to the prosecution case. 37. The Supreme Court in the case of Nankaunoo v. State of U.P., Reported in [ (2016)3 SCC 317 ], has held as under : ''9. The learned counsel for the appellant contended that the Courts below failed to take note of the fact that the alleged weapon “country-made pistol” was never recovered by the investigating officer and in the absence of any clear connection between the weapon used for crime and ballistic report and resultant injury, the prosecution cannot be said to have established the guilt of the appellant. In the light of unimpeachable oral evidence which is amply corroborated by the medical evidence, non-recovery of “country-made pistol” does not materially affect the case of the prosecution. In a case of this nature, any omission on the part of the investigating officer cannot go against the prosecution case. Story of the prosecution is to be examined dehors such omission by the investigating agency. Otherwise, it would shake the confidence of the people not merely in the law enforcing agency but also in the administration of justice.'' The Supreme Court in the case of Mritunjoy Biswas v. Pranab, reported in [ (2013)12 SCC 796 ] has held as under : ''33. The learned counsel for the respondent has urged before us that there has been no recovery of weapon from the accused and hence, the prosecution case deserves to be thrown overboard and, therefore, the judgment of acquittal does not warrant interference. 34. In Lakshmi v. State of U.P., [ (2002)7 SCC 198 ] this Court has ruled that: (SCC p.205, para16) “16. Undoubtedly, the identification of the body, cause of death and recovery of weapon with which the injury may have been inflicted on the deceased are some of the important factors to be established by the prosecution in an ordinary given case to bring home the charge of offence under section 302 IPC. This, however, is not an inflexible rule. Undoubtedly, the identification of the body, cause of death and recovery of weapon with which the injury may have been inflicted on the deceased are some of the important factors to be established by the prosecution in an ordinary given case to bring home the charge of offence under section 302 IPC. This, however, is not an inflexible rule. It cannot be held as a general and broad proposition of law that where these aspects are not established, it would be fatal to the case of the prosecution and in all cases and eventualities, it ought to result in the acquittal of those who may be charged with the offence of murder.” 35. In Lakhan Sao v. State of Bihar [ (2000)9 SCC 82 ] it has been opined that: (SCC p.87, para 18) “18. The non-recovery of the pistol or spent cartridge does not detract from the case of the prosecution where the direct evidence is acceptable.” 36. In State of Rajasthan v. Arjun Singh [ (2011)9 SCC 115 ] this Court has expressed that : (SCC p.122, para 18) “18. … mere non-recovery of pistol or cartridge does not detract the case of the prosecution where clinching and direct evidence is acceptable. Likewise, absence of evidence regarding recovery of used pellets, bloodstained clothes, etc. cannot be taken or construed as no such occurrence had taken place.” The Supreme Court in the case of Krishna Gope v. State of Bihar reported in [ (2003)10 SCC 45 ] has held as under : ''8. Learned counsel further pointed out that the country-made firearm alleged to have been used by the appellant was not recovered by the police and the same was not sent to the police station. The learned counsel submitted that the investigation was not properly done and that the appellant is entitled to the benefit of doubt. In our view, this plea is not tenable. The house of the appellant was searched immediately after the incident, but the police could not recover the weapon of offence from his house. It appears that the appellant had succeeded in concealing the weapon before the police could search his house. In our opinion, the fact of nonrecovery of the weapon from the house of the appellant does not enure to his benefit.'' The Supreme Court in the case of Mohd. It appears that the appellant had succeeded in concealing the weapon before the police could search his house. In our opinion, the fact of nonrecovery of the weapon from the house of the appellant does not enure to his benefit.'' The Supreme Court in the case of Mohd. Jamiludin Nasir v. State of W.B., reported in [ (2014)7 SCC 443 ] has held as under : ''56. One other submission made was that if the confession of Nasir is to be believed, the AK-47 should have been recovered. We are at a loss to understand as to how the non-recovery of AK-47 rifle would vitiate the confession. In fact, the learned Additional Solicitor General in his submissions stated that the AK-47 rifles seized at the hideout of the conspirators at Hazaribagh along with the recovered bullet jackets at the occurrence spot, namely, the American Centre were all sent to the forensic science laboratory for an expert opinion and it turned out that none of the bullets fired and recovered at the American Centre matched with the gun recovered at Hazaribagh premises. The learned Additional Solicitor General, therefore, contended that the non-recovery of the AK-47 which was used at the place of occurrence cannot be a factor to reject the prosecution case as framed against the accused. We find force in this submission. In fact, as per the confession of Nasir, after the shooting operation and after they all returned back to No.1, Tiljala Lane, both Sadakat and Zahid left Calcutta carrying their baggage. Zahid lost his breath in the encounter on 28.1.2002 to 29.1.2002. Whatever arms and ammunition including the AK-47 rifles at the premises at Hazaribagh were found to be the weapons not used for shooting at the American Centre. Sadakat was an absconder, though, later he was apprehended and is now being tried. Therefore, any recovery made at the instance of Sadakat, who is now facing the trial, is not known. In such circumstances, the nonrecovery of the AK-47 which was used for shooting at the American Centre cannot be a ground to disbelieve the statement contained in the confession of Nasir. 57. Therefore, any recovery made at the instance of Sadakat, who is now facing the trial, is not known. In such circumstances, the nonrecovery of the AK-47 which was used for shooting at the American Centre cannot be a ground to disbelieve the statement contained in the confession of Nasir. 57. As far as the contention made on behalf of the appellant that non-production of the weapon used in the attack is fatal to the case of the prosecution is concerned, the reliance placed by the learned Additional Solicitor General upon the decision in Ram Singh v. State of Rajasthan [ (2012)12 SCC 339 ] would meet the said contention. In paras 8 and 10, this Court has also held that the non-production of the weapon used in the attack is neither fatal to the prosecution case nor any adverse inference can be drawn on that score. Therefore, the said submission is also rejected.'' 38. It is further submitted by the counsel for the appellant Mantola that since, no blood was found on the knife seized from his possession, thus, it is clear that the knife, so seized from the appellant Mantola was not used for committing crime and therefore the solitary evidence of Purshottam (PW5) is not reliable. The submission made by the counsel for the appellant Mantola cannot be accepted. It is clear that the incident took place on 18.8.2005, whereas the appellant Mantola was arrested on 23.8.2005 i.e, 5 days after the incident. During this period, he had sufficient time to wipe out the blood from the knife. Although as per FSL report Ex.P-23, the pattern of cut marks on the shirt of the deceased were matching with the knife seized from the possession of appellant Mantola, but since, the trial Court has already held that the seizure of the weapon of crime from the possession of the appellant Mantola is not proved, therefore, it would not be appropriate for this Court to consider the effect of similarity of pattern of cut marks on the shirt with that of the knife seized from the possession of the appellant Mantola. 39. Thus, when there is ample unimpeachable ocular evidence and the same has been corroborated by the medical evidence, nonrecovery of the weapon does not affect the prosecution case. 40. 39. Thus, when there is ample unimpeachable ocular evidence and the same has been corroborated by the medical evidence, nonrecovery of the weapon does not affect the prosecution case. 40. It is next contended by the counsel for the appellants that the appellants were not sharing common intention and therefore, they are not responsible for the act of other and cannot be convicted under section 302 with the aid of section 34 of IPC. It is submitted by the Counsel for the appellant Mantola, that since, according to the Autopsy surgeon Dr.Yogendra (PW3), the cause of death was gun shot injury which was caused by the other appellant Godila, therefore, he cannot be convicted with the aid of section 34 of IPC, as it cannot be inferred that the appellant Mantola was also sharing common intention to cause death of the deceased Mohan. The submissions made by the Counsel for the appellant Mantola cannot be accepted. 41. Section 34 of IPC reads as under : ''34. Acts done by several persons in furtherance of common intention—When a criminal act is done by several persons, in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone.'' The Supreme Court in the case of Goudappa v. State of Karnataka, reported in [ (2013)3 SCC 675 ] has held as under : ''20. Mr Patil lastly submits that, according to the prosecution itself, the role attributed to accused 3 Goudappa and accused 4 Channappa alias Ajjappa is that they had caught hold of the deceased Channappa and from that it cannot be inferred that the crime was committed in furtherance of common intention. According to him, these appellants had not intended to cause the death of the deceased and, hence, cannot be convicted for the offence under section 302 with the aid of section 34 of the Penal Code. In support of the submission reliance has been placed on the judgment of this Court in Ramashish Yadav v. State of Bihar [ (1999)8 SCC 555 ] (SCC p.559, para 3) “3. In support of the submission reliance has been placed on the judgment of this Court in Ramashish Yadav v. State of Bihar [ (1999)8 SCC 555 ] (SCC p.559, para 3) “3. … This being the requirement of law for applicability of section 34 IPC, from the mere fact that accused Ram Pravesh Yadav and Ramanand Yadav came and caught hold of Tapeshwar, whereafter Samundar Yadav and Sheo Layak Yadav came with gandasa in their hands and gave blows by means of gandasa, it cannot be said that the accused Ram Pravesh Yadav and Ramanand Yadav shared the common intention with accused Samundar Yadav and Sheo Layak Yadav. Consequently, accused Ram Pravesh Yadav and Ramanand Yadav cannot be held guilty of the charge under sections 302/34 IPC but accused Samundar Yadav and Sheo Layak Yadav did commit the offence under sections 302/34, having assaulted deceased Tapeshwar on his head by means of gandasa on account of which Tapeshwar died. The accused Ram Pravesh Yadav and Ramanand Yadav are, therefore, acquitted of the charges levelled against them and they be set at liberty forthwith.” 21. Ms Shenoy, however, submits that from the manner in which the crime has been committed and the role played by the aforesaid two appellants clearly show that the criminal act was done by several persons in furtherance of the common intention of all and, hence, each of such person shall be liable for the criminal act in the same manner as if it was done by him alone. Reference, in this connection, has been made to a decision of this Court in Ramesh Singh v. State of A.P. [ (2004)11 SCC 305 ]. 22. We have bestowed our consideration to the rival submissions and the submission made by Ms. Shenoy commend us. Ordinarily, every man is responsible criminally for a criminal act done by him. No man can be held responsible for an independent act and wrong committed by another. The principle of criminal liability is that the person who commits an offence is responsible for that and he can only be held guilty. However, section 34 of the Penal Code makes an exception to this principle. It lays down a principle of joint liability in the doing of a criminal act. The principle of criminal liability is that the person who commits an offence is responsible for that and he can only be held guilty. However, section 34 of the Penal Code makes an exception to this principle. It lays down a principle of joint liability in the doing of a criminal act. The essence of that liability is to be found in the existence of common intention, animating the accused leading to the doing of a criminal act in furtherance of such intention. It deals with the doing of separate acts, similar or adverse by several persons, if all are done in furtherance of common intention. In such situation, each person is liable for the result of that as if he had done that act himself. Section 34 of the Penal Code thus lays down a principle of joint criminal liability which is only a rule of evidence but does not create a substantive offence. Therefore, if the act is the result of a common intention that every person who did the criminal act shared, that common intention would make him liable for the offence committed irrespective of the role which he had in its perpetration. Then how to gather common intention? The common intention is gathered from the manner in which the crime has been committed, the conduct of the accused soon before and after the occurrence, the determination and concern with which the crime was committed, the weapon carried by the accused and from the nature of the injury caused by one or some of them. Therefore, for arriving at a conclusion whether the accused had the common intention to commit an offence of which they could be convicted, the totality of circumstances must be taken into consideration.'' The Supreme Court in the case of Balu v. State (UT of Pondicherry) reported in [(2016)15 SCC 471], has held as under : ''11. To invoke section 34 IPC, it must be established that the criminal act was done by more than one person in furtherance of common intention of all. It must, therefore, be proved that: (i) there was common intention on the part of several persons to commit a particular crime, and (ii) the crime was actually committed by them in furtherance of that common intention. It must, therefore, be proved that: (i) there was common intention on the part of several persons to commit a particular crime, and (ii) the crime was actually committed by them in furtherance of that common intention. The essence of liability under section 34 IPC is simultaneous conscious mind of persons participating in the criminal action to bring about a particular result. Minds regarding the sharing of common intention gets satisfied when an overt act is established qua each of the accused. Common intention implies prearranged plan and acting in concert pursuant to the pre-arranged plan. Common intention is an intention to commit the crime actually committed and each accused person can be convicted of that crime, only if he has participated in that common intention. 12. The classic case on the subject is the judgment of the Privy Council in Mahbub Shah v. King Emperor [ AIR 1945 PC 118 ], wherein it was held as under : (SCC On Line PC) “… Section 34 lays down a principle of joint liability in the doing of a criminal act. The section does not say ‘the common intentions of all’, nor does it say ‘an intention common to all’. Under the section, the essence of that liability is to be found in the existence of a common intention animating the accused leading to the doing of a criminal act in furtherance of such intention. To invoke the aid of section 34 successfully, it must be shown that the criminal act complained against was done by one of the accused persons in the furtherance of the common intention of all; if this is shown, then liability for the crime may be imposed on any one of the persons in the same manner as if the act were done by him alone. This being the principle, it is clear to Their Lordships that common intention within the meaning of the section implies a prearranged plan, and to convict the accused of an offence applying the section it should be proved that the criminal act was done in concert pursuant to the pre-arranged plan. This being the principle, it is clear to Their Lordships that common intention within the meaning of the section implies a prearranged plan, and to convict the accused of an offence applying the section it should be proved that the criminal act was done in concert pursuant to the pre-arranged plan. As has been often observed, it is difficult, if not impossible, to procure direct evidence to prove the intention of an individual; in most cases, it has to be inferred from his act or conduct or other relevant circumstances of the case.” (Emphasis supplied) Reiterating the above principles laid down by the Privy Council in Mahbub Shah case (supra), in Shankarlal Kacharabhai v. State of Gujarat [ AIR 1965 SC 1260 ], this Court held that the criminal act mentioned in section 34 IPC is the result of the concerted action of more than one person and if the said result was reached in furtherance of the common intention, each person is liable for the result as if he had done it himself. 13. In Ramesh Singh v. State of A.P. [ (2004)11 SCC 305 ] this Court held as under : (SCC pp. 314-15, para 12) “12. … As a general principle in a case of criminal liability it is the primary responsibility of the person who actually commits the offence and only that person who has committed the crime can be held guilty. By introducing section 34 in the Penal Code the legislature laid down the principle of joint liability in doing a criminal act. The essence of that liability is to be found in the existence of a common intention connecting the accused leading to the doing of a criminal act in furtherance of such intention. Thus, if the act is the result of a common intention then every person who did the criminal act with that common intention would be responsible for the offence committed irrespective of the share which he had in its perpetration. Section 34 IPC embodies the principle of joint liability in doing the criminal act based on a common intention. Common intention essentially being a state of mind it is very difficult to procure direct evidence to prove such intention. Therefore, in most cases it has to be inferred from the act like, the conduct of the accused or other relevant circumstances of the case. Common intention essentially being a state of mind it is very difficult to procure direct evidence to prove such intention. Therefore, in most cases it has to be inferred from the act like, the conduct of the accused or other relevant circumstances of the case. The inference can be gathered from the manner in which the accused arrived at the scene and mounted the attack, the determination and concert with which the attack was made, and from the nature of injury caused by one or some of them. The contributory acts of the persons who are not responsible for the injury can further be inferred from the subsequent conduct after the attack. In this regard even an illegal omission on the part of such accused can indicate the sharing of common intention. In other words, the totality of circumstances must be taken into consideration in arriving at the conclusion whether the accused had the common intention to commit an offence of which they could be convicted. (See Noor Mohammad Mohd. Yusuf Momin v. State of Maharashtra, [ (1970)1 SCC 696 .]” (Emphasis supplied) 14. Common intention is seldom capable of direct proof, it is almost invariably to be inferred from proved circumstances relating to the entire conduct of all the persons and not only from the individual act actually performed. The inference to be drawn from the manner of the origin of the occurrence, the manner in which the accused arrived at the scene and the concert with which attack was made and from the injuries caused by one or some of them. The criminal act actually committed would certainly be one of the important factors to be taken into consideration but should not be taken to be the sole factor. 15. Under section 34 IPC, a preconcert in the sense of a distinct previous plan is not necessary to be proved. The common intention to bring about a particular result may well develop on the spot as between a number of persons, with reference to the facts of the case and circumstances of the situation. The question whether there was any common intention or not depends upon the inference to be drawn from the proving facts and circumstances of each case. The common intention to bring about a particular result may well develop on the spot as between a number of persons, with reference to the facts of the case and circumstances of the situation. The question whether there was any common intention or not depends upon the inference to be drawn from the proving facts and circumstances of each case. The totality of the circumstances must be taken into consideration in arriving at the conclusion whether the accused had a common intention to commit an offence with which they could be convicted.'' 42. Thus, for the applicability of section 34 of IPC, the prosecution is not required to prove any overt act on the part of the accused, but if it can be gathered from the circumstances that the accused was sharing common intention, then he can be convicted for the act of others. However, in the present case, the factual matrix of the case, speaks in volumes about the fact that the appellants were sharing common intention. The prosecution story is that the deceased Mohan was going to a sweet shop for purchasing Milk at 6 in the morning. Both the appellants were already in the sweet shop, which clearly means, that 6 in the morning, both the appellants had gone to the sweet shop and were waiting for the deceased Mohan. The fact that incident took place at 6 in the morning, and the appellants were waiting for the deceased, clearly shows that the appellants were well aware of the fact that the deceased Mohan regularly goes to the sweet shop for taking Milk at around 6 a.m. and therefore, they went therewith deadly arms and were waiting for the deceased to come. Immediately after noticing the deceased, the appellant Godila took out a country-made pistol and fired at the deceased causing injury on his chest. The appellant Mantola also took out a knife and gave repeated blows i.e., total 15 in numbers out of which 9 were on the face of the deceased Mohan. Waiting for the deceased at 6 in the morning and then without any provocation, assaulting the deceased mercilessly by both the appellants, clearly show that both were sharing common intention and in furtherance of common intention, both the appellants caused injuries to the deceased Mohan. Waiting for the deceased at 6 in the morning and then without any provocation, assaulting the deceased mercilessly by both the appellants, clearly show that both were sharing common intention and in furtherance of common intention, both the appellants caused injuries to the deceased Mohan. Merely because the immediate cause of death was the gun shot injury sustained by the deceased on his chest, would not mean that the appellant Mantola was not sharing common intention. Thus, the manner in which the incident took place and the number of injuries caused to the deceased and situs of injuries, clearly show that both the appellants namely Godila and Mantola were sharing common intention. 43. It is next contended by the Counsel for the appellants Mantola, as the deceased died instantaneously after suffering gun shot injury on his chest, therefore, at the most it can be said that the appellant Mantola had caused incised wound after the death of Mohan, therefore, he cannot be convicted under section 302 of IPC. The submission made by the Counsel for the appellant cannot be accepted. The ocular evidence is very clear. Purshottam (PW5) has stated that after the gun shot injury was caused to the deceased Mohan, the appellant Mantola immediately assaulted the deceased repeatedly and thereafter, the deceased fell down. Even the Doctor has not stated that the incised wounds found on the body of the deceased were postmortem in nature. No question was put to Dr. Yogendra (PW3) in this regard. Thus, under the facts and circumstances of this case, it cannot be said that the deceased must have died instantaneously after sustaining gun shot injury on his chest. Therefore, the submission made by the Counsel for the appellant Mantola is rejected. 44. It is next contended by the counsel for the appellants, that even if the entire prosecution story is accepted, it would be clear that the appellants are guilty of committing offence under section 304 of IPC and not that of murder. The submission made by the Counsel for the appellants is considered. 45. The basic difference between an offence falling within the category of Culpable Homicide not amounting to murder and the murder is “intention” on the part of the accused. The submission made by the Counsel for the appellants is considered. 45. The basic difference between an offence falling within the category of Culpable Homicide not amounting to murder and the murder is “intention” on the part of the accused. Thus, where the offence is committed an an intention and knowledge, and the injury inflicted was sufficient to cause death in its ordinary course of nature, then such act would fall within the category of murder. The Supreme Court in the case of Nankaunoo v. State of U.P., reported in [ (2016)3 SCC 317 ] has held as under : ''11. Intention is different from motive. It is the intention with which the act is done that makes a difference in arriving at a conclusion whether the offence is culpable homicide or murder. The third clause of section 300 IPC consists of two parts. Under the first part it must be proved that there was an intention to inflict the injury that is present and under the second part it must be proved that the injury was sufficient in the ordinary course of nature to cause death. Considering clause Thirdly of section 300 IPC and reiterating the principles stated in Virsa Singh case [ AIR 1958 SC 465 ], in Jai Prakash v. State [(Delhi Admn.)[ (1991)2 SCC 32 ], para 12, this Court held as under : (SCC p.41) “12. Referring to these observations, Division Bench of this Court in Jagrup Singh case [ (1981)3 SCC 616 ], observed thus : (SCC p.620, para 7) ‘7. … These observations of Vivian Bose, J. have become locus classicus. The test laid down in Virsa Singh case [ AIR 1958 SC 465 ], for the applicability of clause Thirdly is now ingrained in our legal system and has become part of the rule of law.’ The Division Bench also further held that the decision in Virsa Singh case (supra), has throughout been followed as laying down the guiding principles. In both these cases it is clearly laid down that the prosecution must prove (1) that the body injury is present, (2) that the injury is sufficient in the ordinary course of nature to cause death, (3) that the accused intended to inflict that particular injury, that is to say it was not accidental or unintentional or that some other kind of injury was intended. In other words clause Thirdly consists of two parts. The first part is that there was an intention to inflict the injury that is found to be present and the second part that the said injury is sufficient to cause death in the ordinary course of nature. Under the first part the prosecution has to prove from the given facts and circumstances that the intention of the accused was to cause that particular injury. Whereas under the second part whether it was sufficient to cause death, is an objective enquiry and it is a matter of inference or deduction from the particulars of the injury. The language of clause Thirdly of section 300 speaks of intention at two places and in each the sequence is to be established by the prosecution before the case can fall in that clause. The ‘intention’ and ‘knowledge’ of the accused are subjective and invisible states of mind and their existence has to be gathered from the circumstances, such as the weapon used, the ferocity of attack, multiplicity of injuries and all other surrounding circumstances. The framers of the Code designedly used the words ‘intention’ and ‘knowledge’ and it is accepted that the knowledge of the consequences which may result in doing an act is not the same thing as the intention that such consequences should ensue. Firstly, when an act is done by a person, it is presumed that he must have been aware that certain specified harmful consequences would or could follow. But that knowledge is bare awareness and not the same thing as intention that such consequences should ensue. As compared to ‘knowledge’, ‘intention’ requires something more than the mere foresight of the consequences, namely, the purposeful doing of a thing to achieve a particular end.” 12. The emphasis in clause three of section 300 IPC is on the sufficiency of the injury in the ordinary course of nature to cause death. The sufficiency is the high probability of death in the ordinary course of nature. When the sufficiency exists and death follows, causing of such injury is intended and causing of such offence is murder. For ascertaining the sufficiency of the injury, sometimes the nature of the weapon used, sometimes the part of the body on which the injury is caused and sometimes both are relevant. When the sufficiency exists and death follows, causing of such injury is intended and causing of such offence is murder. For ascertaining the sufficiency of the injury, sometimes the nature of the weapon used, sometimes the part of the body on which the injury is caused and sometimes both are relevant. Depending on the nature of weapon used and situs of the injury, in some cases, the sufficiency of injury to cause death in the ordinary course of nature must be proved and cannot be inferred from the fact that death has, in fact, taken place.'' 46. In order to ascertain the nature of offence committed by the appellants, the manner in which the offence was committed has to be considered. As already observed that the appellants knew this fact that the deceased Mohan used to go to the sweet shop in the morning for taking Milk and therefore, they were waiting for him along with deadly weapons. After noticing the deceased Mohan, both of them started assaulting him. The gunshot fired by the appellant Godila, caused injury on the chest and multiple incised wounds were caused by the appellant Mantola on the vital parts of the body of the deceased. Thus, the manner in which the offence was committed and the number of injuries as well as the situs of the injuries caused to deceased, clearly establishes that the appellants had caused injuries to the deceased with “intention” and “knowledge” that the injuries would be sufficient to cause death in its ordinary course of nature. Thus, the submission made by the Counsel for the appellants that the offence committed by the appellants would be an offence punishable under section 304 of IPC cannot be accepted and hence rejected. 47. No other arguments were advanced by the counsel for the appellants. 48. Thus, on consideration of entire facts and circumstances of the case as well as the evidence led by the parties, this Court is of the considered opinion, that the appellants Godila and Mantola had caused multiple injuries out of which one was gun shot injury and remaining 15 injuries were incised wounds and in furtherance of common intention, have killed the deceased Mohan. Accordingly, the appellants Godila and Mantola are held guilty of committing offence under section 302 read with section 34 of IPC. 49. Accordingly, the appellants Godila and Mantola are held guilty of committing offence under section 302 read with section 34 of IPC. 49. The judgment dated 22.3.2007 passed by the trial Court in Special Sessions Trial No.122/2005 is hereby affirmed. 50. So far as the question of sentence is concerned, the trial Court has awarded life imprisonment and a fine of Rs.5,000/- with default imprisonment to each of the appellants. As the minimum sentence for offence under section 302 of IPC is life imprisonment, therefore, the sentence awarded by the trial Court is also affirmed. 51. The appellant Mantola is in jail whereas from the record it appears that initially Godila was released on temporary bail, however, there is nothing on record to show that whether he had surrendered after the period of temporary bail was over or not? Accordingly, in case the appellant Godila had not surrendered, then he is directed to immediately surrender before the trial Court for undergoing the remaining jail sentence, within one month from today, or else, the trial Court shall be free to initiate action against the appellant Godila and his sureties in accordance with law. 52. Both the appeals filed by appellants Godila alias Dharmsingh and Mantoli alias Mantola alias Raghvendra Singh fail and are hereby dismissed.