Research › Search › Judgment

Allahabad High Court · body

2018 DIGILAW 1572 (ALL)

KISHAN DEV v. STATE OF U. P.

2018-07-18

A.P.SAHI, BACHCHOO LAL

body2018
JUDGMENT By the Court.—Heard Shri G.S. Chaturvedi, learned Senior Counsel alongwith Shri Dheeraj Singh Vohra and Ms. Somya Chaturvedi learned counsel for the appellants and Shri Jai Narayan, learned A.G.A. for the State and Shri D.K. Srivastava learned counsel for complainant. 2. This appeal arises out of the judgment of the learned Additional Sessions Judge Bareeily in Sessions Trial Nos. 72 of 2007 and 73 of 2007 in Case Crime No. 270 of 2006 respectively. The appellants before us are father and son, who were accused of having conspired with a third accused Ajay Kumar Sharma (also described as Mishra in the tesimony of PW), who is stated to be still absconding and has not faced trial, to commit the murder of the deceased Smt. Poonam, the daughter of the appellant No. 1 and the sister of the appellant No. 2, and also having caused injuries to PW 2 Pankaj Gupta, who is the husband of the deceased. The appellants have been finally convicted and sentenced for life imprisonment alongwith other sentences and fine and in default thereof to undergo further imprisonment as per the judgment in relation to the offences committed under Sections 302 read with Section 34 IPC, 307 IPC, 452 IPC, 506 (2) IPC and 120-B of the Indian Penal Code. The appellant No. 2 Vivek has also been convicted and sentenced under Section 25 of the Indian Arms Act. All the sentences are to run concurrently. 3. The appeal questions the correctness of the judgment for which the learned counsel for the appellants has urged that on a perusal of the entire evidence on record, neither the factum of the involvement of the accused is established nor conspiracy to commit the murder can be concluded and in the absence of any such conclusive evidence, the prosecution has failed to establish the case beyond reasonable doubt. Consequently the impugned judgment of the trial Court dated 30.7.2011 deserves to be set aside and the appellants deserve to be acquitted. 4. We have gone through the original records and the pleadings. We find that the FIR discloses the incident to have taken place in a sequence namely the arrival of the appellant Kishun Dev at 8:00 a.m. in the morning on 20.2.2006 at the residence of the deceased in Bareilly and having threatened the deceased and her husband with dire consequences. We have gone through the original records and the pleadings. We find that the FIR discloses the incident to have taken place in a sequence namely the arrival of the appellant Kishun Dev at 8:00 a.m. in the morning on 20.2.2006 at the residence of the deceased in Bareilly and having threatened the deceased and her husband with dire consequences. The FIR further discloses that on the same day at about 5:30 p.m. the appellants alongwith one Ajay Sharma with fire-arms barged into the residence of the deceased and opened fire thereby causing the death of Smt. Poonam and causing fire-arm injuries to her husband PW-2. 5. PW 1 Neeraj is the informant and is the brother of PW 2 who who lodged the FIR at 7:15 p.m. on the same day at Police Station Baradari Bareily. The FIR further discloses that when the appellant No. 2 Vivek and his associate Ajay Sharma, who has been described in the evidence as Ajay Kumar Mishra, arrived and opened fire, the same was witnessed by the informant’s aunt Smt. Sushila Gupta (Chachi) wife of Hari Om Gupta, and his uncle Shiv Om Gupta. The informant was also present and the FIR further recites that all of them tried to prevent this mishap, but after the incident, they rushed with both the injured persons namely the deceased Smt. Poonam and Pankaj PW 2 keeping in view their serious conditions to Siddhi Vinayak Hospital. During this period, before they reach the hospital, the deceased Smt. Poonam expired on the way, whereafter the informant came to the police station to lodge the FIR. The scribe of the written report is Anil Kumar Gupta and the FIR was registered by Constable Jaiveer Singh who has been examined as PW 3. 6. After lodging of the FIR, the investigation proceeded and the post-mortem of the body of the deceased Smt. Poonam was conducted on the next day i.e. 21.2.2006 by PW 7 Dr. Suresh Chandra. The injured namely Pankaj Gupta was examined at Siddhi Vinayak Hospital and the medical examination report and the C.T. Scan report as well as the supplementary report has been exhibited as Ex.K-8, Ex.K-11 and Ex.K-12. The said documents have been proved by the deposition of PW 8 Dr. Mukul Agarwal, a neuro surgeon and Dr. Vipul Bhatnagar Radiologist of Shri Siddhi Vinakyak Hospital Bareily. 7. The said documents have been proved by the deposition of PW 8 Dr. Mukul Agarwal, a neuro surgeon and Dr. Vipul Bhatnagar Radiologist of Shri Siddhi Vinakyak Hospital Bareily. 7. The post-mortem of the deceased that was proved by PW-7 indicates the existence of one gun-shot wound on the head lacerated in nature 5 cms x 4 cms and spread over an area of 4 cms x 3 cms. A metallic long bullet was found embedded inside which was kept and sealed in a match-box after the post-mortem and the cause of death indicated as hammoerage as a result of ante-mortem injury No. 1, namely, gun-shot wound. The forensic reports are on record as paper Nos. 54 Ka-1 and 54 Ka-2 dated 8.12.2006 and 13.7.2006 respectively. 8. The injury sustained by PW-2 Pankaj Gupta has been proved by the testimony of Dr. Mukul Agarwal, PW-8 who has affirmed the CT Scan report, the medical report and the supplementary report conducted at the Siddhi Vinayak Hospital, Bareilly. The same refers to the injury of PW-2 where a wound of 5 cms. X 3 cms. over the back side with fracture of the vertebra was described as a grievous injury. The CT Scan was carried out and the fracture of left lamina of C 3 vertebra was seen and a small high attenuating foreign body is seen in the soft tissue of neck that was reported in the impression of the Radiologist, Dr. Vipul Bhatnagar, who has been examined as PW-5. The supplementary X-ray report established the fracture of scapula and recites that the CT scan report indicated the fracture of lamina of C3 vertebra. On examination Dr. Vipul Bhatnagar in his statement has affirmed the carrying out of CT Scan and having prepared the report. The wound was of the size of 5 cms. X 3 cms. penetrating the muscles upto the bone of the neck causing fracture which was a grievous injury. PW-8 however, did not affirm of any blackening, tattooing or charring around of the wound. 9.Two recoveries have been made. First recovery is of the fire-arm said to have been made on 20.2.2006 itself namely, that of a country-made pistol and three cartridges two of 315 bore and one of 12 bore from the site of occurrence. The said recovery was witnessed by Surendra Kumar Gupta and Anil Kumar Gupta. 9.Two recoveries have been made. First recovery is of the fire-arm said to have been made on 20.2.2006 itself namely, that of a country-made pistol and three cartridges two of 315 bore and one of 12 bore from the site of occurrence. The said recovery was witnessed by Surendra Kumar Gupta and Anil Kumar Gupta. The second recovery was made on the pointing out of the appellant No. 2, Vivek of a country-made pistol and two live cartridges on 7.5.2006, This recovery is said to have been made in police custody after a disclosure statement and in the presence of a public witness, Sher Bahadur Sharma who has turned hostile. The recovery of the blood stained clothes as well as plain earth and blood stained earth were also made from the site as is evident from the recovery memo dated 8.3.2006 Exhibited as Ext. Ka-2. 10. Eleven witnesses were examined by the prosecution. The informant Neeraj Gupta brother of PW-2 was examined as PW-1. The injured witness Pankaj Kumar Gupta was examined as PW-2, Jaiveer Singh the Head Constable who had registered the First Information Report was examined as PW-3 R.R.Singh, who was Investigating Officer of the recovery under the Arms Act was examined as PW-4, Dr. Pipul Bhatnagar was examined as PW-5 who had conducted the CT Scan of PW-2, Sher Bahadur Shamra is the public witness to the recovery of the firm arm said to have been recovered on the pointing out of appellant No. 2 was examined as PW-6, Dr. Suresh Chandra, who conducted the autopsy of the deceased was examined as PW-7, Dr. Mukul Agarwal, who examined the injured witness PW-2 at Siddhi Vinayak Hospital, Bareilly was examined as PW-8, Surendra Singh Pawar, who is the first Investigating Officer was examined as PW-9 followed by the second Investigating Officer who deposed as PW-10, namely Anil Kumar Singh. The last witness of the prosecution to be examined is PW-11 who is the witness to the first recovery relating to the fire-arm and cartridges from the place of incident. 11. The defence produced Chetan Kumari, the mother of the deceased as DW-1 and the statement of the appellants was recorded under Section 313 Cr.P.C. 12. The last witness of the prosecution to be examined is PW-11 who is the witness to the first recovery relating to the fire-arm and cartridges from the place of incident. 11. The defence produced Chetan Kumari, the mother of the deceased as DW-1 and the statement of the appellants was recorded under Section 313 Cr.P.C. 12. After having assessed the entire evidence on record the trial Court believed the theory of conspiracy implicating the appellants and the third co-accused (absconder) and proceeded to convict the appellants of conspiracy as also of having committing the offence for which the sentences were awarded after conviction. 13. Sri Chaturvedi commencing his arguments in relation to the appellant No. 1 urged that he is the father of the deceased. The theory of conspiracy which has been set-out so as to involve him in the commission of the offence was sought to be proved by the prosecution with the aid of testimony of PW-1 and PW-2, which according to him are contradictory and there are material omissions as a result whereof in the absence of any cogent explanation coming-forth, there is no evidence to implicate the appellant Kishan Dev in the commission of any of the offences. He submits that the allegation of the presence of the appellant having been witnessed at 8.00 a.m. in the morning by PW-1 is absolutely false inasmuch as this does not stand substantiated by any other corroborative evidence including that of PW-2. He further submits that if the statements of PW-1 and PW-2 are read conjointly, it would leave no room for doubt that PW-2 in order to implicate the appellant No. 1 has proceeded to generously embellish the evidence which is beyond the case set-out in the First Information Report. He therefore contends that the implication of the appellant Kishun Dev being absolutely impossible cannot be even remotely said to be probable and consequently he is entitled for a clean acquittal. 14. Advancing his submissions on behalf of the appellant No. 2 he submits that the evidence that has been brought-forth does not establish the involvement of the appellant No. 2 of having committed the offence keeping in view of the contradiction and the embellishments in the statements of the prosecution witnesses. 14. Advancing his submissions on behalf of the appellant No. 2 he submits that the evidence that has been brought-forth does not establish the involvement of the appellant No. 2 of having committed the offence keeping in view of the contradiction and the embellishments in the statements of the prosecution witnesses. He further submits that the involvement of PW-2 was highly doubtful and consequently if the prosecution has not been able to cross the barrier of proving the case beyond reasonable doubt, then in that event the appellant No. 2 also deserves acquittal. He submits that the recovery is a planted recovery and even otherwise there is no explanation as to why the alleged recovery of a country-made pistol from the scene of occurrence was not even mentioned in the First Information Report so as to substantiate the allegations of the use of two weapons. He submits that in the absence of any corroborative material so as to convict the appellant No. 2 for the recovery of incriminating material, the prosecution has not been able to successfully prove its case as such the appellant No. 2 deserves the benefit of doubt. 15. He has laid stress and emphasised on the argument that the theory of conspiracy that has been set-up is not based on any cogent or relevant evidence so as to establish the meeting of minds and any prior determination or preparation about which total evidence is lacking so as to establish any such premeditation of the murder of the deceased. He therefore contends that the theory of conspiracy as set-out by the prosecution deserves to be rejected. 16. The learned A.G.A. countering the aforesaid submissions has urged that in the background in which the incident took place and the facts of the status of the marriage of the deceased with PW-2, and the impending differences between the two families the motive is clearly apparent. This stood converted into a conspiracy within a very short period that led to the commission of the offence that was carefully planned. This stood converted into a conspiracy within a very short period that led to the commission of the offence that was carefully planned. He contends that the strained relations between the two families and the evidence brought-forth clearly establishes that in view of the history of relationships there was ample motive on the part of all the accused who have participated in the commission of the offence, more particularly in the background that the accused absconder Ajay Sharma also participated in the crime and which has been clearly proved by the evidence that has been set-out by the prosecution. 17. He therefore submits that not only the conspiracy but the direct ocular testimony of PW-1 and PW-2 who is an injured witnesses cannot be discarded. He contends that the involvement of all the three accused in the entire incident is clearly evident by the testimony of the witnesses who have clearly established the presence of all the accused at the time of the incident. 18. He further submits that the recovery has been proved as it is based on the pointing out of the appellant as contemplated under Section 27 of The Indian Evidence Act, 1872. He further submits that the medical examination and the post-mortem report both of the injured and the deceased respectively clearly establishes the commission of the offences having been committed by the appellants which leave no room for doubt that they had actively participated in the commission of the offence and were therefore rightly convicted by the trial Court. 19. Learned counsel for the complainant Sri D.K.Srivastava while advancing his submissions urged that the element of conspiracy is clearly established inasmuch as the ultimate overt act clearly reflects upon the motive which was continuing, and the serious differences between the two families leads to a correct assumption that all the three accused had conspired to commit the offence. He submits that the agreement or meeting of minds therefore can be inferred from this entire chain of events more particularly in the light of the fact that there was no occasion for the defence witness DW-1, namely the mother of the deceased to come-out with a statement about the absconding accused, Ajay Kumar Sharma (Mishra) and deny his presence. He submits that the agreement or meeting of minds therefore can be inferred from this entire chain of events more particularly in the light of the fact that there was no occasion for the defence witness DW-1, namely the mother of the deceased to come-out with a statement about the absconding accused, Ajay Kumar Sharma (Mishra) and deny his presence. Thus this was clearly evident that Ajay Kumar Sharma (Mishra) was a close family friend and whose association with the family was clearly established by the prosecution witnesses and therefore keeping in view the nature of the tussle that was going on between the two families, there is no doubt that the incident occurred as a product of conspiracy. He submits that the direct evidence of the incident coupled with the preceding instances as narrated by the witnesses, it is evident that the appellants in conspiracy with the absconding accused, Ajay Kumar Sharma (Mishra) had planned and executed the incident which conforms to all the ingredients referred under Section 120-A I.P.C. The trial Court was therefore justified in charging all the appellants of conspiracy for punishing them in terms of Section 120-B of I.P.C. 20. He submits that conspiracy is further strengthened by the charge framed against the appellants under Section 302 read with Section 34 I.P.C. which has also been clearly established, inasmuch as, the incident categorically describes and the evidence clearly proves the presence of the appellants alongwith Ajay Kumar Sharma (Mishra) when the offence was committed. He contends that the entire chain of events keeping in view the seriously disrupted relationship on account of an inter-caste marriage of the deceased with PW-2 is a clear projection of the existing social conditions where incidents of honour killing are not unknown. He therefore contends that there is no reason to disbelieve the conspiracy of either on the part of the appellant No. 1 or the appellant No. 2 who are father and son who can be presumed to have planned and executed the offence with the aid of the third accused. The trial Court therefore has rested its conclusion on the basis of valid judicial inferences that does not in any way mitigate or dilute the conclusions arrived at for convicting the appellants for having conspired and having committed the offences. 21. The trial Court therefore has rested its conclusion on the basis of valid judicial inferences that does not in any way mitigate or dilute the conclusions arrived at for convicting the appellants for having conspired and having committed the offences. 21. He further submits that in the wake of direct testimony, the recovery and the medico legal evidence coupled with the unimpeachable testimony of injured witness namely, PW-2 there cannot be any escape from the conclusion arrived at by the trial Court and there is no element of doubt much less a reasonable doubt, that may extend any benefit to the appellants as claimed by the learned counsel for the appellants. He therefore contends that in view of the cast iron case made out by the prosecution the judgment deserves to be affirmed. 22. Having gone through the records and having considered the submissions there are certain facts which remain undisputed. The marriage of the deceased, Smt. Poonam Gupta with PW-2 was admittedly an outcome of a love affair between them and was an inter-caste marriage. The marriage was not arranged and there is evidence to indicate that there were differences between the two families on this issue. The marriage took place on 6.3.2004. From the wedlock a female child was born on 8.12.2005. This fact assumed importance in order to understand the existing relationship between the two families. It is borne out from the records that the deceased, who was expecting a child, had contacted her parents and the child was delivered in a hospital in Aligarh where she was got admitted by her mother, who has been described as a Doctor (Medical Practitioner). After the child was delivered it is also on record that the deceased alongwith her husband came to live in Bareilly alongwith her child at her husbands’ house. From the evidence and the narration of facts discussed hereinafter it is also clear that the family of the deceased particularly her parents are stated to have arrived at Bareilly with certain gifts like clothes and sweets but they did not receive a comfortable welcome. Nonetheless the fact remains that the parents of the deceased are stated to have visited the house of the husband of the deceased at Bareilly. 23. Nonetheless the fact remains that the parents of the deceased are stated to have visited the house of the husband of the deceased at Bareilly. 23. There is yet another fact which also remains almost undisputed namely, the association of the absconding accused Anil Kumar Sharma (Mishra) with the family of the accused. He has been stated to have been visiting them at Aligarh and was in all probability a friend of the appellant No. 2. He is also stated to have visited the house of the husband of the deceased where he was received and he returned back with a gift of couple of clothes. This fact therefore is a positive indicator about his association with the accused that could not dislodged by the defence. To the contrary the defence witness DW-1 has mentioned the name of the said absconding accused and has also tried to protect him by saying that he was not present or involved in the incident. 24. It is in this background that now the evidence has to be assessed inasmuch as the argument which has been advanced by Sri Chaturvedi on behalf of the appellants is broadly in two parts, one relating to the appellant No. 1 and the other in respect of the appellant No. 2. It is urged by Sri Chaturvedi that so far as the appellant No. 1 is concerned, neither is there any motive, nor was he present at the time of incident and nor is there any place of evidence to indicate that he had unified himself with the other two accused in a conspiracy to have committed the murder of the deceased and caused injury to her husband. In order to examine this it should be borne in mind that when there is direct testimony, the issue of motive does not assume that importance but nonetheless the circumstances of this case have to be discussed in order to remove any doubt about the alleged motive on the part of appellant No. 1 or appellant No. 2. The background of the incident appears to be the dissatisfaction and difference between the two families on account of not agreeing to an inter-caste marriage between the deceased and PW-2. The background of the incident appears to be the dissatisfaction and difference between the two families on account of not agreeing to an inter-caste marriage between the deceased and PW-2. The differences were such that it led to the living of the deceased with her husband but at the same time the traces of reconciled relationship that extended between her and her parents is also evident. On this issue, in order to draw any inference of any motive, it is correct that there were un-savoury relations existing, but with the incident of the delivery of the child with the help of the mother in the hospital at Aligarh clearly indicates an element of cordiality that had set in and bonding was renewed between the mother and the deceased. We do not find any resistance having been registered through any evidence to indicate in this intervening period after the marriage in the year 2004 in relation to appellant No. 1, who is the father of the deceased. The inference therefore which can be drawn from this circumstance is that even if the appellant No. 2, who is the brother of the deceased continued to be hot headed and did not maintain any relationship with his sister, the cordiality with the parents had set in and the feelings between the deceased, her husband and the parents of the deceased had definitely started tilting towards a better relationship that may not have become absolutely informal but was confortably formal. This fact of the delivery having taken place at Aligarh in the hospital is the admitted position of the prosecution witnesses themselves. The two witnesses of fact namely, PW-1 and PW-2 nowhere indicate of any overt act preceding the incident which may indicate that the appellant No. 1 Kishun Dev, who is the father of the deceased had either threatened them with any dire consequences or had associated himself in having even remotely thought of eliminating his own daughter and son-in-law. To the contrary it is there in the statement of PW-2 that the family of the deceased had arrived with certain gifts but they had not been welcomed there. These circumstances therefore do not indicate, that the appellant No. 1 inspite of these differences which were natural in view of the aforesaid background, had intended to either abet or conspire or commit the offence of murder. These circumstances therefore do not indicate, that the appellant No. 1 inspite of these differences which were natural in view of the aforesaid background, had intended to either abet or conspire or commit the offence of murder. The absence of any cogent evidence in the statement of the witnesses in so far as the appellant No. 1 is concerned therefore has to be taken into account alongwith the testimony of PW-1 and PW-2 in relation to the actual presence of appellant No. 1 either in the morning on the date of the incident or even at the time of the actual incident in the evening. 25. Thus neither the element of motive or conspiracy is established so far as the appellant No. 1 is concerned on the basis of evidence on record and stands further substantiated by the material contradictions in the statement of PW-1 and PW-2 about the presence of the appellant No. 1 on the date of the incident at the scene of occurrence as discussed hereinafter. 26. The evidence which has come-forth in the testimony of PW-1 is that the appellant No. 1 arrived at 8.00 a.m. in the morning and hurled threats. There is a pecularity in the statement of the PW-1 insasmuch as he states that he had never seen the appellant No. 1 before. The identity of the appellant No. 1 was disclosed to him on the same day by his brother Pankaj Gupta, PW-2. Thus this testimony indicates as if PW-1 had never seen the appellant No. 1 prior to the date of the incident and he has rested the identification only on the information of PW-2. PW-1 nowhere says that this identity of appellant No. 1 was disclosed to him either by the deceased or by any of the family members. At this juncture it would be relevant to point out that the arrival in the morning as alleged by PW-1 must have been witnessed by the deceased, the reason being the presence of the deceased in the house is nowhere disputed. There is however, no evidence coming-forth in relation to any such announcement by the deceased of her father’s arrival or having received threats from him. For this we have examined the statement of PW-2. There is however, no evidence coming-forth in relation to any such announcement by the deceased of her father’s arrival or having received threats from him. For this we have examined the statement of PW-2. PW-2 being the husband, and also stated by the PW-1 to be present at 8.00 a.m. in the morning when the father of the deceased had arrived, has nowhere said that the information of the arrival of the appellant No. 1 was announced by the deceased. This unusual gap of the deceased not having told anybody about the arrival of her father also casts a serious doubt about the presence of PW-1 at the house in the morning. Thus the only evidence according to which PW-1 has established the identity of the appellant No. 1 is that of the information having been received from PW-2. PW-2 in his statement has nowhere stated that he has transmitted this information to his brother PW-1 about the identity of appellant No. 1 so as to corroborate this disclosure by PW-1 about the arrival of the appellant No. 1 at 8.00 a.m. in the morning. In such circumstances the statement of PW-1 that he had been informed about the identity of the appellant No. 1 as stated by him is not creditworthy at all. Another factor that weighs in our mind is that if the appellant No. 1 had hurled threats in the morning then why no report or any action was taken by the complainant or his family members then? They are all silent which impels us to draw an adverse inference about the morning incident. 27. The statement of PW-1 has to be examined in the light of the further testimony of PW-2 who has stated that his wife, the deceased, informed him at about 2.45 p.m. when he was at his work-place that she had received a telephone call from her mother that her father and brother namely, the appellants herein, are away from home since morning and the appellant No. 2 may have gone with some persons to her house. On receiving this information PW-2 is stated to have arrived at his house and inquired about as to who are coming from Aligarh. He thereafter states that he started discussing the ailment of his daughter alongwith other family members. On receiving this information PW-2 is stated to have arrived at his house and inquired about as to who are coming from Aligarh. He thereafter states that he started discussing the ailment of his daughter alongwith other family members. There is no averment about the arrival of the father in the morning at 8.00 a.m. There is also no averment about the deceased having informed him about the arrival of her father in the morning. This therefore is not only unnatural but also cuts at the root of the story set-up by PW-1 alleging that the appellant No. 1 had arrived in the morning at 8.00 a.m. and had extended threats. Had it been so, it was quite natural for the deceased wife to have informed her husband about the arrival of her own father and it could have been quite natural for PW-2 to have made this disclosure in his testimony which omission categorically therefore demolishes and contradicts the statement of PW-1. The story of the arrival of the appellant No. 1 further does not appeal to reason inasumuch as he was picked up from Aligarh which fact is indicated in the statement of DW-1 by the police on the same night of the incident even though his formal arrest has been shown on 1.3.2006 as per G.D. Report No. 37 at about 5.10 p.m. in the evening. It is therefore clear from the aforesaid evidence as discussed hereinabove that the prosecution has failed to establish the presence of appellant No. 1 at 8.00 a.m. in the morning of 20.2.2006. This therefore further demolishes the testimony of PW-1 about the appellant No. 1 having extended threats as alleged by him before the trial Court. Additionally as observed above we find a total silence on the part of the complainant and his family thereafter. 28. We have narrated the aforesaid facts in a sequence so as now to further examine and confirm the alleged theory of conspiracy as against the appellant No. 1. For this it would be apt to discuss the law relating to the involvement of an accused on the ground of conspiracy. We may refer to the decisions of the Apex Court that we have come across. For this it would be apt to discuss the law relating to the involvement of an accused on the ground of conspiracy. We may refer to the decisions of the Apex Court that we have come across. The decision in the case of Saju v. State of Kerala, (2001) 1 SCC 378 , which in turn refers to the judgment of the Apex Court in the case of Girija Shanker Mishra v. State of U.P., 1994 Suppl. (1) SCC 26, reflects on the parameters on which any such inference can be drawn relating to an act of conspiracy. The Apex Court went on to quote Section 10 of the Indian Evidence Act, 1872 and after having discussed the elements of conspiracy as entailed in Section 120-A I.P.C. arrived at the conclusion that it has to be established that the accused charged with criminal conspiracy had agreed to pursue a code of conduct which he knew was leading to the commission of a crime by one or more persons to the agreement of that offence. Besides the fact of agreement the necessary mens rea of the crime is also required to be established while concluding and referring to the case of Girija Shanker Mishra (Supra) it was also observed that inspite of there being serious mis-understanding between the deceased and the appellants therein, which was a case of illicit relationship, yet even though there was a motive, the accused could not be held guilty for hatching a conspiracy. The next judgment that we have been able to find having discussed the law on this issue in still more detail is that of Firozuddin Basheeruddin and others v. State of Kerala, (2001) 7 SCC 596 . The Apex Court after having discussed the law laid down by the Apex Court in the case of Kehar Singh and others v. State (Delhi Administration), (1988) 3 SCC 609 , stated the law in paragraph Nos. 21 to 32 in detail. The Apex Court discussed the various parameters on which conspiracy and the rational of conspiracy can be inferred and came to the conclusion that it must be established that all the conspirators had got one objective, namely to promote and further their intention to commit the offence about which there is an agreement. 29. 21 to 32 in detail. The Apex Court discussed the various parameters on which conspiracy and the rational of conspiracy can be inferred and came to the conclusion that it must be established that all the conspirators had got one objective, namely to promote and further their intention to commit the offence about which there is an agreement. 29. The next decision is that of Subramanian Swamy v. A. Raja, 2012 (9) SCC 257 , which explains the meaning and content of conspiracy in the context of the inter se functioning of ministers of a Government which may not be very relevant on the facts of the present controversy. But the fact remains that the law discussed in all these cases, clearly indicates that the allegation of conspiracy has to be proved, may be not on the strength of any overt act having been actually performed, but it has to be on the basis of such evidence which may indicate the actual participation of conspirators in planning or agreeing or fostering a plan to commit the offence. This has to be inferred on the basis of surrounding circumstances, as it is difficult to receive any direct evidence in this regard. The sum and substance is that the action of the conspirator should reflect some sort of unity of minds for an object with continuity and renewed effort in aid of the abetment or commission of the offence that has been planned under the said conspiracy. 30. As discussed above, there is no evidence that the appellant No. 1 alongwith his son and the third accused had invariably deliberated upon, either in secrecy or otherwise, over some period of time which may give an indication that the offence had been planned with the conspiracy of the appellant No. 1. To commit the offence in an organized way, one has to look to the evidence and the chain of events, as well as, the circumstances on the strength whereof the prosecution has levelled the allegation of conspiracy. In this case, what we find is that, to the contrary, the defence witness DW-1, who is the wife of the appellant No. 1 has been admitted by the prosecution witnesses also to have aided the delivery of the child of the deceased. In this case, what we find is that, to the contrary, the defence witness DW-1, who is the wife of the appellant No. 1 has been admitted by the prosecution witnesses also to have aided the delivery of the child of the deceased. In such circumstances, where this entire period from 2004 up to the incident in the year 2006 has not witnessed any conspiracy, in so far as, the appellant No. 1 is concerned, then to infer that the appellant No. 1 had also in mind to alienate his own daughter and son-in-law is unacceptable. The complicity of the appellant No. 1, therefore, in a conspiracy in intending to have conspired or even abetted the conspiracy does not appear to have been made out. As indicated above, his very presence in the morning at 8:00 am was a clear exaggeration on the part of PW-1 that stood contradicted materially by the evidence on record, and consequently, to connect him with an act of conspiracy would be against the weight of evidence on record. The trial Court, therefore, having omitted to consider the aforesaid aspects and having not adopted this appropriate line of reasoning, incorrectly arrived at the conclusion that the appellant No. 1 had conspired with his son and the accused No. 3 (absconder) for committing the offence as alleged against him. Merely because the appellant No. 2 happens to be the son of the appellant No. 1, it would not be justified to infer that they were in conspiracy with each other alongwith the third accused to commit the murder of the deceased and cause injury to PW-2. This, we say, because it is also probable and might be possible that the third accused who is an absconder being a friend of the appellant No. 2 may have come out to help the appellant No. 2 in carrying out his secret evil designs which may not be known to the father. In the absence of any such evidence an assumption of this sort would be contrary to the circumstances which indicate that the relationship between the parents and the deceased were not that strained as might have been with her brother. This, therefore, distinguishes the case of the appellant No. 1 from that of the appellant No. 2. In the absence of any such evidence an assumption of this sort would be contrary to the circumstances which indicate that the relationship between the parents and the deceased were not that strained as might have been with her brother. This, therefore, distinguishes the case of the appellant No. 1 from that of the appellant No. 2. In the absence of any such clinching material evidence, and consequently, for all the reasons aforesaid, we find that the prosecution has failed to establish either the conspiracy or the involvement of the appellant No. 1 in having abetted the act of conspiracy. 31. Coming to the actual commission of the offence at 5:30 in the evening, neither the FIR nor the statement of PW-1 who is the informant, and the real brother of PW-2, indicates even remotely that the appellant No. 1 was present when the gun shots were fired resulting in the death of the deceased and injuries to PW-2. PW-2 for the first time in Court has substantially improved upon the FIR version also implicating the appellant No. 1. This may be revengeful or with an intent that may have arisen on account of the deep differences due to the occurrence of the incident, but the same in the background of the evidence as discussed above, clearly demonstrates that PW-2 has corroborated the version of PW-1 about the presence of the appellant No. 1 in the morning but PW-1 nowhere refers to the presence of the appellant No. 1 in the evening. 32. We have already disbelieved the testimony of the appellant No. 1 giving reasons therefore, in such circumstances, any corroboration by PW-2 about the morning incident also falls through for the same reasons. So far as the incident of shooting in the evening is concerned, we fail to understand as to what prevented PW-1 from mentioning the name of the appellant No. 1, in the FIR itself when he himself discloses the fact that he had been identified on the same day by his brother. So far as the incident of shooting in the evening is concerned, we fail to understand as to what prevented PW-1 from mentioning the name of the appellant No. 1, in the FIR itself when he himself discloses the fact that he had been identified on the same day by his brother. We, therefore, find that the total omission of the name of the appellant in the FIR and the absence of his name in the testimony of PW-1 also contradicts the testimony of PW-2, and there being a major shift in the entire prosecution case on this count, the same amounts to a material alteration as held by the Apex Court in the case of Sunil Kumar Sambhudayal Gupta (DR.) v. State of Maharashtra, 2010 (13) 657. The relevant paragraph Nos. 30 to 37 are extracted hereinunder : “Material Contradictions 30. While appreciating the evidence, the Court has to take into consideration whether the contradictions/omissions had been of such magnitude that they may materially affect the trial. Minor contradictions, inconsistencies, embellishments or improvements on trivial matters without effecting the core of the prosecution case should not be made a ground to reject the evidence in its entirety. The Trial Court, after going through the entire evidence, must form an opinion about the credibility of the witnesses and the appellate Court in normal course would not be justified in reviewing the same again without justifiable reasons. (Vide: State Represented by Inspector of Police v. Saravanan and another, AIR 2009 SC 152 ). 31. Where the omission(s) amount to a contradiction, creating a serious doubt about the truthfulness of a witness and other witness also make material improvements before the Court in order to make the evidence acceptable, it cannot be safe to rely upon such evidence. (Vide: State of Rajasthan v. Rajendra Singh, (2009) 11 SCC 106 ). 32. The discrepancies in the evidence of eye-witnesses, if found to be not minor in nature, may be a ground for disbelieving and discrediting their evidence. In such circumstances, witnesses may not inspire confidence and if their evidence is found to be in conflict and contradiction with other evidence or with the statement already recorded, in such a case it cannot be held that prosecution proved its case beyond reasonable doubt. (Vide: Mahendra Pratap Singh v. State of Uttar Pradesh, (2009) 11 SCC 334 ). 33. In such circumstances, witnesses may not inspire confidence and if their evidence is found to be in conflict and contradiction with other evidence or with the statement already recorded, in such a case it cannot be held that prosecution proved its case beyond reasonable doubt. (Vide: Mahendra Pratap Singh v. State of Uttar Pradesh, (2009) 11 SCC 334 ). 33. In case, the complainant in the FIR or the witness in his statement under Section 161 Cr.P.C., has not disclosed certain facts but meets the prosecution case first time before the Court, such version lacks credence and is liable to be discarded. (Vide: State Represented by Inspector of Police, Tamil Nadu v. Sait @ Krishnakumar, 2008 : (2008) 15 SCC 440 ). 34. In State of Rajasthan v. Smt. Kalki and another, AIR 1981 SC 1390 , while dealing with this issue, this Court observed as under : “8.....In the depositions of witnesses there are always normal discrepancies, however honest and truthful they may be. These discrepancies are due to normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of the occurrence, and the like. Material discrepancies are those which are not normal, and not expected of a normal person.” 35. The Courts have to label the category to which a discrepancy belongs. While normal discrepancies do not corrode the credibility of a party’s case, material discrepancies do so. (see: Syed Ibrahim v. State of A.P., AIR 2006 SC 2908 ; and Arumugam v. State, AIR 2009 SC 331 ). 36. In Bihari Nath Goswami v. Shiv Kumar Singh and others, (2004) 9 SCC 186 , this Court examined the issue and held: “9. Exaggerations per se do not render the evidence brittle. But it can be one of the factors to test the credibility of the prosecution version, when the entire evidence is put in a crucible for being tested on the touchstone of credibility.” 37. While deciding such a case, the Court has to apply the aforesaid tests. Mere marginal variations in the statements cannot be dubbed as improvements as the same may be elaborations of the statement made by the witness earlier. While deciding such a case, the Court has to apply the aforesaid tests. Mere marginal variations in the statements cannot be dubbed as improvements as the same may be elaborations of the statement made by the witness earlier. The omissions which amount to contradictions in material particulars i.e. go to the root of the case/materially affect the trial or core of the prosecution’s case, render the testimony of the witness liable to be discredited.” 33. This is further substantiated by another judgment that we have come across in the case of Chetram v. State of Uttrakhand, 2014 (13) SCC 105 , where also on the strength of such omission, the Apex Court held it to be a major improvement and the conviction by the High Court was reversed. 34. The conduct of appellant No. 1, alongwith his wife who deposed as DW-1, also stands corroborated by the testimony of PW-2 that the appellant No. 1 had with the passage of time reconciled or at least had helped the deceased at the time of the delivery of her child. This background therefore militates against the theory of conspiracy as discussed above and also is a strong circumstance that strengthens the belief that the appellant No. 1 could not have gone to the extent of ventilating his passions so as to annihilate his own daughter. His anger that may have lingered due to a feeling of loss of honour does not appear to have developed to an extent so as to manifest itself into an intent of murder. 35. Thus for all the reasons stated above the case of the appellant No. 1 being distinguishable from that of the appellant No. 2, we are unable to find any reason to sustain the conviction and sentencing of the appellant No. 1 for any of the offences for which he was charged. 36. We now come to the involvement and the allegations against the second appellant Vivek. The differences between the two families had arisen on account of the inter-caste marriage of the deceased with PW-2. 36. We now come to the involvement and the allegations against the second appellant Vivek. The differences between the two families had arisen on account of the inter-caste marriage of the deceased with PW-2. The appellant No. 2 being a youngster obviously does not appear to be on good terms either with his sister or PW-2 and he appears to have converted his hotheadedness by his clear and active participation in the commission of the offence at about 5:30 in the evening which has been disclosed in the FIR by PW-1, corroborated by him in his testimony and stands confirmed by the testimony of PW-2 which version has remained unimpeached throughout. A possible argument could have been raised about his not having conspired in the murder of his sister and causing injury to PW-2, but this argument cannot be accepted for the second appellant, inasmuch as, the entire story of the prosecution has culminated in an overt act by the appellant No. 2 alongwith the absconder accused, both of whom are named in the FIR and their involvement has been deposed to by the eye-witnesses alleging that they fired the shots, resulting in death of the deceased and injury of PW-2. The statement of PW-1 is further corroborated by PW-2 who has also affirmed the same. The presence of these witnesses merely because they had attempted an exaggeration about the involvement of appellant No. 1 cannot be entirely discarded, keeping in view the law laid down by the Apex Court in the case of Ramesh Harijan v. State of U.P., 2012 (5) SCC 777 and State of M.P. v. Dal Singh and others, 2013 (14) SCC 159 . 37. Further what we find is that there is a recovery of a fire-arm and cartridges on the pointing out of the appellant No. 2 on his disclosure statement in police custody. This, clearly, conforms to the provisions of Section 27 and which further substantiates the recovery of incriminating material that was used for the commission of the offence. The third corroboration is by the medico legal evidence. This is further substantiated by the inquest memo and stands confirmed by all the formal witnesses. The deceased is stated to have been shot dead by the absconder accused, but the injury to PW-2 is stated to have been caused by the appellant No. 2. The third corroboration is by the medico legal evidence. This is further substantiated by the inquest memo and stands confirmed by all the formal witnesses. The deceased is stated to have been shot dead by the absconder accused, but the injury to PW-2 is stated to have been caused by the appellant No. 2. It is well-settled now by the Apex Court that unless there are very strong reasons to impeach the evidence of an injured witness, the same should not be disbelieved. We find that the conclusion drawn by the trial Court on this issue cannot be faulted with, inasmuch as, PW-2 in unequivocal terms has described the active participation of the appellant No. 2 in having fired the shots causing the injuries. Coupled with the recovery his involvement therefore does not remain doubtful. 38. The allegation of conspiracy against the appellant No. 2 in having involved his father appellant No. 1 in furtherance of the ultimate object of murder is not substantiated by any evidence on record, but his association with the absconder accused Ajay Kumar Sharma (Mishra) is evident from the depositions of the eye-witnesses on record. His presence and having committed the offence with Ajay has been established. This was not a case of sudden provocation by way of some coincidence. The appellant No. 2 arrived at Bareilly from Aligarh with Ajay and barged into the house of his deceased under a plan, armed with a fire-arm. There was no other enmity except the hatred nurtured by the medieval thought of loss of honour leading to a savage killing. This was executed with the aid of Ajay as per the clear deposition particularly that of PW-2, the injured eye-witness who was the direct victim of appellant No. 2. It is true that it is difficult to locate clinching evidence of conspiracy but it is not impossible to construe and infer it from circumstances. For this the chain in the present case of Ajay being an associate of appellant No. 2 and a regular visitor coupled with his ultimate arrival to finish the job is clearly a designed effort through a determined and careful planning that was also executed with precision. All these circumstances lead to only one inference that the appellant No. 2 in league with Ajay hatched the plan that was accordingly executed. The element of conspiracy therefore between these two cannot be ruled out. All these circumstances lead to only one inference that the appellant No. 2 in league with Ajay hatched the plan that was accordingly executed. The element of conspiracy therefore between these two cannot be ruled out. The evidence against appellant no2 is convincing which establishes his guilt beyond reasonable doubt. 39. Consequently for all the reasons above, we partly allow the appeal and set aside the conviction and punishment, as well as the sentence awarded to the appellant No. 1. He is acquitted of all the charges framed against him and he shall be set at liberty forthwith. The appellant No. 1 is stated to be on bail. His bail bonds also stand discharged subject to complying with the provisions of Section 437-A Cr.P.C. 40. We confirm the conviction and sentence of the appellant No. 2 by the trial Court who is reported to be still in jail. He shall serve out the sentence as awarded by the trial Court. The appeal stands partly allowed subject to the above.