JUDGMENT : Om Prakash-VII, J. 1. Present Jail Appeal has been preferred by accused-appellant Ali Mohammad against judgment and order dated 17.01.2006 passed by learned Sessions Judge, Baghpat in Session Trial No. 314 of 2005 (State Vs. Ali Mohammad) relating to Case Crime No. 314 of 2005, Police Station Chhaprauli, District-Baghpat, whereby accused-appellant was convicted and sentenced for the offence under Section 302 IPC for imprisonment of life and also a fine of Rs.500/. In default of payment of fine, accused-appellant has suffered further three months simple imprisonment. 2. Prosecution story in a nutshell as alleged in written report Ex.Ka1 moved by Informant Naseem Ahmad transcribed by P.W.2, Shaukat Ali dated 30.05.2005 with the allegation that on 29.05.2005 at about 07.30 P.M., Informant's uncle Ali Hasan son of Kutbi, had gone to tube-well to irrigate his field. Since there was no supply of electricity at that time, therefore, Informant's uncle slept on cot near tube-well. When electricity came, Informant along with his brother Shaukat Ali, P.W.2 also came at the tube-well in the night itself to irrigate their field. As and when, they reached near tube-well and flashing torch, saw accused-appellant present near the cot and he (accused appellant) immediately fired upon deceased. After hearing noise of firing, Informant and his brother rushed towards deceased but accused ran away from the place of occurrence into the fields. They also chased him but he could not be apprehended. Incident took place in the night at about 02:00 AM and due to fear, Informant could not go to Police Station for lodging the First Information Report (hereinafter referred to as “FIR”). Thus, prayer was made for registering the FIR. 3. On the basis of written report, Ex.Ka1 dated 30.05.2005, at 08.45 AM Chik FIR No. 48 of 2005 at Case Crime No. 314 of 2005, under Section 302 IPC was registered at P.S. Chhaprauli, District Baghpat against accused-appellant. Chik FIR is Ex.Ka2, G.D. entry was also made at the same time on the basis of Chik FIR which is Ex.Ka3. Investigation commenced. P.W.3, Sub-Inspector Ram Vilas Verma, First Investigating Officer (hereinafter referred to as 'F.I.O.') took investigation in his hand and recorded statement of Chik writer. Chik FIR is Ex.Ka2, G.D. entry was also made at the same time on the basis of Chik FIR which is Ex.Ka3. Investigation commenced. P.W.3, Sub-Inspector Ram Vilas Verma, First Investigating Officer (hereinafter referred to as 'F.I.O.') took investigation in his hand and recorded statement of Chik writer. Since Informant, P.W.1, Naseem Ahmad, was present at P.S. concerned at the time of registering of FIR so he was also interrogated by F.I.O. Thereafter, Informant along with police personnel proceeded to the place of occurrence and prepared site plan (Ex.Ka4) after mentioning all the details. P.W.3, Sub-Inspector Ram Vilas Verma, F.I.O. has also prepared Inquest Report of dead body of deceased and other relevant documents which is Exts. Ka5 to Ka9. Dead body of deceased was dispatched to District Hospital, Baghpat for postmortem along with relevant documents keeping it in sealed cloth and preparing sample seal escorted by Constable 248, Shyamveer Singh and Home Guard 3880, Jaidev Singh. P.W.3, Sub-Inspector Ram Vilas Verma, F.I.O. has taken blood stained “suti dutai” and one pair of shoe into possession from the place of occurrence and prepared recovery memo in his handwriting, which is Ex. Ka10. He has also taken blood stained and plain earth from the place of occurrence and keeping the same in sealed boxes, prepared recovery memo Ex. Ka11. It also appears that witnesses were interrogated by this witness. On 02.06.2005, investigation was entrusted to Station Officer, Indrapal Singh, Second Investigating Officer (hereinafter referred to as “S.I.O”) Accused-appellant, Ali Mohammad had surrendered before the Court concerned on 07.06.2005. After obtaining permission from the Court, S.I.O. has recorded statement of accused in Jail premises. Other witnesses were also interrogated by S.I.O. Accused-appellant was taken into police custody on the basis of order passed by concerned Magistrate on 16.06.2005. Weapon used by accused-appellant for committing murder of deceased, was recovered by S.I.O. concerned on pointing out of accused-appellant and then he had made disclosure statement confessing his guilt on 17.06.2005. 4. On general examination, deceased Ali Hasan was aged about 60 years and probable time of death was about ¾ day. He was average body built. Rigor mortis present all over the body. Eyes were semi-closed. Postmortem on dead body of deceased was conducted on 30.05.2005 at 04:30 PM at the mortuary concerned. 5. 4. On general examination, deceased Ali Hasan was aged about 60 years and probable time of death was about ¾ day. He was average body built. Rigor mortis present all over the body. Eyes were semi-closed. Postmortem on dead body of deceased was conducted on 30.05.2005 at 04:30 PM at the mortuary concerned. 5. On examination of dead body of deceased following ante mortem injury was found : “One gunshot wound of entry on outer aspect of right side chest, 6 cm from left nipple, 3.5 cm X 3 cm X cavity.” 6. PW4 Dr. S.K. Tyagi has also found one plastic cork, tikle “gatta” pieces and 8 pellets around T8 Thoracic Vertebrae on the body of deceased. Semi digested food was found in the stomach of deceased. In the opinion of doctor, cause of death of deceased was due to shock and hemorrhage as a result of ante mortem injury. Postmortem Report is Ex.Ka13. 7. After conclusion of investigation and fulfilling entire formalities, S.I.O. has submitted chargesheet dated 17.06.2005 (Ex.Ka12) against accused-appellant Ali Mohammad under Section 302 IPC before the concerned Magistrate. Cognizance was taken on 06.10.2005 and case being exclusively triable by Sessions Court, was committed to Court of Sessions. After hearing accused side, Sessions Judge, Baghpat framed charge against accused-appellant Ali Mohammad under Section 302 IPC mentioning all details required for framing charge to which he pleaded not guilty and claimed to be tried for said charge. 8. In order to prove its case, prosecution examined four witnesses out of them P.W.1, Informant, Naseem Ahmad who is an eye account witness and had moved a written report (Ex. Ka1); P.W.2, Shaukat Ali, who is also an eye account witness and had transcribed written report; P.W. 3, Sub-Inspector Ram Vilas Verma, F.I.O. and P.W.4, Dr. S.K. Tyagi, Medical Officer who has conducted postmortem on the body of deceased. Witnesses examined on behalf of prosecution, have also proved the papers mentioned hereinabove. 9. On closure of prosecution evidence, statement of accused-appellant under Section 313 Cr.P.C. was recorded in which he has admitted his relation with deceased and witnesses. He also admitted that said agricultural field were being cultivated by both Informant, P.W.1 Naseem Ahmad and deceased Ali Hasan. He also admitted that he was behind the bar in connection with murder of his uncle, Aalmu but denied the contents of FIR mentioned in the present matter. He also admitted that said agricultural field were being cultivated by both Informant, P.W.1 Naseem Ahmad and deceased Ali Hasan. He also admitted that he was behind the bar in connection with murder of his uncle, Aalmu but denied the contents of FIR mentioned in the present matter. He has also denied entire evidence adduced by prosecution during trial and showed ignorance about Exts. Ka1, Ka2 and Ka3. He has also shown ignorance about the postmortem report (Ex. Ka13) and has specifically stated that recovery shown against him is false. Chargesheet was submitted on the basis of prima facie evidence. Witnesses examined before Court, have made false statements due to enmity. 10. It appears that accused-appellant did not adduce any documentary or oral evidence in support of his defence. 11. Trial Court after hearing the parties and appreciating the entire evidence was of the view that prosecution was able to prove its case and found guilty to accused-appellant for the offence punishable under Section 302 IPC and convicted and sentenced him as above. Feeling aggrieved with said judgment and order, present jail appeal has been preferred. 12. We have heard Sri Amit Daga, learned counsel for appellant and Sri Ratan Singh, learned A.G.A. for State and have gone through the entire record. 13. Submission of learned counsel for appellant is that prosecution failed to prove its case beyond reasonable doubt. Trial Court misappreciating the prosecution evidence, convicted and sentenced accused-appellant in the present matter. It is also argued that FIR was lodged belatedly but no plausible explanation has been given which creates doubt about the truthfulness of prosecution version. Referring to statements of P.Ws. 1 and 2, it is further argued that entire prosecution story is improbable and unnatural. Informant, Naseem Ahmad, P.W.1 had concealed his relation with accused-appellant in the FIR. P.Ws. 1 and 2 had gone to their house leaving the dead body at the place of occurrence in the night itself. Medical evidence does not support the oral version. Motive is also not proved. There is chance of false implication of accused-appellant. Suggestion given by defence to witnesses is more probable than the version taken by Informant in the written report (Ex. Ka1). Nothing was recovered by I.O. concerned at the place of occurrence showing complicity of accused-appellant. Referring to recovery memo, it is also argued that deceased had not taken tifin box with him. Suggestion given by defence to witnesses is more probable than the version taken by Informant in the written report (Ex. Ka1). Nothing was recovered by I.O. concerned at the place of occurrence showing complicity of accused-appellant. Referring to recovery memo, it is also argued that deceased had not taken tifin box with him. I.O. concerned had also not taken bloodstained thread of the cot from the place of occurrence. Since Informant was one of the witnesses in a murder case of Aalmu pending against accused-appellant and wanted to grab the property of deceased, therefore, he himself had committed the present offence. Manner and style of committing the present offence is also unnatural and unbelievable. P.Ws. 1 and 2 both are brothers and their presence at the place of occurrence is unnatural. Conduct of witnesses also placed them in the category of unreliable witnesses. Thus, prayer was made to allow appeal, acquit appellant setting aside the impugned judgment and order. 14. Per contra, learned A.G.A. argued that prosecution established its case beyond reasonable doubt. Incident was committed by accused appellant in the presence of P.Ws. 1 and 2. Delay in lodging of FIR has been properly explained by P.W. 1. Medical evidence fully supports the oral version. Conduct of witnesses are not unnatural. Motive has also been proved. There is no chance for false implication. Thus, it is further argued that there is no illegality, infirmity or perversity in the impugned judgment and order, hence, accused-appellant deserves no indulgence and is liable to be punished. 15. We have considered the rival submission of learned counsel for the parties and have gone through the entire records. 16. In this matter, as is evident from record, incident is said to have been committed in the intervening night of 29/30.05.2005 at 02:00 A.M. FIR has been lodged on 30.05.2005 at 08:45 A.M. Distance between place of occurrence and police station concerned is 2.5 kilometers. Said tube-well is situated in Village Rathauda, which is admittedly 1 kilometer away from the house of P.Ws. 1 and 2. It has also come in the statement of P.Ws. 1 and 2 that just after the incident, they went their house leaving the dead body at the place of occurrence. Written report was prepared in village concerned, transcribed by P.W.2 Shaukat Ali on dictation of P.W.1 Naseem Ahmad. 1 and 2. It has also come in the statement of P.Ws. 1 and 2 that just after the incident, they went their house leaving the dead body at the place of occurrence. Written report was prepared in village concerned, transcribed by P.W.2 Shaukat Ali on dictation of P.W.1 Naseem Ahmad. P.W.1 moved said written report to P.S. concerned for lodging the FIR in the morning. Thus, FIR was lodged in the present matter as has been mentioned hereinabove on 30.05.2005 at 08:45 AM. Learned counsel appearing for appellant has mainly emphasized that non lodging of FIR in the night itself create doubt about the truthfulness of FIR. If submission raised on behalf of appellant is analyzed in the light of peculiar facts and circumstances of the matter, it is evident that incident took place in the intervening night of 29/30.5.2005 at 02:00 A.M., one kilometer away from the house of deceased by causing firearm injury. P.Ws. 1 and 2 had gone to their house leaving the dead body at the place of occurrence just after the incident to inform the villagers in the night itself. In written report, we find that P.W.1 has already disclosed this fact that due to fear, he could not lodge the FIR in the night itself. We do not find any reason to disbelieve the explanation offered by prosecution. There may be so many reasons to go together by P.Ws. 1 and 2 to their house. Conduct of these two witnesses on this ground can also not be taken as unnatural conduct. When P.W.1 was examined before Court on Oath has clearly explained the reason for delay in lodging the FIR. Certainly some time would have been consumed in preparing the written report and managing to proceed to P.S. concerned. It may also be mentioned here that if for lodging the FIR in such a situation, Informant could not proceed to police station concerned in the night itself then prosecution case cannot be disbelieved on this ground particularly when Informant has explained the reason satisfactorily in his statement recorded before Court concerned. It may also be mentioned that prosecution case cannot be disbelieved solely on the ground of delay in lodging the FIR, thus, other evidence adduced by prosecution has to be scrutinized carefully. 17. As far as motive is concerned, although nothing is mentioned in the written report (Ex. It may also be mentioned that prosecution case cannot be disbelieved solely on the ground of delay in lodging the FIR, thus, other evidence adduced by prosecution has to be scrutinized carefully. 17. As far as motive is concerned, although nothing is mentioned in the written report (Ex. Ka1) on point of motive but at later stage during investigation and before Trial Court when P.Ws. 1 and 2 were examined, they disclosed that entire agricultural land belonging to deceased was in possession of Informant's side as deceased was issueless. Informant and deceased both were cultivating the said agricultural land and on apprehension that deceased will bequeath his property to Informant's side, accused-appellant has committed the present crime. If statements of P.Ws. 1 and 2 are taken into consideration in entirety, it emerges that no specific question to impeach this fact was asked from them in cross-examination. In the statement recorded under Section 313 Cr.P.C., accused-appellant has also admitted that entire agricultural land belonging to deceased was in possession of Informant's side. If said agricultural land was in possession of Informant's side then finding of Trial Court on point of motive cannot be termed to be illegal because it is based on correct appreciation of facts and evidence. It may also be mentioned here that motive to commit the present offence is against accused-appellant because after death of deceased, accused-appellant would be benefited as he also come in the pedigree of deceased and some share would also be devolved to him. Submission raised by learned counsel for appellant on this issue is not acceptable. It is pertinent to mention here that in the present matter, there are eye account witnesses, thus to see the correctness of findings of Trial Court, ocular evidence has to be scrutinized. 18. As far as presence of P.Ws. 1 and 2 on the spot is concerned, certainly P.W.2 has admitted that he was an auto rickshaw driver in Delhi and did not return to his house on each and every night but this fact alone is not sufficient to disbelieve his presence on the spot at the time of occurrence. P.Ws. 1 and 2 both were brothers. Deceased had gone to irrigate the field but at that time due to non supply of electricity, he slept on cot near tube-well for waiting electricity. It has also come in the statements of P.Ws. P.Ws. 1 and 2 both were brothers. Deceased had gone to irrigate the field but at that time due to non supply of electricity, he slept on cot near tube-well for waiting electricity. It has also come in the statements of P.Ws. 1 and 2 that in the fateful night at about 01:00 A.M., they woke up and found electricity in the village, thereafter, they proceeded to tube-well for irrigating the field and as and when they reached near tube-well, flashed torch and saw the accused-appellant near the cot of deceased opening fire upon him. Conduct of P.Ws. 1 and 2 to go to irrigate the field in the night is not unnatural and unbelievable as village people usually go to irrigate their fields in the night also. Submission raised by learned counsel for the appellant on this issue is also not acceptable. Conduct of P.Ws. 1 and 2 going together to irrigate the field is not unnatural conduct because some time many people would require for irrigation purpose. Thus, presence of P.Ws. 1 and 2 at the place of occurrence in the night has successfully been established by prosecution from its evidence. There is no inconsistency in the prosecution evidence on this issue. 19. As far as medical evidence is concerned, one gun shot injury is found on the body of deceased caused by country made pistol. Prosecution case is that fire was made near the cot of deceased. No blackening and tattooing were found on the injury. It has also come in the statements of P.Ws. 1 and 2 that they were 2025 paces away from the place of occurrence when they flashed torch. If such was the situation, in our opinion, it would not be possible for a witness to collect the exact distance between deceased and accused-appellant at the time of firing. It would also not be possible for a witness to collect every minute details or activities of accused-appellant at the time of occurrence. Thus, if blackening and tattooing were not found on the injury of deceased, prosecution case cannot be disbelieved and it cannot be said that medical evidence is contradictory to oral version. Learned counsel appearing for appellant has also referred to statement of P.W.4, Dr. Thus, if blackening and tattooing were not found on the injury of deceased, prosecution case cannot be disbelieved and it cannot be said that medical evidence is contradictory to oral version. Learned counsel appearing for appellant has also referred to statement of P.W.4, Dr. S.K. Tyagi, Medical Officer and argued that P.W. 4 has opined the probable time of death of deceased about ¾day old which means 18 hours before conducting of postmortem. He has also opined that there may be variation of six hours on either side in time of death of deceased. It may be noted here that opinion expressed by P.W.4 Dr. S.K. Tyagi, Medical Officer about timing of death of deceased is mere speculation because this witness has also admitted in examination-in-chief that death of deceased could take place on 30.05.2005 at the time mentioned in FIR. Statements of P.Ws. 1 and 2 are consistent and clear that only one fire was made upon deceased by accused-appellant and this fact also finds support with statement of P.W.4. Thus, merely on the basis of aforesaid opinion expressed by P.W.4, time of death of deceased in the present matter cannot be doubted. It can safely be held in the present matter that medical evidence is not contrary to oral version. Finding recorded by Trial Court on this issue needs no interference. 20. As far as non-examination of Chik Writer is concerned, P.W.3, Sub-Inspector, Ram Vilas Verma, F.I.O. has stated that Chik Writer was posted along with him and he was fully aware about his handwriting and signature, thus, in that situation, on the ground of non-examination of Chik Writer and one of the I.O. i.e. Indrapal Singh, Station Officer, prosecution case cannot be thrown out. It is also noteworthy that non-examination of aforesaid witnesses itself does not demolish the prosecution evidence nor any prejudice is caused to accused-appellant on this count as defence has cross-examined the witnesses on every point. As far as omission, contradiction and exaggeration are concerned, the same also do not corrode the prosecution case and go to the root of case. Defence could also not show that due to non-examination of aforesaid witnesses, their valuable right to defend their case was adversely affected. 21. As far as omission, contradiction and exaggeration are concerned, the same also do not corrode the prosecution case and go to the root of case. Defence could also not show that due to non-examination of aforesaid witnesses, their valuable right to defend their case was adversely affected. 21. So far as non-examination of other witnesses cited in FIR is concerned, it is suffice to say that if a witness examined in the Court is otherwise found reliable and trustworthy, the fact sought to be proved by that witness need not be further proved through other witnesses though there may be other witnesses available who could have been examined but were not examined. Non-examination of material witness is not a mathematical formula for discarding weight of testimony available on record however natural, trustworthy and convincing it may be. It is now well settled principle of law that whom to cite as a witness and whom not to cite is within the domain of the prosecution. It is primarily for the prosecutor to decide which witness it should examine in order to unfold the prosecution story. (Vide State of U.P. v. Ganga Ram and others (2005) 13 SCC 239 ). 22. Further, it is also settled proposition of law that it is not the matter of quantity of evidence but the quality of evidence produced by prosecution. In this regard, a reference can be taken to a case law reported in Food Inspector v. G. Satyanarayana, AIR 2004 SC 1236 , wherein the Hon'ble Supreme Court has held that it is not the number of witnesses but it is quality of evidence which is required to be taken note of by the courts for ascertaining truth of allegations made against the accused. Section 134 of The Evidence Act provides that no particular number of witnesses is required for proof of any fact. witnesses of fact produced on behalf of prosecution, are trustworthy and well reliable and merely because no independent witness has been examined, the evidence of witnesses of fact cannot be discarded. 23. Section 134 of The Evidence Act provides that no particular number of witnesses is required for proof of any fact. witnesses of fact produced on behalf of prosecution, are trustworthy and well reliable and merely because no independent witness has been examined, the evidence of witnesses of fact cannot be discarded. 23. So far as submission regarding discrepancies and contradictions pointed out by learned counsel for the appellant in the statements of P.Ws.1, 2 and other witnesses are concerned, it is well settled proposition of law that any inconsistency or discrepancy occurred in investigation or laches on the part of Investigating Officer do not affect the veracity of statement of reliable prosecution witnesses until and unless such discrepancies are of such nature that entire prosecution story is collapsed. 24. On the basis of foregoing discussion, we are of the view that prosecution has successfully proved the date, time and place of occurrence; presence of P.Ws. 1 and 2 at the time and place of occurrence; medical evidence fully supports the oral version; delay in lodging the FIR has been properly explained; conduct of witnesses are not unnatural and motive has also been proved by prosecution. There is no chance for false implication of accused-appellant. Deceased died instantaneously due to injuries sustained by him, thus, in the present matter, prosecution was able to prove the charge for the offence punishable under Section 302 IPC framed against accused-appellant. Trial Court has imposed minimum sentence for imprisonment of life then no further leniency can be extended to him, punishment imposed upon accused-appellant will also meet the ends of justice and will be to the conscience of society and court. Appeal having no merit, is liable to be dismissed. Impugned judgment and order passed by Trial Court is liable to be affirmed. 25. In view of above discussion, the present appeal is dismissed. Impugned judgment and order dated 17.01.2006 passed by learned Sessions Judge, Baghpat in Session Trial No. 314 of 2005 (State Vs. Ali Mohammad) relating to Case Crime No. 314 of 2005, Police Station Chhaprauli, District Baghpat awarding sentence for imprisonment for life to accused-appellant Ali Mohammad for the offence u/s 302 IPC, is maintained and confirmed. 26. Lower court record along with the copy of this judgment be sent back immediately to court concerned for necessary compliance. Ali Mohammad) relating to Case Crime No. 314 of 2005, Police Station Chhaprauli, District Baghpat awarding sentence for imprisonment for life to accused-appellant Ali Mohammad for the offence u/s 302 IPC, is maintained and confirmed. 26. Lower court record along with the copy of this judgment be sent back immediately to court concerned for necessary compliance. Copy of judgment be also sent to accused-appellant through Jail Superintendent concerned for intimation forthwith. Compliance report be also submitted to this Court.