JUDGMENT : Aniruddha Singh, J. This Criminal appeal has been nominated to me as third Judge by the Hon'ble the Chief Justice vide order dated 18.2.2019. In compliance thereof, heard Sri Dileep Kumar, learned counsel for the appellant as well as Sri P.K. Srivastava and Sri Hari Pratap Gupta, learned Additional Government Advocates and perused the record. 2. This Criminal appeal was heard and decided by Hon'ble S.K. Agarwal, J. and Hon'ble K.K. Misra, J. vide order dated 8.8.2003. Due to difference of opinion, this appeal was nominated to me/this Court. 3. This criminal appeal has been preferred against judgment and order dated 29.9.1980 passed by Vth Additional Sessions Judge, Allahabad in Sessions Trial No. 266 of 1978 (State vs. Chhotey Lal Yadav), Police Station Kotwali, District Allahabad convicting Chhotey Lal Yadav under Section 302 IPC, sentencing him to imprisonment for life. 4. In the nutshell, case of prosecution is that an FIR was lodged on 20.5.1978 at 11: 30 A.M. against Chhotey Lal Yadav alleging that on 20.5.1978 at 9:30 A.M. he killed Gopal Ji Rawat by shooting him at his house No. 44/56 Hewett Road, Police Station Kotwali, District Allahabad due to previous enmity and fled away from the spot. It is further alleged that deceased was witness in the case of murder of his friend and business partner Heera Lal Shukla and he was threatened by Panna Lal Yadav not to depose evidence against accused Ram Sajiwan @ Lalloo in that case before the Court and filed an affidavit in his favour. Chhotey Lal Yadav (brother of Panna Lal Yadav) had friendly terms with Gopal Ji Rawat and had taken loan of Rs.4000/-from him on the occasion of marriage of his sister before two months from the date of incident. When Chhotey Lal Yadav came in close contact with Ram Sajiwan @ Lalloo and Panna Lal, it was not liked by deceased Gopal Ji Rawat, he called Chhotey Lal Yadav, suggested him to remain on one side and asked him to return the money. The appellant Chhotey Lal Yadav told him that he would reply him soon and due to that reason Gopal Ji Rawat was shot dead. He received three gunshot ante-mortem injuries caused by single fire. 5. Case was registered and after investigation, charge sheet was submitted. The appellant Chhotey Lal Yadav told him that he would reply him soon and due to that reason Gopal Ji Rawat was shot dead. He received three gunshot ante-mortem injuries caused by single fire. 5. Case was registered and after investigation, charge sheet was submitted. After framing of charge, prosecution examined P.W.1 Nanhey Rawat(complainant), P.W.-2 S.I. Ram Asrey Singh who conducted autopsy, P.W.3 Rajendra Prasad Keshrwani alias Dade, P.W.-4 Head Moharrir Sharafat Ali, P.W.-5 Constable No. 683 C.P. Ram Pal, P.W.6 Dr. P.L. Nigam, P.W.-7 S.B. Lal, P.W.8 Ram Singh Tiwari and P.W.-9 Madan Mishra. 6. Statements of accused were recorded under Section 313 Cr.P.C. He denied charges and stated that he has been falsely implicated. He specifically stated that Gopal Ji Rawat was not the witness of the so called murder case and that was another Gopal Ji, son of Mahadev, who was residing in Bombay. He further stated that he was falsely implicated by the I.O. because he was supplying milk to the I.O. and enhanced the rate of milk from Rs.2/- per liter to Rs.3/- per liter and Gopal Ji Rawat was the thief and doing the business of smuggling. 7. After hearing learned counsel for accused appellant as well as District Government Counsel, impugned order was passed. Hence this appeal. 8. Learned counsel for the appellant submitted that impugned judgment and order is against evidence on record and appellant has been convicted on the basis of conjecture and surmises. There are several grounds such as witnesses of facts i.e. P.W.1-Nanhey Rawat and P.W.3-Rajendra Prasad Kesharwani were not present at the time of incident and they are interested and chance witnesses. F.I.R. was lodged ante timed. P.W.1-Nanhey Rawat is residing in another house and P.W.3-Rajendra Prasad Kesharwani is not the resident of the same area where the deceased was residing. He was not family member of the deceased. There are major contradictions between the statements of witnesses as well as in the postmortem report of deceased and injury reports. 9. Learned A.G.A. submitted that there is sufficient evidence against the accused-appellant to convict him. 10. I have considered rival submissions made by the learned counsel for the appellant and learned A.G.A. for the State and gone through entire record. 11. This Court after scanning the evidence on record, has to adjudicate whether the prosecution has proved charges levelled against the accused-appellant beyond reasonable doubt or not. 12. 10. I have considered rival submissions made by the learned counsel for the appellant and learned A.G.A. for the State and gone through entire record. 11. This Court after scanning the evidence on record, has to adjudicate whether the prosecution has proved charges levelled against the accused-appellant beyond reasonable doubt or not. 12. Word 'proved' is defined under Section 3 of Evidence Act as under: "Proved".-A fact is said to be proved when, after considering the matters before it, the Court after either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists." 13. The question is whether a prudent man under these circumstances can believe that the facts deposed by the witnesses do exist beyond reasonable doubt. 14. This fact is admitted between the parties as well as proved by the prosecution evidence that place of occurrence was House No. 44/56 lying at upper floor at Hewette Road, Allahabad. The incident took place at 9:30 A.M. on 20.5.1978. On the same day, F.I.R. was lodged at 11:30 A.M. Blood was recovered by the I.O. from the place of occurrence and the same was sent to the expert and according to expert report, human blood was found. Hence, place of occurrence was proved beyond reasonable doubt, as stated by the prosecution. 15. This fact is also admitted between the parties as well as proved by the prosecution evidence beyond reasonable doubt that the deceased was died after receiving injuries of single shot fire and this fact was also proved by the statement of P.W.-6 Dr. P.L. Nigam. He specifically stated that he conducted the autopsy at 5:50 P.M. on 20.5.1978 and testified that he had found the following ante-mortem injuries on the body of Gopal Ji Rawat, aged about 30 years, s/o Shanti Prasad Rawat, R/o House No. 44/57 Hewette Road, Police Station Kotwali, District Allahabad. "1. Gun shot lacerated wound 1" x 3/4" x cavity deep on the right side of back at the level of 1st lumber vertebra, 1" lateral to middle line. The margins of the wound were inverted. From the wound, Muscle was protruding out of the wound. Blackening was present in the area of 3" x 3" around this wound. 2. "1. Gun shot lacerated wound 1" x 3/4" x cavity deep on the right side of back at the level of 1st lumber vertebra, 1" lateral to middle line. The margins of the wound were inverted. From the wound, Muscle was protruding out of the wound. Blackening was present in the area of 3" x 3" around this wound. 2. Two gun shots lacerated wound 1/4" x 1/4" x cavity deep on right side of anterior abdominal wall. Margins of the wound were everted. Oozing of blood was present. One medical wound being placed 3" above lateral to amblicus and the lateral wound present 2" lateral to medial. 3. Gun shot lacerated wound 1/4" x 1/4" x muscle deep on right medial aspect of middle third of right fore-arm, 6" below the joint of elbow. 4. Old injury with hard blood crest 1/2" x 1/2" on dorsal of right wrist. 5. Old injury with hard blood crest 1/2" x 1/2" on the part of right knee joint." Cause of death was found shock and hemorrhage as a result of ante-mortem injuries and rupturing of liver and ante-mortem injuries were ordinarily sufficient for causing his death. Death might have occurred within half day of autopsy. Ante-mortem injury no.1 was wound of entry while the ante-mortem injury no. 2 was wound of exit. Injury nos. 1, 2 and 3 might have been inflicted by one shot if the deceased was standing on the support of right elbow in front of him. The death was possible at any time between 9:15 A.M. and 10:30 A.M. on the same day. 16. Motive shown in the F.I.R. as well as in the statements of P.W.1-Nanhey Rawat and P.W.3-Rajendra Prasad Kesharwani is of two folds: Firstly, the deceased was the witness of murder of Hira Lal Shukla, who was the partner of transport with deceased in which accused was Ram Sajiwan. Panna Lal was the friend of Ram Sajiwan and Panna Lal with the help of his brother Chhotey Lal threatened the deceased not to depose as witness against Ram Sajiwan. Secondly, Rs.4,000/- had taken loan by the accused-appellant from the deceased and when the deceased called him to return the money accused-appellant Chhotey Lal became angry and to secure himself to return money taken by him, he killed the deceased. Secondly, Rs.4,000/- had taken loan by the accused-appellant from the deceased and when the deceased called him to return the money accused-appellant Chhotey Lal became angry and to secure himself to return money taken by him, he killed the deceased. This motive is narrated by the prosecution in the F.I.R. as well as in deposition of witnesses, namely, P.W.1- Nanhey Rawat and P.W.-3 Rajendra Prasad Kesharwani and that was fully proved. 17. Learned counsel for the appellant submitted that there was no motive for the appellant to kill the deceased. Question is that if above fact about the motive, which was narrated in the F.I.R. as well as in the statements of P.W.1-Nanhey Rawat and P.W.-3 Rajendra Prasad Kesharwani, is wrong and false, then why the P.W.-1 Nanhey Rawat will falsely implicated the accused-appellant whereas it is admitted case of the accused-appellant that he was friend of the deceased and his family members. On this issue, in defence, no evidence was produced by the accused-appellant and nothing had come in cross-examination to falsify the statements given by P.W.1- Nanhey Rawat and P.W.-3 Rajendra Prasad Kesharwani against appellant about the motive. 18. Main argument raised by the learned counsel for the appellant is that P.W.1- Nanhey Rawat and P.W.-3 Rajendra Prasad Kesharwani are interested and chance witnesses and they were not present at the time of incident and statements given by them was tutored, which can be said to be false. 19. In the case of Jarnail Singh vs. State of Punjab, 2009 67 AllCriC 668 (SC) and in the case of Sarvesh Narain Shukla vs. Daroga Singh, (2008) AIR SC 320 it has been held that it is not the rule of law that chance witness cannot be believed. The reason for a chance witness being present on the spot and his testimony requires close scrutiny and if the same is otherwise found reliable, his testimony cannot be discarded merely on the ground of his being a chance witness. Evidence of chance witness requires very cautious and close scrutiny. 20. P.W.1- Nanhey Rawat is the brother of the deceased. He clearly stated in his statement that at the time of incident they were living in House No. 44/56 Hewett Road, Police Station Kotwali, District Allahabad. At the time of incident, he was sixteen and half years of age. He is an illiterate person. 20. P.W.1- Nanhey Rawat is the brother of the deceased. He clearly stated in his statement that at the time of incident they were living in House No. 44/56 Hewett Road, Police Station Kotwali, District Allahabad. At the time of incident, he was sixteen and half years of age. He is an illiterate person. He clearly deposed that when the deceased Gopal Ji Rawat came out after bath in the presence of P.W.-3 Rajendra Prasad Kesharwani, appellant-accused Chhotey Lal came suddenly armed with pistol and shot fire on the back side of the body of Gopal Ji Rawat. He received gun shot injury and fallen. They tried to catch him but he managed to flee away from the spot. They managed to arrange taxi to hospitalize him but he died on the way. He reached hospital where the doctor has declared him dead. Then P.W.1- Nanhey Rawat lodged F.I.R., written by Vijay Kumar and proved as Ext. ka-1. He stated about the motive, as stated above and also proved bloodstained langot and towel of deceased used at the time of incident, which are Ext. ka-1 & 2. 21. P.W.3- Rajendra Prasad Kesharwani stated in his statement that at the time of incident he was present in the house with P.W.1- Nanhey Rawat and he corroborated the same version as stated by P.W.1- Nanhey Rawat. P.W.3- Rajendra Prasad Kesharwani was neither relative nor family member of the deceased. He was also sixteen and half years of age at the time of incident and an illiterate person. 22. Learned counsel for the applicant submitted that P. W.-3 was the friend of the deceased hence P.W. 3-Rajendra Prasad Kesharwani and P.W.1-Nanhey Rawat (brother of the deceased) stated against appellant falsely. Statements of the witnesses, who are so called friend and family member, can be disbelieved only on the ground of interested witnesses. The suggestion made on this point is that due to friend and in the pressure of Police he stated the version as stated by the Police to him. 23. On this issue, in the case of Radha Mohan Singh @ Lal Saheb @ Ors. Vs. The suggestion made on this point is that due to friend and in the pressure of Police he stated the version as stated by the Police to him. 23. On this issue, in the case of Radha Mohan Singh @ Lal Saheb @ Ors. Vs. State of U.P., (2006) AIR SC 951, it was held that even evidence of hostile witness cannot be rejected in toto merely because prosecution chose to treat him as hostile and examined him but can be accepted to the extent his version is found to be dependable on a careful scrutiny thereof. 24. Learned counsel for the appellant submitted that there are several contradictions and omissions between the statements of P.W.1- Nanhey Rawat and P.W.3- Rajendra Prasad Kesharwani but in the opinion of this Court, there is no major contradiction by which statements of witnesses can be disbelieved. 25. In the above mentioned case (Supra), Hon'ble Supreme Court has held that re-appreciation of evidence is permissible only if trial court is shown to have committed an error of law or procedure and conclusions arrived at are perverse. 26. In the case of Radha Mohan Singh @ Lal Saheb @ Ors (Supra), three Judges' Bench of Ho'nble Apex Court has observed that in case of difference of opinion between Judges in Criminal Appeals, the appeal always placed before third Judge, the third Judge is under no obligation to accept view of one of Judges holding in favour of acquittal. Hence, it is very clear that the third Judge will give his own opinion either for acquittal or for conviction on the impugned judgment on merit. 27. The Hon'ble Apex Court has also observed in the said judgment (Supra) that under Section 174 Cr.P.C. if in inquest report mentioning of wrong date of lodging of F.I.R. discrepancy not put to author of inquest report at the time of his examination as witness, no inference adverse to prosecution can be drawn. Inquest report is limited to ascertainment of cause of death mentioning the names of the accused, eye witnesses or weapons carried in inquest report. It is not necessary. 28. Learned counsel for the appellant on both the points made argument that in inquest report except the crime number and years, nothing has been mentioned hence F.I.R. was lodged ante-timed and witnesses were not present at the time of preparing inquest report. 29. It is not necessary. 28. Learned counsel for the appellant on both the points made argument that in inquest report except the crime number and years, nothing has been mentioned hence F.I.R. was lodged ante-timed and witnesses were not present at the time of preparing inquest report. 29. In the case of Sardul Singh and others Vs. State of Punjab, (1993) Supp3 SCC 678, the Hon'ble Apex Court has observed that stomach contents cannot be determined with precision at the time of death. Semi-digested food was found in stomach of deceased and illiterate witnesses stated that deceased took her meal immediately before the occurrence cannot by itself be a circumstance to discredit their evidence. It is true that P.W.3- Rajendra Prasad Kesharwani has accepted in his cross-examination that 'paratha' was taken by the deceased just before the incident but due to illiterate person, it cannot be said that he has not stated true facts because at the time of incident he was sixteen and half years of age. As such, the evidence of P.W.3- Rajendra Prasad Kesharwani cannot be thrown out only on this very ground. 30. In the above mentioned case (Supra) the Hon'ble Apex Court has also observed that where there are a number of injuries on the deceased and the witnesses have given some details about the manner in which they had inflicted, each witness cannot be expected to note the details in seriatum. Hence, minor contradiction shown by the learned counsel for the appellant has no force and on that very ground evidences of P.W.1-Nanhey Rawat and P.W.3- Rajendra Prasad Kesharwani cannot be thrown out. 31. On the same issue recently in the case of Jafel Biswas and others Vs. State of West Bengal, 2019 AIR SC 519, the Hon'ble Apex Court has held that when evidence of eye witnesses clearly proving their presence on spot and incident witnessed by them, then status regarding food in stomach becomes irrelevant since there is no issue regarding time of incident and accused is liable to be convicted. In the same case, the Hon'ble Apex Court has also observed that mere delay in sending report itself cannot lead to conclusion that trial is vitiated or accused is entitled to be acquitted on that ground. Argument of learned counsel for the appellant alleging that F.I.R. was sent to the Magistrate after two days of the incident, has no force. 32. Argument of learned counsel for the appellant alleging that F.I.R. was sent to the Magistrate after two days of the incident, has no force. 32. Presence of P.W.3-Rajendra Prasad Kesharwani is very material because status of P.W.3 comes in the ambit of independent witness because he was neither the relative of the deceased nor the family member. It will not be presumed that due to friend, every person will give a false statement in favour of so called friend (the deceased). In the opinion of the Court, the statement of friend cannot be treated as the statement of interested witness or chance witness. P.W.3 was only the friend of the deceased hence in the opinion of the Court, he is the natural witness. 33. Although P.W.1-Nanhey Rawat is an interested witness but presence of P.W.3 Rajendra Prasad Kesharwani and P.W. 1-Nanhey Rawat is natural at the time of incident, hence evidences of P.W.1 and P.W.3 cannot be disbelieved and in opinion of the Court, the evidences of P.W.1 and P.W.3 are reliable. P.W. 1- Nanhey Rawat is wholly reliable and P.W.3-Rajendra Prasad Kesarwani is partly reliable, but corroborating the evidence of P.W.1- Nanhey Rawat. 34. At present, in a heinous crime nobody could come before the Court to give evidence due to future enmity and complications in his future life. On the ground of non-production of other witnesses, presence of P.W.1-Nanhey Rawat and P.W.3- Rajendra Prasad Kesharwani cannot be disbelieved. The incident is a broad-day light murder in the pause area of Allahabad district. Since the appellant was with arms hence it was very natural that nobody can come forward to catch him due to fear to kill coming person also. Hence the argument raised by the learned counsel for the appellant that there were several persons present at the time of incident but they were unable to catch the accused-appellant after the incident took place, is unnatural and the presence of P.W.1 and P.W.3 on the spot at the time of incident is doubtful, has no force. 35. Hence the argument raised by the learned counsel for the appellant that there were several persons present at the time of incident but they were unable to catch the accused-appellant after the incident took place, is unnatural and the presence of P.W.1 and P.W.3 on the spot at the time of incident is doubtful, has no force. 35. So far as the bloodstain of the deceased on the bodies of P.W.1- Nanhey Rawat is concerned, statement of the witness was recorded after a long time hence due to lapse of long time, it might be forgotten and on the same issue by P.W.1 it has been clearly stated in para-22 of the statement that on the clothes bloodstain was found but it was not shown to the I.O. due to folding of clothes hence explanation given by the witness is sufficient even then if the I.O. had not seen and not noted it in the G.D. It is the mistake of the I.O. and on any fault/negligence on the part of the I.O. or any irregularity or deficiency in investigation by the I.O. need not necessarily lead to rejection of the case of prosecution when it is otherwise proved. The only requirement is use of extra caution in evaluation of evidence. A defective investigation cannot be fatal to prosecution where ocular testimony is found credible and cogent, as it was held in the case of Acharaparambath Pradeepan vs. State of Kerla, (2007) 57 AllCriC 293 (SC) and State of Punjab vs. Hakim Singh, (2005) 7 SCC 408 . 36. In Full Bench decision in the case of Gopal Vs. State of U.P., 1999 AllCriC 98 , it was held that if the weapon and the assailant not challenged and the injuries to the deceased admitted, it will not be proper to discard the testimony of the eye witnesses. As discussed above, place of occurrence, time of occurrence, weapon of assault and participation of the accused all have been fully established and proved beyond reasonable doubt. P.W.1-Nanhey Rawat is fully reliable whereas P.W.3-Rajendra Prasad Kesarwani is partly reliable and reliable part of the evidence of P.W.3-Rajendra Prasad is very material and fully established the case against the applicant. As discussed above, place of occurrence, time of occurrence, weapon of assault and participation of the accused all have been fully established and proved beyond reasonable doubt. P.W.1-Nanhey Rawat is fully reliable whereas P.W.3-Rajendra Prasad Kesarwani is partly reliable and reliable part of the evidence of P.W.3-Rajendra Prasad is very material and fully established the case against the applicant. Some laches or mischief shown by the learned counsel for the appellant on the part of the Investigating Officer cannot be a ground to discard the testimony of the eye witnesses which has been fully corroborated by the medical evidence. 37. The other arguments raised by the learned counsel for the appellant before the trial court that have already been discussed by the trial court. Hence there is no need to repetition in the appeal. 38. In the above backdrop, this Court is of the opinion that the trial court has rightly convicted the appellant and sentenced him under Section 302 I.P.C. The view taken by the trial court is a plausible view, hence, in the opinion of this Court, no interference is called for in appeal and the appeal is liable to be dismissed. 39. The appeal is, accordingly, dismissed. The appellant-Chhotey Lal is directed to surrender forthwith to undergo the sentence imposed on him. The learned Chief Judicial Magistrate, Allahabad is directed to take immediate steps to take the appellant into custody. After the appellant Chhotey Lal has been taken into custody, his sureties and bail bonds shall stand discharged. 40. Copy of this judgment along with original record of the court below be transmitted to the court concerned within 24 hours for necessary compliance. Compliance report be submitted immediately to this Court, which shall be kept on record.