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2019 DIGILAW 1415 (ALL)

Matadin v. State Of U. P.

2019-05-23

ALI ZAMIN, BALA KRISHNA NARAYANA

body2019
JUDGMENT : B.K. Narayana, J. Heard Sri R. S. Pandey, assisted by Ms. Ruchita Jain, learned counsel for the appellants and Sri J. K. Upadhyay, learned A.G.A. for the State. 2. This criminal appeal has been preferred by Matadin @ Chapole (A1) and Kripa Ram (A2) against the judgment and order dated 31.05.1988 passed by Vth Additional Sessions Judge, Jhansi in S.T. No. 68 of 1985, State Versus Matadin and another, whereby both the appellants were convicted and sentenced to imprisonment for life u/s 302/34 I.P.C. 3. Record shows that Kripa Ram (A2) died during the pendency of this appeal and this appeal stood dismissed as abated qua Kripa Ram (A2) by the order of this Court dated 16.07.2018. 4. Thus, the challenge to the impugned judgment and order is now confined on behalf of Matadin @ Chapole (A1) alone. 5. The prosecution story in short is that deceased Lakhan was a highly arrogant, hard core, anti-social element who was involved in several criminal cases including cases of burglary, dacoity etc. and several anti-social elements of village- Atarsua bore grudge against him. It is alleged that on 08.03.1985 at about 1.30-2.00 p.m., few residents of village- Atarsua had gathered in front of the house of Rati Ram to celebrate Holi. Deceased Lakhan was singing Holi (phag) songs while his son P.W.3 Hari Om, his cousin P.W.2 Ram Narayana and others were standing nearby and enjoying the Holi songs. While they were singing Holi songs, Matadin @ Chapole (A1) and Mehngu armed with country-made pistols and Kripa Ram (A2) armed with 'pharsa' came to the spot suddenly and Matadin @ Chapole (A1) and Mehngu fired with their country-made pistols at Lakhan, causing firearm injuries on his head, when Lakhan tried to get up, the accused caught hold of him and Kripa Ram (A2) dealt 'pharsa' blows to him causing injuries on vital parts of his person. Lakhan died on the spot instantaneously and P.W.1 informant Motilal who described himself in the written report of the incident as deceased's "khaandani bhai" although before the trial court, he had not deposed that he was "khaandani bhai" of the deceased, also arrived on the spot upon hearing the noise and found his brother Lakhan dead with injuries on various parts of his body. P.W.3 Hari Om, deceased's son who was present near the dead body apprised him with the details of the incident and P.W.1 informant Motilal got the written report of the incident (Ext.Ka.1) scribed by one P.W.4 Manohar and proceeded straight to P.S.- Gursarain, which was at a distance of about 9 kms. from the place of the incident along with the written report. 6. On the basis of the written report (Ext.Ka.1) given by P.W.1 informant Motilal at P.S.- Gursarain, District- Jhansi, Case Crime No. 12 of 1985 u/s 302 I.P.C. was registered against the appellants and one Mehngu. Check F.I.R. (Ext.Ka.11) and the relevant G.D. Entry (Ext.Ka.12) were prepared by Head Constable Jagdish Awasthi. 7. P.W.7 S.O. Subedar Singh took over the investigation of the case and proceeded to the place of the occurrence immediately and reached there at 5 p.m. After holding the inquest on the dead body of Lakhan, he got prepared the inquest report (Ext.Ka.4) and other related documents whereafter he handed over the dead body of Lakhan to Constable Subedar Singh and Constable Shiv Gulam Pandey along with postmortem requisition memo (Paper no. 17-A). He seized samples of blood-stained and plain earth from the crime scene vide seizure memo (Exts.Ka.5 and Ka.6). He also seized two empty cartridges (material Ext.12) and missed cartridge (material Ext.14) vide recovery memo (Ext.Ka.5). After inspecting the place of occurrence, he prepared its site plan (Ext.Ka.7). 8. Postmortem on the dead body of Lakhan was conducted by P.W.5 Dr. B.D. Mangal, Medical Officer, Primary Health Centre, Mauranipur on 09.03.1985 at 2.45 p.m. He prepared and proved the postmortem report of the deceased as (Ext.Ka.2) and noted following ante-mortem injuries on the person of Lakhan :- (a) Firearm wound of entry inch x wound of exit on the back of head. Left side in occipital region 2'' above and backward from left ear. Skin surrounding the wound is black and scorched and tattooed wound is oval in shape. Singeing of hairs is also seen. Direction of wound is left to right and slightly mediary. Fracture of right occipital bone seen. (b) Firearm wound of exit 21/2'' x 2'' x wound of entry on right temporal region, just above right ear. Multiple chips fracture or right temporal occipital and partial bone are seen. Singeing of hairs is also seen. Direction of wound is left to right and slightly mediary. Fracture of right occipital bone seen. (b) Firearm wound of exit 21/2'' x 2'' x wound of entry on right temporal region, just above right ear. Multiple chips fracture or right temporal occipital and partial bone are seen. (c) Firearm wound of exit 1'' x 1'' x wound of entry on right occipital region 1'' lateral to injury no. 2 fracture of occipital bone of right side seen. (d) Incised wound oblique 21/2'' x 1'' x skin muscle with cutting of third cervical vertibra from front to back on left side of neck 21/2'' below and lateral to left ear lobule. (e) Incised wound horizontal 3'' x 1'' x skin muscle with cutting of Ist cervical vertibra upto the middle on back of the neck. (f) Incised wound 21/2'' x 1/2'' x bone deep on the left upper scapula region. (g) Incised wound superficial x 1/2'' x 1/8'' on back of right leg in calf region. (h) Incised wound 21/2'' x 1/2'' x muscle deep on back of right leg x calf region 2'' below from injury no. (h). (i) Incised wound 2'' x 1/2'' x bone deep on back and lateral side of left leg 3'' above from left ankle joint. 9. According to P.W.5 Dr. B.D. Mangal, the cause of death of Lakhan was shock and haemorrhage as a result of firearm injuries received by him in the occurrence. 10. The prosecution further claims that the accused surrendered before the Judicial Magistrate on 12.03.1985 and the Investigating Officer thereafter obtained the police custody of the accused from the said court for three days from 19.03.1985 to 21.03.1985. It is also alleged that the accused expressed their willingness to get the crime weapons namely country-made pistols and 'pharsa' which they had concealed in the bed of Betwa River near KHIRIA GHAT and Kripa Ram (A2) got the 'pharsa' (material Ext.9) recovered from the bed of the river which was seized and sealed by the Investigating Officer vide recovery memo (Ext.Ka.8) while no country-made pistols could be recovered on the pointing out of the other two accused including the appellants. 11. 11. After completing the investigation, charge-sheet was filed by the Investigating Officer in the Court of Judicial Magistrate- IInd, Jhansi on 06.04.1985 against all the three accused who vide his committal order dated 19.04.1985 committed the case for trial to the Court of Sessions Judge, Jhansi where Case Crime No. 12 of 1985 was registered as S.T. No. 68 of 1985, State Versus Matadin and another, and made over for trial from there to the Court of Vth Additional Sessions Judge, Jhansi who on the basis of the evidence on record, framed charge against all the three accused u/s 302/34 I.P.C. in furtherance of their common intention. The accused abjured the charges framed against them and claimed trial. 12. The prosecution in order to prove the charge framed against the accused examined as many as seven witnesses of whom P.W.1 informant Motilal, P.W.2 Ram Narayan, P.W.3 Hari Om and P.W.4 Manohar were produced as witnesses of fact while P.W.5 Dr. B.D. Mangal, P.W.6 Raj Bahadur Singh and P.W.7 Subedar Singh were examined as formal witnesses. 13. The accused-appellants in their statements recorded u/s 313 Cr.P.C. denied the prosecution case and alleged false implication. They did not lead any evidence in defence. 14. Learned Vth Additional Sessions Judge, Jhansi by the impugned judgment and order, convicted both the appellants and sentenced them to imprisonment for life u/s 302/34 I.P.C. while co-accused Mehngu was acquitted. 15. Hence, this appeal. 16. It is contended by the learned counsel for the appellants that the so-called eye witnesses of the occurrence, P.W.2 Ram Narayan and P.W.3 Hari Om, cousin brother and son of the deceased and hence, highly interested in securing the conviction of surviving appellant Matadin @ Chapole (A1) for the murder of Lakhan but there are irreconcilable contradictions and inconsistencies in their statements which totally belie their claim of being the eye witnesses of the occurrence. The number of injuries found on the dead body of Lakhan by P.W.5 Dr. B.D. Mangal who had conducted the postmortem on the body of deceased Lakhan, do not in any manner corroborate the manner of assault as spelt out in the F.I.R. and later deposed by the two so-called eye witnesses of the occurrence. The number of injuries found on the dead body of Lakhan by P.W.5 Dr. B.D. Mangal who had conducted the postmortem on the body of deceased Lakhan, do not in any manner corroborate the manner of assault as spelt out in the F.I.R. and later deposed by the two so-called eye witnesses of the occurrence. The very fact that the F.I.R. of the incident was lodged by the village Chaukidar P.W.1 informant Motilal and not either by P.W.2 Ram Narayan or P.W.3 Hari Om falsifies the prosecution case that the occurrence had taken place in their presence at the place mentioned in the F.I.R. Had the deceased been attacked by the accused in their presence, then there is no reason why the F.I.R. of the incident would not have been lodged either by P.W.2 Ram Narayan or P.W.3 Hari Om, son and cousin brother of the deceased. Moreover, from the perusal of the F.I.R. recitals itself it is apparent that P.W.1 informant Motilal had reached at the crime scene after the incident. The aforesaid circumstance supports the defence version that after some unknown persons had shot dead Lakhan who was an acknowledged anti-social element of the village after being brutally attacked by them and his dead body was discovered by P.W.1 informant Motilal, Chaukidar of the village, a false F.I.R. falsely implicating the surviving appellant Matadin @ Chapole (A1) and the other accused, was got prepared and lodged by P.W.1 who admittedly was not an eye witness of the incident at the behest of P.W.2 Ram Narayan and P.W.3 Hari Om. No explanation is forthcoming from the side of the prosecution that if the incident had taken place in the presence of several villagers, why no independent witness of the occurrence was examined and only P.W.2 Ram Narayan and P.W.3 Hari Om, cousin brother and son of the deceased whose presence at the place of incident at the time of the occurrence is extremely doubtful, were produced as witnesses of fact. Such being the state of evidence, neither the recorded conviction of the appellants nor the sentences awarded to them can be sustained and is liable to be set-aside. 17. Such being the state of evidence, neither the recorded conviction of the appellants nor the sentences awarded to them can be sustained and is liable to be set-aside. 17. Per contra Sri J. K. Upadhyay, learned A.G.A. appearing for the State submitted that it is proved to the hilt from the evidence of P.W.2 Ram Narayan and P.W.3 Hari Om, cousin brother and son of the deceased, that the deceased Lakhan died as a result of injuries inflicted on him by accused-appellants with country-made pistols and 'pharsa'. The medical evidence on record fully corroborates the ocular version. The failure of the P.W.2 Ram Narayan and P.W.3 Hari Om to lodge the F.I.R. of the incident which was anyway lodged promptly within 21/2 hours of the occurrence by the P.W.1 informant Motilal, village chaukidar, leave no room for any deliberation or consultation, does not in any manner indicate that they had not witnessed the occurrence as they had given a correct and cogent description of the occurrence, assigning specific roles to all the three accused including the surviving appellant Matadin @ Chapole (A1). This appeal lacks merit and is liable to be dismissed. 18. We have heard learned counsel for the parties present and perused the entire lower court record very carefully. 19. The only question which arises for our consideration is that whether the prosecution has been able to prove its case against the accused-appellants beyond all reasonable doubts or not ? 20. Before proceeding to evaluate the evidence of the four witnesses of fact produced by the prosecution during the trial, we first propose to have a look at the evidence of the formal witnesses. 21. Dr. B.D. Mangal, Medical Officer who had conducted the postmortem on the dead body of Lakhan on 09.03.1985 in Primary Health Centre, Mauranipur was examined as P.W.5. He deposed that he had found various ante-mortem internal and external injuries of which we have already taken note hereinabove and opined that Lakhan had died within 24 hours of the postmortem examination on account of shock and haemorrhage as a result of firearm and other injuries sustained by him. He proved the postmortem report of the deceased as (Ext.Ka.2). From the evidence of P.W.5 Dr. B.D. Mangal, it is proved that Lakhan died a homicidal death. He proved the postmortem report of the deceased as (Ext.Ka.2). From the evidence of P.W.5 Dr. B.D. Mangal, it is proved that Lakhan died a homicidal death. However, he in his cross-examination on page 68 of the paper book deposed that if the ''pharsa' used was crescentric, the injury may be crescentric in shape. He further deposed that none of the injuries found were crescentric in shape. 22. P.W.6 Raj Bahadur Singh, deposed before the trial court that about two years and nine months before at about 9 a.m. while he was going from Modi crossing with one Alam towards the market in Gursarain, he had met one Daroga who was sitting in a jeep which was parked before the police station with 2-3 accused sitting on it. He had stopped them and asked them to listen to what the accused were saying. Accused Kripa Ram (A2) who was present in the Court had told that he had thrown the 'pharsa' in the river. The remaining two accused who were also present in the Court had stated before them that they had also thrown their country-made pistols in the river. Then the Daroga Ji asked him and Alam to sit in the jeep and took them to the place on the bank of the river where the accused had concealed their weapons. He further deposed that Kripa Ram (A2) walked into the river bed and came out with a 'pharsa'. The other two accused tried to search their country-made pistols in the river bed but the same could not be recovered. He proved his signature on the recovery memo of the 'pharsa' (Ext.Ka.3). 23. S.O. Subedar Singh, the Investigating Officer of the case, was examined as P.W.7. He in his statement made before the trial court narrated the various steps taken by him during the course of investigation. He proved the inquest report (Ext.Ka.4) of the deceased, recovery memo of empty and live cartridges (Ext.Ka.5), recovery memo of blood-stained and simple earth (Ext.Ka.6), site plan of the place of occurrence (Ext.Ka.7), recovery memo of 'pharsa' on the pointing out of surviving appellant Matadin @ Chapole (A1) and the site plan of the place of recovery of 'pharsa' (Ext.Ka.9) and the charge-sheet (Ext.Ka.10). He proved the plain and blood-stained earth produced during the trial as material (Ext.10 and 11), check F.I.R. which was in the handwriting and signature of Head Constable Jagdish Awasthi (Ext.Ka.11), original copy of the relevant G.D. Entry which was prepared vide rapat no. 14 time 4 p.m. dated 08.03.1985 was prepared by Head Constable Jagdish Awasthi as (Ext.Ka.12), P.W.7 S.O. Subedar Singh also proved the criminal history of the appellant Lakhan and deposed that he was currently involved in Case Crime No. 89/87 u/s 396 I.P.C., P.S.- Gursarain, Case Crime No. 79/78 u/s 395, 397 I.P.C., P.S.- Uldan, Case Crime No. 3/79 u/s 395, 397 I.P.C., P.S.- Uldan, Case Crime No. 95/80 u/s 399, 402 I.P.C., P.S.- Uldan and Case Crime No. 42/81 u/s 325, 323 I.P.C., P.S.- Uldan while he had been acquitted in the rest of the cases. He also deposed that he did not find any blood on the platform in the north of the house of Rati Ram where the deceased was allegedly sitting and singing Holi songs. 24. From the evidence of P.W.7 S.O. Subedar Singh, the Investigating Officer of the case, it is proved that no blood was found on the platform in the northern part of the house where as per the prosecution case, he had been shot by Mehngu and Kripa Ram (A2) from their country-made pistols. 25. Having scrutinized the evidence of formal witnesses, we now proceed to evaluate the evidence of three witnesses of fact produced by the prosecution during the trial. 26. P.W.1 informant Motilal who was the village chaukidar had deposed that at the time of the incident, he was in his house. On hearing the noise, he went to the place of incident which had taken place at about 1.30 p.m. When he had reached there, the persons who were singing Holi songs, had fled. P.W.3 Hari Om had told him about the incident. The written report of the incident was scribed by P.W.4 Manohar on his dictation. He proved the written report of the incident as (Ext.Ka.1). He further deposed that when he had reached the place of occurrence, he had found P.W.2 Ram Narayan and P.W.3 Hari Om present there. He admitted in his cross-examination that the deceased was a history sheeter. 27. He proved the written report of the incident as (Ext.Ka.1). He further deposed that when he had reached the place of occurrence, he had found P.W.2 Ram Narayan and P.W.3 Hari Om present there. He admitted in his cross-examination that the deceased was a history sheeter. 27. P.W.4 Manohar, scribe of the F.I.R., stated before the the trial court that he had scribed the written report of the incident (Ext.Ka.1) on the dictation of P.W.1 informant Motilal. He further has not deposed about the presence of P.W.2 Ram Narayan and P.W.3 Hari Om at the place of the incident when he was scribing the F.I.R. on the dictation of P.W.1 informant Motilal. 28. It is very strange that although P.W.2 Ram Narayan and P.W.3 Hari Om claim themselves to be the eye witnesses of the occurrence but no explanation is coming forth why the written report of the incident was written by P.W.4 Manohar on the dictation of P.W.1 informant Motilal. In the natural course, if the deceased had been killed in the presence of P.W.2 Ram Narayan and P.W.3 Hari Om, who were the cousin brother and son of the deceased, the written report of the incident would have been scribed either on the dictation of P.W.2 Ram Narayan and P.W.3 Hari Om who had seen the incident and not on the dictation of P.W.1 informant Motilal who deposed that whatever he had stated in the written report was narrated to him by P.W.2 Ram Narayan or P.W.3 Hari Om. The prosecution has failed to pin-point any reason for the written report of the incident having not been scribed on the dictation of either P.W.1 informant Motilal or P.W.3 Hari Om. The very fact that the written report of the incident was written by P.W.4 Manohar on the dictation of P.W.1 informant Motilal is in itself a very material circumstance which belies their claim of being the eye witness of the occurrence. 29. The very fact that the written report of the incident was written by P.W.4 Manohar on the dictation of P.W.1 informant Motilal is in itself a very material circumstance which belies their claim of being the eye witness of the occurrence. 29. Moreover, after going through the statements of P.W.2 Ram Narayan and P.W.3 Hari Om, we have found that there is a material contradiction in their statements with regard to which of the two accused, Mehngu or deceased Kripa Ram (A2) had fired at the deceased first, who had stated on oath that on the date of the incident at the relevant time, some of the residents of village-Atarsua had gathered in front of the house of the Rati Ram of the same village to celebrate Holi festival and was singing Holi (phag) songs while P.W.2 Ram Narayan, P.W.3 Hari Om, Nand Ram, Damodar etc. were enjoying the songs. Both the above so-called eye witnesses had also deposed that Matadin @ Chapole (A1) and Mehngu armed with country-made pistols and Kripa Ram (A2) armed with 'pharsa' suddenly arrived at the scene of the incident. P.W.2 Ram Narayan stated in his examination-in-chief as well as in paragraph 18 of his cross-examination that Mehngu had fired the first shot at the deceased which had hit him and thereafter, Matadin @ Chapole (A1) had shot Lakhan which had also hit him. After being shot by the country-made pistols, Lakhan tried to run away but Mehngu caught hold of him while deceased Kripa Ram (A2) inflicted injuries on his person by 'pharsa' on his head, neck and other parts of the body while P.W.3 Hari Om stated before the Court that when on 08.03.1985 at about 1.30-2.00 p.m., he was standing in front of the door of Rati Ram's house and listening to the Holi songs, Matadin @ Chapole (A1), deceased Kripa Ram (A2) and accused Mehngu had committed the murder of his father Lakhan. The incident had taken place in front of the house of Rati Ram on the platform in front of the door of the house of Rati Ram. Matadin @ Chapole (A1) had fired the first shot at the deceased with his country-made pistol which had hit the deceased on his head. The second shot fired by accused Mehngu had missed the target. Matadin @ Chapole (A1) had fired the first shot at the deceased with his country-made pistol which had hit the deceased on his head. The second shot fired by accused Mehngu had missed the target. Deceased Kripa Ram (A2) and Mehngu had then caught hold of the deceased Lakhan by his waist when he had got up after being shot after the second shot which was fired by Matadin @ Chapole (A1) had hit his father Lakhan on his head. Then Kripa Ram (A2) inflicted injuries on his father by 'pharsa'. His father died on the spot. 30. P.W.2 Ram Narayan however in paragraph 19 of his cross-examination resiled from his statement given by him in his examination-in-chief as well as in paragraph 18 of his cross-examination by deposing in paragraph 19 of his cross-examination that the first shot fired by Mehngu had failed to hit Lakhan and thereupon Mehngu fired a second shot which hit the deceased on his head. 31. Similarly, although the initial version of the incident as narrated by P.W.3 Hari Om in his examination-in-chief was the first shot fired by Mehngu had not hit Lakhan's head (paragraph 1 of his examination-in-chief). However, he tried to bring his testimony in consonance with the version of the incident given by P.W.2 Ram Narayan by stating in paragraph 18 of his cross-examination that Mehngu's shot had also hit Lakhan's head, the fact which was conspicuous by its absence in his statement recorded u/s 161 Cr.P.C. 32. The aforesaid discrepancies in the statements of P.W.2 Ram Narayan and P.W.3 Hari Om, in our opinion, are sufficient to discard the evidence of P.W.2 Ram Narayan and P.W.3 Hari Om. There is only one firearm wound of entry with two corresponding exit wounds of firearm on deceased's body. The question which arises for our consideration is that how the above noted discrepancies could have crept into the statements of P.W.2 Ram Narayan and P.W.3 Hari Om when admittedly the incident had taken place in broad daylight and both the witnesses claim themselves to be the eye witnesses of the occurrence. 33. The presence of P.W.2 Ram Narayan and P.W.3 Hari Om at the place of the incident at the time of the occurrence further stands belied from the fact that none of them were made inquest witnesses. 34. 33. The presence of P.W.2 Ram Narayan and P.W.3 Hari Om at the place of the incident at the time of the occurrence further stands belied from the fact that none of them were made inquest witnesses. 34. Thus, considering the fact that the written report of the incident was neither scribed on the dictation of P.W.2 Ram Narayan nor by P.W.3 Hari Om or given at the police station by them for which no explanation is forthcoming from the side of the prosecution and the irreconcilable discrepancy in the statements of P.W.2 Ram Narayan and P.W.3 Hari Om, the two so-called eye witnesses of the occurrence with regard to the manner of assault to which we have already referred and dealt with in detail hereinabove, we cannot believe their claim of being present at the scene of the occurrence. Apart from the aforesaid, both P.W.2 Ram Narayan and P.W.3 Hari Om are cousin brother and son of the deceased and as such, highly interested witnesses. There is no doubt that it now stands well-settled that evidence of eye witnesses who are closely related to the deceased can neither be discarded nor disbelieved on account of close relationship of such witnesses with the deceased but it is equally true that the evidence of a witness who is related to the deceased, is to be scrutinized with utmost caution and if the Court, after a careful appraisal of his evidence, finds that he has given a correct and cogent description of the incident, in that case, his evidence cannot be discarded merely on the ground of his being a relative of the deceased. In this regard, it would be useful to refer to the following authorities laid down by the Apex Court :- 35. Regarding evidentiary value of testimony of the interested or relatives witnesses, Hon'ble Supreme Court in Mano Dutt and another Vs. State of U.P., (2012) 77 AllCriC 209 , has observed in paragraph no. 19 referring to the case of Namdeo Vs. State of Maharashtra, (2007) 58 AllCriC 414 (52) = 2007 (54) AIC 162, that this Court drew a clear distinction between a chance witness and a natural witness. Both these witnesses have to be relied upon subject to their evidence being trustworthy and admissible in accordance with law. 36. In Chand Khan Vs. State of Maharashtra, (2007) 58 AllCriC 414 (52) = 2007 (54) AIC 162, that this Court drew a clear distinction between a chance witness and a natural witness. Both these witnesses have to be relied upon subject to their evidence being trustworthy and admissible in accordance with law. 36. In Chand Khan Vs. State of U.P.,1995 AllCriC 685(SC), it was observed that minor discrepancies in evidence of eye-witnesses who have given convincing and reliable evidence with regard to details and manner of assault will not affect their evidentiary value. Absence or insufficiency of motive is immaterial if the incident is proved by evidence of eye witnesses. 37. Hon'ble Supreme Court in Waman and others Vs. State of Maharashtra, (2011) CriLJ 4827 has observed in paragraph no. 9 which reads as follows: "In Balraje @ Trimbak Vs. State of Maharashtra, (2010) 70 AllCriC 12 (SC) = 2010 (90) AIC 32 , this Court held that mere fact that the witnesses were related to the deceased cannot be a ground to discard their evidence. It was further held that when the eye-witnesses are stated to be interested and inimically disposed towards the accused, it has to be noted that it would not be proper to conclude that they would shield the real culprit and rope in innocent persons. The truth or otherwise of the evidence has to be weighed pragmatically and the court would be required to analyse the evidence of related witnesses and those witnesses who are inimically disposed toward the accused. After saying so, this Court held that if after careful analysis and scrutiny of their evidence, the version given by the witnesses appears to be clear, cogent and credible, there is no reason to discard the same." 38. It has been further observed in Waman (supra) that relationship cannot be a factor to affect the credibility of a witness. The evidence of a witness cannot be discarded solely on the ground of his relationship with the victim of the offence. The plea relating to relatives' evidence remains without any substance in case the evidence has credence and it can be relied upon. In such a case the defence has to lay foundation if plea of false implication is made and the court has to analyse evidence of related witnesses carefully to find out whether it is cogent and credible. The plea relating to relatives' evidence remains without any substance in case the evidence has credence and it can be relied upon. In such a case the defence has to lay foundation if plea of false implication is made and the court has to analyse evidence of related witnesses carefully to find out whether it is cogent and credible. The same view has been reiterated in State of U.P. Vs. Naresh and others, 2011 (75) AllCriC 215 (SC) = 2011 (106) AIC 76 (SC). 39. In the present case, since after a threadbare scrutiny and a thorough evaluation of the evidence of P.W.2 Ram Narayan and P.W.3 Hari Om, we have found that there are contradictions and discrepancies in their statements with regard to the manner of assault which cannot be ignored as being trivial or attributed to errors in perception driving from the senses or lapse of memory and hence, we do not find it safe at all to maintain the recorded conviction of Matadin @ Chapole (A1) on the basis of their evidence. It has come on the record that apart from P.W.2 Ram Narayan and P.W.3 Hari Om, the incident was witnessed by a large number of independent witnesses but none of them including one Rati Ram, in front of whose house, the murder of Lakhan was committed, was examined during the trial. 40. The prosecution has miserably failed to adduce any evidence linking the 'pharsa' allegedly recovered on the pointing out of Kripa Ram (A2) from the river bed with the commission of the murder of the deceased. The 'pharsa' admittedly was not sent to the forensic lab for chemical examination. Similarly, blood allegedly recovered from the place where the deceased had fallen after being shot while he was sitting on the platform and the empty cartridges allegedly recovered from the place of incident were not sent for chemical examination. 41. The different dimensions of the incised wounds noted by P.W.5 Dr. B. D. Mangal on the deceased's body clearly suggest use of not one but several sharp-edged weapons in inflicting incised wounds on the deceased's body, thus totally nullifying the prosecution theory that the injuries sustained by the deceased were caused by the ''pharsa' allegedly recovered on the pointing out of Kripa Ram (A2). 42. There is another very strange aspect of the matter. 42. There is another very strange aspect of the matter. Along with appellants before us, one Mehngu was also charge-sheeted and tried for the charge u/s 302/34 I.P.C. The role assigned to him by P.W.2 Ram Narayan was that he had fired the first shot at the deceased which had hit him and thereafter he had caught hold of the deceased along with Matadin @ Chapole (A1) while Kripa Ram (A2) had inflicted injuries on him with 'pharsa'. According to P.W.3 Hari Om, the shot fired by him at the deceased had missed him. The trial court however strangely proceeded to acquit Mehngu and convicted Kripa Ram (A2) on the same set of evidence. The learned trial Judge has failed to assign any reason for disbelieving the evidence of two eye witnesses qua Matadin @ Chapole (A1) while relying upon the same for the purpose of convicting Kripa Ram (A2). 43. Thus, upon a wholesome consideration of the facts of the case, attending circumstances and the evidence on record, we do not find that the prosecution has been able to prove its case against the surviving appellant Matadin @ Chapole (A1) beyond all reasonable doubts and he is entitled to benefit of doubt. 44. The appeal succeeds and is accordingly allowed. 45. Matadin @ Chapole (A1) is on bail. He need not surrender. His bail bonds are cancelled and his sureties discharged. However, he shall comply with the provisions of Section 437-A of Cr.P.C. 46. There shall however, be no order as to costs.