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2019 DIGILAW 63 (ALL)

Rajveer v. State of U. P.

2019-01-08

UMESH CHANDRA TRIPATHI, VIPIN SINHA

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JUDGMENT : Umesh Chandra Tripathi, J. 1. Heard Sri N.I. Jafri and Sri Noor Mohammad, learned for the appellants and learned A.G.A. for the State. 2. This criminal appeal is directed against the judgment and order dated 4.8.2009 passed by learned Addl. Sessions Judge/Special Judge (SC/ST Act), Fast Track Court No. 1, Rampur in Sessions Trial No. 98 of 2004, State vs. Rajveer and Others arising out of Case Crime No. 30 of 2003, Sessions Trial No. 99 of 2004, State vs. Rajveer arising out of Case Crime No. 34 of 2003, Sessions Trial No. 100 of 2004, State vs. Nanhe arising out of Case Crime No. 35 of 2003 and Sessions Trial No. 399 of 2004, State vs. Chhotey arising out of Case Crime No. 67 of 2003, Police Station Sahjadnagar, District Rampur whereby appellants/accused Rajveer, Nanhe, Chhotey S/o Sarafat, Chhotey S/o Peera Sah and Anish were convicted and sentenced as follows:- (i) Rigorous imprisonment for two years and fine of Rs. 5,00/- each under Section 147 Indian Penal Code (in short "IPC") and in case of default in payment of fine, additional rigorous imprisonment for one month has to be undergone. (ii) Rigorous imprisonment for two years and to pay fine of Rs. 5,00/- each under Section 148 IPC and in case of default in payment of fine, additional rigorous imprisonment for one month has to be undergone. (iii) Imprisonment for life and to pay fine of Rs. 5,000/- each under Section 302/149 IPC and in case of default in payment of fine, additional rigorous imprisonment for six months has to be undergone. Appellant/accused Chhotey S/o Sarafat, Rajveer and Nanhe were further convicted for the offence punishable under Section 25 Arms Act and sentenced to rigorous imprisonment for three years and fine of Rs. 1,000/- each and in case of default in payment of fine, additional rigorous imprisonment for two months has to be undergone. By the impugned judgment, appellant Chhotey S/o Sarafat, Chhotey s/o Peera Sah and Anish were acquitted from the offence punishable under Section 3 (1) (10) The Scheduled Castes and Tribes (Prevention of Atrocities) Act (in short SC/ST Act). 3. 1,000/- each and in case of default in payment of fine, additional rigorous imprisonment for two months has to be undergone. By the impugned judgment, appellant Chhotey S/o Sarafat, Chhotey s/o Peera Sah and Anish were acquitted from the offence punishable under Section 3 (1) (10) The Scheduled Castes and Tribes (Prevention of Atrocities) Act (in short SC/ST Act). 3. The brief facts of the prosecution case are that on 8.2.2003 at about 10:00 PM in the night accused Rajveer and Nanhe came at the residence of Smt. Bindrawati wife of Shankar Lal R/o Afzalpurpatti, District Rampur and took Shankar Lal husband of informant Smt. Bindrawati Devi with them. On hearing sound of firing, informant Smt. Bindrawati and her father-in-law Bhajan Lal and Brajkishore ran towards Masjid situated in front of residence of Shakeel Ahmad and saw that accused Rajveer and Nanhe fired on Shankar Lal, due to which he fell on the ground and the accused fled away from the spot. Shankar Lal died on the spot. Accused Rajveer and Nanhe had come for 2-3 times on the same day to call Shankar Lal for gambling but Shankar Lal had denied to go with them. Informant Smt. Bindrawati also told her husband Shankar Lal not to go for gambling with accused persons. On the written information of Smt. Bindrawati Devi, first information report at Case Crime No. 30 of 2003 at Police Station Sahjad Nagar under Section 302 IPC against Rajveer and Nanhe was lodged on the same day at 11:10 PM in the night. 4. Sub Inspector Jogendra Singh started investigation of the case. He went on the spot, inspected the site and prepared site plan Ex.Ka-5, on the same day i.e. on 8.2.2003. He collected 4 empty cartridges of 12 bore and one empty cartridge of 315 bore from the spot near the dead body of deceased Shankar Lal and prepared recovery memo Ex.Ka-6 of the same. He further collected simple and blood stained earth from the spot and prepared recovery memo Ex.Ka-7 of the same. On his instruction, Sub Inspector Sant Lal conducted inquest of the dead body of the deceased Shankar Lal and prepared inquest report Ex.Ka-19 and related papers viz. letter to CMO, Ex.Ka-20, photo nash Ex.Ka-21, sample seal Ex.Ka-22 and challan lash Ex.Ka-23. On 9.2.2003 at 12:30 PM post mortem of dead body of deceased Shankar Lal was conducted by Dr. On his instruction, Sub Inspector Sant Lal conducted inquest of the dead body of the deceased Shankar Lal and prepared inquest report Ex.Ka-19 and related papers viz. letter to CMO, Ex.Ka-20, photo nash Ex.Ka-21, sample seal Ex.Ka-22 and challan lash Ex.Ka-23. On 9.2.2003 at 12:30 PM post mortem of dead body of deceased Shankar Lal was conducted by Dr. A.K. Vaish who noted the following ante-mortem injury on the cadaver of the deceased. "(i) A fire wound of entry 4 cm x 4 cm present over the medial end of the left eye and nose, cavity deep, connecting to the wound of exit over back of the head at right side, 4 cm back to the right ear. Brain tissue coming out of wound. (ii) A fire arm wound of entry present over the lateral angle of right side of mouth with multiple pellets scattered around the lateral angle and chin in 6 cm x 6 cm area, the angle of mouth lacerated. Mandible and patte were fractured and cavity deep. (iii) A firearm wound of exit over the right parietal area, 16 cm above the right ear, communicating to injury no. 2. (iv) Firearm wound of entry 4 cm x 4 cm, over back cavity deep, 10 cm below the right interior angle of scapula and 5 cm right to the spine (v) Multiple pellets entry wound over the right anterior aspect of chest and shoulder in a area of 16 cm x 7 cm. Blackening present. (vi) Multiple pellets wound over superior aspect of right shoulder and chest, in area of 8 cm x 6 cm. (vii) Abrasion 8 cm x 8 cm over right buttock." In external examination, the skull bone was found badly fractured in fragments. Membranes were badly lacerated. One bullet, one cork, one ticle and 32 pellets were recovered from the brain and cavity. 5. In the opinion of doctor, cause of death was coma as a result of ante-mortem injury, the duration of the death was from 12-24 hours. Dr. A.K. Vaish has prepared the post mortem report Ex.Ka-4, which is on record. 6. On 14.2.2003 at 11:00 AM accused Rajveer and Nanhe were arrested by Sub Inspector Yogendra Singh, Sub Inspector Sant Pal Singh and other police personnel. Dr. A.K. Vaish has prepared the post mortem report Ex.Ka-4, which is on record. 6. On 14.2.2003 at 11:00 AM accused Rajveer and Nanhe were arrested by Sub Inspector Yogendra Singh, Sub Inspector Sant Pal Singh and other police personnel. At 1:30 PM on the information of accused Rajveer Singh, country made pistol (tamancha 12 bore) was recovered by the police in presence of public witness Ram Avtar and Karan Singh with empty cartridge alleged to be used in the crime. At 2:30 PM on the information of accused Nanhe one country made pistol (tamancha 315 bore) with empty cartridge alleged to be used in the murder was recovered by the police before above named witnesses. Recovery memo Ex.Ka-9 was prepared on the spot. 7. On 18.2.2003 informant Bindrawati presented typed copy of the information to the Superintendent of Police, Rampur with allegation that on the day of occurrence, accused Chhotey s/o Peera Sah and Chhotey s/o Sarafat were also involved in the murder of her husband Shankar Lal. All the four accused Rajveer, Nanhe, Chhotey s/o Sarafat, Chhotey s/o Peera Sah have indiscriminately fired on her husband Shankar Lal due to which, he sustained injuries and died on the spot. She has submitted information to the Station Officer, Sahjahdnagar, Rampur with correct version but that information was turned down by the S.H.O. Sahjadnagar. On his direction, Head Moharir dictated the report to Ahmad Nabi exonerating accused Chhotey s/o Peera Sah and Chhotey s/o Sarafat. 8. On 15.3.2003 at about 4:15 AM accused Chhotey s/o Sarafat was arrested by the police and country made pistol (tamancha 12 bore) with one cartridge was recovered from his possession. Recovery memo Ex.Ka-12 was prepared on the spot. On 16.3.2003 at 9:30 AM on his information, one empty cartridge was recovered by the police in presence of public witness Ajay Singh and Bhajan Lal. Recovery memo Ex.Ka-15 were prepared on the spot. Investigating Officer recorded the statements of witnesses and after investigation submitted chargesheet against the appellants/accused. 9. Learned Trial Court has framed charge under Sections 147, 148, 302/149 IPC and Section 3 (1) (10) SC/ST Act against accused Rajveer, Nanhe, Chhotey s/o Sarafat, Chhotey s/o Peer Sah and Anish and under Section 25 Arms Act against accused Chhotey s/o Sarafat, Rajveer and Nanhe. Charges were read over and explained to them. They pleaded not guilty and claimed to be tried. 10. Charges were read over and explained to them. They pleaded not guilty and claimed to be tried. 10. The prosecution, in order to prove the guilt of the accused and substantiate charge against them, examined PW-1 Bindrawati, PW-2 Brajkishore, PW-3 Dr. A.K. Vaish, PW-4 Jogendra Singh Kajla, PW-5 Sub Inspector Sant Pal Singh, PW-6 Constable Indrapal Singh, PW-7 HCP Amar Pal Singh, PW-8 Ahmad Nabi, PW-9 HC Kailash Mishra and PW-10 Circle Officer Omvir Singh. 11. Except as above, no other testimony was adduced, therefore, evidence for the prosecution was closed and the statements of the accused were recorded under Section 313 of the Code, wherein they claimed to have been falsely implicated in the present case on account of enmity. They further stated that witnesses are deposing against them falsely. 12. In turn, no defence witness was examined. 13. The learned trial Judge after considering the case on its merit, passed the impugned judgment and order. 14. Learned counsel for the appellants contended that there is no eye witness of the alleged occurrence. Occurrence has taken place in the night. No one have seen the occurrence. Due to enmity, appellants have been falsely implicated in the case. False recovery of the weapons have been shown from the possession of the appellants. Smt. Bindrawati Devi and Brajkishore are related witnesses to the deceased. There are material contradiction in their statements. Learned Trial Court has passed the impugned judgment and order of conviction without properly appreciating the evidence on record, which is not sustainable and is liable to be set aside and as such, the appeal deserves to be allowed. 15. Learned A.G.A., contended that there is no illegality or perversity in the well reasoned and well discussed order passed by the learned Trial Court and as such the appeal is liable to be dismissed. 16. Appellant Anish was not named in the FIR. After 10 days of the occurrence, on 18.2.2003 Informant Smt. Bindrawati submitted a written report to Senior Superintendent of Police, Rampur, wherein appellant Anish was also not named even in this report. Copy of report was also sent to the Chief Minister of Uttar Pradesh, President Human Rights Commission, New Delhi, Inspector General of Police, Moradabad and Station Officer, P.S. Sahjadnagar, District Rampur. This report has been prepared with deliberations of the counsel. Copy of report was also sent to the Chief Minister of Uttar Pradesh, President Human Rights Commission, New Delhi, Inspector General of Police, Moradabad and Station Officer, P.S. Sahjadnagar, District Rampur. This report has been prepared with deliberations of the counsel. PW-1 Smt. Bindrawati stated before the Court that the FIR was lodged on dictation of police. This statement of Smt. Bindrawati is not reliable. It was not possible for police to note the name and particulars of the informant, accused Rajveer, Nanhe and all the particulars described in the first information report. Although, Smt. Bindrawati is illiterate lady, she put her thumb impression on the written information on the basis of which, first information report was lodged. But, from the narration in the information, it is evident that the first information report was lodged on information of Smt. Bindrawati and not on the dictation of police personnel. 17. The Investigating Officer Jogendra Singh Kajla interrogated public witness Brajkishore, Bhajan Lal, Teerath Singh and Ajay Singh on 17.3.2003 after one month ten days of the occurrence. These witnesses narrate the name of appellant Anish with other four accused in the commission of crime. PW-2 Brajkishore was examined before the Court. PW-2 Brajkishore was resident of same village Afzalpurpatti belonging to the informant Smt. Bindrawati. It is not version of prosecution that Brajkishore was not available for interrogation by the Investigating Officer after the date of occurrence i.e. from 8.2.2003 to 17.3.2003. 18. In Harbeer Singh vs. Sheeshpal and Others, (2016) 16 SCC 418, Hon'ble Apex Court held as under: "16. As regards the incident of murder of the deceased, the prosecution has produced six eyewitnesses to the same. The argument raised against the reliance upon the testimony of these witnesses pertains to the delay in the recording of their statements by the police under Section 161 CrPC. In the present case, the date of occurrence was 21-12-1993 but the statements of PW 1 and PW 5 were recorded after two days of incident i.e. on 23-12-1993. The evidence of PW 6 was recorded on 26-12-1993 while the evidence of PW 11 was recorded after 10 days of incident i.e. on 31-12-1993. Further, it is well-settled law that delay in recording the statement of the witnesses does not necessarily discredit their testimony. The evidence of PW 6 was recorded on 26-12-1993 while the evidence of PW 11 was recorded after 10 days of incident i.e. on 31-12-1993. Further, it is well-settled law that delay in recording the statement of the witnesses does not necessarily discredit their testimony. The court may rely on such testimony if they are cogent and credible and the delay is explained to the satisfaction of the court. Ganeshlal vs. State of Maharashtra, (1992) 3 SCC 106 : 1993 SCC (Cri) 435, Mohd. Khalid vs. State of W.B. (2002) 7 SCC 334 : 2002 SCC (Cri) 1734, Prithvi vs. Mam Raj, (2004) 13 SCC 279 : 2005 SCC (Cri) 198 and Manu Sharma vs. State (NCT of Delhi), (2010) 6 SCC 1 : (2010) 2 SCC (Cri) 1385. 17. However, Ganesh Bhavan Patel vs. State of Maharashtra, (1978) 4 SCC 371 : 1979 SCC (Cri) 1, is an authority for the proposition that delay in recording of statements of the prosecution witnesses under Section 161 CrPC, although those witnesses were or could be available for examination when the investigating officer visited the scene of occurrence or soon thereafter, would cast a doubt upon the prosecution case. Balakrushna Swain vs. State of Orissa, (1971) 3 SCC 192 : 1971 SCC (Cri) 313, Maruti Rama Naik vs. State of Maharashtra, (2003) 10 SCC 670 : 2004 SCC (Cri) 958 and Jagjit Singh vs. State of Punjab, (2005) 3 SCC 689 : 2005 SCC (Cri) 893. Thus, we see no reason to interfere with the observations of the High Court on the point of delay and its corresponding impact on the prosecution case." 19. Accordingly, such delay in recording the statement of PW-2 Brajkishore creates a serious doubt on his statement about involvement of accused/appellant Anish in the crime. From the recording of the statement of prosecution witnesses Brajkishore, Bhajan Lal, Teerath Singh and Ajay Singh under Section 161 Cr.P.C. with such delay, it appears that Investigating Officer Sub Inspector Jogendra Singh Kajla has interrogated them with such delay only to implicate the appellant Anish in this case. 20. PW-2 Brajkishore has admitted this fact that his residence is at distance of about 10 paces from the place of occurrence. He heard the sound of fire from his residence. After that he went on the spot. When he reached near his brother deceased Shankar Lal, accused fled away from the spot. 20. PW-2 Brajkishore has admitted this fact that his residence is at distance of about 10 paces from the place of occurrence. He heard the sound of fire from his residence. After that he went on the spot. When he reached near his brother deceased Shankar Lal, accused fled away from the spot. His brother deceased Shankar Lal was dead. 21. PW-1 Informant Bindrawati stated in her cross-examination as follows:- ^^eSaus vius ifr dks cpkus dk dksbZ Á;kl ugha fd;k Fkk D;ksafd tc rd ge ogka igaqps rc rd og [kRe gks pqds FksA** She further stated as follows:- ^^?kVuk LFky esjs ?kj ls 100 dne ds QSlys ij gSA eSa vius ?kj ij 6&7 Qk;j dh vkokt lquh FkhA ckn vkokt lqudj eSa ekSds ij HkkxhA** 22. PW-2 Brajkishore has stated as follows:- ^^esjs HkkbZ ij 6&7 Qk;j dh pksVs vk;h] Qk;j yxus ij esjk HkkbZ ekSds ij fxj x;k vkSj tc rd ge yksx ekSds ij HkkbZ ds ikl igqaps rc rd eqfYteku iwjc dh rjQ reaps ysdj Hkkx x,A 'kadj yky reUpksa dh pksVsa ls ogha ij ekSds ij ne rksM+ pqdk FkkA** 23. Both the witnesses have admitted this fact that after hearing sound of fire, they alongwith Bhajan Lal father of deceased and Mukesh went on the spot. At that time, accused have already fled away from the spot. From their statement, it appears that PW-1 Bindrawati and PW-2 Brajkishore have not seen the accused persons while they were firing on the deceased Shankar Lal or fleeing away from the spot. Appellants/accused Chhotey s/o Sarafat and Chhotey s/o Peera Sah are not named in the FIR. It is not the allegation of the prosecution that accused Chhotey s/o Sarafat and Chhotey s/o Peera Sah took the deceased from his residence. Due to suspicion or information received from some other person about the involvement of Chhotey s/o Sarafat and Chhotey s/o Peera Sah, the possibility of naming them in commission of crime in the second information dated 18.2.2003 submitted by the informant Bindrawati after due deliberations, cannot be ruled out. 24. PW-4 Sub Inspector Jogendra Singh Kajla and PW-7 Head Constable Amar Pal Singh have proved the recovery of one country made pistol of 12 bore and one cartridge from the possession of accused Chhotey s/o Sarafat. On his information, empty cartridge was also recovered. 24. PW-4 Sub Inspector Jogendra Singh Kajla and PW-7 Head Constable Amar Pal Singh have proved the recovery of one country made pistol of 12 bore and one cartridge from the possession of accused Chhotey s/o Sarafat. On his information, empty cartridge was also recovered. The public witness Ajay Singh and Bhajan Lal of the alleged recovery has not been examined. On the basis of this recovery, it cannot be inferred that accused Chhotey s/o Sarafat was in any way involved in the murder of Shankar Lal. It is not the version of the prosecution that any of the empty cartridge recovered from the spot on 8.2.2003 was fired by tamancha recovered from the possession of accused Chhotey s/o Sarafat. After alleged arrest and recovery of dated 15.3.2003 and 16.3.2003, Investigating Officer Jogendra Singh Kajla had recorded the statement of public witnesses Brajkishore, Bhajan Lal, Teerath Singh and Ajay Singh under Section 161 Cr.P.C. who narrated the involvement of Chhotey s/o Sarafat with other co-accused. The recording of the statements of these witnesses with such inordinate delay does not cast only doubt on the statement of Brajkishore but from recovery of country made pistol and cartridges from the possession of accused Chhotey s/o Sarafat, it appears, that has been shown falsely by police to strengthen the prosecution version against Chhotey s/o Sarafat. 25. Accordingly, conviction and sentences of appellants/accused Anish and Chhotey s/o Peera Sah under Sections 147, 148, 302/149 IPC and of accused/appellant Chhotey s/o Sarafat under Sections 147, 148, 302/149 IPC and under Section 25 Arms Act are liable to be set aside. 26. There is consistent version of first information report, second information dated 18.2.2003 submitted by Smt. Bindrawati to Superintendent of Police, Rampur and her statement under Section 161 Cr.P.C. that on 8.2.2003 at about 10:00 PM in the night accused Rajveer and Nanhe came at the residence of Bindrawati and took her husband Shankar Lal with them. Immediately thereafter, on hearing the sound of fire, she alongwith her father-in-law Bhajan Lal and Brajkishore reached on the spot, where Shankar Lal was fallen on the ground after sustaining fire arm injury. Although, PW-2 Brajkishore has admitted in his cross-examination that he had not seen the accused while they had taken away the deceased Shankar Lal from his residence. This fact is narrated to him by Smt. Bindrawati wife of deceased Shankar Lal. Although, PW-2 Brajkishore has admitted in his cross-examination that he had not seen the accused while they had taken away the deceased Shankar Lal from his residence. This fact is narrated to him by Smt. Bindrawati wife of deceased Shankar Lal. As such, Brajkishore is not the eye witness of this fact. But PW-1 Smt Bindrawati has specifically stated this fact that on the date of occurrence at 10:00 PM appellants/accused Rajveer and Nanhe came at her residence and took her husband with them on the pretext of gambling. PW-1 Smt. Bindrawati was cross-examined at length and in detail. But on this fact, Smt. Bindrawati has not been cross-examined by the learned counsel for the accused. There is no material contradiction in her statement about this fact so that her testimony on this fact may be discarded. 27. Ahmad Nabi scribe of the written information, on the basis of which FIR has been lodged, stated that he had written the information on the dictation of police constable. Smt. Bindrawati also stated that first information report was not lodged on her information but was lodged on the dictation of police. Later on, she submitted information to the Superintendent of Police with correct version on 18.2.2003. This version of witness Ahmad Nabi and Brindawati is not true as discussed above. But on the basis of this false statement of Bindrawati, her whole testimony cannot be discarded. 28. In Gangadhar Behera and Others vs. State of Orissa, (2002) 8 SCC 381 , Hon'ble Apex Court held that: "Even if major portion of evidence is found to be deficient, in case residue is sufficient to prove guilt of an accused, notwithstanding acquittal of number of other co-accused persons, his conviction can be maintained. It is the duty of Court to separate grain from chaff. Where chaff can be separated from grain, it would be open to the Court to convict an accused notwithstanding the fact that evidence has been found to be deficient to prove guilt of other accused persons. Falsity of particular material witness or material particular would not ruin it from the beginning to end. The maxim "falsus in uno falsus in omnibus" has no application in India and the witnesses cannot be branded as liar. The maxim "falsus in uno falsus in omnibus" has not received general acceptance nor has this maxim come to occupy the status of rule of law. The maxim "falsus in uno falsus in omnibus" has no application in India and the witnesses cannot be branded as liar. The maxim "falsus in uno falsus in omnibus" has not received general acceptance nor has this maxim come to occupy the status of rule of law. It is merely a rule of caution. All that it amounts to, is that in such cases testimony may be disregarded, and not that it must be disregarded. The doctrine merely involves the question of weight of evidence which a Court may apply in a given set of circumstances, but it is not what may be called a mandatory rule of evidence. Nisar Alli vs. State of Uttar Pradesh, (1957) AIR SC 366. Merely because some of the accused persons have been acquitted, though evidence against all of them, so far as direct testimony went, was the same does not lead as a necessary corollary that those who have been convicted must also be acquitted. It is always open to a Court to differentiate accused who had been acquitted from those who were convicted. Gurucharan Singh and Another vs. State of Punjab, (1956) AIR SC 460. The doctrine is a dangerous one specially in India for if a whole body of the testimony were to be rejected, because witness was evidently speaking an untruth in some aspect, it is to be feared that administration of criminal justice would come to a dead-stop. Witnesses just cannot help in giving embroidery to a story, however, true in the main. Therefore, it has to be appraised in each case as to what extent the evidence is worthy of acceptance, and merely because in some respects the Court considers the same to be insufficient for placing reliance on the testimony of a witness, it does not necessarily follow as a matter of law that it must be disregarded in all respects as well. The evidence has to be shifted with care. The aforesaid dictum is not a sound rule for the reason that one hardly comes across a witness whose evidence does not contain a grain of untruth or at any rate exaggeration, embroideries or embellishment. Sohrab S/o Beli Nayata and Another vs. State of Madhya Pradesh, (1972) 3 SCC 751 and Ugar Ahir and Others vs. State of Bihar, (1965) AIR SC 277. Sohrab S/o Beli Nayata and Another vs. State of Madhya Pradesh, (1972) 3 SCC 751 and Ugar Ahir and Others vs. State of Bihar, (1965) AIR SC 277. An attempt has to be made to, as noted above, in terms of felicitous metaphor, separate grain from the chaff, truth from falsehood. Where it is not feasible to separate truth from falsehood, because grain and chaff are inextricably mixed up, and in the process of separation an absolutely new case has to be reconstructed by divorcing essential details presented by the prosecution completely from the context and the background against which they are made, the only available course to be made is to discard the evidence in toto. Zwinglee Ariel vs. State of Madhya Pradesh, (1954) AIR SC 15 and Balaka Singh and Others vs. State of Punjab, (1975) AIR SC 1962. As observed by this Court in State of Rajasthan vs. Smt. Kalki and Another, (1981) AIR SC 1390, normal discrepancies in evidence are those which 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 occurrence and those are always there however honest and truthful a witness may be. Material discrepancies are those which are not normal, and not expected of a normal person. Courts have to label the category to which a discrepancy may be categorized. While normal discrepancies do not corrode the credibility of a party's case, material discrepancies do so." 29. On information of accused Rajveer, tamancha of 12 bore was recovered on 14.2.2003 at 1:30 PM and on the information of accused Nanhe, a tamancha of 315 bore was recovered on the same day at 2:30 PM by Sub Inspector Jogendra Singh Kajla and Sub Inspector Sant Pal Singh. Sub Inspector Jogendra Singh Kajla and Sub Inspector Sant Pal Singh have proved these recoveries. There is no contradiction in their statement which creates any doubt about recovery of these weapons. These recoveries are corroborated by the fact that Tamancha of 12 bore and 315 bore recovered from the possession of accused Rajveer and Nanhe respectively were used in the crime and cartridges recovered from the spot on 8.2.2003 were fired by these tamancha. 30. There is no contradiction in their statement which creates any doubt about recovery of these weapons. These recoveries are corroborated by the fact that Tamancha of 12 bore and 315 bore recovered from the possession of accused Rajveer and Nanhe respectively were used in the crime and cartridges recovered from the spot on 8.2.2003 were fired by these tamancha. 30. Four cartridges of 12 bore and one empty cartridge of 315 bore collected on the spot 8.2.2003 by the Investigating Officer and both tamancha recovered from the possession of accused Rajveer and Nanhe were sent to Forensic Science Laboratory, Agra. As per report of Forensic Science Laboratory, Agra, two empty cartridges of 12 bore recovered from the spot were fired by tamancha of 12 bore recovered from the possession of accused Rajveer and one cartridge of 315 bore recovered from the spot was fired by tamancha of 315 bore, recovered from the possession of accused Nanhe. Accordingly, the report of Forensic Science Laboratory, Agra dated 11.3.2003 also corroborates the version of Smt. Bindrawati that accused Rajveer and Nanhe took her husband and caused his death by firing on him. 31. In information dated 18.2.2003 submitted by Smt. Bindrawati to Superintendent of Police, Rampur, it is narrated that after hearing sound of fire, informant Smt. Bindrawati, her brother-in-law Brajkishore, father-in-law Bhajan Lal and her nephew Mukesh and villagers Naresh and Ram Avtar went on the spot and saw the occurrence. In this case, only related witnesses Bindrawati and Brajkishore has been examined. Independent witnesses Naresh and Ram Avatar have not been examined. 32. Learned counsel for the appellants contended that no independent witness has supported the prosecution version. Only on the basis of statement of relative witnesses, the accused-appellants cannot be convicted. In Gangadhar Behera's case (supra), Hon'ble Apex Court held as follows : ".....Relationship is not a factor to affect credibility of a witness. It is more often than not that a relation would not conceal actual culprit and make allegations against an innocent person. Foundation has to be laid if plea of false implication is made. In such cases, the court has to adopt a careful approach and analyse evidence to find out whether it is cogent and credible. It is more often than not that a relation would not conceal actual culprit and make allegations against an innocent person. Foundation has to be laid if plea of false implication is made. In such cases, the court has to adopt a careful approach and analyse evidence to find out whether it is cogent and credible. In Dalip Singh and Others vs. State of Punjab, (1953) AIR SC 364 it has been laid down as under:- "A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity against the accused, to wish to implicate him falsely. Ordinarily a close relation would be the last to screen the real culprit and falsely implicate an innocent person. It is true, when feelings run high and there is personal cause for enmity, that there is a tendency to drag in an innocent person against whom a witness has a grudge along with the guilty, but foundation must be laid for such a criticism and the mere fact of relationship far from being a foundation is often a sure guarantee of truth. However, we are not attempting any sweeping generalization. Each case must be judged on its own facts. Our observations are only made to combat what is so often put forward in cases before us as a general rule of prudence. There is no such general rule. Each case must be limited to and be governed by its own facts." The above decision has since been followed in Guli Chand and Others vs. State of Rajasthan, (1974) 3 SCC 698 in which Vadivelu Thevar vs. State of Madras, (1957) AIR SC 614 was also relied upon. We may also observe that the ground that the witness being a close relative and consequently being a partisan witness, should not be relied upon, has no substance. This theory was repelled by this Court as early as in Dalip Singh's case (supra) in which surprise was expressed over the impression which prevailed in the minds of the Members of the Bar that relatives were not independent witnesses. Speaking through Vivian Bose, J. it was observed: "We are unable to agree with the learned Judges of the High Court that the testimony of the two eyewitnesses requires corroboration. Speaking through Vivian Bose, J. it was observed: "We are unable to agree with the learned Judges of the High Court that the testimony of the two eyewitnesses requires corroboration. If the foundation for such an observation is based on the fact that the witnesses are women and that the fate of seven men hangs on their testimony, we know of no such rule. If it is grounded on the reason that they are closely related to the deceased we are unable to concur. This is a fallacy common to many criminal cases and one which another Bench of this Court endeavoured to dispel in Rameshwar vs. State of Rajasthan, (1952) AIR SC 54. We find, however, that it unfortunately still persists, if not in the judgments of the Courts, at any rate in the arguments of counsel." Again in Masalti and Others vs. State of U.P. (1965) AIR SC 202 this Court observed: (p, 209-210 para 14): "But it would, we think, be unreasonable to contend that evidence given by witnesses should be discarded only on the ground that it is evidence of partisan or interested witnesses.......The mechanical rejection of such evidence on the sole ground that it is partisan would invariably lead to failure of justice. No hard and fast rule can be laid down as to how much evidence should be appreciated. Judicial approach has to be cautious in dealing with such evidence; but the plea that such evidence should be rejected because it is partisan cannot be accepted as correct." 33. In Sardul Singh vs. State of Haryana, (2002) 8 SCC 372 , Hon'ble Apex Court held as under: "There cannot be a prosecution case with a cast-iron perfection in all respects and it is obligatory for the courts to analyse, sift and assess the evidence on record, with particular reference to its trustworthiness and truthfulness, by a process of dispassionate judicial scrutiny adopting an objective and reasonable appreciation of the same, without being obsessed by an air of total suspicion of the case of the prosecution. What is to be insisted upon is not implicit proof. What is to be insisted upon is not implicit proof. It has often been said that evidence of interested witnesses should be scrutinized more carefully to find out whether it has a ring of truth and if found acceptable and seems to inspire confidence, too, in the mind of the court, the same cannot be discarded totally merely on account of certain variations or infirmities pointed or even additions and embellishments noticed, unless they are of such nature as to undermine the substratum of the evidence and found to be tainted to the core. Courts have a duty to undertake a complete and comprehensive appreciation of all vital features of the case and the entire evidence with reference to the broad and reasonable probabilities of the case also in their attempt to find out proof beyond reasonable doubt. This Court in Ugar Ahir vs. State of Bihar, (1965) AIR SC 277 : (1965) 1 Cri. LJ 256 has observed, as to what should be the approach of a court in such circumstances, as follows: "6. The maxim falsus in uno, falsus in omnibus (false in one thing, false in everything) is neither a sound rule of law nor a rule of practice. Hardly one comes across a witness whose evidence does not contain a grain of untruth or at any rate exaggerations, embroideries or embellishments. It is, therefore, the duty of the court to scrutinize the evidence carefully and, in terms of the felicitous metaphor, separate the grain from the chaff. But, it cannot obviously disbelieve the substratum of the prosecution case or the material parts of the evidence and reconstruct a story of its own out of the rest." 34. Our social system is changing at a rapid pace. In the present social scenario, people refrain from going to police stations and courts due to fear of insult and harassment. Generally, people avoid to become a witness of an incident for the simple reason that deposing against the a culprit involved in a crime would endanger their life. In the present social setup, it is least possible that a third person deposes against the culprit. Hon'ble Apex Court in Sadhu Saran Singh vs. State of Uttar Pradesh and Others, (2016) 4 SCC 357 held as follows: "29......In these days, civilised people are generally insensitive to come forward to give any statement in respect of any criminal offence. In the present social setup, it is least possible that a third person deposes against the culprit. Hon'ble Apex Court in Sadhu Saran Singh vs. State of Uttar Pradesh and Others, (2016) 4 SCC 357 held as follows: "29......In these days, civilised people are generally insensitive to come forward to give any statement in respect of any criminal offence. Unless it is inevitable, people normally keep away from the court as they find it distressing and stressful. Though this kind of human behaviour is indeed unfortunate, but it is a normal phenomena. We cannot ignore this handicap of the investigating agency in discharging their duty. We cannot derail the entire case on the mere ground of absence of independent witness as long as the evidence of the eyewitness, though interested, is trustworthy." 35. Accordingly, testimony of Smt. Bindrawati and Brajkishore cannot be discarded merely on the ground that they are related to the deceased. There is no reason for Smt. Bindrawati and Brijkishore to falsely implicate the accused Rajveer and Nanhe concealing real culprit. 36. In the first information report, it is mentioned that accused Rajveer and Nanhe took away the deceased Shankar Lal on the pretext of gambling. PW-1 Bindrawati stated that her husband Shankar Lal had won Rs. 10,000/- in gambling. Accused Rajveer and Nanhe have lost in the gambling. They were demanding the money won by her husband Shankar Lal and took him for further gambling. Smt. Bindrawati Devi was also not cross-examined on this point. Accordingly, there was strong motive for accused Rajveer and Nanhe to took away the deceased Shankar Lal from his residence. PW-1 Bindrawati also stated that on the day of occurrence her husband Shankar Lal took his meal at about 7:00 AM. As per post mortem report, 400 ml semi digested food was found in the stomach of deceased. Accordingly, the version of Smt. Bindrawati is corroborated by medical evidence. 37. Both the witnesses of fact admitted that deceased Shankar Lal has criminal antecedents. Learned counsel for the appellants contended that due to criminal antecedents of Shankar Lal, some unknown person has caused his murder in the night and appellants have been falsely implicated in this case due to enmity. We do not agree with the submission made by learned counsel for the appellants. In this case, first information report was lodged just after one hour and ten minutes of the occurrence. We do not agree with the submission made by learned counsel for the appellants. In this case, first information report was lodged just after one hour and ten minutes of the occurrence. Smt. Bindrawati has proved beyond doubt that on 8.2.2003 at about 10:00 PM accused Rajveer and Nanhe took her husband Shankar Lal and immediately, thereafter, at 100 paces from her residence, they committed murder of Shankar Lal by firing upon him. Committal of murder of Shankar Lal by accused Rajveer and Nanhe is corroborated by recovery of weapon used in murder from their possession. 38. The involvement of accused Chhotey s/o Sarafat, Chhotey s/o Peera Sah and Anish in the commission of crime is not proved. Accordingly, conviction of accused Rajveer and Nanhe under Sections 147, 148 IPC is liable to be set aside and their conviction under Section 302/149 IPC is liable to be modified under Section 302/34 IPC. 39. In view of above, appeal in reference to appellants Chhotey s/o Sarafat, Chhotey s/o Peera Sah and Anish is allowed. Conviction and sentences of appellants/accused Anish and Chhotey s/o Peera Sah under Sections 147, 148, 302/149 IPC and conviction and sentences of appellant/accused Chhotey s/o Sarafat under Sections 147, 148, 302/149 IPC and Section 25 Arms Act are set aside. They are acquitted. Their bail bonds stands cancelled. 40. Conviction and sentence of appellants Rajveer and Nanhe under Sections 147 and 148 IPC are set aside. Conviction of appellants Rajveer and Nanhe under Section 302/149 IPC is modified under Section 302/34 IPC, and each of them is sentenced to life imprisonment and to pay fine of Rs. 5,000/- and in case of default in payment of fine, rigorous imprisonment for six months further has to be undergone. Conviction and sentence of appellants Rajveer and Nanhe under Section 25 Arms Act are upheld. Their sentences shall run concurrently. Appellants Rajveer and Nanhe are in custody. They shall remain in custody to serve out remaining part of their respective sentences awarded to them. Accordingly, appeal in respect of appellants Rajveer and Nanhe is partly allowed. 41. Certify a copy of this order to the Trial Court for the purposes of intimation and necessary compliance. The lower court's record is directed to be remitted back to the court concerned.