ORDER : Shree Chandrashekhar, J. The sole appellant has suffered the judgment of conviction under section 302 of the Indian Penal Code and the order of sentence of R.I for life with fine of Rs. 10,000/-, both dated 30.06.2011, for committing murder of Nishant Singh @ Kundan Singh. 2. The informant of this case is brother of the deceased. His fardbeyan was recorded at 1:00 a.m. in the intervening night of 28/29.01.2010 at Angarpathra Police Out-Post. In his fardbeyan he has stated that he was informed about the occurrence by Harendra Kumar Yadav, a friend of his brother. He has stated that Harendra Kumar Yadav has informed him that the appellant has fired at Nishant Singh @ Kundan Singh from his pistol due to which he has died. He has further stated that Harendra Kumar Yadav told him that he had accompanied his brother to the house of the appellant and at that time Ajay Kumar Yadav and Saurabh Kumar Batra were also with him. On such facts, the informant on his own account is not an eye-witness. The prosecution has projected Saurabh Kumar Batra-P.W.1, Harendra Kumar Yadav-P.W.2 and Ajay Kumar Yadav-P.W.3 as the eye-witnesses. The mother and father of the deceased were examined as P.W.5 and P.W.8 respectively. Nishant Singh @ Kundan Singh has suffered homicidal death by fire arm injuries is proved by the medical evidence. During the investigation P.W.1, P.W.2 and P.W.3 gave their statement under section 164 of the Code of Criminal Procedure which were recorded by P.W.9 and P.W.10, the Judicial Magistrates. The investigating officer who has been examined as P.W.11 has stated about recording of fardbeyan, inquest report, post-mortem report, seizure of blood-stained soil, pistol and one empty cartridge from the place of occurrence. 3. Mr. The investigating officer who has been examined as P.W.11 has stated about recording of fardbeyan, inquest report, post-mortem report, seizure of blood-stained soil, pistol and one empty cartridge from the place of occurrence. 3. Mr. A. K. Kashyap, the learned Senior counsel for the appellant has contended that : (i) P.W.1, P.W.2 and P.W.3 are the planted witnesses, (ii) place of occurrence is not proved by the prosecution, (iii) the alleged recovery of pistol and one empty cartridge from the place of occurrence is falsified on acquittal of the appellant in Katras P.S. Case No. 29 of 2010, (iv) though the incident has taken place in the night and in the neighbourhood several persons are residing but no independent witness has been examined by the prosecution, (v) the Chowkidaar who has given information about the incident to the police has turned hostile, (vi) no evidence was led by the prosecution on business of coal by the appellant and the deceased and (vii) the deceased and the prosecution witnesses have criminal antecedents, and therefore their testimony should be viewed with suspicion. 4. In the above facts, Mr. A. K. Kashyap, the learned Senior counsel for the appellant has contended that the prosecution has failed to connect the appellant with murder of Nishant Singh @ Kundan Singh. The learned Senior counsel for the appellant has relied on the judgment in “Gurpal Singh Vs. State of Punjab” reported in (2017) 2 SCC 365 , to submit alternatively that at best the appellant can be convicted for culpable homicide not amounting to murder. 5. P.W.1, P.W.2 and P.W.3 who according to the prosecution are the eye-witnesses have deposed in the court that they had accompanied Nishant Singh @ Kundan Singh to the house of the appellant in the midnight. They have stated that they have seen the appellant firing a pistol shot from close range at Nishant Singh @ Kundan Singh. P.W.1 has stated that on 28.01.2010 at about 9:30 p.m he was gossiping with Nishant Singh @ Kundan Singh and Harendra Kumar Yadav at Naya More chowk. In the meantime after talking to the appellant Nishant Singh @ Kundan Singh told him that the appellant is calling him. On his request he had first gone with him to the house of Ajay Kumar Yadav and thereafter they all had gone to the house of the appellant. In the meantime after talking to the appellant Nishant Singh @ Kundan Singh told him that the appellant is calling him. On his request he had first gone with him to the house of Ajay Kumar Yadav and thereafter they all had gone to the house of the appellant. He has stated that while he waited with his friends in his vehicle (Xylo) outside the house of the appellant Nishant Singh @ Kundan Singh had gone to meet him. He has seen altercation between them and immediately thereafter the appellant brought a pistol and fired at Nishant Singh @ Kundan Singh. P.W.2 and P.W. 3 have also narrated the incident in a similar manner. They have stated that they had accompanied Nishant Singh @ Kundan Singh to the house of the appellant and while they were waiting outside in Xylo vehicle they have seen altercation between the appellant and Nishant Singh @ Kundan Singh. They have asserted that they have seen the appellant firing at Nishant Singh @ Kundan Singh from a close range. P.W.1 has proved the fardbeyan and P.W.2 has identified his signature on the fardbeyan. P.W.1 and P.W. 2 have affirmed that the inquest report was prepared in their presence. They have proved their signature over the inquest report. They are the seizure witnesses also. The eye-witnesses have stated that the investigating officer has seized blood-stained soil, a pistol and one empty cartridge from the place of occurrence. According to them the place of occurrence is in front of the house in which the appellant was residing and they were waiting in Xylo vehicle at a distance of about 15 to 20 feet from the house of the appellant. During their cross-examination P.W.1, P.W.2 and P.W.3 have remained unshaken on complicity of the appellant in the crime. From the trend of cross-examination it appears that the defence has challenged preparation of the inquest report and the seizure memo at the place of the occurrence, but the witnesses have remained firm during their cross-examination and asserted that these documents were prepared in their presence. 6. Mr. From the trend of cross-examination it appears that the defence has challenged preparation of the inquest report and the seizure memo at the place of the occurrence, but the witnesses have remained firm during their cross-examination and asserted that these documents were prepared in their presence. 6. Mr. A. K. Kashyap, the learned Senior counsel for the appellant has contended that the conduct of P.W.1, P.W.2 and P.W.3 in not informing the police immediately though the police station is at a distance of about 4 Kilometers from the place of occurrence and not even informing father of the deceased would make their conduct unnatural and, therefore, a doubt is created on their testimony. By now it is well-settled that different persons or even the same person may react differently in different circumstances [refer, “Lahu Kamlakar Patil Vs. State of Maharashtra” reported in (2013) 6 SCC 417 ]. When their friend was shot dead in front of them if the witnesses thought of informing the family members first there is nothing unusual in their conduct. The house of Nishant Singh @ Kundan Singh was not far of and the police was also sent information through Chowkidaar. The Chowkidaar has been examined as P.W.6 who has turned hostile but a glance at his testimony would reveal that he has stated that with Bara Babu (officer-in-chage) he has come to the house of the appellant at National Angarpathra where he has seen the dead body of Nishant Singh @ Kundan Singh. He has also stated that he has found pistol and one empty cartridge lying there. He has further stated that the appellant was arrested at the place of occurrence and the dead body was sent for post-mortem. From such evidence, we find that P.W.6 has also supported the prosecution in large parts. P.W. 5, who is mother of the deceased, has stated that P.W.2 came to her house and informed that the appellant has shot dead her son. Thereafter she has gone to Angarpathra with her son and others. She has further stated that she was informed about phone call by the appellant to her son, demand of papers (D.O letters), quarrel between them and the appellant firing at her son. She has seen the dead body of her son drenched in blood near the house of the appellant. She has further stated that she was informed about phone call by the appellant to her son, demand of papers (D.O letters), quarrel between them and the appellant firing at her son. She has seen the dead body of her son drenched in blood near the house of the appellant. The informant has also stated that P.W.2 came to his house and informed him about the incident. He has also gone to Angarpathra and found the dead body of his brother at the gate of the appellant. The father of the deceased has, however, stated that in the morning when he found his daughter-in-law weeping he could know about death of his son. But this does not create a doubt on the prosecution story and at least on the ground that why he was not informed in the night itself about death of his son testimony of the other witnesses cannot be discarded. He has stated about coal business of his son and the appellant and money dispute between them. 7. Minor inconsistency in the testimony of P.W.1, P.W.2 and P.W.3 in the time of information to the police and the distance from where they have seen the occurrence would not amount to major contradiction. The statements of P.W.1, P.W.2 and P.W.3 were recorded under section 164 of the Code of Criminal Procedure and this has been proved through P.W.9 and P.W.10. They have reiterated in the court their statements made before the police and also as recorded under section 164 of the Code of Criminal Procedure. Through these witnesses the prosecution brings out positive evidence against the appellant. While testing veracity of their evidence it has to be kept in mind that the incident has happened in the midnight and their close friend has been shot dead. Therefore, it is not expected of a witness to give a graphic description of the occurrence which has happened in the fateful night. It is now well-settled that in every case there may be some inconsistency in the evidence of the prosecution witnesses on account of forgetfulness, lapse of time, stress of cross-examination etc. but if the minor inconsistency in testimony of a prosecution witness does not go to root of the matter it would not affect the prosecution's case [refer, “State of U.P Vs. Naresh” reported in (2011) 4 SCC 324 ]. 8. but if the minor inconsistency in testimony of a prosecution witness does not go to root of the matter it would not affect the prosecution's case [refer, “State of U.P Vs. Naresh” reported in (2011) 4 SCC 324 ]. 8. Through P.W.1, P.W.2 and P.W.3 who are sufficiently corroborated by P.W.5, P.W.6 and P.W.7, the prosecution has established presence of the appellant at the place of occurrence and at the time of occurrence. He has fired at Nishant Singh @ Kundan Singh is also proved from the evidence of these witnesses. P.W.1, P.W.2 and P.W.3 are consistent in their evidence that the appellant has fired a shot at Nishant Singh @ Kundan Singh on his face from a very close range due to which he has died on the spot. 9. Dr. Shailendra Kumar who has been examined as P.W.4 has conducted the post-mortem examination on 29.01.2010 at 10:00 a.m. on the body of Nishant Singh @ Kundan Singh. He has found one single fire arm wound on the face of the deceased, 1/4” in diameter, cavity deep. In the opinion of the doctor the injury was ante-mortem in nature and the death was instant due to bullet injury fired from close range, that is, less than 6 inches. In his opinion the time elapsed since death was 12 ± 3 hours. 10. The fardbeyan was recorded at 1:00 a.m. and a First Information Report was lodged at 4:30 a.m. on 29.01.2010. The appellant is named as the assailant in these documents. The post-mortem examination was conducted at 10:00 a.m. on the same day and it bears details of the First Information Report. These contemporaneous documents which were prepared within 12 hours of the occurrence rule out false implication of the appellant after deliberation. The inconsistency in the seizure of pistol which is the crime weapon in Katras P.S. Case No. 28 of 2010 and Katras P.S. Case No. 29 of 2010 which was registered separately under Arms Act is not fatal for the prosecution. In “C. Muniappan Vs. State of T.N” reported in (2010) 3 SCC (Cri.) 1402, the Hon'ble Supreme Court has observed that there may be highly defective investigation in a case but what has to be seen as to whether on such lapses any benefit can be extended to the accused. In “C. Muniappan Vs. State of T.N” reported in (2010) 3 SCC (Cri.) 1402, the Hon'ble Supreme Court has observed that there may be highly defective investigation in a case but what has to be seen as to whether on such lapses any benefit can be extended to the accused. The investigating officer has deposed in the court that he was preparing documents and conducting investigation simultaneously and, therefore, in our opinion this may be a reason for some discrepancy in the time of seizure mentioned in both the First Information Reports. The investigating officer has offered a plausible explanation why there is no independent witness to the inquest and seizure memo. He has stated that no body came outside and in fact the neighbours were reluctant. We further find that the eye-witnesses have consistently spoken about firing at Nishant Singh @ Kundan Singh by the appellant from his pistol and therefore absence of a report which would have connected the empty cartridge with the pistol on firing at the deceased is not of much significance. 11. The place of occurrence has been challenged by the appellant on the ground that Quarter No.T-176 in front of which dead body of Nishant Singh @ Kundan Singh has been found was not allotted to the appellant and he was not an employee of B.C.C.L. The learned Senior counsel for the appellant has submitted that no document was produced by the prosecution during the trial to suggest that the appellant at the time of occurrence was residing in Quarter No. T-176 and, therefore, presence of the appellant at the place of occurrence is not established. The appellant has examined Prabhu Nath Mishra as D.W.1 who has deposed in the court that House No.3 was allotted to K.K. Singh in the year 1986. However, in his cross-examination he had stated that the register in which name of K.K. Singh is recorded has been lost and original of the allotment letter a photo copy of which was produced by him is not available in the office. He has also admitted in his cross-examination that presently an anti-encroachment drive has been started by B.C.C.L. This witness has also avoided to disclose name of the persons who are in illegal occupation of the company's quarters. He has also admitted in his cross-examination that presently an anti-encroachment drive has been started by B.C.C.L. This witness has also avoided to disclose name of the persons who are in illegal occupation of the company's quarters. The investigating officer has given details of the place of occurrence and the eye-witnesses have consistently deposed that the occurrence has happened in front of the house in which the appellant was residing at the time of occurrence. In our opinion, on such facts the prosecution has established that the occurrence has taken place in front of Quarter No. T-176 in which the appellant was residing at the time of occurrence. 12. The mistakes during the investigation such as; (i) failure of the investigating officer to send the material objects for F.S.L examination, (ii) non-production of the fire arm, empty cartridge and fired bullet in the court, (iii) D.O letter not found in possession of the deceased or recovered in course of the investigation, and (iv) failure to seize the mobile phones of the accused and the deceased, would not create any doubt on complicity of the appellant in murder of Nishant Singh @ Kundan Singh. Besides cogent and consistent testimony of P.W.1, P.W.2 and P.W.3 which is sufficiently corroborated by other evidences, the Call Detail Records further strengthens the prosecution's case that there was a talk between the appellant and Nishant Singh @ Kundan Singh in the night of 28.01.2010 and thereafter Nishant Singh @ Kundan Singh had gone to meet the appellant at his house where he was shot dead by the appellant. 13. On the ground that a witness has criminal antecedent or bad character, his evidence cannot be seen with suspicion lest rejected. 14. Section 153 of the Evidence Act reads as under: 153. Exclusion of evidence to contradict answers to questions testing veracity.-When a witness has been asked and has answered any question which is relevant to the inquiry only in so far as it tends to shake his credit by injuring his character, no evidence shall be given to contradict him; but, if he answers falsely, he may afterwards be charged with giving false evidence. Exception 1.—If a witness is asked whether he has been previously convicted of any crime and denies it, evidence may be given of his previous conviction. Exception 1.—If a witness is asked whether he has been previously convicted of any crime and denies it, evidence may be given of his previous conviction. Exception 2.—If a witness is asked any question tending to impeach his impartiality and answers it by denying the facts suggested, he may be contradicted. 15. Section 155 of the Evidence Act is extracted below: Impeaching credit of witness.- The credit of a witness may be impeached in the following ways by the adverse party, or, with the consent of the Court, by the party who calls him :— (1) by the evidence of persons who testify that they, from their knowledge of the witness, believe him to be unworthy of credit ; (2) by proof that the witness has been bribed, or has [accepted] the offer of a bribe, or has received any other corrupt inducement to give his evidence ; (3) by proof of former statements inconsistent with any part of his evidence which is liable to be contradicted ; Explanation. -A witness declaring another witness to be unworthy of credit may not, upon his examination-in-chief, give reasons for his belief, but he may be asked his reasons in cross-examination, and the answers which he gives cannot be contradicted, though, if they are false, he may afterwards be charged with giving false evidence. 16. Under section 153 of the Evidence Act, 1872, antecedent of a prosecution witness is relevant for shaking his credibility, but in that it is only a collateral or incidental matter on which his evidence is tabooed under section 153. Exception-1 to section 153 provides that if a witness is asked whether he has been previously convicted of any crime and denies it, evidence may be given of his previous conviction. The investigating officer has deposed that in the case-diary he has written criminal history of Nishant Singh @ Kundan Singh and that he had close contacts with anti-social elements. He has also stated that he has found P.W. 1 and P.W. 3 taking meals with Amit Singh who is nephew of coal-mafia Suresh Singh. But, the criminal antecedent of the prosecution witnesses are not on record. The defence has not put suggestion to the eye-witnesses on their criminal history nor were they confronted during their cross-examination with First Information Report(s) or the judgment(s) by which they were implicated and/or convicted in a criminal case. 17. But, the criminal antecedent of the prosecution witnesses are not on record. The defence has not put suggestion to the eye-witnesses on their criminal history nor were they confronted during their cross-examination with First Information Report(s) or the judgment(s) by which they were implicated and/or convicted in a criminal case. 17. Sri A.K. Kashyap, the learned Senior counsel for the appellant has finally referred to the judgment in “Gurpal Singh” (supra) to contend that the evidence led by the prosecution would disclose that in a sudden fight and without premeditation the appellant has fired at Nishant Singh @ Kundan Singh and therefore it is apparent that he did not intend to cause death of Nishant Singh @ Kundan Singh and while so, the appellant can be convicted for culpable homicide not amounting to murder. 18. The essential facts to bring a case within Exception-1 to section 300 of the Indian Penal Code are : grave and sudden provocation and deprivation of power of self control. In “Gurpal Singh” (supra) on facts it was found that the accused was over powered by an uncontrollable fit of anger so much so that he was deprived of power of self control. Sri A.K. Kashyap, the learned Senior counsel for the appellant has submitted that Nishant Singh @ Kundan Singh in a drunken condition has visited the appellant in the midnight and started a quarrel with him which induced a grave and sudden provocation to the appellant. We find that the prosecution witnesses have denied that Nishant Singh @ Kundan Singh was drunk. The doctor who has conducted the post-mortem examination has found some alcoholic smell in the stomach but he has not found contents of alcohol in the stomach of the deceased. The eye-witnesses have stated that a quarrel between the appellant and Nishant Singh @ Kundan Singh had ensued when Nishant Singh @ Kundan Singh demanded payment for the slip (D.O letter). When the matter escalated the appellant brought a pistol from his house and fired at Nishant Singh @ Kundan Singh. They have stated that the appellant has fired at Nishant Singh @ Kundan Singh from a very close range. In these facts it must be held that provocation, if any, was voluntarily sought by the appellant himself. The doctor has opined that the shot was fired from a distance of about six inches. They have stated that the appellant has fired at Nishant Singh @ Kundan Singh from a very close range. In these facts it must be held that provocation, if any, was voluntarily sought by the appellant himself. The doctor has opined that the shot was fired from a distance of about six inches. The investigating officer has deposed in the court that he has found blood marks on the muzzle of the pistol. The evidence of an investigating officer is primarily based on the subjective findings recorded in the case-diary and the defence has not put any suggestion to the investigating officer that such facts were not recorded in the case-diary. Firing from a very close range is also established from the medical evidence which records charring and tattooing mark on the face of the deceased. The opinion of the doctor that it has resulted in instant death of Nishant Singh @ Kundan Singh would establish that the appellant intended to cause his death. Clause Firstly of section 300 of the Indian Penal Code provides that if the act by which the death is caused was done with the intention of causing death it would amount to murder. We have also examined whether in the facts of the present case benefit under Exception-4 to section 300 of the Indian Penal Code can be extended to the appellant and find that the essential facts for bringing a case within the scope of Exception-4 are missing in the present case. 19. In view of the above discussions, Criminal Appeal (DB) No. 438 of 2011 is dismissed. 20. Let the lower-court records be sent to the court concerned forthwith.