JUDGMENT : Per, Shree Chandrashekhar, J. The sole appellant has faced the trial on the charge of committing murder of Sanjay Gope by a fire-arm in furtherance of common intention of all. 2. On 19th May 2010, Sanjay Gope left home with Babloo Gope and Dinesh Gope, his brothers, for distributing the invitation card for his marriage which was to be held on 25.05.2010. They proceeded on a motorcycle from Line Tola, Gwala Para and stopped near a Peepal tree for taking respite from the scorching sun. It was about 2:40 p.m when Nandu Kumhar, Mithu Nepali and Mangal Tudu came there and called Sanjay Gope. After they moved about 80 yards towards Sahara City, Nandu Kumhar fired from his pistol at Sanjay Gope. He was brought to Siddesh Nursing Home on a tempo and thereafter he was taken to Tata Memorial Hospital (T.M.H), Jamshedpur where he was admitted in C.C.U. There fardbeyan of Babloo Gope was recorded by S.I.-Anand Kumar Mishra, o/c R.I.T -P.S in the midnight at about 01:30 a.m on 20.05.2010 and on that basis Adityapur P.S. Case No. 140 of 2010 was registered against Nandu Kumhar, Mithu Nepali and Mangal Tudu under section 324 and 307/34 IPC. In course of the treatment Sanjay Gope died and accordingly the offence under section 302 IPC was added in the Report. After the investigation a charge-sheet was submitted against the above-named accused persons and charges under section 302/34 IPC and section 27 of the Arms Act were framed against them vide order dated 03.11.2010. They pleaded not guilty and claimed to be tried whereupon S.T. Case No. 131 of 2010 commenced. 3. The trial against Mithu Nepali @ Prem Bahadur, who had died, was separated vide order dated 18.05.2012 and against Mangal Tudu, the third accused, who had absconded, was separated vide order dated 18.08.2015. 4. The learned District and Additional Sessions Judge-II, Seraikella-Kharsawan has found the charges framed against the appellant proved and accordingly convicted and sentenced him to undergo R.I. for life and fine of Rs. 5000/-under section 302 IPC and R.I. for 3 years and fine of Rs. 1000/-under section 27 of the Arms Act. In default of payment of fine, it is directed that the appellant shall undergo further imprisonment on both counts. 5. Mr. 5000/-under section 302 IPC and R.I. for 3 years and fine of Rs. 1000/-under section 27 of the Arms Act. In default of payment of fine, it is directed that the appellant shall undergo further imprisonment on both counts. 5. Mr. Mahesh Prasad Sinha, the learned counsel for the appellant has submitted that there is no eyewitness to the occurrence and recovery of the crime weapon at the instance of the appellant is not proved because the Officer Incharge who has recorded the confessional statement of the appellant has not been examined during the trial and, moreover, the prosecution has failed to establish motive for the crime and while so it must be held that the appellant has been convicted on mere suspicion. 6. During the trial, the prosecution has examined 8 witnesses; the informant who is the younger brother of the deceased has been examined as P.W. 2. 7. The prosecution has projected Babloo Gope-P.W. 2 and Dinesh Gope-P.W. 3 as the eyewitnesses. Kalipado Gope-P.W. 1 is father of the deceased, however, during the trial he was declared hostile at the instance of the prosecution. P.W. 4 and P.W. 5 are co-villagers of the informant and P.W. 6 is his uncle. The Investigating Officer has been examined as P.W.8 and Shyamal Prasad Ram is a Court witness who has been examined to prove that Sanjay Gope was treated at Siddesh Nursing Home by Dr. Vinay Siddesh. The investigating officer has stated that he received an information on 28.05.2010 that the deceased has died and his dead-body is lying at T.M.H and there he has prepared the inquest report. He has further stated that when Sanjay Gope did not regain consciousness he was taken to Cuttack where he was operated upon and the bullet was extracted from his head which was seized by the police. He says that he went to Cuttack and recorded statement of Dr. Sanatan Rath who has informed him that operation was conducted by him, Dr. Rewati Das and Dr. Pramod Patra. He has sent the pistol and the bullet which was extracted from head of the deceased for forensic examination at FSL, Ranchi. 8. Confessional statement of the appellant was recorded by S.I. -Anand Kumar Mishra, Officer Incharge of R.I.T -P.S on 20.05.2010. Rewati Das and Dr. Pramod Patra. He has sent the pistol and the bullet which was extracted from head of the deceased for forensic examination at FSL, Ranchi. 8. Confessional statement of the appellant was recorded by S.I. -Anand Kumar Mishra, Officer Incharge of R.I.T -P.S on 20.05.2010. In his confessional statement he has stated that after the occurrence when he came back home in the night he was apprehended by the police. He has confessed that he has fired at Sanjay Gope from a country-made pistol which he has concealed in the courtyard of his house. He has further stated that the pistol which he has concealed in the courtyard can be recovered by him (“ ftl fiLrkSy ls eSa lat; xksi dks xksyh ekjk gWw og fiLrkSy dks eSaa iRFkj ds uhpsNqik;k gWw vkSj mlesMvius vkaxuesa ,d xksyh yksM gSA yksMsfiLrkSy dks eSa pydj cjken djok ldrk gWwA ”). The pistol which was recovered at the pointing out of the appellant from his house was sent for forensic examination and attested copy of FSL Report dated 27.09.2010 has been laid in evidence by the prosecution, without objection. 9. The law on recovery of incriminating article(s) at the instance of an accused is by now well-settled. In “Pulkuri Kottaya vs. Emperor” reported in AIR 1947 PC 67 , the Judicial Committee has observed that section 27 of the Evidence Act incorporates an exception to the restrictions under section 25 and section 26 and enables certain statements made by an accused in police custody to be proved. It has been held that the condition necessary to bring section 27 into operation is that discovery of a fact in consequence of information received from a person accused of any offence in the custody of a police officer must be deposed to, and thereupon so much of the information leading to discovery of the fact may be proved. 10. In “Pulukuri Kotayya”, the Judicial Committee has considered how much of the information given by the accused to the police would be admissible under section 27. It was held that the information as to past user, or the past history of the object produced is not related to its discovery in the setting in which it is discovered. 10. In “Pulukuri Kotayya”, the Judicial Committee has considered how much of the information given by the accused to the police would be admissible under section 27. It was held that the information as to past user, or the past history of the object produced is not related to its discovery in the setting in which it is discovered. It was pointed out that the fact discovered embraces the place from which the object is proved and knowledge of the accused as to this, and the information given by the accused must distinctly relate to this fact. To understand the scope of section 27 more clearly, we may refer to the following example given by the Judicial Committee in “Pulukuri Kotayya” : "Information supplied by a person in custody that 'I will produce a knife concealed in the roof of my house' leads to the discovery of the fact that a knife is concealed in the house of the informant to his knowledge and if the knife is proved to have been used in the commission of the offence, the fact discovered is very relevant. If, however, to the statement the words be added 'with which I stabbed A', these words are inadmissible since they do not relate to the discovery of the knife in the house of the informant." 11. In “K. Chinnaswamy Reddy vs. State of Andhra Pradesh” reported in AIR 1962 SC 1788 , the issue before the Hon'ble Supreme Court was whether statement of the accused to the effect that “he has hidden the ornaments” and “would point out the place where the ornaments were hidden by him” are admissible in evidence under section 27 or only that part of his statement is admissible where he has stated that he would point out the place, but not that part where he has stated that he has hidden the ornaments. It has been held that section 27 is an exception to section 25 and section 26, which, unless given in immediate presence of a Magistrate, prohibit proof of a confession made to a Police Officer or confession by a person while in police custody. Section 27, however, allows that part of statement made by the accused to the police, whether it amounts to a confession or not, which relates distinctly to a fact thereby discovered, to be proved. Section 27, however, allows that part of statement made by the accused to the police, whether it amounts to a confession or not, which relates distinctly to a fact thereby discovered, to be proved. The Hon'ble Supreme Court has held that both parts of the statement of the accused; that he has hidden the ornaments and would point out the place where the ornaments were hidden by him, are admissible under section 27. 12. In the present case, in his statement recorded by the Officer Incharge of R.I.T - P.S on 20.05.2010 the appellant has stated that he can get the pistol recovered and at his pointing out a pistol was recovered. Since, a new fact was discovered pursuant to his confessional statement which led to recovery of the weapon which can be connected with the crime, this part of his confessional is admissible in evidence under section 27. That is so because recovery of the incriminating article lends credence to his disclosure made in the confessional statement. Therefore, this part of his confessional statement – that he can get the pistol recovered – and his knowledge about the place where he had concealed the pistol can be proved by the prosecution and, if so proved, it would be an incriminating evidence against the appellant. The prosecution has done so in this case. 13. As regards confessional statement of the appellant and non-examination of the Officer Incharge who has recorded it, testimony of the investigating officer is relevant. In paragraph no. 19 of cross-examination the investigating officer has stated that at the time when the Officer Incharge had recorded the confessional statement of the appellant he was present there. In “R vs. McCay” reported in (1990) 1 WLR 645: (1991) 1 All ER 232 (CA), the accused was identified by the witness in presence of the investigating officer but later on he could not identify him due to lapse of time and testimony of the investigating officer was relied upon to prove the said identification on the ground that the act of the investigating officer was contemporaneous with the act of identification by the witness. The evidence of the investigating officer was held admissible. This judgment was referred to and relied upon by the Hon'ble Supreme Court in “Manu Sharma vs. State (NCT of Delhi)” reported in (2010) 6 SCC 1 . The evidence of the investigating officer was held admissible. This judgment was referred to and relied upon by the Hon'ble Supreme Court in “Manu Sharma vs. State (NCT of Delhi)” reported in (2010) 6 SCC 1 . On a same analogy, we are inclined to hold that evidence of the investigating officer of this case is sufficient to prove the confessional statement of the appellant. Moreover, the appellant has not denied his signature on the confessional statement and he has neither taken a stand that his confession was extracted under threat, coercion or duress nor has he retracted from the confessional statement. 14. The investigating officer has deposed in the Court that he arrested the accused persons on 20.05.2010 and the Officer Incharge has recorded confessional statement of the appellant on the same day and he had recovered the pistol and a cartridge from courtyard of the house of the appellant and prepared the seizure-memo in his presence. One of the seizure-memo witnesses was P.W.6 who has identified his signature on the seizure-memo and admitted that in course of investigation the police made enquiries from him. But during his cross-examination by the defence he has stated that nothing was seized in his presence. Even so, seizure of the country-made pistol on the pointing out of the appellant must be admitted in evidence. In the first place, it is not a case set-up by the appellant that the prosecution has planted the pistol. Secondly, there is no cross-examination of the investigating officer on this point. And, thirdly, P.W. 6 has though stated that nothing was seized in his presence and his signature was taken on a plain paper but he has not stated that his signature was taken at the police station or that he was not present at the place of seizure. Evidently, he was speaking under some influence. 15. The certified copy of FSL Report dated 27.09.2010 has been tendered in evidence by the prosecution, without any objection by the defence. Though it would not mean that contents of the document are admitted by the accused but under section 293 of the Code of Criminal Procedure FSL Report is admissible in evidence and it is not necessary that in every case the expert must himself prove the report. Though it would not mean that contents of the document are admitted by the accused but under section 293 of the Code of Criminal Procedure FSL Report is admissible in evidence and it is not necessary that in every case the expert must himself prove the report. The language of sub-section 1 and the expression “if it thinks fit” occurring in sub-section 2 of section 293 definitely show that it is not obligatory that a expert who has furnished his opinion on the scientific issue must necessarily come to the court and depose as to the subject matter of his report. A discretion in this regard has been left with the Court to summon and examine any such expert [refer, “Rajesh Kumar and Anr. Vs. State Government of NCT of Delhi” reported in (2008) 4 SCC 493 ]. In the context of section 293 of the Code of Criminal Procedure, it has to be kept in mind that the forensic expert/ chemical examiner does not give an opinion as to the cause of death and the report is a piece of evidence which does not require any formal proof. The learned trial Judge has found from FSL Report that the striations present on the fired bullet which was extracted from head of the deceased matched with the test bullet fired from the pistol recovered at the instance of the appellant from the courtyard of his house. The FSL Report thus connects the pistol with the bullet extracted from head of the deceased. The relevant extract of the Report which is reproduced below confirms the findings recorded by the trial Judge: (a) The exhibit marked “B” noted in item (2) is a country-made pistol of indigenous make designed to fire .315/8 mm caliber cartridges. It is in perfect working order and can be used as in effective fire-arm. Before test firing barrel of the pistol was swabbed with cotton and warm distilled water. The swabbing thus obtained was chemically tested in the laboratory which gave positive test for fire-arm discharge residue indicating, thereby, sign of previous firing from the pistol. (b) The Exhibit marked “C” noted in item (3) is a live round of .315/8mm caliber cartridge of IOF make having a feeble dent mark on its percussion cap. It was fired in the laboratory and found to be effective. (c) The Exhibit mark “A” noted in item no. (b) The Exhibit marked “C” noted in item (3) is a live round of .315/8mm caliber cartridge of IOF make having a feeble dent mark on its percussion cap. It was fired in the laboratory and found to be effective. (c) The Exhibit mark “A” noted in item no. (1) is a fired bullet of .315/8 mm caliber cartridge. The fired bullet mark “A” noted in item (2) and test fired recovered bullet marked CB, (B) were compared under comparison Microscope. As a result of Microscope comparison it was found that the striations present on the bullet marked “A” noted in item (1) were found similar to those present on the test fired recovered bullet marked CB, (B). 16. From the above, it is clear that there is abundance of materials produced by the prosecution during the trial to prove recovery of the pistol at the instance of the appellant and that the recovered pistol was used in this case. 17. Dr. Niranjan Minj-P.W.7, who has conducted the post-mortem examination, found the following injuries on the dead-body of Sanjay Gope : (i) 8 and half c.m. x 1 c.m x scalp deep on occipital region. There was contusion of left parietal scalp measuring 7 and half c.m. x 2 c.m and contusion of occipital scalp 7 and half c.m. x 6 c.m. (ii) Having seven stitches on occipital scalp under kneath there was bone gape 3 c.m. x 2 and half c.m. With laceration of the occipital lob of a brain 3 c.m. x 2 c.m. x 1 c.m. Presence of subdural blood and blood clots over both side of brain. Bed sore 2 c.m. x 2 c.m on right buttock. 18. In the opinion of P.W.7 the injuries were antemortem in nature and Sanjay Gope has suffered death due to head injury. He has however stated that the injuries found on the person of Sanjay Gope were caused by hard and blunt object and the reason for this appears to be that Sanjay Gope was first treated at Siddesh Nursing Home and later on he was operated upon by a team of doctors at Cuttack. This fact has also been confirmed by P.W.7 in his cross-examination that the deceased was put on operation. This fact has also been confirmed by P.W.7 in his cross-examination that the deceased was put on operation. The doctors who have operated upon Sanjay Gope and the doctor at Siddesh Nursing Home are not examined during the trial but one Shyamal Prasad Ram who was working as Supervisor at Siddesh Nursing Home was examined as a Court witness. He has stated that on 19.05.2010 Sanjay Gope was treated by Dr. Vinay Siddesh, but the said doctor has passed away on 10.03.2016. On the basis of the register entries kept at the nursing home he has stated that Sanjay Gope was treated there on 19.05.2010 between 16:00 hrs. to 21:00 hrs. In his cross-examination he has admitted that at the time of admission of Sanjay Gope and his discharge from the nursing home he was not present there, but at the same time he has clarified that he has deposed in the Court on the basis of records. 19. The aforesaid state of affairs indicate that the investigating officer and the prosecutor both have contributed to mistakes in production of evidence from Siddesh Nursing Home and the hospital at Cuttack, but, in our opinion, no prejudice has been caused to the appellant. There is overwhelming evidence to establish that Sanjay Gope has died a homicidal death on account of the fire-arm injury suffered by him at the hands of the appellant and that is the reason we are not inclined to turn to motive for the crime. 20. P.W. 2-Babloo Gope is the informant of this case. In the Court he has reiterated his fardbeyan and asserted that he has seen the appellant firing from a pistol at his elder brother Sanjay Gope. He has stated that in the afternoon of 19.05.2010 at about 1:30 p.m he along with his brothers Sanjay Gope and Dinesh Gope were distributing marriage card and the accused persons came near Syndicate where the appellant shot at his brother. It is not clear from the records whether Syndicate is a place or a building, but it has come in the evidence of the investigating officer that there is a Peepal tree near Syndicate and the investigating officer has observed dried blood marks there. P.W.2 has identified the appellant in the Court but stated that he does not recognise the other accused persons and consequently he has been declared hostile at the instance of the prosecution. P.W.2 has identified the appellant in the Court but stated that he does not recognise the other accused persons and consequently he has been declared hostile at the instance of the prosecution. He has been cross-examined by the prosecution and the defence and during his cross-examination he has again reaffirmed his fardbeyan. He has denied the suggestion that he has not seen any person firing at his brother and that he does not know the person who has fired at his brother and in paragraph no. 22 of his cross-examination he has again denied the suggestion that it was not the appellant who has killed his brother. He has stated that he along with his parents and maternal uncle had brought Sanjay Gope to the hospital; Sanjay Gope was first treated at Siddesh Nursing Home, and his statement was recorded at T.M.H. During his cross-examination P.W. 2 has however denied a suggestion by the prosecution that he did state before the police that due to extreme heat they were taking rest under a Peepal tree and the appellant called his brother Sanjay Gope and moved towards Sahara City. However, as we have seen that P.W.2 has reaffirmed the occurrence during his cross-examination and therefore whatever discrepancy has occurred in his testimony which is reflected in paragraph no. 3 of his testimony cannot be taken too far and his evidence on identification of the appellant as the one who has fired pistol shot at Sanjay Gope must be accepted. P.W. 3 has also narrated the incident in a somewhat similar manner as spoken by P.W.2. He has deposed in the Court that he has seen the appellant firing at his brother. At that time the appellant was accompanied by his friends. His injured brother was taken to Sai Hospital and T.M.H. He has further stated that Sanjay Gope was brought to Cuttack for treatment however he could not survive. He has signed the fardbeyan of P.W.2 recorded at T.M.H and he is also the inquest witness. During his cross-examination the defence could not elicit anything material which would create a doubt on his testimony. 21. P.W.2 and P.W.3 both have remained unshaken on material aspects of the case and minor inconsistency in their version of the occurrence would not create any doubt on complicity of the appellant in the crime. Both are reliable witnesses and their testimony is quite convincing. 21. P.W.2 and P.W.3 both have remained unshaken on material aspects of the case and minor inconsistency in their version of the occurrence would not create any doubt on complicity of the appellant in the crime. Both are reliable witnesses and their testimony is quite convincing. It is common knowledge that in every trial there may be minor inconsistency, exaggeration, improvement, embellishments etc. in the testimony of the prosecution witnesses but for that reason the prosecution's case cannot be brushed aside. Every witness cannot give graphic description of all the events that had happened on the fateful day. The memory of a witness, his forgetfulness, lapse of time, pressure of examination in the Court and sometimes pressure from the accused may bring aberration in the testimony of a witness and therefore what has to be seen is whether his evidence inspires confidence or not. The testimony of a witness is scrutinized on the anvil of broad probabilities and normal human conduct. In “State of U.P. vs. Naresh” reported in (2011) 4 SCC 324 , the Hon'ble Supreme Court has held as under : “30. In all criminal cases, normal discrepancies are bound to occur in the depositions of witnesses due to normal errors of observation, namely, errors of memory due to lapse of time or due to mental disposition such as shock and horror at the time of occurrence. Where the omissions amount to a contradiction, creating a serious doubt about the truthfulness of the witness and other witnesses also make material improvement while deposing in the court, such evidence cannot be safe to rely upon. However, minor contradictions, inconsistencies, embellishments or improvements on trivial matters which do not affect the core of the prosecution case, should not be made a ground on which the evidence can be rejected in its entirety. The Court has to form its opinion about the credibility of the witness and record a finding as to whether his deposition inspires confidence....” 22. Another aspect which was highlighted by the learned counsel for the appellant is that as many as 4 witnesses – P.W. 1, P.W. 4, P.W.5 and P.W.6 – have been declared hostile by the prosecution and conviction of the appellant is based on the evidence of P.W.2 and P.W. 3 who are brothers of the deceased. Another aspect which was highlighted by the learned counsel for the appellant is that as many as 4 witnesses – P.W. 1, P.W. 4, P.W.5 and P.W.6 – have been declared hostile by the prosecution and conviction of the appellant is based on the evidence of P.W.2 and P.W. 3 who are brothers of the deceased. On this issue all that we intend to indicate is that whenever a plea is taken that the witness is partisan the defence must first laid foundation for the same and, moreover, merely because a witness is a close relative his testimony does not become suspicious. As observed by the Hon'ble Supreme Court in “State of Himachal Pradesh vs. Mast Ram” reported in (2004) 8 SCC 660 , the testimony of a related witness cannot be disbelieved on the ground of relationship and the only requirement in law is that his testimony should be examined with due care and caution. It is true that P.W.1 who is 8father of the deceased has been declared hostile, but then, we need to kept in mind that he is not the eye-witness and during his cross-examination he has stated that P.W. 2 and P.W.3, his sons, had informed him about the occurrence and told him that the appellant who was accompanied with by his friends had fired at Sanjay Gope. P.W.4, P.W.5 and P.W. 6 are also not the eye-witness and therefore nothing much turns on their turning hostile. From their testimony atleast one thing has come on record that Sanjay Gope had died due to fire-arm injury has been spoken by them also. In fact, P.W. 6 has admitted that he has taken Sanjay Gope on a tempo for treatment and the police has recorded his statement. It is settled law that evidence of a hostile witness is not rejected altogether and the prosecution can rely upon that part of the testimony of a hostile witness which supports its case. 23. There is one more reason for believing the prosecution story that the appellant has committed murder of Sanjay Gope. The contemporaneous documents prepared on 20.05.2010 clearly ruled out any possibility of false implication of the appellant in this case. The fardbeyan of the informant was recorded at about 01:30 a.m on 20.05.2010 by the Officer Incharge of R.I.T – P.S at T.M.H where the injured was admitted. The contemporaneous documents prepared on 20.05.2010 clearly ruled out any possibility of false implication of the appellant in this case. The fardbeyan of the informant was recorded at about 01:30 a.m on 20.05.2010 by the Officer Incharge of R.I.T – P.S at T.M.H where the injured was admitted. The incident had happened in the after-noon of 19.05.2010 and the injured was taken to Siddesh Nursing Home. The investigating officer has deposed in the Court that an information (rumour) regarding the incident was received in the police station at about 12:30 in the midnight which was recorded as S.D. Entry No. 529 and he got information at 05:30 a.m on 20.05.2010 which is S.D. Entry No. 531 and the formal F.I.R was written at 06:00 a.m (wrongly written as 18:00 hrs). The appellant is named in the F.I.R and the infromant has made specific allegation of firing by him at his brother. The confessional statement of the appellant was recorded at 21:30 p.m on 20.05.2010 and the seizure memo of the pistol and cartridge was prepared at 22:30 the same day. In our opinion, the chain of events which have happened in quick succession on 20.05.2010 clearly establishes complicity of the appellant in the occurrence. 24. In the final analysis, we are of the opinion that the prosecution has firmly proved presence of the appellant at the place of occurrence, at the time of occurrence and firing on Sanjay Gope by him. Therefore, we concur with the learned trial judge that the prosecution has proved its case beyond reasonable doubt and the appellant is liable to be convicted under section 302 IPC and section 27 of the Arms Act. 25. In view of the above discussions, we find no merit in this criminal appeal and, accordingly, Criminal Appeal (DB) No. 1181 of 2016 is dismissed. 26. Let the lower-court records be transmitted to the court concerned, forthwith. 27. Let a copy of the order be transmitted to the court concerned through FAX.