JUDGMENT : NALIN KUMAR SRIVASTAVA, J. 1. This criminal appeal is directed against the judgement and order dated 07.10.2009 passed by Special Judge (E.C. Act), Gorakhpur in Session Trial No. 270 of 2000 arising out of Case Crime No. 126 of 2002, P.S.-Sahpur, District-Gorakhpur convicting and sentencing the appellants under Section 302/34 I.P.C. to undergo life imprisonment further imposing fine of Rs. 10,000/-each and in default of payment of fine to undergo one year rigorous imprisonment and under Section 307/34 I.P.C. to undergo seven years rigorous imprisonment and fine of Rs.5,000/-each and in default of payment of fine to undergo six months rigorous imprisonment. 2. The prosecution story unfolds with an FIR lodged at P.S. Shahpur, District-Gorakhpur on the basis of written report given on 22.03.2002 at 19 p.m. by Muneshwar Mahto, S/o Sipahi Mehto, brother of the deceased. It was narrated in the written report by the informant that he as well as his brothers Suraj Mehto and Rameshwar Mehto work as sales men in the bakery. The accused persons Umesh Mehto and Krishna Mehto, who happen to be their relatives have been on inimical terms on account of some land disputes and litigation. On 22.03.2002 at about 5:30 pm when he and his brother Suraj Mehto were coming to the city Gorakhpur from Pipraich after finishing their duty, the accused persons Umesh Mehto and Krishna Mehto chased them by motor cycle and surrounded both of them in front of the farm of Jitendra Jaiswal near Padri Bazar Kasba. Both the accused persons got down from the motor cycle and opened fire with country made pistols upon the informant and his brother Suraj Mehto. When they rushed from the spot to save themselves, the accused persons fired upon his brother Suraj Mehto who fell down in the wheat field and died. The accused persons fled away on motorcycle. The informant Muneshwar Mehto and the people nearby witnessed the occurrence. On the basis of the written report Exhibit A-1 given by the informant Muneshwar Mehto, Chik FIR Exhibit A-4 was prepared by Cons. Moharrir Saroj Kumar on 22.3.2002 at 19 pm and its entry was made in the G.D. rapat number 37, Exhibit A-5 at the same time. 3. The informant Muneshwar Mehto and the people nearby witnessed the occurrence. On the basis of the written report Exhibit A-1 given by the informant Muneshwar Mehto, Chik FIR Exhibit A-4 was prepared by Cons. Moharrir Saroj Kumar on 22.3.2002 at 19 pm and its entry was made in the G.D. rapat number 37, Exhibit A-5 at the same time. 3. The investigation was started and the inquest report Exhibit A-2 was prepared on 23.03.2002, the papers required for post mortem Exhibit A-7 to A-11 were also prepared and the autopsy of the dead body of the deceased was performed by doctor V.K. Dubey on 23.3.2002 who prepared the autopsy report Exhibit A-3 and found the following anti mortem injuries on the body of the deceased. (i) fire arm wound of entry 1 cm x 1 cm x cavity deep on right side chest 5 cm lateral to right nipple margin inverted, blackening and charring present in an area 14 cm x 7 cm (ii) fire arm wound of exit 1.5 cm x 1.5 cm on left side chest 5 cm. Below to left nipple margins everted. (iii) fire arm wound of entry ¾ cm x ½ cm on medial side of right upper arms in. Middle margin inverted. (iv) fire arm wound of exit 1 cm x 1 cm on lateral side of right upper arm in middle, margins inverted. Internal Examination Right and left pleura were found punctured. Both lungs were also punctured. Clotted blood about 1-1/2 litre was found present in thoracic cavity, eyes and mouth closed, rigor mortis present on both limbs. Cause of death in his opinion was haemorrhage and shock due to anti mortem injuries. 4. The I.O. recorded the statement of the witnesses of fact and formal witnesses, prepared map Exhibit A-13 after spot inspection and after completing the investigation charge sheet Exhibit A-6 was submitted to the Court. 5. The case of the accused persons after their appearance before the Court being exclusively triable by Sessions Court was committed to the Court of Sessions by the Chief Judicial Magistrate, Gorakhpur on 27.6.2002. 6. The charges under Section 302 read with Section 34 I.P.C. and Section 307 read with Section 34 I.P.C. were framed against the accused persons who denied of the charges and claimed to be tried. 7. 6. The charges under Section 302 read with Section 34 I.P.C. and Section 307 read with Section 34 I.P.C. were framed against the accused persons who denied of the charges and claimed to be tried. 7. To bring home the guilt of the accused persons, oral evidence was recorded as PW-1 Muneshwar Mehto-first informant, P.W.-2 Rameshwar witness of inquest report, P.W.-3 Dr. V.K. Dubey, P.W.-4 Constable Saroj Kumar Scribe, P.W.-5 S.I. Parshuram Singh, Second I.O. P.W.-6 S.I. Suresh Singh witness of inquest report and secondary witness of S.I. Rameshwar, first I.O and C.W.-1 Constable Musafir Prasad. 8. Documentary evidence was produced as written report Ex. A-1 , inquest report Ex.A-2, autopsy report Ex.A-3, FIR Ex.A-4, G.D Ex. A-5, charge sheet Ex.A-6, photo nash Ex.A-7, Form No. 33 Ex.A-8, Form No.13 Ex.A-9, R.I. letter Ex.A-10, C.M.O. letter Ex.A-11, Memo of recovery of articles taken from the spot Ex.A-12 and site plan Ex.A-13. 9. The statements of the accused persons were recorded under Section 313 Cr.P.C. The accused persons denied the allegations and incriminating evidence against them and stated that due to family enmity they have falsely been implicated in this case, however, no defence evidence has been adduced by the accused persons. 10. P.W-1 namely Muneshwar Mahto, who is the sole witness of fact in his oral testimony has stated that he, his brothers Suraj Mehto and Rameshwar Mehto are engaged in the business of sale of biscuits and slice bread. Accused persons Umesh Mahto and Krishna Mahto are their relatives and cousins to each other. Both the parties had earlier village disputes and the accused persons were not ready to compromise. On 22.3.2002 when the informant along with his brother Suraj Mahto, was returning from Pipraich to Gorakhpur after routine business work, accused persons Umesh Mahto and Krishna Mahto coming from the side of Pipraich by motorcycle surrounded both of them near farm house of Pappu Jaiswal at 5.30 p.m. When the accused persons pulled desi pistol from their pockets, the informant and his brother ran away and when looked back, the accused persons opened fire upon his brother, who got injured and died. He and the passers-by witnessed the occurrence. A report in respect of the occurrence was written by Ajay Kumar Ojha, which was given in the police station and FIR was lodged. He and the passers-by witnessed the occurrence. A report in respect of the occurrence was written by Ajay Kumar Ojha, which was given in the police station and FIR was lodged. He has further stated that it was broad light at the time of occurrence and the accused persons killed his brothers due to enmity of the village. He has proved the written report Ex. A-1 and has also stated that the inquest report was prepared before him. Inquest Ex.A-2 has also been proved by this witness. 11. P.W.-2 Rameshwar, the real brother of the informant is also a witness of the inquest report who had identified his thumb impression made over the inquest report Ex.A-2 in his deposition. He has stated that his brother Muneshwar Mahto had informed him regarding the murder of his brother Suraj. He has further stated that at the time of occurrence he was at his room and preparing dinner. 12. P.W.-3 Dr. V.K. Dubey has prepared autopsy report of the deceased which he has proved as Ex.A-3 in his evidence. He has opined that the cause of death of the deceased was haemorrhage and shock due to anti mortem fire arm injuries. 13. P.W.-4 Head Moharrir, Saroj Kumar, the Scribe in his evidence has proved the FIR of the case as Ex.A-4 and has stated that on the basis of the written report of the informant Muneshwar Mahto he had prepared the Chick FIR which is on record before him. He has also proved the G.D. of the case as Ex.A-5 as secondary witness for Head Cons. Musafir Prasad. However, the aforesaid Head Cons. Musafir Prasad has subsequently been examined as C.W.-1 who has proved his hand writing and signature over the G.D. Ex. A-5, rapat no. 37 prepared on 22.03.2002 at 19 p.m. 14. P.W.-6 S.I. Suresh Singh, who is the witness of the inquest report has proved his hand writing and signature over the inquest report Ex.A-2 and has also narrated that the related documents i.e. photo nash Ex. A-7, form number 33 Ex.A-8, form number 13 Ex.A-9, R.I. letter Ex.A-10, C.M.O. letter Ex.A-11 were also prepared by him in his own hand writing and signature. This witness has also proved the fard recovery Ex. A-12 relating to the articles found on the body of the deceased and also the articles found on the spot. A-7, form number 33 Ex.A-8, form number 13 Ex.A-9, R.I. letter Ex.A-10, C.M.O. letter Ex.A-11 were also prepared by him in his own hand writing and signature. This witness has also proved the fard recovery Ex. A-12 relating to the articles found on the body of the deceased and also the articles found on the spot. This witness is a secondary witness to S.I. Ram Singh, the first I.O. of the case and has proved the site plan Ex.A-13. 15. P.W.-5 S.I. Parshuram Singh is the second I.O. of the case, who has deposed before the Court that he started the investigation on 7.5.2002 and after recording the evidence of the eye-witnesses and witnesses of fard recovery and scribe and submitted charge sheet Ex.A-6 to the Court. 16. On the basis of the aforesaid evidence, the learned trial Court came to the conclusion that the prosecution has succeeded in establishing the guilt against the accused persons, on the basis of cogent, consistent and reliable evidence and the charges against the accused persons were proved beyond reasonable doubt and, accordingly, conviction order was passed. 17. Learned counsel for the appellants has assailed the impugned judgement on various grounds. It has been argued that the prosecution version rests upon the sole testimony of P.W.-1 Muneshwar Mahto, who is not a reliable witness. It is submitted that it is mentioned in the FIR that several independent persons came over the spot but none was examined by prosecution during trial. It has also been argued that the place of occurrence is not fixed which creates doubt in respect of truthfulness of the prosecution story. It has further been submitted that it is an admitted fact that the parties were on inimical terms since prior to the occurrence and the accused persons/ appellants have falsely been implicated due to enmity but the learned trial Court did not pay attention to this fact at all. It has also been argued that the prosecution story does not find corroboration from the medical evidence and the investigation of the case has been very faulty. The trial Court in an arbitrary manner without considering the evidence on record in proper way passed the conviction order, which is liable to be set aside by allowing the appeal. 18. It has also been argued that the prosecution story does not find corroboration from the medical evidence and the investigation of the case has been very faulty. The trial Court in an arbitrary manner without considering the evidence on record in proper way passed the conviction order, which is liable to be set aside by allowing the appeal. 18. Per-contra, learned A.G.A. has contended that the prosecution has succeeded to prove its case on the basis of cogent and reliable evidence, there is no force in any of the contentions raised by the appellants and the appeal as such is liable to be dismissed. 19. Heard Shri M.P. Yadav, for the original accused-appellant herein, Shri N.K. Srivastava, learned A.G.A. for the State and perused the record. 20. From perusal of the record it is evident that P.W.1 Muneshwar Mahto, brother of the deceased is the sole witness of fact examined by the prosecution. In charge sheet Ex. A-6 the names of some other witnesses as eye witness of the case have been mentioned. P.W.1 in his examination in chief has also stated that the other passers-by and the neighbours had also seen the occurrence. 21. Whether non-examination of other eye-witnesses by the prosecution vitiates the prosecution story, needs to be examined in light of the legal position. It is an established principle of law that to prove a given fact particular number of witness need not be examined. In Section 134 of the Indian Evidence Act it has been provided that “No particular number of witnesses shall in any case be required for the proof of any fact. Reference can be placed on the Hon’ble Apex Court decision in Raj Narain Singh Vs. State of U.P. 2010 AIR SCW 521 wherein it has been held that it is not necessary that all those persons who were present at spot must be examined. It is quality of evidence which is required to be taken note of by Courts. 22. A close scrutiny of the entire evidence of P.W.1 goes to show that his evidence is quite natural, innocent and trustworthy and he is wholly reliable witness. It is quality of evidence which is required to be taken note of by Courts. 22. A close scrutiny of the entire evidence of P.W.1 goes to show that his evidence is quite natural, innocent and trustworthy and he is wholly reliable witness. His deposition in its continuity is quite natural and bears no material contradiction in material particulars such as to the manner of assault, place of occurrence, participants of the crime and the weapon used in the occurrence and all relating factors are concerned he was real brother of the deceased and used to work in bakery shop along with the deceased bother. They lived in the city of Gorakhpur and on the fateful day they were returning from Pipraich to Gorakhpur. In the evening both the brothers were going together when the occurrence happened near Jaiswal farm house. In this way the presence of P.W.1 on the spot at the time of occurrence was quite natural. He is not a chance witness but he was accompanying the deceased at the time of occurrence. He has clearly stated in his evidence that both the accused persons chased them and opened fire and his brother died due to the fire arm injury. Prior to this they were surrounded by the accused persons who came on spot by motor cycle and got their country made pistols out from their pockets. When P.W.1 and his brother ran away they were chased by the accused persons. This shows the intention of the accused persons to kill the deceased. They had come on spot with full preparation to finish the deceased, Suraj Mahto. There is nothing in the cross-examination of P.W.1 which goes to show any infirmity or material contradiction. In the autopsy report Ex.A-3 the doctor has found that the cause of death was haemorrhage and shock due to anti mortem injuries and two fire arm entry wounds coupled with the exit wounds were found on the body of the deceased. In the inquest report Ex.A2, the panchas have also opined that due to the gun shot injury the death of the deceased has been caused. During investigation, this theory was found reliable and cogent and decision of trial Court is based on these facts. P.W.1 has also deposed regarding the prior enmity between the parties. 23. In the inquest report Ex.A2, the panchas have also opined that due to the gun shot injury the death of the deceased has been caused. During investigation, this theory was found reliable and cogent and decision of trial Court is based on these facts. P.W.1 has also deposed regarding the prior enmity between the parties. 23. Learned counsel for the appellants has vehemently argued that P.W.1 in his cross-examination has stated that they were coming by cycles and the accused came from behind by motor cycle from the right direction but while driving the motor cycle they did not open fire upon them. He has also stated that the accused persons had opened only two fires and the injuries thereof were inflicted only upon his brother. Learned counsel has further submitted that the statement of P.W.1 creates a doubt regarding the truthfulness of the prosecution story. Had the accused persons any intention to kill the deceased, it was very easy for them to fire upon him when he was on bicycle and the accused persons were coming from behind. 24. We do not find any force in this contention of the learned counsel for the appellants. 25. The perusal of the statement of P.W.1 shows that the accused persons firstly surrounded the informant and his brother and when they tried to escape they opened fire and committed the murder of the deceased. It makes no difference if they did not open fire on them when they were on their bicycles. It was the choice of the accused persons as to what mode of attack they opted. 26. The Hon'ble Supreme Court in Kusti Mallaiah Vs. State of Andhra Pradesh (2013) 12 Supreme Court Cases 680 has laid down as follows: “23. It has been held in catena of decisions of this Court that there is no legal hurdle in convicting a person on the sole testimony of a single witness if his version is clear and reliable, for the principle is that the evidence has to be weighed and not counted. In Vadivelu Thevar v. The State of Madras AIR 1957 SC 614 , it has been held that if the testimony of a singular witness is found by the court to be entirely reliable, there is no legal impediment in recording the conviction of the accused on such proof. In Vadivelu Thevar v. The State of Madras AIR 1957 SC 614 , it has been held that if the testimony of a singular witness is found by the court to be entirely reliable, there is no legal impediment in recording the conviction of the accused on such proof. In the said pronouncement it has been further ruled that the law of evidence does not require any particular number of witnesses to be examined in proof of a given fact. However, faced with the testimony of a single witness, the court may classify the oral testimony into three categories, namely, (i) wholly reliable, (ii) wholly unreliable, and (iii) neither wholly reliable nor wholly unreliable. In the first two categories there may be no difficulty in accepting or discarding the testimony of the single witness. The difficulty arises in the third category of cases. The court has to be circumspect and has to look for corroboration in material particulars by reliable testimony, direct or circumstantial, before acting upon the testimony of a single witness. Similar view has been expressed in Lallu Manjhi and another v. State of Jharkhand (2003) 2 SCC 401 , Prithipal Singh and others v. State of Punjab and another (2012) 1 SCC 10 and Jhapsa Kabari and others v. State of Bihar (2001) 10 SCC 94. 27. The same view has been reiterated in Amar Singh Vs. State (NCT of Delhi) (2020) 19 Supreme Court Cases 165 wherein it has been held as follows: ….As a general rule the Court can and may act on the testimony of single eye witness provided he is wholly reliable. There is no legal impediment in convicting a person on the sole testimony of a single witness. That is the logic of Section 134 of the Evidence Act, 1872. But if there are doubts about the testimony Courts will insist on corroboration. It is not the number, the quantity but quality that is material. The time honoured principle is that evidence has to be weighed and not counted. On this principle stands the edifice of Section 134 of the Evidence Act. The test is whether the evidence has a ring of truth, is cogent, credible and trustworthy or otherwise (see Sunil Kumar V/s State ( NCT of Delhi) (2003) 11 SCC 367). 28. The time honoured principle is that evidence has to be weighed and not counted. On this principle stands the edifice of Section 134 of the Evidence Act. The test is whether the evidence has a ring of truth, is cogent, credible and trustworthy or otherwise (see Sunil Kumar V/s State ( NCT of Delhi) (2003) 11 SCC 367). 28. On the analysis of evidence of P.W.1 we find that his evidence is cogent and trustworthy and further gets corroboration from the medical evidence. 29. The minor discrepancies found in his evidence are ignorable and he is a wholly reliable witness. 30. In Ashok Kumar Chaudhary. Vs. State of Bihar 2008 (61) ACC 972 (SC) it has been categorically held that if the testimony of an eyewitness is otherwise found trustworthy and reliable, the same cannot be disbelieved and rejected because certain insignificant, normal or natural contradictions have been appeared into his testimony. If the inconsistencies, contradictions, exaggerations, embellishments and discrepancies in the testimony are only normal and not material in nature, then the testimony of an eyewitness has to be accepted and acted upon. Distinctions between normal discrepancies and material discrepancies are that while normal discrepancies do not corrode the credibility of a party’s that the case, material discrepancies do so. The evidence of P.W.1 has also been assailed on the ground that he is the real brother of the deceased and as such he is an entrusted witness and his evidence cannot be accepted as a gospel truth. 31. Learned counsel for the appellants has contended that the prosecution case does not find support from the medical evidence and has submitted that there are material contradictions between the occular evidence and medical evidence. He has referred the deposition of P.W.1, who in his examination-in-chief has stated that when the informant and his brother were running away they were chased by both the accused persons who opened fire upon the deceased. It has been argued that in the autopsy report a fire arm entry wound has been found on right side chest which was 5 cm lateral to the right nipple. The second fire arm entry wound was found on medial side of right upper arm in middle. Both the entry wounds had corresponding exit wounds. It has been argued that in the autopsy report a fire arm entry wound has been found on right side chest which was 5 cm lateral to the right nipple. The second fire arm entry wound was found on medial side of right upper arm in middle. Both the entry wounds had corresponding exit wounds. It has been argued by the learned counsel for the appellants that if the informant and the deceased were running and they were being chased by the accused persons then how the one gun shot injury could be inflicted into the chest of the deceased instead of, on the back of the chest. In this respect my attention is drawn towards the statements of P.W.1 who in his examination-in-chief has stated that when he and his brother were being chased by the accused persons they looked back them and at the same time the fire was opened. In his cross-examination also he has clarified that when he and his brother were being chased by the accused persons they turned and looked back and at the same moment the fire was opened. That is why the fire was not inflicted upon the back of the deceased but since he was in a little bit turning position the fire inflicted upon his chest and also upon the right upper arm. The doctor P.W.3 in his deposition has proved the autopsy report. He has also stated that in the first entry wound blackening and charring was present, which means that it was a close fire. P.W.1 in his cross-examination has stated that fire was made from a distance 2-1/2 -3 feet, which inflicted upon his brother. 32. Keeping in view the principles of medical jurisprudence, it can be safely opined that broadly speaking rifles, pistol and revolvers, if fired within 3 feet may show blackening, tattooing, charring and wad of cartridge may be present in or around the wound. 33. P.W.3 in his cross-examination has stated that: ^^e`rd ds 'kjhj ij nks vyx&vyx Qk;j ls pksVs vk;h FkhA igyh pksV lkeus ls 'kjhj ds nkfgus rjQ ls ekjus ls vk;h gksxhA e`rdk ds 'kjhj ij vk;h pksV uaŒ3 dqN nwj ls xksyh pykus ls vk;h gksxhA pksV uaŒ1 de nwjh utnhd ls xksyh pykus ls vk;h gksxhA^^ 34. 33. P.W.3 in his cross-examination has stated that: ^^e`rd ds 'kjhj ij nks vyx&vyx Qk;j ls pksVs vk;h FkhA igyh pksV lkeus ls 'kjhj ds nkfgus rjQ ls ekjus ls vk;h gksxhA e`rdk ds 'kjhj ij vk;h pksV uaŒ3 dqN nwj ls xksyh pykus ls vk;h gksxhA pksV uaŒ1 de nwjh utnhd ls xksyh pykus ls vk;h gksxhA^^ 34. Hence, from the above, it is clear that the prosecution case is fully corroborated with the medical evidence and evidence of P.W.1 is also consistent with the medical evidence. 35. It has been further contended by learned counsel for the appellants that the place of occurrence is doubtful which creates a genuine suspicion about truthfulness of the prosecution story. 36. The site plan Ex.A-13 is on record, which has been proved by P.W.6 S.I. Suresh Sharma as secondary witness for the first I.O. S.I. Raghuveer Singh. In the site plan Ex.A-13 the places where the accused persons were present and where they stopped their motor cycle, the direction towards which the deceased and the informant ran away, the place from where the fire was open, the field where the dead body was recovered, and the other existing fields, roads and village situated nearby have been clearly shown by the Investigating Officer. All the positions shown in the site plan get support from the evidence of P.W.-1. 37. P.W.6, who is the witness of inquest report has stated that he had found the dead body in the standing crops of wheat field and the same has been shown in the site plan Ex.A-13. The wheat field of Jitendra Jaiswal which is situated on spot has also been shown in Ex.A-13. It has been clearly stated in the statement of P.W.1 and also find place in the written report Ex.A-1 as to whom the occurrence happened and the I.O. has inspected the spot with the informant as P.W.1. In the FIR Ex.A-4 the place of occurrence has been mentioned as in the village Padri Bazar infront of farm of Jitendra Jaiswal and the I.O has also found the same. Thus the entire oral and documentary evidence in respect of the place of occurrence are in consonance with each other and the place of occurrence is fixed and proved without any doubt. 38. Learned counsel for the appellants has vehemently argued that the motive assigned behind the crime has not been properly proved. Thus the entire oral and documentary evidence in respect of the place of occurrence are in consonance with each other and the place of occurrence is fixed and proved without any doubt. 38. Learned counsel for the appellants has vehemently argued that the motive assigned behind the crime has not been properly proved. It has also been argued that if there was an enmity between the parties the accused undoubtedly have been falsely implicated due to enmity. To meet out this plea, it is to be remembered that in the factual scenario of this case it is very much clear that the prosecution case rests upon direct evidence. P.W.1 is the witness of the occurrence who has clearly proved the occurrence and all the incriminating circumstances relating thereto. 39. The trial Court has discussed the various aspects of motive and enmity existing between the parties in the present case. Reliance has been placed upon Bikau Pandey Vs. State of Bihar (2003) 12 SCC 616 wherein it has been held that when the direct evidence establishes the crime, motive is of no significance and pales into insignificance. 40. In Anil Rai Vs. State of Bihar (2001) 7 SCC 318 it has been held that enmity is a double edged weapon which can be a motive for the crime as also the ground for false implication of the accused persons. 41. There are catena of decisions on the point that in a case based upon the eye witness account, the motive loses its significance. In Deepak Verma Vs. State of Himachal Pradesh (2011) 10 SCC 129 It has been held as under: “...Proof of motive is not a sine qua non before a person can be held guilty of commission of crime. Motive being a matter of mind, is more often than not difficult to establish through evidence.” 42. However, in this case a motive has been assigned in the FIR to the effect that the parties have been on enmical terms as they have some land and litigation disputes. Enmity between the parties is no doubt a double edged weapon. If on account of enmity the accused can be falsely implicated by the complainant party, at the same time due to that very enmity the accused may commit crime also against the complainant party. 43. P.W.1 in his examination-in-chief has admitted the factum of previous enmity between the parties. Enmity between the parties is no doubt a double edged weapon. If on account of enmity the accused can be falsely implicated by the complainant party, at the same time due to that very enmity the accused may commit crime also against the complainant party. 43. P.W.1 in his examination-in-chief has admitted the factum of previous enmity between the parties. He has been cross examined at length, on this point wherein he has clarified that the parties belonged to one Khandan and they have some land disputes in respect of the ancestral property. Civil litigation had also been pending in respect of the aforesaid land and the parties had quarrel also in respect thereof much before the present incident. 44. In the discussion mentioned herein above, it has been found that the evidence of P.W.1 is cogent, trustworthy and innocent, hence, if there was any enmity between the parties prior to the present occurrence, it does not affect adversely the prosecution case which is otherwise proved by the reliable ocular evidence of P.W.1 and the theory of false implication fails as such. 45. On the basis of the above, I do not find any substance in the contention of the learned counsel for the appellants so far as the motive is concerned. 46. The genuineness of the FIR has also been hit by the learned counsel for the appellants. It has been argued that FIR has been lodged after 1-1/2 hours of the occurrence whereas the police station is only 5 km. away from the place of occurrence. 47. Per-contra, learned A.G.A. has contended that the FIR was prompt one and has been lodged only after 1-1/2 hours of the occurrence. 48. To examine this issue we have to consider certain other aspects also. Chick FIR Ex.A-4 and G.D. Ex.A5 have been proved by the scribe of the FIR. Perusal of Ex.A-4 shows that the FIR was lodged on 22.03.2002 at 19 p.m, the police station is situated at a distance of 5 km from the place of occurrence. P.W.1 in his cross-examination has stated that after the occurrence he remained at the place of occurrence for 45 minutes and then he dictated the report to Ajay Kumar Ojha who came over there. It can be easily understood that after the blind murder of his brother the informant-P.W.1-would have been in a state of shock and grief. P.W.1 in his cross-examination has stated that after the occurrence he remained at the place of occurrence for 45 minutes and then he dictated the report to Ajay Kumar Ojha who came over there. It can be easily understood that after the blind murder of his brother the informant-P.W.1-would have been in a state of shock and grief. He has further stated in his cross-examination that after dictating the tehrir he along with Ajay Ojha went to the police station by cycle and then FIR was lodged. No doubt it explains the whole story of time from the occurrence up to the lodging of the FIR. This fact cannot be ignored that the inquest report has been prepared on 23.03.2002 which bears the crime number of the case as 126 of 2002 under Section 302, 307 I.P.C. Hence it cannot be said from any corner that the FIR was lodged delayed or anti time or it was a result of deliberations and after thought. The trial Court has discussed this issue at length in the impugned order and has arrived at the right conclusion that the FIR was not delayed and it was a genuine document. 49. Learned counsel for the appellants has also pointed out some contradictions in the statement of P.W.1. so far as the contents of FIR and written report are concerned but from perusal of the whole testimony of P.W.1 it is evident that the so called contradictions are minor contradictions and are ignorable. It is also pertinent to mention here that the FIR is not an encyclopedia and there is no requirement of law that every minute detail should find place in the FIR. One should always remember the mental state of P.W.1 before whom the real brother was shot dead. 50. Another submission made by the learned counsel for the appellants is that investigation of this case is faulty and no murder weapon has been recovered from either of the accused persons. 51. So far as the recovery of the murder weapon is concerned, emphasis may be laid down upon Gopal Singh Vs. 50. Another submission made by the learned counsel for the appellants is that investigation of this case is faulty and no murder weapon has been recovered from either of the accused persons. 51. So far as the recovery of the murder weapon is concerned, emphasis may be laid down upon Gopal Singh Vs. State of Uttrakhand (2013) 7 SCC 545 (para 12 & 13) wherein the Hon'ble Apex Court found that the “katta” and “knife” used in causing the injuries to the victim were not recovered by the Investigating Officer but the doctor’s evidence was available to prove that the victim had sustained gun shot and knife injuries, it was held that non-recovery of the said weapon was not fatal to the prosecution case as the injuries sustained by the victim proved the nature of the weapon used. 52. No other material negligence on the part of the I.O. as been pointed out by the learned counsel for the appellants. From perusal of the evidence on record, particularly on the deposition of the I.O. of the case, no material negligence or omission on the part of the I.O. is found. Moreover, since the prosecution case is well established and proved by the ocular evidence of the sole eyewitness supported with the medical evidence, negligence or omission, if any, on the part of the I.O. does not adversely effect the prosecution version at all. 53. In Hema Vs. State (2013) 81 ACC 1 (Supreme Court) it has been held by the Hon'ble Apex Court that any irregularity or deficiency in investigation by I.O. need not necessarily lead to rejection of the case on prosecution when it is otherwise proved. The only requirement is to use of extra caution. The defective investigation cannot be fatal to prosecution when ocular testimony is found credible and cogent. It may be reiterated at the cause of repetition that investigation in the present case does not suffer with any material irregularity in the investigation. 54. Learned counsel for the appellants has vehemently argued that the P.W.1 Muneshwar Mahto, who is said to be the sole eyewitness of the occurrence is the real brother of the deceased and as such he is an interested witness. The prosecution was under obligation to produce any other independent witness of fact but it has not been done deliberately. 54. Learned counsel for the appellants has vehemently argued that the P.W.1 Muneshwar Mahto, who is said to be the sole eyewitness of the occurrence is the real brother of the deceased and as such he is an interested witness. The prosecution was under obligation to produce any other independent witness of fact but it has not been done deliberately. It has been submitted that the evidence of an interested and relative witness cannot be relied upon particularly when the ocular version of only that witness is available on record. 55. In this context the Hon'ble Apex Court in Bhagwan JagannathMarkad Vs. State of Maharastra (2016) 10 SCC 537 has held that the testimony of a witness in a criminal trial cannot be discarded merely because the witness is a relative or family member of the victim of the offence. In such a case Court has to adopt a careful approach in analyzing the evidence of such witness and if the testimony of the related witness is otherwise found credible, accused can be convicted on the basis of the testimony of such related witness. 56. Reliance has been placed on Surinder Kumar Vs. State of Punjab (2020) 2 SCC 563 by the learned A.G.A. wherein it has been reiterated that merely because prosecution did not examine any independent witness, would not necessarily lead to conclusion that accused was falsely implicated. 57. In the present case, no doubt the witness Muneshwar Mahto is the real brother of the deceased but on this ground his evidence cannot be discarded because from the discussion made above even after a careful scrutiny his evidence is found credible and trustworthy and his presence at the place of occurrence is quite natural . 58. From the aforesaid discussion, it is very much clear that cumulative effect of the statement of witnesses examined by the prosecution, overwhelmingly establishes commission of offence by the appellants and in the facts and circumstances of the case their guilt has been proved beyond reasonable doubt. 59. One more aspect to be taken into consideration is that both the accused appellants have been convicted through the aid of Section 34 I.P.C. Section 34 I.P.C. reads like this: Section 34. 59. One more aspect to be taken into consideration is that both the accused appellants have been convicted through the aid of Section 34 I.P.C. Section 34 I.P.C. reads like this: Section 34. “Acts done by several persons in furtherance of common intention.—When a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone”. 60. Now, what a ‘common intention’ is, has been explained by the Hon'ble Supreme Court in the case of Deepak Verma (supra) wherein the Hon'ble Supreme Court explained it like this: “12 “Common intention” implies pre-arranged plan and acting in concert pursuant to the pre-arranged plan. Under this Section a preconcert in the sense of distinct previous plan is not necessary to be proved. The common intention to bring about a particular result may well develop on the spot as between a number of persons, with reference to the facts of the case and circumstances of the situation. Though common intention may develop on the spot, it must, however, be anterior in point of time to the commission of offence showing a pre-arranged plan and prior concert (See Krishna Govind Patil Vs. State of Maharastra AIR 1963 SC 1413 ) 61. In Indrapal Singh v. State of U.P., (2022) 4 SCC 631 the Hon’ble Apex Court held as under: “…..16.Suresh [Suresh v. State of U.P., (2001) 3 SCC 673 , is also a case under Section 302 read with Section 34 IPC. This Court relied upon the judgments of the Privy Council in Barendra Kumar Ghosh [Barendra Kumar Ghosh v. King Emperor, 1924 SCC OnLine PC 49 : (1924-25) 52 IA 40 : AIR 1925 PC 1 ] and Mahbub Shah v. King Emperor [Mahbub Shah v. King Emperor, 1945 SCC OnLine PC 5 : (1944-45) 72 IA 148 : AIR 1945 PC 118 ] and also a three-Judge Bench decision of this Court in Pandurang v. State of Hyderabad [Pandurang v. State of Hyderabad, AIR 1955 SC 216 : 1955 Cri LJ 572] in the said case. This Court opined that to attract the applicability of Section 34 IPC the prosecution is under an obligation to establish that there existed a common intention which requires a prearranged plan. This Court opined that to attract the applicability of Section 34 IPC the prosecution is under an obligation to establish that there existed a common intention which requires a prearranged plan. That before a man can be vicariously convicted for the criminal act of another, the act must have been done in furtherance of the common intention of all. In the absence of a prearranged plan and thus a common intention, even if several persons simultaneously attack the man, each one of them would be individually liable for whatever injury he caused and none could be vicariously convicted for the act of any or the other. Thus, it is necessary either to have direct proof of prior concert or proof of circumstances which necessarily lead to that inference and incriminating facts must be incompatible with the innocence of the accused and incapable of explanation or any other reasonable hypothesis”. 62. Since the learned counsel for the appellants has argued on this point that the act alleged was never done in furtherance of common intention of both the accused, we have given our anxious consideration to the arguments of the respective counsels and perused the material on record to satisfy ourselves whether the present case is one where the offence has been committed in furtherance of common intention of both the accused appellants. 63. It has been proved by the evidence on record that the accused appellants were waiting for the deceased and informant to reach the spot and when they reached there they chased them with country made pistols (tamancha) in their hands, both of them opened fire upon the deceased and he succumbed to injuries. On this aspect, the ocular version of P.W.1 has been held absolutely credible and reliable, hence there is left no room of doubt that the offence of murder was committed by both the accused appellants in furtherance of common intention of both. They have premeditated plan to kill the deceased and that is why they along with fire arms were present nearby the place of occurrence and when the deceased tried to escape they chased him and killed him by fire. Hence we find no force in contention of the learned counsel for the appellants that the crime alleged was not committed in furtherance of common intention of both the accused appellants. 64. Hence we find no force in contention of the learned counsel for the appellants that the crime alleged was not committed in furtherance of common intention of both the accused appellants. 64. The accused appellants have also been convicted under Section 307/34 I.P.C. It has been alleged that during commission of the same occurrence the accused appellants in furtherance of common intention of them opened fire upon the informant Muneshwar Mahto with their desi pistols with intention to kill him. 65. It this context it is noteworthy that the P.W.1 was not caused any injury at all. There is no injury report of P.W.1 Muneshwar Mahto, the informant on record. A perusal of the cross examination of P.W.1 shows that offence under Section 307/34 I.P.C. has not been proved against the accused appellants beyond doubt. P.W.1 in his cross examination has stated that when the accused persons stopped their motor cycle they did not open any fire. He and his brother fled away together side by side and his brother was running at a distance of 2-1/2—3 feet from him. He has further stated that the accused persons had fired only twice and both the fires inflicted upon his brother. After the second fire, the accused persons did not open any fire upon him. The aforesaid statements of P.W.1 make the conviction of the accused persons under 307/34 doubtful and not convincing. The learned counsel for the appellants has drawn our attention towards the aforesaid statements of P.W.1 and we find force in his argument and, accordingly, conclude that offence under Section 307/34 has not been proved against the accused appellants beyond reasonable doubt. 66. From the discussion made above and in the totality of the facts and circumstances of the case, it is evident that the prosecution has proved each and every circumstance leading to the homicidal death of the deceased by cogent and trustworthy evidence. Both ocular and medical evidence corroborate each other. The murder was committed at a public place. The version of P.W.1 has been wholly reliable and his ocular version finds support from the medical evidence. He has deposed without any material contradiction about the whole occurrence right from the beginning till the death of the deceased who had succumbed to the injuries. The murder was committed at a public place. The version of P.W.1 has been wholly reliable and his ocular version finds support from the medical evidence. He has deposed without any material contradiction about the whole occurrence right from the beginning till the death of the deceased who had succumbed to the injuries. The learned trial Court has examined each and every aspect of the matter and well appreciated the evidence on record, no infirmity, therefore, could be found in the judgment of the trial Court. We are of considered opinion that the prosecution has proved charge under Section 302/34 I.P.C. beyond reasonable doubt against both the accused appellants Umesh Mahto and Krishna Mahto but charge under Section 307/34 I.P.C. has not been proved beyond reasonable doubt against them. 67. Resultantly, appeal is partly allowed in the aforesaid terms. The conviction and sentence under Section 302/34 is hereby confirmed and the conviction and sentence under Section 307/34 I.P.C. is hereby set aside. 68. The appellants Umesh Mahto and Krishna Mahto are on bail, their bail bonds are cancelled and sureties are discharged. 69. The concerned Court is directed to take the appellants Umesh Mahto and Krishna Mahto into custody and send them to jail to serve out the remaining sentence. 70. The case of the convicts/appellants be considered for remission by the State after completing therein incarceration period of 14 years as per the judgement of Hon'ble Supreme Court passed in Criminal Appeal No. 308/2022 (Saudan Singh Vs. State of U.P.) arising out of S.L.P. (Cr.) No. 4633 of 2021 and the judgement of this High Court passed in Vishnu Vs. State of U.P. being Criminal Appeal No. 204 of 2021. 71. Let the lower Court record be transmitted back along with the certified copy of this judgement for information and necessary compliance. 72. Certify this judgement to the Court below immediately for necessary action.