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2022 DIGILAW 484 (ALL)

Bachcha Pandey @ Subhas v. State of U. P.

2022-04-04

SUBHASH CHANDRA SHARMA, SUNITA AGARWAL

body2022
JUDGMENT : Subhash Chandra Sharma, J. 1. These criminal appeals emanate from the judgment and order dated 21.12.2005 passed by the learned IInd Additional Sessions Judge, Court No. 1, Mirzapur in Session Trial No. 52 of 2004 (State Vs. Shiv Kumar @ Pinku and another) arising out of Case Crime No. 12 of 2004, under Section 302 read with Section 34 IPC, Police Station Kotwali City, District Mirzapur, whereby appellants Shiv Kumar @ Pinku and Bachcha Pandey @ Subhas have been convicted and sentenced under Section 302/34 IPC with life imprisonment and fine of Rs.5,000/- each. In default of payment of fine, the appellants have to undergo additional imprisonment for a period of six months. 2. The prosecution case in brief is that on 15.01.2004, at about 9.05 p.m., an F.I.R. was lodged at the police Station Kotwali City, District Mirzapur by informant Om Prakash s/o Harishankar r/o Meer Sahab Ki Gali, Kotwali City, Mirzapur by filing a written report stating therein that while his brother Sunil Kumar was sitting with his wife in the room located at the back side of his house, at about 8.30 p.m, Shiv Kumar @ Pinku s/o Lakshman and Bachcha Pandey @ Subhas s/o Vishwambhar Pandey r/o Muhalla Imamganj Babhaiya, Mirzapur came there and demanded money. On refusal, they threatened to kill him and went away. In the meantime, hearing noise, his father Harishankar came into the room. Further, at about 8.45 p.m., Shiv Kumar @ Pinku and Bachcha Pandey again came to the house with country-made pistol and on exhortation of Bachcha Pandey, Shiv Kumar @ Pinku shot fire at his brother Sunil Kumar who had died on the spot. Both the accused fled away on their making hue and cry. There was electric light inside and outside of the house. Dead body of his brother was lying on the spot. Tahreer was scribed by Moolchand s/o Nanhakuram r/o Kotwali City, District Mirzapur. 3. S.S.I. R.D. Kaithal was handed-over the investigation of the case who along with other officials went to the place of occurrence where he conducted the inquest of the body of deceased Sunil Kumar and got the inquest report prepared by S.I. Jitendra Pratap Singh at his own instance and also got prepared other papers required for the purposes of post-mortem. S.S.I. R.D. Kaithal was handed-over the investigation of the case who along with other officials went to the place of occurrence where he conducted the inquest of the body of deceased Sunil Kumar and got the inquest report prepared by S.I. Jitendra Pratap Singh at his own instance and also got prepared other papers required for the purposes of post-mortem. Dead body was sealed and handed over to constable Kedar Rai and home guard Subedar who brought it to the mortuary, District Hospital, Mirzapur. 4. The post-mortem was conducted on 16.01.2004 at about 1.30 p.m. It is mentioned in the post-mortem report that body brought by constable C.P. Kedar Rai and home guard Subedar was received in sealed cloth which tallied with the sample seal. The external condition of the body as described therein is as under: Average built body. Rigor mortis present. Antemortem Injury:(1) Fire arm wound of entry of 2.5 c.m. X 1.5 c.m. Oval on shape margins are charred and inverted present over right perieto temporal region of skull, .5 c.m. above from right tragus. (2) Fracture of right occipitoparietal bone with bone loss present. (3) Cross fracture of right occipital bone present. (4) one bullet recovered from the brain matters. (5) Clotted blood with ruptured brain matter found after opening skull. Cause of death was shock and hemorrhage as result of antemortem injuries. 5. During the investigation, accused-appellant Shiv Kumar @ Pinku was arrested by the police from Janhavi Tiraha at about 12.30 o'clock on 19.01.2004. On interrogation, appellant Shiv Kumar @ Pinku disclosed that he had hidden countrymade pistol at a place in Pakki Sarai at the time of running away from the place of occurrence which he could recover. At his instance, a countrymade pistol was recovered from the southwest corner near the Indra Ghandi Park located at Pakki Sarai at about 13.40 O'clock. Country-made pistol was taken into custody by the police and recovery memo was prepared on the spot by S.S.I. Jitendra Kumar in the presence of the witnesses. 6. The investigating Officer visited the place of occurrence and prepared site plan Ext. Ka-14 relating to the place where incident took place and also the site plan relating to the place from where countrymade pistol was recovered at the instance of appellant Shiv Kumar @ Pinku as Ext. Ka-15. He recorded the statements of witnesses conversant to the facts of the case. Ka-14 relating to the place where incident took place and also the site plan relating to the place from where countrymade pistol was recovered at the instance of appellant Shiv Kumar @ Pinku as Ext. Ka-15. He recorded the statements of witnesses conversant to the facts of the case. Thereafter, the investigation was handed-over to Inspector Mahendra Pratap Shukla who took over the investigation on 30.01.2004 and collected report from F.S.L. Ext. Ka-13 & 16, and concluded the investigation, found the case prima facie made out under Section 302 IPC and after preparing the charge sheet submitted it to the court concerned. 7. Learned Chief Judicial Magistrate took cognizance of the offences and provided copies of prosecution papers in compliance of Section 207 Cr.P.C. to appellants and committed the case to the court of session for trial. 8. The trial court after taking into consideration the material on record, framed the charges against appellants under Section 302 read with Section 34 IPC. The charges were read-over and explained to the appellants, they pleaded not guilty and denied the charges and claimed for trial. Consequently, the case was fixed for prosecution evidence. 9. In support of its case, the prosecution examined P.W.1 Om Prakash, the first informant and brother of deceased; P.W.2 Hari Shankar eye witness of the incident and father of deceased; P.W.3 S.I. Virendra Pratap Singh who prepared inquest report and other relevant papers; P.W.4 Dr. Ramesh Singh Thakur who conducted post-mortem of the body; P.W.5 constable Gajendra Pratap Singh who prepared chik F.I.R. and entered the detail in G.D; P.W. 6 S.I. Mahendra Pratap Shukla the investigating officer who submitted the charge sheet and P.W. 7 S.I. R.D. Kaithal the 1st Investigating Officer of the case who had arrested the appellant Shiv Kumar @ Pinku and made recovery of pistol at his instance. 10. On conclusion of prosecution evidence, statements of accused persons were recorded under Section 313 Cr.P.C. wherein appellant Shiv Kumar @ Pinku asserted the incident and statements of witnesses relating thereto to be false. He further stated that there was a dispute with informant Om Prakash relating to partition on account of which he was implicated falsely. Likewise appellant Bachcha Pandey @ Subhas also asserted the incident and statements of prosecution witnesses to be false and he having been implicated falsely by the informant. 11. He further stated that there was a dispute with informant Om Prakash relating to partition on account of which he was implicated falsely. Likewise appellant Bachcha Pandey @ Subhas also asserted the incident and statements of prosecution witnesses to be false and he having been implicated falsely by the informant. 11. In defence, no evidence was adduced on the part of appellants. 12. After hearing the arguments of the team of appellants as well as the State, learned trial court passed the order dated 21.12.2005 convicting the appellants as aforesaid. Hence this appeal. 13. Heard Shri Prakash Dwivedi, learned Advocate for appellant Shiv Kumar @ Pinku and as Amicus Curiae for appellant Bachcha Pandey @ Subhas in the connected appeals and Shri Rupak Chaubey, learned A.G.A. for State and perused the record. 14. Learned counsel for the appellants submits that the impugned judgment and order of conviction is bad in law being against the evidence available on record. Learned trial court has erred in convicting the appellants without proper appreciating the evidence. The prosecution could not prove its case with cogent and reliable evidence and the learned trial court has decided this case wrongfully. The appellants are innocent. They have not committed any offence as alleged against them. There are material contradictions in the statements of witnesses. Informant is the brother of the deceased and P.W. 2 being father is also an interested witness. Time between the occurrence and F.I.R. is too short which makes the prosecution story highly doubtful. The scribe of F.I.R. Moolchand had not been examined. No blood was collected from the place of occurrence by the Investigating Officer which makes the place of occurrence doubtful. No motive to commit the murder of the deceased has been assigned. The wife of the deceased who was also said to be present in the room where murder took place had not been examined. There is no independent witness account. It is submitted that the recovery of countrymade pistol though has been shown but there was no public witness to prove the recovery. In this way the prosecution could not prove its case beyond reasonable doubt. The appellants, therefore, are entitled to acquittal. 15. There is no independent witness account. It is submitted that the recovery of countrymade pistol though has been shown but there was no public witness to prove the recovery. In this way the prosecution could not prove its case beyond reasonable doubt. The appellants, therefore, are entitled to acquittal. 15. Learned A.G.A. opposed the contentions raised by the learned counsel for the appellants and submitted that in this case, the informant as well as P.W. 2 both were present on the spot and they have narrated the whole prosecution story. They are eyewitnesses and, therefore, motive looses its importance. Further it is not necessary to adduce a number of witnesses. Even on the testimony of sole witness conviction can be sustained. The contradictions in the testimony of witnesses are minor in nature, and hence are immaterial. During the post-mortem, a bullet was recovered from the body of deceased Sunil Kumar. It was sent for the forensic examination. As per the report, it is established that the countrymade pistol which was recovered at the instance of accused-appellant Pinku, was used in the commission of murder of the deceased. In this way, the prosecution had proved its case beyond reasonable doubt against the appellants. Learned trial court has passed the judgment and order on the basis of evidence on record. There is no error of fact or law. These appeals being devoid of merit are liable to be dismissed. 16. From the submissions and perusal of record, the following questions emerge for consideration of this Court as to whether motive is absent. The witnesses being relatives and no independent witnesses having been examined would have adverse effect on the prosecution case. Whether the alleged material contradictions in the testimony of witnesses make it unreliable. Further, whether the appellants have been implicated due to enmity with the first informant and police. 17. Before we deal with the contentions raised by the learned counsel for the appellants, it would be convenient to take note of the evidence adduced by the prosecution. 18. P.W. 1 Om Prakash is the informant and brother of the deceased, who deposed that on the day of the incident, i.e. 15.01.2004 at about 8.30 p.m., his brother Sunil Kumar was sitting in the room located at the back, western side of the house. 18. P.W. 1 Om Prakash is the informant and brother of the deceased, who deposed that on the day of the incident, i.e. 15.01.2004 at about 8.30 p.m., his brother Sunil Kumar was sitting in the room located at the back, western side of the house. Appellants Shiv Kumar @ Pinku and Bachcha Pandey @ Subhas came there from behind and demanded money from the deceased. When refused they became angry, threatened him to kill and went away. At that time the wife of the deceased and his father were also present. Again at about 8.45 p.m., appellants came at the same place. At that time, appellant Pinku was equipped with countrymade pistol and Bachcha Pandey with danda. Bachcha Pandey exhorted to fire at the deceased. On hearing this, Shiv Kumar @ Pinku opened fire at Sunil which stroke at his head and he died on the spot. Appellants went away in the lane with the countrymade pistol. It is stated by P.W. 1 that at the time of the incident, there was light of electric bulb inside and outside the room in which he had identified the appellants, who were residents of adjacent muhalla and that he knew them from before. He got tahreer written by Moolchand and made his signature on it after hearing its' contents which he proved as Ext. Ka-1. This witness was subjected to gruel cross-examination by the learned counsel for appellants wherein this witness had not disclosed any such fact which weakens his testimony. He has affirmed the fact of firing made by appellant Shiv Kumar @ Pinku on the exhortation of Bachcha Pandey. 19. P.W. 2 Harishankar, father of the deceased had deposed that the incident occurred on 15.01.2004 at about 8.30 p.m. His son was sitting on the board (takath) on the back side of the room in the house where his wife Vinita and another son Om Prakash were also sitting, appellants Shiv Kumar @ Pinku and Bachcha Pandey came there and demanded money from his son while standing outside the window. When refused, they went away while threatening to kill. Again at about 8.45 p.m. both of the accused came there and Bachcha Pandey exhorted to shot fire at deceased at which appellant Shiv Kumar @ Pinku shot fire which stroke his son Sunil Kumar who died in the room. When refused, they went away while threatening to kill. Again at about 8.45 p.m. both of the accused came there and Bachcha Pandey exhorted to shot fire at deceased at which appellant Shiv Kumar @ Pinku shot fire which stroke his son Sunil Kumar who died in the room. Appellants bolted the room from outside on account of which they could not chase them. There was light of electric bulb inside and outside the room in which he identified the appellants. This witness has also been subjected to gruel cross-examination by the learned counsel for the appellants and during cross-examination he has again affirmed the account of the incident, the offence committed by the appellants. No such statement has been made by him so as to demolish his presence at the place of occurrence or that he could not identify the appellants. 20. Both these witnesses remained intact during the cross-examination. No such contradictions are visible in their statements which can make their testimony unreliable or unnatural. Minor contradictions are of cosmetic nature and not likely to affect the credibility of their testimony. 21. In the instant case, there is no enmity between the parties. They belong to adjacent locality. There cannot be any dispute about identification of the appellants. Though, the appellants have stated in their statements recorded under Section 313 Cr.P.C. that they had been implicated falsely on account of enmity but there is no suggestion of enmity during the cross-examination of the witnesses which might have adversely affected their reliability and become an excuse for implicating them falsely while absolving real culprits. 22. There is not an iota of evidence on record which may even remotely suggest that PW-1 & PW-2 had any grudge against the appellants or any cause to implicate them falsely. 23. Injuries on the person of deceased Sunil Kumar were caused by the firearm as stated by P.Ws. 1 & 2. Ext. Ka-9 is the postmortem report wherein firearm wound was reported on the right parital temporal region of skull. 24. P.W. 4 Dr. Ramesh Singh Thakur has proved the injury and told that the injury was caused by firearm and opined that this injury was possible with a single fire. As per the estimation of the doctor, all the injuries were caused at about 8.45 p.m. in the night on 15.01.2004. 24. P.W. 4 Dr. Ramesh Singh Thakur has proved the injury and told that the injury was caused by firearm and opined that this injury was possible with a single fire. As per the estimation of the doctor, all the injuries were caused at about 8.45 p.m. in the night on 15.01.2004. He also opined that the cause of death was shock and hemorrhage due to antemortem injury. During the postmortem, a bullet was recovered from the wound which was sealed by the doctor and was sent to F.S.L. by the Investigating Officer for forensic examination. 25. In this way, injuries found on the person of deceased Sunil Kumar were proved to have been caused with firearm at about 8.45 p.m. in the night on 15.1.2004 and this evidence corroborates the statements of P.Ws. 1 & 2 with regard to the manner of causing the injuries resulting into death. The eye-witnesses account, thus, finds corroboration from the medical evidence on record. 26. Countrymade pistol alleged to have been used in committing the offfence was recovered by the Investigating Officer S.S.I. R.D. Kaithal and recovery memo was prepared by S.I. Virendra Pratap Singh who had proved it during his examination as Material Exhibit-1. This countrymade pistol was also sent to F.S.L. with bullet, recovered from the person of deceased for ballistic examination regarding which ballistic reports from F.S.L. were obtained and proved as Ext. Ka-13 & 16 wherein it has been mentioned that during examination, it was found that on the piece of metal which was mentioned as bullet blood stains were seen and on micro chemical examination, fouling matters with remnants of firing lead and nitrate were found present and also in the barrel of countrymade pistol, the remnants of firing lead and nitrate were found. 27. There is no delay much less inordinate delay in lodging the F.I.R. The occurrence took place on 15.01.2004 at about 8.45 p.m. in the night and the F.I.R. was lodged on the same day at 21.05 hours (hrs), after 20 minutes at the police station concerned which was one furlong from the home of the informant. It cannot be said to be delayed. It cannot be said to be delayed. A question raised by the learned counsel for appellants that the time in lodging the F.I.R. after occurrence was too short to be sustained in view of distance between the house of the informant and the police station concerned, i.e. one furlong only. 28. P.W. 5 constable Nagendra Pratap Singh has proved the chik F.I.R. on the basis of Tahreer Ext. Ka-1. He stated that on 15.01.2004 he was posted at the police station concerned as constable muharrir. On the basis of tahreer given by the informant, he prepared the Chik F.I.R. in his handwriting and signature and also made entry of it in the G.D. which he proved as Ext. Ka-10 & 11. P.W. 5 further stated that the special report was also sent on the same day on 15.01.2004 at about 22.15 hrs through G.D. No. 43. 29. At this point, the learned counsel for appellants highlighted that scribe of the tehreer, Moolchand had not been examined, therefore, the F.I.R. cannot be said to have been proved. In this regard, it is to note that non-examination of scribe is not fatal to the case of the prosecution and no adverse inference can be drawn against the prosecution, since the scribe was not an eye witness to the incident and the complainant/informant had proved the execution of the F.I.R. by examining himself as P.W.1. 30. In the case of Moti Lal Vs. State of U.P. 2009(7) Supreme 632 , the Apex Court has ruled that the non-examination of scribe of the F.I.R. is not fatal to the prosecution case. Likewise in the case of Anil Kumar Vs. State of U.P. (2003)3 SCC 569 where scribe of the F.I.R. who was not an eye-witness, was not examined, the Apex Court observed that there was no necessity to examine him. He could have thrown no light on the prosecution case, therefore, no prejudice can be said to have been caused to the appellants. Thus, this submission of the learned counsel is not acceptable to us. 31. P.W. 7 S.S.I. R.D. Kaithal proved the stages of the investigation. He could have thrown no light on the prosecution case, therefore, no prejudice can be said to have been caused to the appellants. Thus, this submission of the learned counsel is not acceptable to us. 31. P.W. 7 S.S.I. R.D. Kaithal proved the stages of the investigation. He had arrested the appellant Shiv Kumar @ Pinku from Janhavi Tiraha near Sulabh Complex on 19.01.2004 at about 12.30 p.m. On query the accused disclosed about the place where he concealed the countrymade pistol and it was recovered from southern-west corner at Pakki Sarai at his pointing out. P.W.7 prepared the recovery memo which he proved as Ext. Ka-8 and also the site plan as Ext. Ka-15. 32. P.W.6 S.I. Mahendra Pratap Shukla took over the investigation from S.S.I. R.D. Kaithal on 30.1.2004 who proved the F.S.L. report as Ext. Ka-13 & 16, concluded the investigation and submitted the charge sheet. 33. P.W.3 S.I. Virendra Pratap Singh who followed S.S.I./I.O. R.D. Kaithal on 15.01.2004 and went on the spot, prepared inquest on the dictation of S.S.I. R.D. Kaithal along with other essential papers which he proved as Ext. Ka-2 to 7. Ext. Ka-2, the inquest report disclosed that the dead body of deceased was found on the floor in front of the house of the informant. P.W. 3 has also stated during cross-examination that the dead body of deceased was lying on the floor in front of the house of the informant where he had prepared the inquest report. In this regard, P.W. 2 has stated during the examination-in-chief and even in the cross-examination that the appellants shot fire at the deceased while he was sitting on the board (takhat) inside the room located at the backside of the house. After the incident, he took Sunil Kumar to the hospital where doctor declared him brought dead. In this way, it cannot be said that the deceased was not shot by the appellants in the room located at the backside of the house. It is natural that the family members of the victim would try their best to save his life and in that effort so they took the injured to the hospital in the hope of life. In such a situation, it cannot be said that the incident did not take place in the room where it has been said to have taken place and as shown in Ext. Ka-14. In such a situation, it cannot be said that the incident did not take place in the room where it has been said to have taken place and as shown in Ext. Ka-14. The place where dead body was lying at the time of inquest was also the floor in front of the house, it, therefore, cannot be said that the place of occurrence was not situated at the house of the deceased as asserted by the prosecution witnesses namely P.W. 1 & P.W. 2. 34. Learned counsel has also drawn attention of this Court towards the fact that no blood stained and plain soil was collected from the place of occurrence by the Investigating Officer at the time of inquest which makes the place of occurrence doubtful. In this regard, it can be said that firearm injury was found on the head of the deceased. Blood oozed out of the wound and it was soaked in the clothes worn by the deceased. The clothes were taken into custody and sent to F.S.L. for examination. As per F.S.L. report, as Ext. Ka-13, all the clothes namely shirt, baniyan, underwear, pant and kalawa etc. worn by the deceased were found blood stained. In the situation, where the deceased was taken to the hospital by his inmates after the incident and brought back from the hospital to his home and he was laid on the floor outside the house, presence of blood on the said floor does not seen to be possible. On the basis of this fact that no blood stained and plain soil was collected from the place of occurrence by the Investigating Officer during investigation, the testimony regarding the place of occurrence as deposed by P.W. 1 & P.W. 2 cannot be falsified. In this regard, the contention of the learned counsel for the appellants is not acceptable. 35. Further the attention of this Court has also been drawn towards the absence of motive to commit murder. He urged that the prosecution had failed to prove motive on the part of the appellants to commit the crime. 36. It is true that there is no mention of motive in the F.I.R. about the commission of murder of deceased Sunil Kumar. He urged that the prosecution had failed to prove motive on the part of the appellants to commit the crime. 36. It is true that there is no mention of motive in the F.I.R. about the commission of murder of deceased Sunil Kumar. Even PW-1 and PW-2 have also not disclosed anything that became the root cause of committing murder by the appellants except the demand of money by the appellants from the deceased and refusal on his part but there is no such principle or rule of law that where the prosecution fails to prove motive for commission of the crime, it must necessarily result in acquittal of the accused. Where occular evidence is found to be trustworthy and reliable and finds corroboration from the medical evidence, a finding of guilt can safely be recorded even if the motive for the commission of crime has not been proved. 37. In State of Himachal Pradesh Vs. Jeet Singh 1999 (38) ACC 550 SC, it was held that no doubt it is a sound principle to remember that every criminal act was done with a motive but it's corollary is not that no offence was committed if the prosecution failed to prove the precise motive of the accused to commit it as it is almost an impossibility for the prosecution to unravel full dimension of the mental deposition of an offender towards the person whom he offended. 38. In Nathuni Yadav and others vs. State of Bihar and others 1997 (34) ACC 576, it was held that motive for committing a criminal act, is generally a difficult area for prosecution as one cannot normally see into the mind of another. Motive is the emotion which impels a man to do a particular act and such impelling cause unnecessarily need not be proportionately grave to grave crimes. It was further held that many murders have been committed without any known or prominent motive and it is quite possible that the aforesaid impelling factor would remain undiscoverable. 39. In the case of Thaman Kumar vs. State of Union Territory of Chandigarh 2003 (47) ACC 7 the Hon'ble Apex Court has reiterated the same view after taking into consideration the aforementioned cases. 40. In the case of Baitulla and another Vs. 39. In the case of Thaman Kumar vs. State of Union Territory of Chandigarh 2003 (47) ACC 7 the Hon'ble Apex Court has reiterated the same view after taking into consideration the aforementioned cases. 40. In the case of Baitulla and another Vs. State of U.P. AIR 1997 SC 3946 where occurrence took place in broad day light and spoken to by the eye-witness and the same was supported by Medical Report, it will not be necessary to investigate the motive behind such commission of offence. 41. This Court has also made such observations in the case of Rameshwar and others vs. State 2003 (46) ACC 581 that when there is direct evidence, the motive was not important. Likewise in the case of State of Haryana vs. Sher Singh and others 1981 Cr. Ruling 317 SC it has been held that the prosecution is not bound to prove the motive, more so, when crime is proved by direct evidence. 42. In our opinion, in the facts and circumstances of the present case, the absence of an evidence on the point of motive cannot have any such impact so as to discard the other reliable evidence available on record which certainly establishes the guilt of the accused. 43. The next limb of argument of the learned counsel for the appellants is that the prosecution had examined highly interested and related witnesses and it had not produced any independent witness in support of its case. No doubt the witnesses of fact examined in the case are real brother and father of the deceased but Relationship itself is not a ground to reject the testimony of the witnesses, rather the law is that a relative would be the last person to leave the real culprit and falsely implicate any other person. 44. In the case of Brahm Swaroop and another vs. State of U.P. (2011) 6 SCC 288 the Hon'ble Apex Court in Para No.21 has observed as under:- “merely because the witnesses were related to the deceased persons, their testimonies cannot be discarded. Their relationship to one of the parties is not a factor that affects the credibility of a witness, more so, a relation would not conceal the real culprit and make allegations against an innocent person. A party has to lay down a factual foundation and prove by leading impeccable evidence in respect of its false implication. Their relationship to one of the parties is not a factor that affects the credibility of a witness, more so, a relation would not conceal the real culprit and make allegations against an innocent person. A party has to lay down a factual foundation and prove by leading impeccable evidence in respect of its false implication. However, in such cases the Court has to adopt a careful approach and analyse the evidence to find out whether it is cogent and credible evidence.” 45. The Court also referred cases of Dalip and others vs. State of Punjab A.I.R. (1953) SC 364; Masalti vs. State of U.P. (A.I.R.) 1965 SC 202. 46. In Masalti vs. State of U.P. (A.I.R.) 1965 SC 202, the Hon'ble Apex Court observed in Para No.14 “but it would, we think, be unreasonably to contend that evidence given by witnesses should be discarded only on the ground that it is evidence of partisan or interested witnesses. The mechanical rejection of such evidence on sole ground that it's partisan would invariably lead to failure of justice. No hard and fast rule can be laid down as to how much evidence should be appreciated. Judicial approach has to be cautious in dealing with such evidence; but the plea that such evidence should be rejected because it's partisan cannot be accepted as correct. 47. It is common knowledge that village (mohalla) life is faction ridden and involvement of one or the other in the incidents is not unusual. One has also to be cautious about the fact that wholly independent witnesses are seldom available or are otherwise not inclined to come forward, lest they may invite trouble for themselves for future. Therefore, relationship of eye-witnesses inter se, cannot be a ground to discard their testimony. There is no reason to presume the false implication of the appellants at the instance of the eye-witnesses. It would also be illogical to think that the witnesses would screen the real culprits and substitute the appellants for them. 48. Normally, independent persons do not intervene in the matters of others due to fear or a number of circumstances and relatives and family members only make courage to depose regarding the occurrence because they are the worse sufferers. In the case of Krishna Mochi Vs. State of Bihar (2002) 6 SE81, the following observation has been made by the Hon'ble Apex Court. In the case of Krishna Mochi Vs. State of Bihar (2002) 6 SE81, the following observation has been made by the Hon'ble Apex Court. It is matter of common experience that in recent times there has been sharp decline of ethical values in public life even in developed countries much less developing one, like ours, where the ratio of decline is higher. Even in ordinary cases, witnesses are not inclined to depose or their evidence is not found to be credible by courts for manifold reasons. One of the reasons may be that they do not have courage to depose against an accused because of threats to their life, more so when the offenders are habitual criminals or high-ups in the Government or close to powers, which may be political, economic or other powers including muscle power. 49. Further argument that P.W.1 and P.W. 2 have stated that the wife of deceased was also present in the room where the incident took place but she had not been examined by the prosecution. In this regard, it is to note that it is the discretion of the prosecution to adduce the evidence which it thinks proper in the circumstances of the case. Section 134 of Indian Evidence Act does not require the specific number of witnesses to be adduced to prove the case but even the testimony of single witness if found to be trustworthy and reliable, conviction can be based. In other words, for conviction quality of evidence is required and not the quantity. In the instant case, the incident took place in the presence of P.W.1 and P.W.2 in the same room. They were produced by the prosecution before the Court and have proved the case, so it is not the requirement of law that all the witnesses be produced. In this way, non-production of the wife of deceased in the witness box, does not affect the credibility of testimony of P.W.1 and P.W. 2 and no adverse inference can be drawn in this regard. 50. So far as the submissions of the learned counsel regarding contradictions in the testimony of the prosecution witnesses, it is to note that contradictions in the statements of witnesses must be material contradictions. If they are minor in nature, the testimony of witnesses cannot be discarded. 51. In the case of Asha Vs. 50. So far as the submissions of the learned counsel regarding contradictions in the testimony of the prosecution witnesses, it is to note that contradictions in the statements of witnesses must be material contradictions. If they are minor in nature, the testimony of witnesses cannot be discarded. 51. In the case of Asha Vs. State of Rajasthan, AIR 1997 SCC 2828 where some minor contradictions in the statements of witnesses were found, it was observed that some trivial contradictions in nature are to be ignored. 52. In the present case, P.W. 2 had stated that deceased Sunil Kumar was taken to the hospital after the incident where he was declared dead by the doctor and P.W. 1 stated that the incident took place in the room and deceased died on the spot and his dead body was lying there. These statements of the eye-witnesses are self contradictory. It is evident from the testimony of P.Ws. 1 and 2 that after the incident took place, P.W. 1 went to the police station to lodge the F.I.R. just after the incident and P.W. 2 remained in the house with other inmantes who took the deceased to the hospital. As at that time, P.W. 1 was not present, it cannot be expected from him to know about the fact that whether deceased Sunil Kumar was taken to the hospital by P.W. 2 and other inmates. This contradiction in the statements of both the witnesses is natural and do not strike at the very root of their statements about the fact of incident rather this makes the witnesses more truthful and trustworthy. 53. Learned counsel for the appellants has also argued that except police personnel no other public witness was brought at the time of recovery of country-made pistol at the instance of appellant Shiv Kumar @ Pinku, which makes the recovery doubtful. In this regard, the statement of the Investigating Officer/P.W.7 S.S.I. R.D. Kaithal is relevant where he stated that he tried to trace public witness at the time of recovery but no one was ready to come forward. It is natural that no person wants to become a witness against criminals in the society. On the other hand, a public servant employed in the police cannot be said to be untrustworthy unless he has any reason to implicate the accused falsely. 54. In the case Kashmiri Lal Vs. It is natural that no person wants to become a witness against criminals in the society. On the other hand, a public servant employed in the police cannot be said to be untrustworthy unless he has any reason to implicate the accused falsely. 54. In the case Kashmiri Lal Vs. State of Haryana (2001)1 SCC652 the Hon'ble Apex Court has laid down that thus apart, there is no absolute command of law that the police officers cannot be cited as witnesses and their testimony should always be treated with suspicion. Ordinarily, the public at large show their disinclination to come forward to become witnesses. If the testimony of the police officer is found to be reliable and trustworthy, the court can definitely act upon the same. If in the course of scrutinising the evidence, the court finds the evidence of the police officer as unreliable and untrustworthy, the court may disbelieve him but it should not do so solely on the presumption that a witness from the department of police should be viewed with distrust. This is also based on the principle of quality of the evidence weighed over the quantity of evidence. 55. In this case, there was no suggestion of any enmity with the Investigating Officer on account of which it could be said that he made false recovery and implicated the accused falsely. It is noteworthy that the countrymade pistol recovered at the instance of appellant Shiv Kumar @ Pinku and the bullet found in the body of the deceased at the time of the post-mortem were sent to F.S.L. for the ballistic examination wherein firing remnanats of lead and nitrate were found to be present yet this does not affirm the use of the countrymade pistol recovered at the instance of appellants in commission of the murder of the deceased Sunil Kumar, but absence of public witness at the time of recovery does not make the recovery false and fabricated. Here it is noteworthy that there was single entry wound on the head of the deceased and a bullet was also recovered by the doctor from the brain matter of the deceased but the country-made pistol recovered at the instance of appellant Shiv Kumar @ Pinku was 12 bore wherein ordinarily cartridge is used. In the usual way, the use of bullet cannot be said to be possible in the tamancha (countrymade pistol) of 12 bore. In the usual way, the use of bullet cannot be said to be possible in the tamancha (countrymade pistol) of 12 bore. No opinion, in this regard has been given by the ballistic expert also. Thus, it cannot be said to be established that the recovered weapon was used in the commission of the crime. Mere fact that it is not established that the recovered countrymade pistol was used in causing the murder, in itself cannot be made the base for discarding the reliable testimony of the eye witnesses, of those who had seen the incident and identified the appellants while making fire on the deceased. 56. The appellant Shiv Kumar @ Pinku in his Section 313 Cr.P.C. stated, asserted that the police had implicated him in several cases so he had also been implicated by the police on account of enmity as also Om Prakash, the first informant. He further stated that the deceased was conducting business of selling ganja due to which he had enmity with other ganja sellers. Amongst them, one was Vijay Kasera resident of the Mohalla who poured acid on the deceased in which case he was also convicted and hence was trying to kill him. Likewise, Bachcha Pandey has stated that the informant had implicated him falsely. Though, the appellants stated that they had been implicated falsely on account of enmity but no instance of enmity with the informant or the deceased had been disclosed by them. Even, during the cross-examination of P.W. 1 and P.W. 2 no such fact has been brought on the part of the appellants by way of suggestion to discern any enmity. The contentions of the appellants regarding enmity, thus, do not get support from any material on record. Further, when there was no enmity with the family of the deceased it is not understandable as to why would they implicate the accused falsely while absolving the real culprits. Furthermore, in case, the statements of appellant Shiv Kumar @ Pinku about enmity with one Vijay Kasera is accepted, then there was no question with the informant to implicate the accused falsely while absolving the real assailant namely, Vijay Kasera. The statements made by the appellants in this regard do not go in their favour and do not prove to be a good defence. 57. The statements made by the appellants in this regard do not go in their favour and do not prove to be a good defence. 57. The testimony of P.W.1 and P.W.2, the eye-witnesses of the incident who had identified the appellants in the electric light and also knew them from before being resident of the adjacent Muhalla, is found to be unshakable. They are natural witnesses of the incident which took place in their house at about 8.30 & 8.45 p.m. where presence of other persons was not possible. 58. So far as the liability of appellant Bachcha Pandey is concerned, he is said to have exhorted to shoot the deceased. Both the appellants came together at the house of deceased and made a demand for money from him. On refusal, they threatened to kill him and went away at about 8.30 P.M. They both came again there at 8.45 P.M. with lathi and tamancha. On the exhortation of appellant Bachcha Pandey, appellant Shiv Kumar @ Pinku made fire pointing at the head of deceased, they both then went away together through the backside lane. This conduct of the appellants shows their common intention to commit murder of deceased Sunil Kumar in furtherance of their prearranged plan. They are, therefore, liable for the criminal act done by one of them with the aid of Section 34 I.P.C. 59. Having given our due considerations to the submissions advanced by the learned counsel for the parties, we are of the firm opinion that the prosecution has succeeded in establishing its case against the appellants beyond any shadow of doubt and the view taken by the learned Sessions Judge does not suffer from any infirmity. 60. In the result, the appeals lack merit and are hereby dismissed. 61. Since, appellant Shiv Kumar @ Pinku is in jail, he will serve out the remaining period of sentence and appellant Bachcha Pandey @ Subhas is on bail, he shall taken into custody and sent to jail to serve the sentence. 62. The copy of this judgment alongwith the original record of the Court below be transmitted to the Court concerned for necessary compliance. A compliance report be sent to this Court within one month. The office is directed to keep the compliance report on record.