JUDGMENT : Gautam Kumar Choudhary, J. 1. The judgment of conviction and order of sentence under Sections 394, 395 and 397 of Indian Penal Code is under challenge in the instant appeals. 2. Prosecution case in brief, as set out in the FIR, lodged by one Satish Kumar Sinha, brother of Dr. Indrajit Kumar Sinha, is that on 08.02.2008 in the evening at 6:30 pm after the hospital duty when his brother returned to his residence at Canery Road and was getting down from his car, three unknown miscreants attacked him and one of them on the point of pistol demanded cash and valuables. One of his servant, namely Ranjit, who was present there, started raising alarm. Dr. Indrajit Kumar Sinha caught hold of one of the miscreants and started grappling with him. One of them fired by revolver resulting in gunshot injury over his shoulder near the chest. He caught hold one of them, and he was fired for the second time and he was injured near his waist. After the incidence, all five to six miscreants fled away. The injured Dr. Indrajit Kumar Sinha was taken to the hospital by the informant from where he was referred to higher center for treatment. 3. On the written report, Hazaribagh Sadar PS Case No. 140 of 2008 was registered under Sections 395, 397 of the Indian Penal Code against six unknown persons. Police, during investigation, initially submitted charge-sheet No.327 of 2008 on 30.05.2008 against Ashok Prasad Mehta, Shankar Mehta @ Shankar Mahto and Sudhir Kr. Mehta and supplementary charge-sheet No. 153 of 2009 was submitted on 29.04.2009 against Mithlesh Mehta and Gajendra @ Gajak Mehta. Accused Ashok Pd. Mahto, Shankar Mehta @ Shankar Mahto and Sudhir Kr. Mehta were charged on 26.11.2008, whereas Mithlesh Kr. Mehta was charged on 04.09.2009 for the offence under Sections 394, 395 and 397 of Indian Penal Code and they have been jointly tried. 4. One of the accused was below 18 years of age and his trial was split up from these accused persons and the matter was referred to Juvenile Justice Board. 5. Altogether nine witnesses were examined on behalf of the prosecution, and the relevant documents including Test Identification Parade Chart and injury report were proved on behalf of the prosecution. Learned trial Court on these evidences, convicted the appellants against which the present appeals have been preferred. 6. 5. Altogether nine witnesses were examined on behalf of the prosecution, and the relevant documents including Test Identification Parade Chart and injury report were proved on behalf of the prosecution. Learned trial Court on these evidences, convicted the appellants against which the present appeals have been preferred. 6. Judgment of conviction and order of sentence has been assailed on the ground that there has been inordinate delay of three months in holding the Test Identification Parade of the accused persons and during this period, they were being produced before the court below and the victim had opportunity to identify the accused persons before the Test Identification Parade. 7. It is further argued that there is material contradictions between the deposition of the witnesses regarding two gunshot injuries having been received by the victim Dr. Indrajit Kumar Sinha, whereas PW-8 Dr. N.A.M. Ali has testified to only one bullet injury. 8. As per the prosecution case, Ranjit @ Raju Thakur was the servant of Dr. Indrajit Kumar Sinha and was very much present at the place of occurrence at the alleged time of incidence. He was arrayed as charge-sheet witness No. 2, but he has been withheld and not examined by the prosecution. Therefore, adverse inference under Section 114 of the Evidence Act is liable to be drawn for withholding this material witness. The statements of the accused which was recorded under Section 313 Cr.P.C., suffers from serious infirmity and the conviction is liable to be set aside on this count alone. 9. There has not been any recovery of any fire arms which was allegedly used in the incidence. 10. It is argued that regarding the manner of incidence, there is contradiction in the oral evidence of the injured and in his identification in TIP which has been adduced into evidence and marked as Exhibit 6. Injured Dr. Indrajit Kumar Sinha (P.W. 1) has deposed in para 2 that he had identified the dacoit in TIP, who were present in Court. While identifying the accused persons in Court, he has deposed that they were five in number, and while pointing to accused Shankar Mehta and Ashok Mehta, specifically stated that they had opened fire on him. Regarding Mithilesh Mehta, he says that he was having knife in his hand and had over powered his servant. 11. While identifying the accused persons in Court, he has deposed that they were five in number, and while pointing to accused Shankar Mehta and Ashok Mehta, specifically stated that they had opened fire on him. Regarding Mithilesh Mehta, he says that he was having knife in his hand and had over powered his servant. 11. Exhibit 4 is referred to which is the TIP chart, in which the witness had identified Sudhir Kumar Mehta and had stated that he had over powered his servant Ranjit Ram on the point of knife, which is in contradiction what the witness has deposed in Court. It is further submitted that the arrest of the accused persons were made in February, 2008 whereas TIP was conducted in May, 2008, during this period, on several occasions, the accused persons were produced in Court where the witnesses had an opportunity to identify the accused persons. 12. On the point of sentence, it is submitted that the appellants have served sentence for more than four years two months. 13. Learned A.P.P. has defended the judgment of conviction and sentence. It is submitted by the learned counsel that this is a case wherein the attempted dacoity, the occupant of the house Dr. Indrajit Kumar Sinha received gunshot injury and the FIR was lodged soon thereafter. 14. Altogether nine witnesses have been examined on behalf of prosecution. Out of them, P.W. 1 is the direct eye witness who was injured in the said incidence. Law is settled that the testimony of an injured witness, deserves higher degree of credence as because injured will not implicate any one, but the main assailant. During investigation, all the appellants were put on TIP and were duly identified by this witness. The TIP chart has been proved and marked as Exhibit 4 and 6. The other witnesses, who came immediately after the incidence on hearing Hulla, their testimony will be relevant under Section 6 of the Evidence Act as they arrived at the place of occurrence on hulla, was part of the same transaction. P.W. 2, P.W. 3, P.W. 6 and P.W. 7, all these witnesses are the people from the locality and they have testified to the incidence of attempted Dacoity in the house of PW1. 15. P.W. 2, P.W. 3, P.W. 6 and P.W. 7, all these witnesses are the people from the locality and they have testified to the incidence of attempted Dacoity in the house of PW1. 15. There has been some minor inconsistencies in the statement as given at the time of TIP and that while identifying the accused by P.W. 1 in dock. Those inconsistency are trivial and not material, considering the fact that the incidence had taken place after sunset and in the scuffle that took place, it was but natural that the injured who had suffered gunshot injury, will make some error in identifying actual role of each of the accused persons. 16. The Doctor, who examined, P.W. 8, has proved injury report wherein he found following injuries:- 1. Bullet injury over the right scapular area causative weapon gunshot injury. Nature of injury – Grievous. 2. Abrasion over posterior iliac spine. ANALYSIS 17. To begin with, it shall be desirable to set out some of the consecrated principles of appreciation of evidence which have been established by a long line of judicial precedents which are relevant in the present case. It has been held in Abdul Sayeed Vs. State of MP SC 2010 (4) East Cr. C 150 “Where a witness to the occurrence has himself been injured in the incident, the testimony of such a witness is generally considered to be very reliable as he is a witness that comes with a built in guarantee of his presence at the scene of the crime and is unlikely to spare the actual assailants in order to falsely implicate some one. Convincing evidence is required to discredit an injured witness.” 2023 SCC OnLine SC 355 Balu Sudam Khalde Vs. State of Maharastra 25. The appreciation of ocular evidence is a hard task. There is no fixed or straight-jacket formula for appreciation of the ocular evidence. The judicially evolved principles for appreciation of ocular evidence in a criminal case can be enumerated as under: “I. While appreciating the evidence of a witness, the approach must be whether the evidence of the witness read as a whole appears to have a ring of truth. There is no fixed or straight-jacket formula for appreciation of the ocular evidence. The judicially evolved principles for appreciation of ocular evidence in a criminal case can be enumerated as under: “I. While appreciating the evidence of a witness, the approach must be whether the evidence of the witness read as a whole appears to have a ring of truth. Once that impression is formed, it is undoubtedly necessary for the Court to scrutinize the evidence more particularly keeping in view the deficiencies, drawbacks and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence given by the witness and whether the earlier evaluation of the evidence is shaken as to render it unworthy of belief. II. If the Court before whom the witness gives evidence had the opportunity to form the opinion about the general tenor of evidence given by the witness, the appellate court which had not this benefit will have to attach due weight to the appreciation of evidence by the trial court and unless there are reasons weighty and formidable it would not be proper to reject the evidence on the ground of minor variations or infirmities in the matter of trivial details. III. When eye-witness is examined at length it is quite possible for him to make some discrepancies. But courts should bear in mind that it is only when discrepancies in the evidence of a witness are so incompatible with the credibility of his version that the court is justified in jettisoning his evidence. IV. Minor discrepancies on trivial matters not touching the core of the case, hyper technical approach by taking sentences torn out of context here or there from the evidence, attaching importance to some technical error committed by the investigating officer not going to the root of the matter would not ordinarily permit rejection of the evidence as a whole. V. Too serious a view to be adopted on mere variations falling in the narration of an incident (either as between the evidence of two witnesses or as between two statements of the same witness) is an unrealistic approach for judicial scrutiny. VI. By and large a witness cannot be expected to possess a photographic memory and to recall the details of an incident. VI. By and large a witness cannot be expected to possess a photographic memory and to recall the details of an incident. It is not as if a video tape is replayed on the mental screen. VII. Ordinarily it so happens that a witness is overtaken by events. The witness could not have anticipated the occurrence which so often has an element of surprise. The mental faculties therefore cannot be expected to be attuned to absorb the details. VIII. The powers of observation differ from person to person. What one may notice, another may not. An object or movement might emboss its image on one person's mind whereas it might go unnoticed on the part of another. IX. By and large people cannot accurately recall a conversation and reproduce the very words used by them or heard by them. They can only recall the main purport of the conversation. It is unrealistic to expect a witness to be a human tape recorder. X. In regard to exact time of an incident, or the time duration of an occurrence, usually, people make their estimates by guess work on the spur of the moment at the time of interrogation. And one cannot expect people to make very precise or reliable estimates in such matters. Again, it depends on the time-sense of individuals which varies from person to person. XI. Ordinarily a witness cannot be expected to recall accurately the sequence of events which take place in rapid succession or in a short time span. A witness is liable to get confused, or mixed up when interrogated later on. XII. A witness, though wholly truthful, is liable to be overawed by the court atmosphere and the piercing cross examination by counsel and out of nervousness mix up facts, get confused regarding sequence of events, or fill up details from imagination on the spur of the moment. The sub-conscious mind of the witness sometimes so operates on account of the fear of looking foolish or being disbelieved though the witness is giving a truthful and honest account of the occurrence witnessed by him. XIII. A former statement though seemingly inconsistent with the evidence need not necessarily be sufficient to amount to contradiction. The sub-conscious mind of the witness sometimes so operates on account of the fear of looking foolish or being disbelieved though the witness is giving a truthful and honest account of the occurrence witnessed by him. XIII. A former statement though seemingly inconsistent with the evidence need not necessarily be sufficient to amount to contradiction. Unless the former statement has the potency to discredit the later statement, even if the later statement is at variance with the former to some extent it would not be helpful to contradict that witness.” 18. In the present case, the incidence took place at 18.30 hours on 08.02.2008 and the FIR is lodged promptly on the same evening at 21.00 hours against six unknown persons for the offence of committing dacoity. 19. Dr. Indrajit Kumar Sinha, who sustained bullet injury in the said incidence, was rushed from Hazaribagh to Ranchi and was admitted in Apollo hospital. The discharge summary which has been adduced into evidence and marked as Exhibit 8, will go to establish that the injured was admitted in the hospital in the same evening and discharged after treatment on 13.02.2008. The bullet was removed on 09.02.2008 in the hospital from a right sub scapular region. The injury report has been proved and marked as Exhibit-7. 20. Police reached the place of occurrence after the incidence and seized one pellet of revolver/pistol from the place of occurrence on 08.02.2008. The seizure list has been proved and marked as Exhibit 1. Among other things that were seized from the place of occurrence, was blood stained wearing apparel. 21. The oral evidence corroborated by medical evidence, and seizure, leaves not a shred of doubt regarding the incidence in which PW-1 suffered gunshot injury. 22. The injured has been examined as P.W. 1, in which he has narrated at length the manner of the incidence and has identified all the Appellants in dock. The witness had earlier identified the Appellants also in the test identification parade. There is no contradiction with regard to the identity of the Appellants involved in the incidence. 23. Learned counsel on behalf of the Appellants has drawn notice towards certain inconsistencies appearing in the testimony of this witness, with regard to the specific role played by each one of the appellants. This Court is of the view that, all inconsistencies do not erode the credibility of a witness. 23. Learned counsel on behalf of the Appellants has drawn notice towards certain inconsistencies appearing in the testimony of this witness, with regard to the specific role played by each one of the appellants. This Court is of the view that, all inconsistencies do not erode the credibility of a witness. The inconsistency in the account of witnesses is bound to occur whenever the actual incidence is reconstructed during trial on the basis of oral and documentary evidence. There are reasonable gaps that can occur in observation, it’s perception and then reproduction of any witnesses account in the Court of law after passage of time. Contradictions are material when they go to the root of the matter, so as to cast cloud on the veracity of the account of a witness. In the present case, as has been rightly argued on behalf of the prosecution that the incidence took place after sunset, when the informant was confronted by those who had entered the house to commit dacoity. PW-1 had sustained bullet injury on his person and to expect a photogenic memory with regard to the actual role of each of the accused persons will be an unrealistic pursuit. For these reasons, it cannot be held to be fatal to the prosecution. 24. It has been argued that there is a delay of 3 months in conducting TIP. This Court is of the view that the substantive lead evidence of identification is in the Court. TIP has only corroborative effect. Mere delay in holding TIP, cannot be a ground to cast away the prosecution case. It has been held in Matru @ Girish Chandra Vs State of U.P., (1971) 2 SCC 75 that identifications tests do not constitute substantive piece of evidence. They are primarily an assurance to the investigating agency that their investigation is progressing in the right line. The identifications can only be used as corroborative evidence. 25. Under the aforesaid facts and circumstance, I find and hold the Appellants guilty for the offence to cause grievous hurt to Dr. Indrajeet Kumar Sinha while attempting to commit dacoity in his house, and they are accordingly, convicted for the offence under Section 397 of the Indian Penal Code and are sentenced to undergo rigorous imprisonment for eight years and a fine of Rs.5000/- each. In default of payment of fine, the Appellants shall undergo simple imprisonment for three months. Indrajeet Kumar Sinha while attempting to commit dacoity in his house, and they are accordingly, convicted for the offence under Section 397 of the Indian Penal Code and are sentenced to undergo rigorous imprisonment for eight years and a fine of Rs.5000/- each. In default of payment of fine, the Appellants shall undergo simple imprisonment for three months. In view of the conviction and sentence awarded under major Section, there shall not be any separate conviction and sentence under Section 394 or 395 of the Indian Penal Code. All the four Criminal Appeals are dismissed with the modification in finding and sentence.