Sanjay Kumar Pachori, J.

1. The present appeals are filed against the judgment and order passed by Additional Sessions Judge, Court No. 2 Mathura, on 22.10.2008 in Sessions Trial No. 637 of 2005 by which the appellants Keshav Singh @ Kesho, Bhuri Singh @ Bhura, Surendra Singh and Jagdish Singh have been convicted for the offences punishable under section 302 Indian Penal Code ("I.P.C.") and the appellant Ghanshyam for the offence punishable under section 302 read with section 120-B I.P.C. In addition thereto, the appellants Keshav Singh @ Kesho and Bhuri Singh @ Bhura have also been convicted for the offence punishable under section 25 Arms Act. The punishment awarded to the appellants for their conviction noticed above is as follows; imprisonment for life with a fine of Rs. 5,000/- each and default sentence of six months additional imprisonment under section 302 I.P.C., and section 302 read with section 120-B I.P.C.; one year's rigorous imprisonment with fine of Rs. 500/- each and default sentence one-month additional imprisonment for section 25 Arms Act. The sentences were directed to run concurrently.

PROSECUTION CASE

2. Prosecution case in brief, as could be elicited from the FIR lodged by Balveer (PW- 1), is that the appellants Ghanshyam, Keshav Singh @ Kesho, Bhuri Singh @ Bhura, Surendra Singh and Jagdish Singh had enmity with informant's brother Ranveer Singh (deceased) as they suspected that Ranveer Singh had informed the police about Ghanshyam's illegal arms factory, which was seized by the police on 10.6.2005. Due to this enmity, on 19.7.2005, at about 6.30 a.m., while Ranveer Singh was going to his Nauhara along with his wife Smt. Guddi Devi (PW-2) and daughter Asha (not examined), when he reached in front of the house of Ghanshyam, the appellants Keshav Singh, Bhuri Singh, Surendra Singh, and Jagdish Singh, ambushed him and fired shots at Ranveer Singh by rifle and unlicensed pistols. On receiving gunshot injuries, Ranveer Singh died at the spot. Hearing the gunshots, Hakim Singh (not examined) and Devendra Singh (PW- 4) arrived at the spot. The appellants threatened them and fled away from the spot. According to the prosecution, Ghanshyam Singh had hatched the conspiracy to murder Ranveer Singh and, before the incident, he and other accused-appellants had threatened the informant.

3. The First Information Report1 dated 19.7.2005 (Ex. Ka-3) had been registered under section 302, 506, 120-B I.P.C. against the appellants at Police Station- Baldev, District Mathura at 7.15 a.m. by Balveer Singh (PW- 1). The distance between the place of occurrence and Police Station is 14 KM. The special report (SR Report) of the present case had been sent to the Magistrate on the same day at 8.30 a.m. PW-6 Sub-Inspector2 B.R. Zaidi, after receiving a telephonic information reached the place of occurrence at around 7.00 a.m., during the investigation, he recovered two used cartridges (which were .315 & .12 bore) and blood-stained earth and plain earth from the place of the incident, the proceeding of the inquest had been completed at 10.30 a.m. The body of the deceased was sent for autopsy with other police papers (Ex. Ka-11 to Ex. Ka-14).

4. PW-3 Dr. B.D. Bhaskar conducted the post-mortem examination of the body of the deceased on 20.7.2005 at 1.30 p.m. and opined that the cause of death was 'shock and haemorrhage due to ante-mortem injuries'. The post-mortem (Ex. Ka-2) disclosed presence of 6 ante-mortem injuries on the corpse of Ranveer Singh. These are as under:

1. Wound of entry of firearm size 0.5 cm x 0.5 cm x cavity deep present on the left side outer aspects lower chest, 17 cm below of left nipple at 5 'O' clock position.

2. Wound of exit of firearm size 2 cm x 3 cm x cavity deep present on back of right side chest lower part 3 cm away from mid line connected with injury no. 1.

3. Wound of entry of firearm size 01 cm x 01 cm x cavity deep present on the right side forearm just below the elbow joint (Right) anterior aspect.

4. Wound of exit of firearm size 02 cm x 1.5 cm x bone deep present on the posterior aspect of left elbow just connected with injury no. 3 wounding bone.

5. Wound of entry of firearm size 01 cm x 01 cm x cavity deep present on the right side chest lower part 15 cm below right nipple at 7 'O' clock position.

6. Abrasion size 02 cm x 01 cm on the right side of neck middle part.

5. During the investigation, on 29.7.2005 at 5.30 a.m., PW-6 S.I. B.R. Zaidi arrested the appellants Bhuri Singh and Surendra Singh. He reached the recovery place as told by the appellant Bhuri Singh. At 6.45 a.m., he recovered an unlicensed pistol .315 bore on the disclosure statement and pointing out of the appellant Bhuri Singh from the bushes near Kashimpur mod, Madora canal at Barauli Road. On 4.8.2005 at 8.30 a.m. He also arrested the appellants Keshav Singh and Jagdish Singh near Khanpur crossing at 9.30 a.m., on the disclosure statement and pointing out of Keshav Singh, he recovered another unlicensed pistol .12 bore from a closed Dal Mill near Hathkoli Road, seizure memo of the two recovered pistols (Ex. Ka-17, Ex. Ka-19) have also been prepared. Two F.I.R.'s of case crime nos. 124 of 2005 and 129 of 2005 (Ex. Ka- 28, Ex. Ka- 5) were also lodged. All the articles recovered during the investigation were sent for forensic examination.

6. S.I. Prahlad Singh (PW- 7) after receiving the investigation of case crime no. 129 of 2005, under Section 25 Arms Act, on 4.8.2005, prepared a site map (Ex. Ka-22) of the recovery place of unlicensed pistol and after completion of the investigation and after obtaining requisite permission from the District Magistrate, submitted a charge sheet (Ex. Ka-23) against the appellant Keshav Singh. PW- 8 S.I. Raudas Singh also after receiving the investigation of case crime no. 124 of 2005, under Section 25 Arms Act, on 29.7.2005, prepared a site map (Ex. Ka-25) of the recovery place of unlicensed pistol and after completion of the investigation and after obtaining requisite permission from the District Magistrate, submitted a charge sheet (Ex. Ka-26) against the appellant Bhuri Singh.

7. After completion of the investigation, a charge sheet (Ex. Ka-21) was submitted against the appellants, under sections 302, 506, 120-B I.P.C by PW- 6 S.I. B.R. Zaidi. On committal, the trial court framed charges against the appellants Keshav Singh, Bhuri Singh, Surendera Singh and Jagdish Singh under Sections 302, 506 I.P.C. and also framed charges against the appellant Ghanshyam under Sections 302 read with section 120-B I.P.C. The trial court also charged the appellants Keshav Singh and Bhuri Singh, under Section 25 Arms Act. The appellants denied the charges and claimed trial.

8. To prove the charges against the appellants, the prosecution examined as many as 8 witnesses, namely PW- 1 Balveer Singh (informant/younger brother of the deceased), PW-2 Smt. Guddi Devi (wife of the deceased) and PW- 4 Devendra Singh (cousin brother of the deceased) as eye-witnesses and also produced formal witnesses, namely PW-3 Dr. B.D. Bhaskar, PW- 5 Head Moharir Awan Kumar Dixit (Scribe of the F.I.R.), PW- 6 S.I. B.R. Zaidi (Investigating Officer), PW- 7 S.I. Prahlad Singh and PW- 8 S.I. Raudas Singh, to prove the exhibited documents and also produced material objects. A Forensic Scientific Laboratory report (paper no. 28 Ka/6 to 28 Ka/8) has also been submitted by the prosecution. The prosecution proved certain material exhibits, namely, an unlicensed pistol .315 bore as material Ex. No. -1, an unlicensed pistol .12 bore as material Ex. No. -2, used2 cartridge .315 bore as material Ex. No. -3, used cartridge .12 bore as material Ex. No. -4, blood stained earth as material Ex. Ka-5, plain earth as material Ex. No. -6. The prosecution proved F.I.R. dated 4.8.2005 and its G.D. report no. 16 as secondary evidence by PW-8 S.I. Raudas Singh as Ex. Ka-28 and Ex. Ka-29.

9. The appellants were examined under section 313 Cr.P.C., wherein they denied the questions put to them and stated that they have been falsely implicated on account of village partibandi, enmity of election, the F.I.R. has been lodged ante-timed, the deceased was a history-sheeter, he was killed at outskirts of the village by his companions in the intervening night and his dead body was brought by his family members. The appellant Bhuri Singh stated that his left leg and left arm were fractured and he was unable to move. The appellants filed certain certified copies as documentary evidence for showing the criminal history of the deceased etc. The appellants, however, did not lead any oral evidence in support of their defence.

FINDINGS OF THE TRIAL COURT

10. The trial court on the basis of the evidence held that the testimony of PW- 1 Balveer Singh, PW- 2 Smt. Guddi Devi, and PW- 4 Devendra Singh is cogent, credible, and trustworthy with regard to the guilt of the accused-appellants; the evidence of relative cannot be disbelieved merely on the ground that the witnesses are related to each other or to the deceased. The trial court further held that it is trite law that a mere information about an incident on phone would not be treated as a first information report. F.I.R. is not an encyclopedia of the case, PW-1 Balveer Singh lodged a prompt F.I.R. and narrated all the incriminating facts of the case without any delay; he had seen the incident; the defense side had not impeached his evidence. On the basis of evidence that an illegal arms factory had been seized by PW- 6 on 10.6.2005; due to this enmity the appellants had threatened the deceased prior to the incident and the incident had taken place in front of the house of Ghanshyam; other appellants Keshav Singh, Bhuri Singh, Surendra Singh, and Jagdish Singh hid themselves in the house of Ghanshyam, therefore, Ghanshyam is also liable for conspiracy.

11. The trial court also held that PW- 2 Smt. Guddi Devi and PW- 4 Devendra Singh were eye-witnesses of the incident; their names were disclosed in the F.I.R. as eye-witnesses of the incident with regard to the evidence of PW- 4 the trial court held that there is sufficient explanation regarding the delay in recording of the statement by the Investigating Officer. The trial court also considered the close distance from where the witnesses saw the incident and held that even if there is some discrepancies but it would not affect the otherwise credible evidence of the witnesses; the trial court also held that according to the Medical Jurisprudence time of death as suggested by the PW- 6 Dr. B.D. Bhaskar can vary 6 hours plus/minus and PW- 6 in his examination-in-chief admitted that the death is possible at 6.30 a.m. on 19.7.2005. The trial court further held that the used cartridges recovered from the place of the incident were shot from the unlicensed pistols which had been recovered at the instance of Keshav Singh and Bhuri Singh. The FSL report corroborated the above fact.

12. The trial court also dealt with the inconsistency in the evidence of PW- 1 Balveer Singh and PW-6 S.I. B.R. Zaidi by pointing out that PW- 1 Balveer Singh stated that the police recovered the blood in polythene from the place of occurrence by PW- 6 whereas PW- 6 S.I. B.R. Zaidi denied this fact. It held that this inconsistency in ocular evidence is minor, a witness cannot be expected to possess a photographic memory so as to recall the details of an incident and it does not shake the basic version of the prosecution case. The trial court also recorded its finding that opportunity was provided to accused-appellants to explain the incriminating facts of the prosecution evidence, but they had not given any explanation.

13. On the basis of the evidence, the trial court did not accept the submission urged on behalf of the appellants and after appreciating the oral and documentary evidence, the trial court held that it is proved beyond all reasonable doubt that the appellants Keshav Singh, Bhuri Singh, Surendra Singh and Jagdish Singh had caused injuries to Ranveer Singh, which resulted in his death, under conspiracy hatched by Ghanshyam. The trial court convicted and sentenced the appellants as indicated herein above. Though, however, the trial court acquitted the appellants Keshav Singh, Bhuri Singh, Surendra Singh, and Jagdish Singh of the charge of offence punishable under section 506 I.P.C.

14. Being aggrieved by the judgment and order dated 22.10.2008, the appellants have preferred these appeals.

SUBMISSIONS BEFORE THIS COURT

15. We have heard Sri Sukhvir Singh, learned counsel for the appellants; Sri Patanjali Mishra, learned A.G.A. for the State; and have perused the record.

16. Learned counsel for the appellants assailing the judgment of the trial court argued that death of the deceased occurred in the night hours of 18/19.7.2005 at about 1.30 a.m., as is established by the post-mortem report which suggests that the death of the deceased occurred 36 hours prior to the postmortem. The deceased had criminal history and, therefore, had several enemies and might have been killed by some other persons at another place, as is reflected by the circumstance that inquest of the body of the deceased was not at the place of occurrence. Admittedly, the police had arrived at the spot before lodging of the F.I.R. which suggests that the incident had occurred much earlier than alleged and in some other manner and only later a false prosecution story was developed. It was urged that the trial court has not properly appreciated and considered the entire evidence on record. The prosecution has failed to prove the case against the appellants beyond all reasonable doubts and the impugned judgment is liable to be set aside.

17. Per Contra; learned A.G.A. refuted the arguments on behalf of the appellants and submitted that this is a case of broad daylight murder with direct evidence to prove the guilt. The exact time of death of the deceased Ranveer has neither been nor could be estimated by PW-3 Dr. B.D. Bhaskar. The incident took place on 19.7.2005 at 6.30 a.m. in front of the house of Ghanshyam and there was sufficient evidence that he had hatched conspiracy of the murder and had a role in it. The F.I.R. was registered against all the appellants on the same day at 7.15 a.m. promptly (i.e. within 45 minutes of the incident); it is not expected that wrong persons would be implicated and the real culprits would be spared. The prosecution has successfully proved prompt lodging of the F.I.R. as well as the date, time, place and manner of the occurrence and the assault as well as injuries caused to the deceased. The trial court has properly appreciated the evidence and rightly held the appellants guilty. The findings recorded by the trial court are based on proper appreciation of the evidence. The judgment of the trial court is liable to be affirmed.

DISCUSSION

18. Before us, the appellants arguments are: firstly, no strong motive for the crime proved because it is proved that no illegal arms factory of Ghanshyam was unearthed/seized, secondly, the incident occurred in the night, nobody witnessed the incident, which is borne out from following circumstances: (a) medical evidence ruled out the time of death, (b) police had arrived at the spot even before lodging the F.I.R., (c) inquest was conducted at the Nauhara and not at the spot; and thirdly, the eye-witnesses are not reliable because:

(i) There is discrepancy in the statement of PW-1 on one hand and PW- 2 & PW- 4 on the other with regard to the place from where the shots were fired. One set states that shots were fired from the door/chabutara of Ghanshyam's house and the other stated that they were fired from the Khadanja.

(ii) The prosecution witness though relatives received no fire-arm injury.

(iii) There is also discrepancy in respect of the role of Ghanshyam. As there is an improvement from the version taken in the F.I.R. inasmuch as role of exhortation has been attributed for Ghanshyam in the testimony whereas in the F.I.R. no presence of Ghanshyam was shown though suspicion was expressed with regard to his hand being behind the murder.

19. We have examined the contentions of the appellants and have gone through the entire evidence on record with care and caution.

20. Now, we shall proceed to examine the argument on behalf of the appellants, that is the incident was of night and was already reported to the police and that, later, story was developed by lodging F.I.R..

21. As per prosecution case, the incident took place on 19.7.2005 at 6.30 a.m. and its F.I.R. (Ex. Ka-3) was registered by PW-5 H.M. Awan Kumar Dixit on the basis of written complaint (Ex. Ka-1) against the appellants on the same day at 7.15 a.m. promptly (i.e. within 45 minutes of the incident), and he sent the special report (SR Report) of the case at 8.30 a.m. on the same day. The carbon copy of G.D. entry of written report (Ex. Ka-4) was duly proved by PW-5. This fact gets supported by statement of PW-1 Balveer Singh, who stated that he reached the police station at around 7.00 a.m. and had lodged the F.I.R. within 15 minutes. It is proved on record that PW-6 S.I. B.R. Zaidi, investigating officer of the case had reached the place of the incident at around 7.00 a.m. vide Ravangee G.D. Report No. 10 on receipt of telephonic information of the incident from Hakim Singh, but the name of accused, time of murder had not been disclosed in the telephonic information.

22. Section 154 of the Code, requires an officer in charge of a police station to reduce to writing every information relating to the commission of a cognizable offence, if given orally to such officer. It further requires that such information, which has been reduced to writing, shall be read over to the informant and the information reduced to writing or given in writing by the person concerned shall be signed by the person giving it.

23. On a close scrutiny of the evidence, we observe that the appellants did not dispute the time of lodging of the F.I.R., time of dispatch of Special Report of the case to the Magistrate and the time of commencement of the inquest proceeding in as much as no suggestion was put to the witnesses on the above aspects.

24. It is trite law that a mere information about an incident on phone would not be treated as a first information report. The object and purpose of giving such telephonic message is not to lodge the first information report, but to request the officer in charge of the police station to reach the place of occurrence. Every telephonic information about commission of a cognizable offence irrespective of nature and details of such information cannot be treated as F.I.R. (Vide: Ramesh Baburao Devaskar and Others v. State of Maharashtra (2007) 13 SCC 501, [LQ/SC/2007/1256] Ramsinh Bavaji Jadeja v. State of Gujarat (1994) 2 SCC 685, [LQ/SC/1994/292] Dhananjoy Chatterjee @ Dhana v. State of W.B. (1994) 2 SCC 220, [LQ/SC/1994/39] Soma Bhai v. State of Gujarat (1975) 4 SCC 257, [LQ/SC/1975/187] Tapinder Singh v. State of Punjab and Another AIR 1970 SC 1566 [LQ/SC/1970/261] : (1970) 2 SCC 113) [LQ/SC/1970/261] .

25. It is equally well-settled that first information report is not a substantive piece of evidence and it need not be an encyclopedia containing all the minute details of the prosecution case. We are thus of the view that the telephonic information of Hakim Singh received by the police cannot be treated as the first information report of the incident/case.

26. We shall now examine the evidence pertaining to the incident. There are three eye-witnesses, namely, PW- 1 Balveer Singh, PW- 2 Smt. Guddi Devi and PW- 4 Devendra Singh. All of them have consistently stated that on the date of incident, Ranveer Singh (deceased) was going to his Nauhara along with his wife Smt. Guddi Devi and daughter Asha, as soon as he reached in front of the house of Ghanshyam, the appellants Keshav Singh, Bhuri Singh, Surender Singh and Jagdish Singh fired shots at the deceased which resulted in his death on the spot. The incident took place over the Khadanja, the width of which was around 4 steps. At the time of the incident PW- 2 Smt. Guddi Devi was 20-25 steps behind her husband. She reached the scene of occurrence first, after her, PW- 1 Balveer Singh, PW-4 Devendra Singh and Hakim Singh reached there. Hakim Singh had informed the police by telephone at around 6.30 a.m. This fact is corroborated by PW- 5 H.M. Awan Kumar Dixit, who stated that the telephonic information of the incident was received at 6.30 a.m. which was passed on to the Station Officer, it is proved on record that the then Station Officer PW-6 B.R. Zaidi had reached the place of the incident at around 7.00 a.m. vide Ravangee G.D. Report no. 10.

27. PW- 6 S.I. B.R. Zaidi, after inspecting the place of the incident as pointed out by the informant, prepared a site map (Ex. Ka-7). He recovered two used cartridges (which were .315 & .12 bore) from the place of occurrence and prepared a seizure memo (Ex. Ka.-8). He also recovered blood-stained earth and plain earth from the place of the incident, sealed them separately and prepared another seizure memo (Ex. Ka-9). He also completed the inquest proceedings at the Nauhara on 19.7.2005 at 10.30 a.m. and prepared the inquest report (Ex. Ka- 10). PW-6 proved all those steps of the investigation.

28. On behalf of the appellants, it is pointed out that there is a material contradiction in the statements of PW- 1 Balveer Singh, on the one hand and PW- 2 Smt. Guddi Devi and PW- 4 Devendra Singh on the other. PW- 1 Balveer Singh stated in his cross-examination that the appellants Keshav Singh, Bhuri Singh, Surendra Singh and Jagdish Singh fired from the door and chabutara of the house of Ghanshyam, whereas PW- 2 Smt. Guddi Devi and PW- 4 Devendra Singh stated that the appellants Keshav Singh, Bhuri Singh, Surendra Singh and Jagdish Singh fired from Khadanja in front of the house of Ghanshyam.

29. PW- 1 Balveer Singh categorically stated in his cross-examination that Ranveer Singh, Smt. Guddi Devi and Asha used to go to the Nauhara every day for feeding his cattle at around 6-6.30 a.m., he witnessed the incident within minutes of his leaving the house at around 6.30 a.m. The appellants fired several shots upon the deceased though three gunshots hit his brother. Smt. Guddi Devi and Asha who were about 15 steps behind Ranveer saw the incident and ran towards their house. Ghanshyam's house has a chabutara 4 steps from the place of the incident, the deceased was shot from 4 steps away from chabutara. The incident took place over the Khadanja. After the incident, he saw two used cartridges lying near the body of the deceased. He and his family members brought Ranveer's corpse inside the Nauhara and kept the dead body there. Thereafter, he went to the police station for lodging the report after about 15 minutes of the incident.

30. PW- 1 Balbeer Singh lodged the F.I.R. with utmost promptitude within 45 minutes of the occurrence. The prompt lodging of F.I.R. by him, in which all necessary details of the incident have been given, lends enough assurance to the presence of PW- 1 at the spot. A promptly lodged F.I.R. reflects the first-hand account of what has actually happened, and who was responsible for the offence in question. PW- 6 S.I. B.R. Zaidi recovered two used cartridges from the place of the incident and the site map (Ex. Ka-7) has been prepared by the investigating officer with the assistance of PW- 1 Balveer Singh which also supports the presence of the PW- 1 at the place of occurrence at the time of the incident. No suggestion was put to this witness that he did not see the incident. Thus, the testimony of PW- 1 Balveer Singh is to be treated as that of an eye-witness.

31. PW- 2 Smt. Guddi Devi consistently stated in her cross-examination that she used to go to the Nauhara with her husband every day at 6 a.m. Ghanshyam's two houses were situated on the way between her house and Nauhara. The incident took place in front of the second house of Ghanshyam, which is near to her Nauhara and the house of Hakim Singh is adjacent to her Nauhara. The width of Khadanja in front of the house of Ghanshyam is equal to 3 steps, at the time of the incident her husband was 20-25 steps away from her and her brother-in-law PW- 1 Balveer Singh was 20-25 steps behind her. Keshav Singh, Bhuri Singh, Surendra Singh, and Jagdish Singh shot fire from the Khadanja, she ran back and hid behind the wall of Guddu's house. Her husband was shot when he was standing and some shots were fired even when he fell down. Ghanshyam did not fire at Ranveer Singh, when she reached the spot her husband was dead, PW- 1 Balveer Singh, PW- 4 Devendra Singh, and Hakim Singh also reached there.

32. PW- 4 Devendra Singh supported the prosecution version and stated in his cross-examination that he was sitting on the chabutara of Hakim Singh, distance of the chabutara from the place of the incident will be about 20 steps. All shots were fired from Khadanja. At the time of the incident, PW- 2 Smt. Guddi Devi was 20 steps behind her husband, PW- 1 Balveer Singh was also behind 20-25 steps behind from PW- 2 Smt. Guddi Devi.

33. As to what would be the consequence of such discrepancy in the testimony of the eye-witnesses, it would be useful to notice few decisions of the Apex Court. In Prithu @ Prithi Chand & Another v. State of Himachal Pradesh (2009) 11 SCC 588, [LQ/SC/2009/386] the Apex Court has observed as under: (SCC p. 591, para 14)

"14. In Bharwada Bhoginbhai Hirjibhai v. State of Gujarat (1983) 3 SCC 217, [LQ/SC/1983/159] it was observed that undue importance should not be attached to omissions, contradictions and discrepancies which do not go to the root of the matter and shake the basic version of the prosecution witnesses. A witness can not be expected to possess a photographic memory and to recall the details of an incident verbatim. Ordinarily, it so happens that a witness is overtaken by events. A witness could not have anticipated the occurrence which very often has an element of surprise. The mental faculties cannot, therefore, be expected to be attuned to absorb all the details. Thus, minor discrepancies were bound to occur in the statement of witnesses."

34. In State of U.P. v. M.K. Anthony (1985) 1 SCC 505, [LQ/SC/1984/301] the Apex Court has observed as under: (SCC pp. 514-15, para 10)

"10. 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 scrutinise the evidence more particularly keeping in view the deficiencies, draw-backs 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. 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. 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. Even honest and truthful witnesses may differ in some details unrelated to the main incident because power of observation, retention and reproduction differ with individuals..."

35. In Yogesh Singh v. Mahabeer Singh and Others, (2017) 11 SCC 195, the Apex Court observed as under: (SCC p. 212, para 29)

"29. It is well settled in law that the minor discrepancies are not to be given undue emphasis and the evidence is to be considered from the point of view of trustworthiness. The test is whether the same inspires confidence in the mind of the court. If the evidence is incredible and cannot be accepted by the test of prudence, then it may create a dent in the prosecution version. If an omission or discrepancy goes to the root of the matter and ushers in incongruities, the defence can take advantage of such inconsistencies. It needs no special emphasis to state that every omission cannot take place of a material omission and, therefore, minor contradictions, inconsistencies or insignificant embellishments do not affect the core of the prosecution case and should not be taken to be a ground to reject the prosecution evidence. The omission should create a serious doubt about the truthfulness or creditworthiness of a witness. It is only the serious contradictions and omissions which materially affect the case of the prosecution but not every contradiction and omission. (See: Rammi v. State of M.P. (1999) 8 SCC 649, [LQ/SC/1999/914] Leela Ram v. State of Haryana (1999) 9 SCC 525, [LQ/SC/1999/965] Bihari Nath Goswami v. Shiv Kumar Singh (2004) 9 SCC 186, [LQ/SC/2004/264] Vijay v. State of M.P. (2010) 8 SCC 191, [LQ/SC/2010/734] Sampath Kumar v. Inspector of Police (2012) 4 SCC 124, [LQ/SC/2012/255] Shyamal Ghosh v. State of W.B. (2012) 7 SCC 646 [LQ/SC/2012/562] and Mritunjoy Biswas v. Pranab (2013) 12 SCC 796) [LQ/SC/2013/873] .

36. Upon close scrutiny of the evidence, we observe that the appellants did not put any questions or suggestions to the eye witnesses PW-1 Balveer Singh, PW-2 Smt. Guddi Devi and PW- 4 Devendra Singh on material facts such as: (i) On 19.7.2005, Ranveer Singh, along with his wife PW- 2 Smt. Guddi Devi and his daughter Km. Asha, was going to his Nauhara from his house; (ii) the occurrence had taken place on 19.7.2005 at around 6.30 a.m. in front of the house of appellant Ghanshyam, at Khadanja; and (iii) the appellants Keshav Singh @ Kesho, Bhuri Singh @ Bhura, Surendra Singh, and Jagdish had shot fired at the deceased with unlicensed pistols.

37. Keeping the body of the deceased at Nauhara is quite natural because why would family members let the body lie on Khadanja street. Minimum respect to the dead is quite natural. Moreover, the place of occurrence has been established by the prosecution witnesses of fact as well as formal witnesses by recovery of blood-stained earth/plain earth; cartridges; site plan, etc. No question or suggestion was put to the I.O. as to why they would falsely implicate.

38. Discrepancy amongst the witness with regard to the place from where shots were fired does not demolish the substratum of the prosecution case as the Khadanja is quite narrow and if one shooter stands on one end of the Khadanja, a witness may perceive that he is firing from the house adjoining the Khadanja. No question or suggestion was put to the witnesses as to why they would falsely implicate the accused/main shooters. Further, no question was put that the main shooters were not known to the witnesses. In view of the above discussion, we are of the considered opinion, that the above contradictions do not affect the core of the prosecution case.

39. Evidence of PW- 1 Balveer Singh, PW- 2 Smt. Guddi Devi and PW- 4 Devendra Singh is assailed on the ground that, according to the post-mortem report, death occurred 36 hours before the post-mortem, therefore, the incident did not occur at 6.30 a.m. on 19.7.2005. Hence, none of them have seen the incident.

40. Dr. B.D. Bhaskar (PW- 3), who conducted the post-mortem (Ex. Ka.-2) of the body of the deceased on 20.7.2005 at 1.30 p.m., during his cross-examination, stated that the death could have occurred 36 hours before the post-mortem examination. Taking advantage of the above statement, the learned counsel for the appellants vehemently argued that the deceased, who had criminal-history, was killed by other persons at a different place in the night hours of 18/19.7.2005, say at about 1.30 a.m., therefore, the incident did not take place at 6.30 a.m. on 19.7.2005 as alleged by the prosecution.

41. PW- 3 Dr. B.D. Bhaskar, had formed his opinion on the basis of rigor mortis found at the time of the post-mortem. In his examination-in-chief, he stated that it is possible that the death of the deceased occurred at 6.30 a.m. on 19.7.2005. The postmortem report (Ex. Ka-2) discloses that the deceased sustained three entry wounds and two exit wounds. The post-mortem report also indicates that all firearm wounds were caused from a close-range.

42. In this regard it be observed that it is well settled position of law that doctor can never with precision determine the exact time of death or the duration of injuries. In Mangu Khan and Others v. State of Rajasthan, AIR 2005 SC 1912 [LQ/SC/2005/265] , the Apex Court has observed as under: (AIR p. 1916, para 9)

"9. ....In the first place, neither post-mortem report suggests that the death had taken place exactly 24 hours before the post-mortem was conducted. All that the post-mortem reports say is that the death had occurred "within 24 hours prior to PM Examination." Undoubtedly, the post-mortem examination was carried out at 11.00 a.m./12 noon on 11.7.1997. In other words, the postmortem reports suggest that the death might have occurred any time after 11.00/12.00 noon of 10.7.1997. The contention urged by reference to text books on Forensic Medicine to show the time within which rigor mortis develops all over the body also has no factual basis. It depends on various factors such as constitution of the deceased, season of the year, the temperature in the region and the conditions under which the body has been preserved. The record indicates that the body was taken from the mortuary. We notice that there is no cross-examination, whatsoever, of the doctor so as to elicit any of the material facts on which a possible argument could have been based. If these are the circumstances, then the presence of rigor mortis all over the body by itself cannot warrant the argument of the learned counsel that the death must have occurred during the previous night. Acceptable ocular evidence cannot be dislodged on such hypothetical basis for which no proper grounds were laid."

43. In Madan Gopal Kakkad v. Naval Dubey and Another (1992) 3 SCC 204, [LQ/SC/1992/369] the Apex Court has observed: (SCC p. 221, para 34)

"34. A medical witness called in as an expert to assist the Court is not a witness of fact and the evidence given by the medical officer is really of an advisory character given on the basis of the symptoms found on examination. The expert witness is expected to put before the Court all materials inclusive of the data which induced him to come to the conclusion and enlighten the Court on the technical aspect of the case by explaining the terms of science so that the Court although, not an expert may form its own judgment on those materials after giving due regard to the expert's opinion because once the expert's opinion is accepted, it is not the opinion of the medical officer but of the Court."

44. In the instant case, as per the prosecution, the death of the deceased had occurred about 36 hours before the postmortem. As we have already observed that PW-3 Dr. B.D. Bhaskar had formed his opinion on the basis of rigor mortis found at the time of the post-mortem on 20.7.2005 at 1.30 p.m. he estimated that the death of deceased could have been caused 36 hours before the post-mortem. The post-mortem report (Ex. Ka.-2) is just an estimate of the time and does not give the exact time of the death. In fact, PW- 3 in his examination-in-chief did state that it is possible that the death could have taken place at 6.30 a.m. on 19.7.2005.

45. Learned counsel for the appellants relied upon Moti v. State of U.P. 2003 Law Suit (SC) 301 wherein Hon'ble Supreme Court, dealing with a case where stomach of the deceased was found empty and the prosecution evidence was that the murder took place shortly after the deceased had his last meal, observed "in our opinion, a serious doubt as to the time of incident and the presence of the eye-witnesses at the time of incident and their narration of the incident also becomes doubtful." But in the instant case, there is no such doubt, as, according to the post-mortem report (Ex. Ka-2), stomach of the deceased was found empty and there is no evidence led by the prosecution that the deceased had taken food shortly before the incident. Further, PW- 2 Smt. Guddi Devi stated that the deceased had not left the house after having breakfast nor he had gone to answer the call of nature before the incident.

46. It has been observed in various cases by Hon'ble Supreme Court that where the eye-witnesses account is found credible and trustworthy, medical opinion pointing to alternative possibilities is not to be used to rule out reliable ocular account.

47. In Yogesh Singh v. Mahabeer Singh and Others, (2017) 11 SCC 195, the Apex Court observed as under: (SCC p. 217, para 43)

"43. ....In any event, it has been consistently held by this Court that evidentiary value of medical evidence is only corroborative and not conclusive and, hence, in case of a conflict between oral evidence and medical evidence, the former is to be preferred unless the medical evidence completely rules out the oral evidence. [See: Solanki Chimanbhai Ukabhai v. State of Gujarat (1983) 2 SCC 174, [LQ/SC/1983/66] Mani Ram v. State of Rajasthan 1993 Supp (3) SCC 18, State of U.P. v. Krishna Gopal (1988) 4 SCC 302, [LQ/SC/1988/397] State of Haryana v. Bhagirath (1999) 5 SCC 96, [LQ/SC/1999/554] Dhirajbhai Gorakhbhai Nayak v. State of Gujarat (2003) 9 SCC 322, [LQ/SC/2003/690] Thaman Kumar v. State (UT of Chandigarh) (2003) 6 SCC 380, [LQ/SC/2003/599] Krishnan v. State (2003) 7 SCC 56, [LQ/SC/2003/694] Khambam Raja Reddy v. Public Prosecutor (2006) 11 SCC 239, [LQ/SC/2006/863] State of U.P. v. Dinesh (2009) 11 SCC 566, [LQ/SC/2009/443] State of U.P. v. Hari Chand (2009) 13 SCC 542, [LQ/SC/2009/1042] Abdul Sayeed v. State of M.P. (2010) 10 SCC 259 [LQ/SC/2010/975] and Bhajan Singh v. State of Haryana (2011) 7 SCC 421] [LQ/SC/2011/807] .

48. In the instant case, the medical evidence is not in absolute conflict with ocular evidence neither with regard to the time of the incident as also with regard to the injuries found on the body of the deceased and it cannot be said that the medical evidence is in complete conflict with the prosecution story that the deceased died of gunshot wounds early morning at about 6.30 a.m. on 19.7.2005. The medical evidence is in conformity with the ocular testimony of all the eye-witnesses. We are thus of the firm view that there is no inconsistency between the ocular evidence and medical evidence and on the basis of mere estimation of the time of death, ocular evidence of PW- 1 Balveer Singh, PW- 2 Smt. Guddi Devi and PW- 4 Devendra Singh can not be discarded.

49. Evidence of PW- 1 Balveer Singh, PW- 2 Smt. Guddi Devi and PW- 4 Devendra Singh has been assailed on the ground that they are close relatives of the deceased, hence their testimony is not reliable.

50. In this regard it be observed that it is settled position of law that the testimony of a relative is not to be treated as inherently tainted, the court only needs to ascertain whether the evidence is inherently probable, cogent and consistent. In Dilip Singh and Others v. The State of Punjab, AIR 1953 SC 364 [LQ/SC/1953/60 ;] , (3 Judge) the Apex Court has observed as under: (AIR p. 366, para 26)

"26. A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity against the accused, to wish to implicate him falsely. Ordinarily a close relation would be the last to screen the real culprit and falsely implicate an innocent person. It is true, when feelings run high & there is personal cause for enmity, that there is a tendency to drag in an innocent person against whom a witness has a grudge along with the guilty, but foundation must be laid for such a criticism and the mere fact of relationship far from being a foundation is often a sure guarantee of truth. However, we are not attempting any sweeping generalisation. Each case must be judged on its own facts. Our observations are only made to combat what is so often put forward in cases before us as a general rule of prudence. There is no such general rule. Each case must be limited to and be governed by its own facts."

51. In Yogesh Singh v. Mahabeer Singh and Others, (2017) 11 SCC 195, the Apex Court observed as under: (SCC p. 212, para 28)

"28. A survey of judicial pronouncements of this Court on this point leads to the inescapable conclusion that the evidence of a closely related witness is required to be carefully scrutinised and appreciated before any conclusion is made to rest upon it, regarding the convict/accused in a given case. Thus, the evidence can not be disbelieved merely on the ground that the witnesses are related to each other or to the deceased. In case the evidence has a ring of truth to it, is cogent, credible and trustworthy, it can, and certainly, should be relied upon. (See Anil Rai v. State of Bihar (2001) 7 SCC 318, [LQ/SC/2001/1661] State of U.P. v. Jagdeo (2003) 1 SCC 456, [LQ/SC/2002/1298] Bhagaloo Lodh v. State of U.P. (2011) 13 SCC 206, [LQ/SC/2011/793] Dahari v. State of U.P. (2012) 10 SCC 256, [LQ/SC/2012/917] Raju v. State of T.N. (2012) 12 SCC 701, [LQ/SC/2012/1047] Gangabhavani v. Rayapati Venkat Reddy (2013) 15 SCC 298 [LQ/SC/2013/988] and Jodhan v. State of M.P. (2015) 11 SCC 52) [LQ/SC/2015/552]

52. Keeping in mind, the settled position of law, we are of the considered view that merely because of PW- 1 Balveer Singh, PW- 2 Smt. Guddi Devi and PW- 4 Devendra Singh are family members of the deceased their evidence cannot per se be discarded. Mere statement that being relatives of the deceased they are likely to falsely implicate the accused-appellants cannot be a ground to discard the evidence which is otherwise cogent and credible.

53. Testimony of PW- 4 Devendra Singh has been challenged by the appellants by contending that his statement under section 161 Cr.P.C. has been recorded by the investigating officer after about one-month of the incident and the delay has not been explained by the prosecution, but from the record, we observe that on the issue of delay in recording statement of PW- 4 Devendra Singh, no question was put to PW-6 S.I. B.R. Zaidi, investigating officer, as to why there was delay in recording the statement. PW- 4 Devendra Singh, on the other hand, explained the delay by stating that on the second day of the incident he had gone for 10-15 days to his relatives. Thus, the plea of the appellants that on account of delay in recording statement of PW- 4 his testimony is not credit worthy has no substance.

54. Credibility of the testimony of PW- 1 Balveer Singh, PW- 2 Smt. Guddi Devi and PW- 4 Devendra Singh has also been attacked by the appellants on the ground that they have not received any firearm injury on their body. In this regard, we may observe that PW- 2 Smt. Guddi Devi was 20-25 steps behind the deceased, at the time of the incident. She categorically stated in her cross-examination that the appellants did not fire at her. Moreover, she ran back and had hidden herself behind the wall of Guddu's house. PW- 4 Devendra Singh at the time of incident was sitting on the chabutara of Hakim Singh along with Hakim Singh. The distance between the chabutara of Hakim Singh and the place of incident is about 20 steps. The evidence of these eye-witnesses can not be doubted merely because they did not receive injury. Moreover, it is not the case that they had planned the murder of the entire family of the deceased.

55. At this stage, it is pertinent to deal with the motive behind the incident, according to the prosecution the accused suspected that on the information provided by the deceased, the police seized an illegal arms factory of the appellant Ghanshyam on 10.6.2005. As per the prosecution case, on 18.7.2005, a day before the incident, the appellants threatened the deceased, but with regard to extension of threat the evidence of PW- 1, PW-2 and PW- 4 is contradictory. It is an admitted fact that no F.I.R. prior to the incident in respect of extension of threat was registered against the appellants and the F.I.R. dated 10.6.2005 had not been registered against the appellants. It is also an admitted case of the prosecution that the appellants did not threaten the deceased till the evening of 18.7.2005.

56. Some other evidence with regard to the enmity between the deceased and the appellants has appeared in the cross-examination of PW- 1 Balveer Singh and PW- 4 Devendra Singh, which is that there was a dispute between Ranveer Singh and Ghanshyam regarding putting the cable in the house of Pangeevi Singh (cousin brother of the deceased); Ranveer had not beaten Ghanshyam and not put the cable by force; appellant Surendra's father Harishchandra had molested Vinod's wife (cousin sister-in-law of the deceased) before the incident and admitted his mistake; Ranveer was not a police informer; there was no enmity between Ranveer and appellants Keshav and Bhura; Ranveer had not wanted to kill Keshav and Bhura; and informant's father sold any land to Ghanshyam or Harishchand, informant wanted to take that land back from Ghanshyam.

57. In Stalin v. State represented by the Inspector of Police criminal appeal No. 577 of 2020, (3 Judge), decided on 9.9.2020, the Apex Court has observed as under: (para no. 8.1)

"8.1 As observed and held by this Court in the case of Jafel Biswas v. State of West Bengal (2019) 12 SCC 560, [LQ/SC/2018/1148] the absence of motive does not disperse a prosecution case if the prosecution succeed in proving the same. The motive is always in the mind of person authoring the incident. Motive not being apparent or not being proved only requires deeper scrutiny of the evidence by the courts while coming to a conclusion. When there are definite evidence proving an incident and eye-witness account prove the role of accused, absence in proving of the motive by prosecution does not affect the prosecution case."

58. The instant case based on direct evidence of the eyewitnesses, it is settled position of law that the motive is always in the mind of person authoring the incident. In case there is direct trustworthy evidence of the witnesses as to commission of an offence, motive loses its significance.

59. The prosecution duly proved the seizure memo of unlicensed pistol .315 bore (Ex. Ka-17) which has been recovered on the instance of the appellant Bhuri Singh and another seizure memo of unlicensed pistol .12 bore (Ex. Ka-19) which has also been recovered on pointing out of the appellant Keshav Singh. On this fact, the appellants have not asked any suggestion to the PW- 6 S.I. B.R. Zaidi on this aspect. The report of FSL (paper no. 28Ka/6 to 8) also proves the fact that the used cartridges recovered from the place of the incident were fired from the recovered pistols.

60. It was argued that the finding of conspiracy against the appellant Ghanshyam recorded by the trial court is untenable because the prosecution has improved the case against Ghanshyam. As per the prosecution case, in the F.I.R. the appellant Ghanshyam had hatched the criminal conspiracy along with other appellants to commit the murder of Ranveer Singh and in furtherance thereof appellants Keshav Singh, Bhuri Singh, Surendra Singh and Jagdish Singh hid themselves in Ghanshyam's house and came out from the house to fire at the deceased. Whereas, PW- 2 Smt. Guddi Devi and PW- 4 Devendra Singh have improved the prosecution case against Ghanshyam by stating that he was present at the place of occurrence and had exhorted other appellants to kill Ranveer Singh.

61. On perusal of the entire evidence, we find that PW- 1 Balveer Singh, PW- 2 Smt. Guddi Devi and PW- 4 Devendra Singh have not stated a single word in their chief-examination in respect of criminal conspiracy or that the appellant Ghanshyam was the principal conspirator of the incident. On the other hand, PW- 2 and PW- 4 stated that Ghanshyam exhorted the other 4 appellants to kill Ranveer Singh, which is contradictory to the prosecution version taken in the FIR.

62. According to PW- 1 Balveer Singh, the assailants stayed 2 or 3 minutes at the place of the incident and he did not see them entering the house of Ghanshyam. PW- 2 Smt. Guddi Devi and PW- 4 Devendra Singh have developed the prosecution case and stated that Ghanshyam was present at the place of occurrence and he exhorted Keshav Singh, Bhuri Singh, Surendra Singh and Jagdish Singh to kill Ranveer Singh. It is a settled position of law that exhortation to other accused would amount the participation, the court has to evaluate the evidence very carefully for deciding whether that person had really done any such act. In the instant case, the case of exhortation against Ghanshyam is improved by PW- 2 and PW- 4 which is completely against the prosecution case taken in the F.I.R. It is an admitted case that no other role has been attributed to Ghanshyam by the prosecution.

63. It is the well-settled position of law that a conspiracy is rarely hatched in the open. There need not be any direct evidence to establish the same. Thus, it can be proved by way of inference on the basis of circumstantial evidence or by way of necessary implication.

64. In R. Shaji v. State of Kerala (2013) 14 SCC 266, [LQ/SC/2013/140] the Apex Court has observed: (SCC p. 286, para 54)

"54. A criminal conspiracy is generally hatched in secrecy, owing to which, direct evidence is difficult to obtain. The offence can therefore be proved either by adducing circumstantial evidence, or by way of necessary implication. However, in the event that the circumstantial evidence is incomplete or vague, it becomes necessary for the prosecution to provide adequate proof regarding the meeting of minds, which is essential in order to hatch a criminal conspiracy, by adducing substantive evidence in the court. Furthermore, in order to constitute the offence of conspiracy, it is not necessary that the person involved has knowledge of all the stages of action. In fact, mere knowledge of the main object/purpose of conspiracy, would warrant the attraction of relevant penal provisions. Thus, an agreement between two persons to do, or to cause an illegal act, is the basic requirement of the offence of conspiracy under the penal statute. (vide: Mir Nagvi Askari v. CBI (2009) 15 SCC 643, [LQ/SC/2009/1661] Baldev Singh v. State of Punjab (2009) 6 SCC 564, [LQ/SC/2009/1144] State of M.P. v. Sheetla Sahai (2009) 8 SCC 617, [LQ/SC/2009/1640] R. Venkatkrishnan v. CBI (2009) 11 SCC 737, [LQ/SC/2009/1663] S. Arul Raja v. State of T.N. (2010) 8 SCC 233, [LQ/SC/2010/766] Monica Bedi v. State of A.P. (2011) 1 SCC 284 [LQ/SC/2010/1210] and Sushil Suri v. CBI(2011) 5 SCC 708) [LQ/SC/2011/678] .

65. There is no reliable and cogent evidence brought on record to suggest that the appellant Ghanshyam had conspired with the other accused except four circumstances, namely, firstly, the appellant Ghanshyam suspected that the deceased had informed the police about his illegal arms factory which was seized by the police on 10.6.2005, secondly, Ghanshyam with other appellants had threatened the deceased of dire consequences, thirdly, the other four accused had come out and were hiding in the house of Ghanshyam, fourthly, the incident took place at the Khadanja, just in front of the house of Ghanshyam. So far as the first three circumstances are concerned they are not proved in as much as it is not proved that Ghanshyam ever had an illegal arms factory or that any case in connection therewith was registered. In respect of hiding of the other accused-appellant in the house of Ghanshyam is concerned that does not appear convincing because as per PW-2 Smt. Guddi Devi and PW- 4 Devendra Singh shots were fired from the Khadanja and there appear improvement in the prosecution case to implicate Ghanshyam by attributing the role of exhortation when initially it was only of conspiracy.

66. In Yogesh Singh v. Mahabeer Singh and Others, (2017) 11 SCC 195, the Apex Court has observed as under: (SCC p. 208, para 15)

"15. It is a cardinal principle of criminal jurisprudence that the guilt of the accused must be proved beyond all reasonable doubts. However, the burden on the prosecution is only to establish its case beyond all reasonable doubt and not all doubts. Here, it is worthwhile to reproduce the observations made by Venkatachaliah, J., in State of U.P. v. Krishna Gopal (1988) 4 SCC 302 [LQ/SC/1988/397] : (SCC pp. 313-14 paras 25, 26)

"25. ...Doubts would be called reasonable if they are free from a zest for abstract speculation. Law cannot afford any favourite other than truth. To constitute reasonable doubt, it must be free from an overemotional response. Doubts must be actual and substantial doubts as to the guilt of the accused person arising from the evidence, or from the lack of it, as opposed to mere vague apprehensions. A reasonable doubt is not an imaginary, trivial or a merely possible doubt; but a fair doubt based upon reason and common sense. It must grow out of the evidence in the case.

26. The concept of probability, and the degrees of it, cannot obviously be expressed in terms of units to be mathematically enumerated as to how many of such units constitute proof beyond reasonable doubt. There is an unmistakable subjective element in the evaluation of the degrees of probability and the quantum of proof. Forensic probability must, in the last analysis, rest on a robust common sense and, ultimately on the trained intuitions of the Judge. While the protection given by the criminal process to the accused persons is not to be eroded, at the same time, uninformed legitimisation of trivialities would make a mockery of administration of criminal justice." (See: Krishnan v. State (2003) 7 SCC 56, [LQ/SC/2003/694] Valson v. State of Kerala (2008) 12 SCC 241, [LQ/SC/2008/1578] and Bhaskar Ramappa Madar v. State of Karnataka (2009) 11 SCC 690) [LQ/SC/2009/718] .

67. Thus, after considering the entire evidence, as regards the charge of conspiracy against Ghanshyam, we do not find any worthwhile evidence against Ghanshyam to convict him for the offence of criminal conspiracy to murder the deceased. The trial court has wrongly appreciated the evidence on the point of the criminal conspiracy without giving any cogent reasoning as to how and in what manner the appellant Ghanshyam hatched the criminal conspiracy along with the other 4 appellants to kill Ranveer Singh. We are therefore of the considered view that the prosecution has failed to prove the charge of offence punishable under section 302 read with section 120-B I.P.C. against the appellant Ghanshyam beyond all reasonable doubt. As the evidence on record is not sufficient to bring home the guilt of the appellant Ghanshyam, the appellant Ghanshyam is entitled to benefit of the doubt, consequently, the appellant Ghanshyam is entitled to be acquitted of the charge under section 302 read with 120-B IPC.

68. In so far as the other appellants, namely, Keshav Singh, Bhuri Singh, Surendra Singh and Jagdish Singh are concerned their common intention to kill the deceased is indicated by their conduct, the manner of assault, the weapon used, the situs of the injuries and their nature and there was preconcert as shown by the evidence of P.Ws.' 1, 2 and 4. Their common intention is fully established by the circumstances and events that unfolded in the prosecution story, duly corroborated by PW-1 Balveer Singh, PW- 2 Smt. Guddi Devi and PW- 4 Devendra Singh. All the incriminating circumstances showing concert and participation in the joint criminal action were duly put to them in their examination, under section 313 Cr.P.C., and the said appellants were fully aware of the gravamen of the charge against them. Thus, even though the charge under section 302 read with section 34 I.P.C. had not been specifically framed against the appellants Keshav Singh, Bhuri Singh, Surendra Singh and Jagdish Singh but since section 34 I.P.C. is only a rule of evidence and does not create a substantive offence, no prejudice has been caused to them.

CONCLUSION

69. In view of the above discussion, we are of the considered opinion that the trial court rightly found the evidence of the eyewitnesses PW- 1 Balveer Singh, PW- 2 Smt. Guddi Devi and PW-4 Devendra Singh, worthy of acceptance so as to hold that the prosecution successfully proved that on 19.7.2005 at 6.30 a.m., the appellants Keshav Singh @ Kesho, Bhuri Singh @ Bhura, Surendra Singh and Jagdish Singh fired gunshots at Ranveer Singh, from their firearms at the Khadanja, in front of the house of Ghanshyam, which resulted in his death on the spot. The finding of the trial court to that extant is based on proper appreciation of the evidence. Therefore, we affirm the conviction and sentence awarded to the appellants Keshav Singh @ Kesho, Bhuri Singh @ Bhura, Surendra Singh, and Jagdish Singh and hold them guilty for offence punishable under section 302 read with section 34 I.P.C. However, as already discussed above the appellant Ghanshyam is entitled to be acquitted and is hereby acquitted of the charge of criminal conspiracy to commit murder.

70. The appellants Ghanshyam, Surendra Singh, and Jagdish Singh are on bail, therefore, their personal bonds and sureties are hereby cancelled. The appellants Surendra Singh, and Jagdish Singh are hereby directed to surrender before the trial court forthwith, failing which the learned Sessions Judge concerned shall take prompt steps to put the appellants Surendra Singh, and Jagdish Singh back in jail to undergo the sentence awarded to them by the trial court as affirmed above. The appellant Ghanshyam need not surrender but shall fulfill the requirement of section 437-A Cr.P.C. to the satisfaction of the trial Court at the earliest.

71. The criminal appeal no. 7517 of 2008 is partly allowed to the extent it relates to the appellant Ghanshyam, and is dismissed to the extent it relates to appellants Surendra Singh and Jagdish Singh. Whereas criminal appeals nos. 8378 of 2008 and 7424 of 2008 are dismissed.

72. The trial court record be returned forthwith together with a certified copy of this judgment for compliance. The office is directed to provide the copy of the judgment separately to all the appellants promptly. The office is further directed to enter the judgment in compliance register maintained for the purpose of the Court.