IMPORTANT POINTS
(1) Minor discrepancies should not be given undue importance that don’t go to root of matter. Such contradictions are not material contradictions and evidence of such witnesses cannot be brushed aside and/or disbelieved.
(2) What is stated by Doctor/Medical officer can at the most be said to be his opinion.

JUDGMENT :

M.R. Shah, J.

Feeling aggrieved and dissatisfied with the impugned judgment and order dated 10.09.2018 passed by the High Court of Judicature at Allahabad in Criminal Appeal No. 2811 of 2008, by which the High Court has dismissed the said appeal preferred by the appellants -original accused challenging their conviction for the offence punishable under Section 302 r/w 34 of the I PC, passed by the learned Additional District & Sessions Judge, Fast Track Court No.2, Hathras (hereinafter referred to as the learned "trial Court"), the original accused nos. 1 & 3 have preferred the present appeal.

2. That both the appellants herein along with one another accused -Suresh were tried by the learned trial Court for the offences punishable under Section 302 r/w 34 of the IPC for having killed one Bhishampal Singh in an incident which happened on 28.01.2006. The role attributed to A1 - Rakesh was that he used country made pistol and caused injuries on the deceased. It was alleged that so far as Suresh and Anish - A2 & A3 are concerned, they assaulted the deceased with their respective knives. That after the full-fledged trial, the learned trial Court held all the accused guilty for the offence punishable under Section 302 r/w 34 of the IPC and sentenced all of them to undergo life imprisonment. The accused were also convicted for the offences punishable under Sections 4/25 of the Arms Act for which a separate sentence was also imposed by the learned trial Court. While convicting the accused, the learned trial Court heavily relied upon the depositions of PW1 and PW2 - eye witnesses and also the medical evidence and the deposition of Dr. Santosh Kumar -PW5 who conducted the post-mortem on the body of the deceased.

3. Feeling aggrieved and dissatisfied with the judgment and order of conviction and sentence passed by the learned trial Court convicting the accused for the offence punishable under Section 302 r/w 34 of the IPC and imposing the sentence of life imprisonment and also for the offences under the Arms Act, all the accused preferred appeal before the High Court being Criminal Appeal No. 2811 of 2008. By the impugned judgment and order, the High Court has dismissed the said appeal and has confirmed the conviction of the accused for the offences under Section 302 r/w 34 of the IPC and the sentence imposed of life imprisonment.

4. Feeling aggrieved and dissatisfied with the impugned judgment and order of the High Court, original accused no.1-Rakesh and accused no.3 - Anish have preferred the present appeal. It appears that original accused no.2 - Suresh has not preferred any appeal.

5. Shri Rishi Malhotra, learned Amicus Curiae has appeared on behalf of the appellants and Shri Vinod Diwakar, learned Additional Advocate General has appeared on behalf of the State of Uttar Pradesh and Shri Arjun Dewan, learned Advocate has appeared on behalf of the original complainant.

5.1 Shri Rishi Malhotra, learned Amicus has vehemently submitted that both, the learned trial Court as well as the High Court have committed a grave error in convicting the accused, relying upon the depositions of PW1 and PW2.

5.2 It is vehemently submitted that so far as PW2 is concerned, his presence on the spot at the time of the incident is absolutely doubtful. It is submitted that even according to him he came subsequent to the occurrence of the incident. It is submitted that as such he has specifically admitted in the cross-examination that when they had reached the court at 10:30 a.m., the next date of hearing was given as the Presiding Officer was not there. It is submitted that he was also confronted about the fact that he had come to the spot only after receiving the information about the incident. It is submitted that PW2 has specifically admitted that he reached the court before the deceased and PW1 at 10:00 a.m. and had moved an application for exemption from appearance of the accused in that case. According to the learned counsel appearing on behalf of th