Kunwar and Others vs State of U.P.

J.P. Semwal, J.—This criminal appeal is directed against the judgment and order dated 24-11-1978, passed by the Sessions Judge, Kanpur, in Sessions Trial No. 199 of 1977, whereby he recorded conviction of the Appellants 1 and 2 u/s 302 IPC and Appellant 3, u/s 302 read with Section 34, IPC, for committing murder of Budhai and his wife Smt. Bhanumati, and sentenced each of them to life imprisonment on each count. The sentences were ordered to run concurrently.

The gravamen of the charge is that on 7th April 1977, at about noon in village Neoraj PS. Kakwan district Kanpar, in furtherance of common intention of all, the Appellants Kunwar and Lajjaram committed murder of Budhai and his wife Smt. Bhanumati. The Appellant 3 Chhidda had exhorted the other two Appellants to commit the said murder.

The aforesaid double murder took place in village Neoraj within the limits of P.S. Kakwan, district Kanpur. This tiny village is situate at a distance of 8 miles towards west from P.S. Kakwan. The Appellants 1 and 2 i.e. Kunwar and Lajjaram, are sons of the Appellant 3 Chhidda who also describes himself by alias name Chhedilal. They are residents of village Neoraj. The deceased Budhai and his wife Bhanumati were also residents of the said village. The accused and the deceased are kith and kin and belong to one family.

According to the prosecution case there was a dispute between the accused and the deceased Budhai over some land and an Incident of Marpeet had taken place between them about one and half years prior to the occurrence. Banwari PW 1 is also resident of village Neoraj and is blacksmith by profession. He has his kotha and chhappar at the out-skirt of the aforesaid village Neoraj in the south of the village Abadi, at a distance of 150 yards. His Kotha and Chhappar open towards the east and Banwari runs his blacksmith''s shop there. In the north of Banwari''s shop is Bachohan Lal''s field and in the further north there exist fields [of Budhai, Subedar and Chhidda in the north of these fields there is a field of Bachohan Lal and a path-way (Dagar) runs in between these fields connecting the village Abadi and the Banwari''s shop. In further north, there exists the Abadi of the village. The distance of the field of Budhai and Bachchan Lal is 100 yards from the Banwari''s Kotha and 50 yards from the village Abadi this has been shown in the site plan (Ex Ka9). Prepared by the Investigating Officer S.I. Diwan Singh, which he has deposed to be correct according to the spot position.

In the forenoon of 7-4-1977, Banwari (PW 1) was working at his shop. Raghunath (PW 3), who is resident of adjoining village Chhitarpurwa and Mannl Lal (PW 4) and Siya Ram (PW 5), residents of village Neoraj, had come at the shop of Banwari with their Khurpi and Hansiya (agri cultural implements) for being beaten and sharpened. At about 12 noon, deceased Budhai accompanied with his daughter Pappi alias Kunti (PW 2), aged about 6-7 years, came at Banwari''s shop with his Hansiya and Khurpi for the said purpose. Just when Budhai was sharpening his -Hansiya after it was beaten in the shop, accused Chhidda came there end after seeing Budhai went away quietly Shortly Hereafter, accused Lajja Ram armed with Lathi and accused Kunwar aimed with Kulhari, emerged on the scene and they swooped on Budhai and stated assaulting him In the meantime, accused Chhidda on his arrival exhorted his sons "MUSHKIL SE DAON LAGA HAI. MAR DO SALE KO JAN SE" Thereupon, accused Lajja Ram who was attacking Qudhai with Lathi, picked up Banwari''s Basoola from the shop and attacked Budhai with the said weapon Both Lajja Ram and Kunwar hacked Budbal to death with their respective weapons. Banwari (PW 1) and other persons, who were sitting there, made protest and raised alarm but the accused scolded them to keep quiet. Smt. Bhanumati, wife of Budhai, on hearing the hue and cry, came running towards the shop of Banwari. Accused persons on seeing her rushed towards her, accused Lajja Ram left Bansoola at the shop and picked up his I athi Accused Lajja Ram and Kunwar attacked Smt Bhanumati with their respective weapons, namely Lathi and Kulhari, when she had reached the path-way (Dagar) near the field of Bachchan Lal, which Is in the north of Banwari''s shop. Accused Chhidda exhorted his sons Lajja Ram and Kunwar �ISE BHI MAR DO". Thereupon, both Lajja Ram and Kunwar Inflicted number of injuries on Smt, Bhanumati and killed her on the spot. The accused thereafter ran away towards the village.

Banwari (PW 1) got the report of the occurrence (Ex. Ka-1) scribed at his shop by one Gyan Babu of village Majhpurwa, Police Station Kakwan and lodged the same at 22 hours, in the presence of S.I. Diwan Singh (PW 7) on the same day at Police Station Kakwan Head Constable Bhagwati Singh (PW 6) prepared the chick report (Ex. Ka-2) end registered the case at serial number 26 in the general diary (vide extract Ex. Ka-3). Section I. Diwan Singh (PW-7), who was Incharge of the Police Station, took up the Investigation of the case and he alongwith S.I. Har Swaroop Sharma (PW-8) reached the place of occurrence at about 5 30 a.m. on 8-4-1977. Section I. Har Swaroop Sharma under the directions of S.I. Diwan Singh started the inquest proceeding The dead bodies of Budhai and Smt. Bhanumati were found kept Inside the Kotha of Banwari''s shop and, therefore, the dead bodies were taken out form the said Kotha. The Inquest proceeding of Budhal started at 6 a.m. and was concluded at 8 a m while the inquest proceeding of Smt. Bhanumati started at 8.10 a.m. and was concluded at 10.5 5 a.m. S.I. Har Swaroop Sharma (PW 8) prepared the Inquest reports of deceased Budhai and Smt Bhanumati (Ex. Ka-11) and (Ex. Ka-16) and connected papers. The dead bodies were sealed and then banded over to Constables Man Singh and Ganga Ram alongwith inquest papers and other relevant papers for being escorted to mortuary for post-wortem. S.I. Diwen Singh (PW 7) conducted the rest part of the investigation. He took into his possession blood-stained Basoola (Ex I), bloodstained and plain earth Ex IV and Ex. VII). Two Hansiyas (Ex. II and Ex. III) from the shop of Banwari and prepared the recovery memos in respect thereof (Ex. Ka 5) and Ex. Ka-6). The Investigating Officer then visited the place of occurrence in the Dagar (Path-way) between the fields of Bachchen Lal and Budhai and from there he took into possession blood-stained and plain earth (Ex. VI and Ex. VIII), and broken bangles (Ex. V) and prepared the recovery memo In respect thereof (Ex Ka-8). The Investigating Officer, thereafter Interrogated Banwari, Mannl Lal, Siya Ram, Raghunath and Kunti. He then inspected both the places of occurrence and prepared site plan (Ex. Ra-9) containing index.

Dr. R.S. Pundeer (PW 9) was the Medical Officer Incharge of the, State Dispensary Krishna Nagar (Kanpur). On 9-4-1977, he performed the autopsy on the dead bodies of Smt. Bhanumathi and Budhai which were brought and identified by Constables Man Singh and Ganga Ram. Or. Pundeer performed autopsy on the dead body of Smt. Bhanumati, aged about 45 years, on 9-4-1977 at 2.30 p m. Two days had elapsed since her death, Rigor mortis had passed off from upper and lower limbs.

Dr. Pundeer (PW 9) found the following ante-mortem injuries on the person of Smt. Bhanumati:

Incised wound 3 cm x I cm bone deep on left side face, Just in front of left ear oblique.

Lacerated wound 4 cm x 2.5 cm x bone deep on left side 1 cm above left eye brow frontal bone, underneath fractured oblique.

Contusion 7 cm x 4 cm on right side forehead and adjoining area of right eye-lids.

Lacerated wound 4 cm � 2 cm � bone deep on left side head which ii behind left ear horizontal.

Lacerated wound on left side head 3 cm x 1 cm x bone deep, 5 cm behind left ear oblique.

Lacerated wound 3 cm � 1 cm bone deep on left side back of head, 5.5. cm behind the left ear, 3 cm below Injury No. 5.

Lacerated wound 3 cm � 1 cm � bone deep on back of head 5 cm behind injury No. 5 oblique.

Abrasion 4 cm � 2 cm on left cheek. 2 cm on front.

Abrasion 4 cm � 2 cm on left side cheek, 2 cm in front of injury No. 1.

Contusion in an area of 4 cm x 1 cm on right side abdomen 15 cm out to naval.

On internal examination he found inter alia : left frontal bone fractured under injury No. 2, Brain matter coming out; left anterior cranial fossa fractured; scalp congested underneath injuries; membranes of the brain congested; brain connected and liquefaction started.

In the opinion of the doctor, death of Smt. Bhanumati was due to coma as a result of head Injury No. 2.

Dr. R.S. Pundeer (PW 9) performed autopsy on the dead-body of Budhai aged about 50 years on the same day at 3 30 p.m. Two days had elapsed since his death; Rigor mortis had passed over upper and lower limbs.

Dr. Pundeer (PW 9) found the following ante-mortem Injuries on the person of Budhai:

Incised wound 8 cm x 2 cm x cranial cavity deep on left side of head, 8 cm. above left ear Bone underneath cut (left parietal) and brain matter visible from outside.

Incised wound 4 cm x 1.5 cm cranial derocavity on left side head and forehead 1 cm in front of injury no I bone underneath cut, brain matter visible.

Lacereted wound 2 cm x 1 cm x bone deep on top of head.

Incised wound 8 cm x 2 cm x bone deep on left side head bone underneath cat 2 cm, behind left ear.

Incised wound I cm x 5 cm on right side head, 6. 5 cm above right eye brow.

Incised wound 9 cm x 2 cm x bone deep on front of nose tip and right side face, 2 cm below right eye nose cat.

Incised wound 13 cm x 6 cm bone deep on back on right forearm, ulna and radious bones cut underneath 7 cm below right elbow.

Incised wound 6 cm x 3 cm x bone deep on back of right fore-arm, 4 cm below injury No. 7, ulna underneath cut.

Incised wound 4 cm x 2 cm x muscle deep on front of right writ (outer).

Incised wound 4 cm x 1 cm x muscle deep palm inner side on right little finger.

Incised wound 7 cm x 2 cm x muscle deep on back of left forearm, 6 cm below elbow (back).

Incised would 6 cm x 2 cm x bone deep on middle head of left fore-arm (inner) ulna underneath out.

Incised wound 11 cm x 5 cm x muscle deep on back of left fore-arm, 3 cm below injury No. 11.

Incised wound 6 cm x 3 cm x muscle deep on front of left forearm on middle 3rd 1 cm below injury No. 12.

Incised wound 15 cm x 0.5 cm x bone deep on front of middle third of right leg.

On Internal examination he found interalia: Left parietal, frontal, temporal right parietal and left ulna and right radius cut and fractured. Scalp congested. Brain and its membranes congested qualification of brain started. Right and left anterior cranial fossa fractured. Decomposition in both the lungs.

In the opinion of the doctor, Bodhai died doe to coma as a result of head injuires Nos. 1, 2 and 4

Both Smt Bhanumati and Badhai, in the opinion of Dr. Pundeer (PW 9) could have received injuries on 7-4-1977 shortly after 12 noon

Dr. Pundeer prepared the reports of postmortem of Smt. Bhanumati and Budhai (vide Ex. No. Ka-23 and Ex, Ka-24 respectively) According to him injuries Nos. 1, 2, 4, 6, 8, 9, 10, II, 12, 13, and 14 of Budhai could have been caused by the Basoola (Ex. 1) and injuries Nos. 5, 7 and 15 of Budhai could have been caused by a small Kulhari and rest of the wounds of Budhai could have been cussed by Lathi. In regard to injuries of Smt. Bhanumati, the doctor opined that injury No. 1 of Smt Bhannmati could have been caused by a small Kulhari and that Injuries Nos. 5, 6 and 7 could have been caused by the blunt side of the Kulhari and the rest lacerated wounds could have been caused by Lathi.

Dr. Pundeer had returned all the papers, which constables had brought, after making enforcement thereon. These papers included copies of FIR of the case (vide Ex. Ka-2 and Ex Ea-25) which he signed after making endorsement note regarding 12 enclosures.

Investigating officer, S.I., Diwan Singh (PW 7) made search of the accused persons in the village but they were not found. The accused persons surrendered in court and then the Investigating officer interrogated them in the lockup of the court. After completing investigation, he submitted charge-sheet (Vide Ex Ka-10) against accused persons u/s 302 I.P.C.

In support of its case, the prosecution examined nine witnesses in all, Banwari (PW 1), Pappi/Kunti (PW 2) Raghunath (PW 3), Manni Lal (PW 4) and Siya Ram (PW S) are witnesses of fact. Heed Constable Bhagwati Singh (PW 6) was Constable Moharrir at Police Station Kakwan on 7-4-1977 and he prepared chik report (Ex Ka-2) on the basis of First Information Report (Ex. Ka-1) lodged by informant Banwari at Police Station Kakwan on 7-4-1977 at 22 hours. He registered the case at serial No. 26 in the general diary and proved its extract (Ex. Ka-3). He also made entry at serial No. 15 of the general diary through which seven sealed bundles of the case property were deposited at police station at 18 hours on 8-4-1977 by Constable Wan Singh and proved extract of general diary (Ex Ka-4). S.I. Diwan Singh (PW 7) is the Investigating Officer in the case. S.I. Has Swaroop Sharma (PW 8) held inquest on the dead bodies of Budhai and Smt. Bhanumati and prepared the inquest reports in respect thereof and other papers as already mentioned above. Dr R.S. Pundeer (PW 9) performed autopsy on the dead bodies of Budhai and Smt. Bhanumati and prepared the postmortem reports as already mentioned above.

Besides examining the aforementioned witnesses, the prosecution tendered in evidence the affidavit of Head Constable Bhagwan Singh who was Head Constable at Police out-post Bisdhan and had escorted seven bundles of case property, which were handed over to him by S.I. Diwan Singh to the Police Station and deposited the same on 8-4-1977 at 14 hours at Police Station Kakwan, and the affidavit of Constable Ganga Ram who was constable at Police out-post Bisdhan and he was handed over the dead-bodies of Bodhal and Smt. Bhanumati in sealed condition by S.I. Har Swaroop Sharma alongwith other connected papers for post-mortem at Kanpur and who deposited the dead-bodies in sealed condition at mortuary Kanpur and also brought back the papers relating to deceased persons and deposited the same at the police station.

The accused denied the charges and pleaded not guilty. All the accused pleaded innocence and stated that they had been falsely implicated in the case by Fateh Bahadur etc. They also stated that the witnesses gave evidence due to village enmity and the pressure of police. No witness was produced by the accused in defence though they took time for the same as mentioned by the trial court in its judgment. The accused filed four documents as per list 33-B. This documentary evidence consists of copies of two First Information Reports, copy of charge sheet and copy of extract of register No. 9, Ex Kha-3 Is the copy of FIR dated 28-9-1976 which accused Lajja Ram had lodged against Lalai, Babu and Siya Ram and another u/s 506 IPC Ex. Kha-4 is an extract of register No. 9 showing that a criminal case u/s 395 IPC was started by the Chhedi Lal on 4-8-1955 against Fateh Bahadur and others. Ex. Kha-5 and Kha-6 are copies of FIR dated 18-7-1976 and charge-sheet in respect of Criminal Case under Sections 141/148/323/324 IPC lodged by accused Kunwar against Lalai, Babu Ram, Siya Ram and others Two documents, namely General Diary extract dated 8-4-1977, Police Station Kakwan and copy of FIR dated 7-4-77 lodged by Banwari were also got exhibited as Ex Kha-1 and Exhibit Kha-2 by the defence during the cross-examination of H. C. Bhagwati Singh (PW 6).

The learned Sessions Judge after close acrutiny and appraisal of the evidence, came to the conclusion that the prosecution has successfully proved Its case beyond any shadow of doubt and;, found the aforementioned accused guilty for committing murder of Budhai and Smt. Bhanumati and convicted and sentenced them as indicated above

Aggrieved by this order of conviction and sentence, the Appellants came up in this appeal challenging the findings of the Trial Court on facts and law both.

We have heard Shri P.N. Mishra, learned Counsel for the Appellants and the learned A.G.A. at length, and have carefully considered the submissions made at the bar

The occurrence is alleged to have taken place on 7-4-1977 at about 12 noon in village Neoraj On that fateful day two murders were committed in broad day light. The occurrence took place in two parts. First part of occurrence took place at the blacksmith shop of Banwari PW 1 and second part of the occurrence took place on the Dagar (path way) near the field of Bachan Lal in the north of Banwari''s shop The accused were indicted for the said offence and after trial they have been found guilty of the said offence. The accused had pleaded innocence and have stated that they have been falsely implicated The crucial point is whether the accused persons have their involvement in the offence or not?

The prosecution case hinges on direct evidence of prosecution witnesses The factum of occurrence in which lives of Budhai and Smi Bhanumati were lost, is not challenged. The date, time and occurrence itself are not challenged. It is a settled principle of the Criminal Jurisprudence that the prosecution has to prove its case Tae standard of proof is proof beyond reasonable doubt and not conclusive proof and that the court''s insistence should not be on implicit proof See State of Kerala v. Bahuleyan 1986 SCC 361 and State of U.P. v. Ranjhan Ram 1986 SCC 374.

The place of occurrence though his not seriously disputed but it was canvassed before us that the prosecution case suffers from infirmities regarding the place of occurrence on two grounds. Firstly, the dead-bodies of Budhai and Smt Bhanumati were found inside the Kotha of Banwari''s shop when the Investigation Officer'' Diwan Singh (PW 7) came there on 8-4-1977 in fie morning. Secondly, blood stained earth was not sent for chemical examination.

As regards the first ground, it is the case of the prosecution that the occurrence had taken place at the shop of Binwari where Budhai was hacked to death and thereafter. Smt. Bhanumati was also hacked to death near the filed of Baohchan Lal towards the north of the Banwari''s shop Banwari had gone to give information about the murders at police out post Bishdhan and two police constables of police out post had come to the place of occurrence on this information,...Banwari had gone to lodge the report in the evening and returned on the next morning. Admittedly, in the morning the deadbodies were found kept inside the Kotha of Banwari''s shoo. No cross-examination has been directed on the point as to how the dead bodies were placed inside the Kotha. Learned Additional Govt. Advocate brought to our notice that for safety purpose during night the dead-bodies were kept inside the Kotha of Banwari''s shop and he supported his contontion with reference to the Inquest report Ex. Ka--11 and case diary which has made mention about the said fact. We find force in the contention of the learned Addl Govt. Advocate, Merely because the dead-bodies were kept inside the Kotha of Banwari''s shop does not weaken the prosecution cast the prosecution was not to gain anything by shifting the place of occurrence it is proved by the positive evidence of the witnesses and the recovery of blood stained earth, blood stained Basoola and two Hansiyas by Investigating Officers S.K. Diwan Singh from below the Chhappar of Banwari''s shop and the blood stained earth and broken bangles from the Dagar (pathway) in between the plots of Bachchan Lal and Budhai. Situs of occurrence in the aforesaid two places has been satisfactorily fixed by the testimony of eye-witnesses and it is further strengthened by the recovery of the aforesaid articles by the Investigating Officer. It is not the case of defence that the occurrence had taken place at some other place. The mere fact that bodies were kept inside the house during night is not suggestive of the incident taking place inside the house--State of U.P. v. Ram Swarup 1988 SCC 552 or at a place other then the place alleged by the prosecution. Thus, the mere fact hat the dead bodies were removed from (the place of occurrence and were kept side the Kotha of Banwari''s shop for the purpose of safety will not go against the prosecution.

As regards the second ground, no doubt, blood stained caith was not sent for chemical examination but that by itself is not a ground to disbelieve the persecution case. Learned A.G.A. has cited the Supreme Court case of Ramesa Chander v. State Delhi Administration 1992 (4) JF 405 , wherein the case of Lakshmi Singh and Others Vs. State of Bihar, has been considered and has bean held that the failure of the prosecution to send the blood stained recovered material for chemical examination by itself is not a ground to doubt the scene of occurrence There is clinching evidence oral as well as documentary establishing the scene of occurrence and the mere fact that the plood stained earth was not sent for chemical examination by itself is no ground to doubt the scene of occurrence and to reject the prosecution story.

From the evidence on record, there is no room for doubt that occurrence had taken place on 7-4-1977 at about noon in village Neoraj first at the shop of Banwari (PW 1) and immediately thereafter near the filed of Bachchan Lal on the Dagar (pathway) in the north of Banwari''s shop.

Sbri P.N Misra, learned Counsel appearing for the Appellants presented his persuasive submissions eloquently and argued that the first information report in this case was belated, ante timed and the result of fabrication and on this basis itself, the entire prosecution ease would collapase. No doubt, the first information report of this see was lodged on 7-4-1977 it 10.00 P.M. at P.S. Kakwaa by the informant Banwari (PW 1) regarding the occurrence which took place at noon, hut that be itself is not sufficient ground to reject the prosecution case. The learned A.G.A. cited Zahoor and others Vs. State of U.P., , wherein it has been held in para 3 that at any rate mere delay by itself is not enough to reject the prosecution case, unless there are clear indications of fabrication.

No doubt, if the first information report is held to be fabricated then the entire prosecution case would collapse However, it a matter of evidence to examine whether the first information report was the result of fabrication as canvassed by the learned Counsel for the Appellants.

The learned Counsel for the Appellants relied upon the case of Marudanal Augusti v. State of Kerala 1980 SCC 985 in support of his contention. In that case, the first information report contained graphic details of the entire occurrence and care was taken not to omit even the minutest detail. The names of PWs 4, 5 and 6 as having witnessed the assault were not mentioned at all in the first information report Though PW 2 and 3 had given first aid to the deceased along with the informant but it was no where mentioned that these two witnesses were also present when the deceased were actually assaulted. In that case, the first Information was lodged on the midnight of June 23/24, 1971 and it mentions that the informant received injuries on his fingers, and despite this fact he went to the doctor not on June 24. 1971, but on the next day i.e. June 25, 1991, although the informant claimed to have gone to doctor on June 24, 1971. The supreme Court has on these facts observed that the High Court seems to have over-looked the fact that the entire prosecution case would collapse if the first information report is held to be fabricated and brought into existence long after the occurrence and any number of witnesses would be added without there being anything to check the authenticity of the r evidence The proposition of law laid down by the Supreme cannot be disputed but the same does not apply to the facts of the present case. Regarding the precedents, Supreme Court has held that the legal principles are not magic incantations and their importance lies more in their application to a given set of facts than in their recital in the judgment See Shankarlal Gyarasilal Dixit Vs. State of Maharashtra, .

The Supreme Court in the case of Guru Charan Singh v. State of Punjab AIR 1956 SG 460 , has observed that the reference to reported case is only by way of illustration and not by way of an appeal to precedent, because on the facts no two cases can; be similar. Each case has its on peculiar facts and it is, therefore, risky to appeal to precedents on question of facts. It will be relevant to refer to the observation made by Justice Vivian State of the Supreme Court that there is no such thing as a judicial precedent on facts though counsel and even judges are sometimes prone to argue and to act as if they were ''See Willie (William) Slaney Vs. The State of Madhya Pradesh, .

The learned Counsel for the Appellants, challenges this First Information Report on two grounds. Firstly that it was brought into existence long after the occurrence as a result of fabrication. Secondly, that the manner in which the First Information Report has been written, indicates that it was scribed at the police station and was the result of fabrication. Let w now examine the twin contentions of the learned Counsel for the Appellants. The prosecution case is disclosed in the First Information Report Ex. Ka--2 and has been narrated by the informant Banwari PW 1 As already stated above the occurrence took place in two parts in sequence. Deceased Budhai had come to the shop of Banwari (PW 1) at about 12 soon alongwith his daughter Panpi (PW 2) with his Hansiya and Khurpi for being beaten and sharpened. When Budhai was sharpening his Hansiya accused Chhidda came there and after seeing Budbai he returned quietly. Shortly thereafter the accused Lajja Ram and Kunwar anted with Lathi and Kulhari respectively reached there and swooped on Budbai who was sitting and sfarted attacking him Accused Chhidda also reached there and exhorted his sons to kill Budhai. The accused Lajja Ram then, leaving has lathi, picked up Basoola. Both Lajja Ram and Kunwar hacked Budhai to death. In the meantime, Smt. Bhanumati wife of Budbai came running towards the shop of Banwari on hearing hue and cry. The accused persons rushed towards her The accused Lajja Ram left Bansoola and picked up his Lathi. Chhidda against exhorted his sons to kill Smt Bhanumati. Both Lajja Ram and Kunwar attacked Smt Bnannmati with their respective weapons when she reached Dagar path way rear the field of Bachchan Lal. Thereafter the accused left towards village. Banwari (PW 1) has deposed categorically that he got the report (Ex. Ka-1) ascribed by one Gyan Babu at his shop after the occurrence, and asserted that whatever he dictated was written in the report and it was read over to him then and there He deposed that it was Ex. Ka-1 report which he got scribed by Gyan Babu at his shop after occurrence Banwari (PW 1) is not literate and he has thumb marked his deposition in the trial court and on the report Ex. Ka-I also there is dim thumb mark above the name of Banwari. The defence has not challenged the existence of the First Information Report, but has challenged its veracity. A suggestion was put to Banwari (PW 1) that the accused were not the assailants of Budhai and his wife and that he had falsely implicated them in order to save himself.

Let us now examine the facts and circumstances of the case in order to find out whether the first information report was belated, ante-timed and result of fabrication. As already stated, the report was lodged at police station on 17-4-1977 at 10 p.m. The facts and circumstances have to be carefully scrutinised to come to the conclusion as to whether the delay was deliberate and the report was fabricated Banwari PW 1 has been cross-examined at length regarding lodging of the First Information Report. In his cross-examination, he has deposed that after the occurrence, he had gone to nearby police out post Bishdhan to call the police at about 2-2-30 P.M. The Sub-Inspector of Police and Head Constable were not available at the police out post and he had to wait there for about one hour and there-after he returned after informing constables regarding murders having taken place. It is obvious that no First Information Report was and could be lodged at police out post Bishdhan and Banwari (PW 1) had left a cryptic message at the police out post. He further deposed in his cross-examination that he got the report scribed at 4-5 p.m. It is evident from the testimony of Banwari PW 1 that he had gone to police out post Bishdhan and then came to his shop and got the report scribed at about 4-5 p.m. The scribe of the report Gyan Babu is the resident of another village Majhpurwa which is at a distance of 20 paces from his village. He admitted there are literate persons in his village but when they were asked to scribe the report they declined and asked him to get the report scribed by Gyan Babu He denied the suggestion that the literate persons of the village had stated that they would not write the....... false report and asked him to get it scribed from someone else. He further deposed that Siya Ram, Mannl Lal and Lalai are nephews of Budhai deceased and they reside in his village and that they were also present at the place of occurrence but none of them went to lodge the report. It has come in his cross-examination that Manni Lal (PW 4) and Siya Ram (PW 5) were asked by the villagers to lodge the report as the occurrence had taken place in their presence bat they refused and asked him (Banwari) to lodge the report himself It has further been deposed by Banwari that he went on foot to the police station at about 5-3-30 p m. in the evening and it took about 1-1-30 hours to reach there. The police station Kakwan where the first information was lodged is at a distance of about 8 miles from the village Neoraj, the place of occurrence. It thus appears to be correct that it must have taken about 1-1.30 hours for the witness to reach the police station. He further deposed that he remained at the police station for about 1-1.30 hours and then returned. He was alone and he reached his village the next day i.e. 8-4-77. at about sun-rise. He further deposed that the Station Officer reached the village thereafter at about 5-6 a.m. and that during night he had stayed in village Malpur. He also deposed that the copy of the chik report was given to him. There is nothing in his cross-examination to cast doubt on his testimony. The occurrence had taken place at his shop and in his anxiety he had even gone to the police out-post Blsdban to inform the police but neither the sub-Inspector of Police, nor the Head Constable met him there He, therefore. came back after informing the police constables available at the police out post Bishdhan about the murder of Budhai and Smt. Bhauamati. It is nobody''s case that out-post Bisdhan was a reporting police out-post. Banwari had no animus against the accused persons, nor relationship or affection with the deceased persons. He had no concern with the occurrence except that it took place at the time when Budhai had come at his shop to get his agricultural implements beaten and sharpened. He had a blacksmith''s shop in the village and it was quite natural for the deceased Budhai and the witnesses to have come there for the purpose of getting their agricultural implements beaten and sharpened at his shop. He had even asked Manni Lal (PW 4) and Siya Ram (PW 5) and even other villagers to lodge the report but they did not do so, probably on account of the fact that the occurrence took place at the shop of Banwari (PW 1) and therefore, it was he who should lodge the report. In these circumstances. Banwari had to go to police station Kakwan to lodge the report after getting it scribed by Gyan Babu at his shop. Since none of the villagers came forward to scribe the report and they asked Banwari to get it scribed by Gyan Babu and, therefore, a person was sent to call Gyan Babu from his village to village Majhpurwa. The First Information Report was thus lodged by Banwari after getting the same scribed by Gjan Babu There is no evidence to the contrary on the record to discard the testimony of Banwari (PW 1). It has also come in the statement of Banwaii that the son of Budhal is 20-21 years of age. The name of the said son is Balwant, which has been disclosed by Raghunath (PW 3). The said Balwant on the date of occurrence was not present in the village. Raghunath (PW 2) had deposed in his cross-examination that Balwant had not reached the place of occurrence and that he had gate to his maternal uncle''s place. When none of the relations and villagers were coming forward to lodge the report, it was natural for Banwari (PW 1) to have lodged the report after getting it scribed at his shop by Gyan Babu at about 4-5 p.m. He went to police station Kakwan alone and lodged the said report at about 10 p.m. on the same day Bhagwatl Singh (PW 6), who was Head Constable at the said police station at that time, deposed that Banwari had lodged the written report (Ex Ka-1) at the police station on 7-4-77 at 10 p.m. and on the basis of the said written report, he prepared the Chik report (Ex Ka-2) and registered the case at serial (Rapat) No. 26 of the General Diary on the same day (Ex Ka-3) He also deposed that the sub-Inspector was present at the police station at that time S.I. Deewan Singh (PW 7) has deposed that on 7-4-77 at 10 p.m. the report of this occurrence was lodged at the police station Kakwan in his presence ; that he was the Incharge of the police station; that after the case was registered he took up the investigation of this case and reached the place of occurrence on 8-4-77 at 5 30 a.m. There Is nothing In the cross-examination of H.C. Bbagwati Singh (PW 6) and S.I. Diwan Singh (PW 7) to discredit their testimony which is consistent with the testimony of Banwari (PW 1) and other surrounding circumstances of the case. It was pot to H.C. Bhagwati Singh (PW 6) that in column of the report (Ex. Ka-2.) there is over-writing on the second figure 2 and that there is also over-writing after ''22� on �00�. This has been denied by him It has further come in his cross-examination that on 7-4-77 the only case that was registered before the Flit of the present case was at serial No. 26 at 10.30 a.m. and thereafter HO other cognizable case was registered He admitted that in the original chik report (Ex. Ka-2) 11-4-77 is mentioned below the signature of Circle Officer. He categorically deposed that the chik report was despatched to the Circle Officer on 8-4-77 (Ex. Ka-4) through a pairo-kar at 6.5 in the morning, vide General Diary (Ex. Kha-1). This extract of General Diary (Ex. Kha-1) goes to show that a special report regarding Case Crime No 48, u/s 302 IPC was despatched through Constable No. 836 Ranveer Singh He also deposed that the sub-Inspector had taken the copy of the chik report alongwtth inquest papers. He denied the suggestion that the FIR was ante-timed. He also denied the suggestion that the chik report had not been prepared (.and, therefore, a copy (Ex Ka-2) was sent alongwith inquest papers. S.I. Diwan Singh, who investigated the case, was also cross-examined on this paint and he deposed affirmatively that he bad brought the copy of the chik report from the police station and had sent the same alongwith inquest papers to the doctor. He denied -the suggestion that in the inquest report (Ex Ka-11) he had made figure �6'' after over writing on the date. A suggestion was also put to him that a false case has been concocted in collusion with Fateh Bahadur which he has categorically denied. S.I., Har Swamp Sharma (PW 8). who had accompanied S.I. Diwan Singh (PW 7) to the place of occurrence, had deposed that he conducted the inquest on the dead bodies of Budhai and Smt. Bhanumati and Ex. Ka-11 and Ex, Ke-16 are the inquest reports of deceased Budhai and Smt. Bhanumati. Both the inquest reports have been signed by S.I. Diwan Singh as deposed to by him. There is no over-writing on the date 8-4-77 under the signature of S.I. Diwan Singh in Ex Ka-16, which is the inquest report of deceased Smt Bhanumati. S.I. Har Swaroop (PW 8) also deposed that he reached the place of occurrence on 8-4-77 at 5.30 a.m. alongwith the Investigating Officer and that the Inquest of deceased Smt. Bhanumati was conducted subsequent to the inquest of deceased Budhai. It does not thus stand to reason as to why the police would make overwriting with oblique motive. The mere fact that these prosecution witnesses are police officers Is not enough to discard their evidence in the absence of evidence of their hostility to the accused persons See Nathu Singh v. State of U.P. 1973 SC 2783 . The inquest of deceased Budhai commenced at 6 a.m. on 8-4-77 and was completed at 8 a.m. on the same day (Ex. Ka-11). As already mentioned Ex. Ka-11 the inquest report of Budhai and other connected papers (Ex. Ka-12, Ex Ka-13, Ex. Ka-14 and Ex K.a-15) were prepared in that connection by S.I. Harswaroop (PW 8). Thereafter, the inquest of deceased Smt. Bhanumati commenced at 110 am. on 8-4-1977 and was completed at 10.15 a.m. on the same day. S.I. Har Swaroop had prepared Inquest Report (Ex Ka-16) of deceased Smt Bhanumati and other connected papers Ex. Ka-17, Ex. Ka-18, ExKa-19 and Ex. Ka-20 In that connection. In the Inquest report, there is a specific mention of the date and time of the filing of the FIR at the police station and the name of the reporter, which Is consistent with the prosecution case, S.I. Har Swaroop (PW 8) further deposed that the dead-body of deceased Budhai was handed over to constables Man Singh and Ganga Ram in sealed condition at 8 am. and the dead body of Smt. Bhanumati was handed over to the aforesaid constables in sealed condition at 10.15 a.m. The time of despatch of dead bodies Is mentioned in column No. 1 of both the challans Ex K%-13 and Ex. Ka-18, which are regarding dead bodies of Budhai and Smt. ''Bhanumati. The date and time; 8-4 77, 8 a.m. is mentioned in Ex, Ka-13 and 8-4-77, 10 a.in is mentioned in Ex. Ka-18. It was put to S.I. Har Swaroop Shirma (PW 8) that there was overwriting over figure ''10'' in Ex. Ka-18 in first column but he denied that it was written after scoring any figure The prosecution his satisfactorily explained the circumstances in which FIR was lodged by Binwari PW i at 10 p m regarding occurrence which bad taken place at about 12 noon It cannot thus be said that delay was deliberate and FIR came into existence after inquest report. The presumption that a person acts honestly applies as much in favour of a police officer as of other persons and it is not a judicial approach to destrust and suspect him without good ground therefore as has been held in Aher Raja Khima Vs. The State of Saurashtra, . To our mind, the Kakwan police had no axe to grind against the accused and it cannot be believed that the police falsely implicated the accused by fabricating the papers. It was further argued by the learned Counsel for the Appellants in support of his contention of the first information report coming into existence after the inquest reports, that in the latter the name of the accused persons have not been written in the order in which they have been written in the chik report. The emphasis was laid on the second column of the chik report which contains the names and residence of the accused and on the reverse whereof report is written. In column No. 2 of Ex. Ka-2, the names of the accused persons in seriatim are written Chhidda, Lajja Ram and Kunwar but in the inquest report Ex. fCa-11 and Ex. Ka-16, the names of the assailants have not been written in the same order. It was thus argued by the learned Counsel for the Appellants that it shows that the first information report was not in existence at that time In support of his contention, he cited the case of Bandi Malliha v. State of Andhra Pradesh 1981 SCC 672, and referred to para 3 of the said report In that case PW 11, admitted to have made statement before the Ist Class Magistrate in the Hospital, "I had stated before the Magistrate at the Hospital that at about 5.30 in the evening Golla Gopaiah, Exam Fapaiah, Magili Ramaiah and some others had come." They were accused Nos. 3, 17 and 13 respectively. According to the Supreme Court, the importance of the statement was that PW 11 did not mention accused No. 1 and accused No. 2, who according to that case of the prosecution led the attack but mentioned three other names as the persons who led them it was observed by the Supreme Court that if the aroused Nos. 1 and 2 were present surely their names would have been the first to be mentioned. It has also been observed that the Injured persons who reached the police station at 10 p m, were sent to the Yellaadu Hospital through requisitions Exs. P. 11, P. 12, P. 14 and P. 15 but in each one of the said requisitions the sub-inspector had mentioned that the several injured persons were beaten by Golla Gopiah and others with sticks. The Supreme Court has further observed that if there was already a first information report in existence in which Bandi Mallaiah had been named as the first accused and as a person who led the attack surely the assailants would have been mentioned in the requisitions as Bandi Mallaiah and others and not Golla Gopaiah and others. The attention of the S.I. PW 18, was expressly drawn in cross-examination to the statement in the requisitions that the assailants were Golla Gopaiah and others. He offered no explanation as to why the assailants were described as Golla Gopaiah and others instead of Bandi Mallaiah and others. In addition to these significant circumstances, it was elicited in the cross-examination of some of the prosecution witnesses that they had not mentioned about the attack on the deceased by accused Nos. 1 to 3 in their statements to the police u/s 161 Code of Criminal Procedure, though they gave full details of the alleged attack in the first information report. Another circumstance in that case was that the part attributed to the accused No. 2 in the attack on the deceased was not mentioned in the FIR or in the statement of PW 9 u/s 161 Code of Criminal Procedure. It was in these circumstances that the Supreme Court doubted the existence of the FIR at the time when it was claimed to have been given. The Supreme Court was of the opinion that at the earliest point of time the names of accused Nos. 1 and 2 did not figure as assailants of the deceased and that they were introduced as such a later stage and it was at that point of time that the FIR was brought into existence. The facts of that case do not tally with the facts of the instant case in as much as the names of the three accused persons and the place of the occurrence are mentioned in the FIR as well as in the inquest reports in the instant case. No doubt, in column No. 2 of Ex. Ka-2 the names of the accused are written in seriatim as Chhidda. Lajja Ram and Kunwar while in Ex. Ka 11 (inquest report) the names of the assailants are mentioned as Kunwar, Lajja Ram and Chhidda and in Ex, Ka-16 (inquest report) the names of assailants are mentioned as Lajja Ram, Kunwar and Chhidda. Thus, all the three names of the accused and the place of the occurrence find place in the FIR. It also gives the details of the role played by them in the said occurrence. Merely, because the names of the accused persons are written in column 2 of Ex. Ka-2 (FIR) as Chhidda. Lajja Ram and Kunwar does not create doubt on the authenticity of the FIR and the inquest reports The aforesaid ruling of the Supreme Court does not lay down a general rule and inexorable role that where the serial order of the names of the accused in the FIR and the inquest report differ, it would invariably cast doubt on the existence of the FIR which has to be discarded. In the aforementioned case, there was omission of the names of the accused persons alongwith other circumstances which led, the Supreme Court to come to the conclusion that the FIR was not In existence at that point of time as alleged by the prosecution. It is relevant to note that In the calender sent by the Chief Judicial Magistrate, Kanpur, on committal the names of the accused persons in column No. 3 are mentined as Kunwar, Chhidda and Lajja Ram and the same serial order of the names of the accused finds place in the judgment of the trial court. In the memo of appeal before this Court, the names of Appellants are in different order e.g. Kunwar, Lejja Ram and Chhidda Thus, mere change of serial order in writing the names of the accused persons Is of no consequence and it does not create doubt on the existence of the FIR at the time alleged by the prosecution.

The next challenge thrown by the learned Counsel for the Appellants was the manner in which the First Information Report had been written. It was pointed out by the learned Counsel that the words "ITALA KO AY A HOON MERI RAPAT LIKHAKAR HCHIT KARYAWAHI KEE JAWE" are relevant in the first information report (Ex. Ka-2), which indicate that it is not the manner in which any one would scribe the report, unless he is familiar with the police methods. It was thus argued that the written report was not written at the shop of Banwari as alleged but it was written down at the police station in the presence of the police. Learred counsel cited the case of Sheo Mahadeo Singh Vs. The State of Bihar, , in support of his contention and referred to para 9 of the said report. We have carefully premed the aforesaid case and have considered the contention raised but we are not persuaded to accept the said contention of the learned Counsel In Bhassi''s case, the Sessions Judge hid doubted the prosecution case because the report which the reporter (Mohd. Akhtar; had written a? the police station was longer than the report written out by him in court and it was thus noticed by the Sessions Judge that it appeared to have been written out much more carefully and not fast like the report written out by Mohd. Akhtar in court. The report written at the police station, therefore, must have taken much more than half an hour. This aspect of the matter was completely ignored by the High Court, according to the Supreme Court. The Supreme Court accordingly observed that the report written by Mohd. Akhtar contained sentences which could not have been introduced Unless he was guided by some police officer. The last few sentence of the report, observes Supreme Court, are particularly significant. In the report he stated that he want to Belt Hospital taking his father, but his father died after reaching there. Leaving the dead body of his father at that very place, he had come for lodging the report. The knife which was recovered from the assailant was being deposited by him. Necessary action may be taken. In that case, Mohd. Akhtar was a young student and was not expert m writing the reports of incident. The Supreme Court, therefore, observed "A person making a report for the first time would hardly say in the report that he had come to lodge it after leaving the dead body of his father at the Hospital. The sentence that the knife which was recovered from the assailants is being deposited by him clearly means that the report was being written at the police station." It was in these circumstance the Supreme Court opined that a look at the first information report, therefore, makes it clear that he was writing down the report in the presence of the police. The aforesaid observation of the Supreme Court is not intended to lay down a general rule and inexorable rule that when it is written in the first information report that the reporter had come to lodge the report and necessary action may be taken after writing his report, it would lead to inference that the said report was written at the police station. The aforesaid ruling has no application to the facts of the present case. In the present case, none of the relations of the deceased, nor the villagers came forward to lodge the report and ultimately Banwari (PW 1) got the report scribed by Gyan Babu at his shop at about 4 5 p m who after writing it handed over the same to him (Ex. Ka-1). As seen above, Bsnwari (PW) has satisfactorily explained as to why Gyan Babu was made to write the report instead of by any literate villager or relation of the deceased. There is nothing in his cross-examination to render his testimony untrustworthy. He had no grudge against the accused persons. Ha would have also not lodged the report like other villagers, had the occurrence not taken place at his bhop Banwari (PW 1) must have taken time in making up his mind to lodge the report. His evidence that he went to the police station Kakwan, where he lodged the report at 10 p.m. on 7-4-1977 finds corroboration from the testimony of Bhagwati Singh (PW 8). It is established by the evidence as discussed above that the first information report was scribed by Gyan Babu at Banwari''s shop on 7-4-1977 and it was lodged at police station Kakwan on the same day at 10 p.m. Bhagwati Singh (PW 6) supported his testimony and deposed that Banwari had lodged written report (Ex. Ka-1) at the police station at 22 hours on 7-4-1977 and he prepared the chick report Ex. Ka-2 on the basis of the written report and entered the case in the general diary at serial No. 26 at the same time, vide Ex. Ka-3 copy. He deposed during his cress examination that the Investigating Officer had taken the copy of chik report alongwith inquest papers S. Har Swaroop (PW 8) corroborates him and he emphatically denied the suggestion that the chik report was not in existence the time of the inquest report cid the same was reared of the spot. There is nothing in the cross examination of these witnesses to cast doubt on their testimony it also finds support from the testimony of Dr. U.S. Pundir (PW 9), who bad performed the autopsy on the dead bodies of Budhai and Smt. Bhanumati. He deposed that Ex Kha 2, copy of the first information report, was received by him, which he bad returned after making endorsement. There is thus no material on record on the basis of which it may be inferred that the first information report was written down at the police station in the presence of police and was not in existent at the time of inquest reports. Kakwan police had no grudge against the accused persons, nor the reporter Banwari had any enmity or ill will against the accused persons. No material has been pointed out by the learned Counsel for the Appellants on the basis of which the first information report may be taken to be ante-timed and a result of fabrication. The defence plea u/s 313 CPC statements is that Fateh Bahadur, Ganga, Bhagat and Chhote Lal were enomial the accused and due to enmity they have been falsely implicate. It has been seen above abut the report was lodged by Banwari (PW 1) after getting it scribed by Gyan Babu. The accused have not uttered a single word against Banwari or Gyan Babu, though a suggestion was put to Bandar 1 that the accused were not the assailants and that they have been falsely implicated to save himself Banwari (PW 1) emphatically denied the suggestion. A suggestion was also put to Manni Lal (PW 4) that Gyan Babu and Fateh Bahadur etc. after collusion got a false case concocted against the accused persons and that he was giving false evidence under their influence. This suggestion was also denied by him. A suggestion was also put to S.K. Diwan Singh (PW 7) that at the instance of Fateh Bahadur the case was fabricated. This suggestion was also denied. Similar suggestion was also put to S.I. Har Swaroop Sharma which was denied by him. It would thus appear that the grievance of the accused is against Fateh Bahadur and not against Banwari who lodged the report. The suggestions thrown by the defence at a later stage of the case, has been considered as an after thought by the lower court as no such suggestion was thrown to the complainant at the time of his cross examination. The suggestion of the defence that Fateh Bahadur set up his man to prepare the report is like the last straw on a camel''s back, observes the learned Sessions judge, The lower court hold that Fateh Bahadur appeared as witness in the inquest alongwith others in normal course and that he had no part to play in the implication of the accused persons The opinion which Fateh Bahadur endorsed in the inquest report, was inadmissible. It was further observed by the trial court that if any importance can be attached to such statement, it must be assumed that the murder committed by the accused persons were so widely known to the persons and, therefore, the persons responsible for the murders, were noted in the inquest report. Nothing has been pointed out or urged by the learned Counsel for the Appellants on this aspect. It cannot be denied that names of the assailants, who had committed broad day light murders In the village, might have been ringing ears of Fateh Bahadur and other villagers and occupying a dominating position in mind which impelled Fateh Bahadur making note of the names of the assailants in the inquest report. This however, by Itself, does not militate against the prosecution case, which is established by the positive evidence of the eye witnesses and facts and circumstances of the case We are, therefore, of the opinion that there is no face in the contention of the learned Counsel for the Appellants that the first information report was antifoams and was a result of fabrication. The first information report was locked en 7-4-77 it 10 p.m. if the police was out to falsely implicate the accused persons themselves no difficulty for the police to have ante-tined the first information report because on 7-4-77, a case was registered at serial No. 12 at. 10.30 a.m. and thereafter no other case had been registered on that day fail-direct and positive evidence about the occurrence at noon of 7-4-77 and the lodging of that report at 10 p.m. at police station Kakwar its this case cannot be ignored merely on the basis of chimerical speculations and the time of lodging of FIR cannot be rejected merely on the basis of conjectural alternative suggested by the defence. Taking conspectus of ail the facts and circumstances of the case, we have no hesitation in repelling the contention of the learned Counsel for the Appellants, that the first information report of the occurrence came into existence after the preparation of inquest report and that it was ante timed and was a result of fabrication.

Next contention of the learned Counsel for the Appellants was, regarding motive. It was argued that the accused could have no motive to commit the murder of Bhuhnai and Smt. Bhanumati curing day tin e the learned Counsel put emphasis on the words "MUSKIL SE DAON LAGA HAI. MAR DO SALE KO JAN SE." and argued that such alleged exhortation is superficial and tint the accused persons could have accomplished their object at another place if they were out to commit the murder of the deceased persons and would have certainly not gone to the shop, a public place for committing such murders Our attention was drawn to the cross-patronization of Banwari (PW 1) in first paragraph that Budhai used to stay at his Khalihan during night and it was argued that if the accused had any intention to commit the murder they could have easily eliminated Budhai during night.

It was thus urged by the learned Counsel for the Appellants that the prosecution has failed to prove any motive for the crime. The learned A.G.A. repelled this contention on two grounds; firstly that where there is direct and positive evidence against the accused, the question c-f motive is sot important. Secondly, that even if motive is required the prosecution has succeeded in an ample measure in showing that the motive for the crime was dispute over land between Budhai and the accused We have carefully considered this aspect of the case and we accept the abrasions of the learned A.G.A. appearing for the State Teamed A.G.A. cited, Subsdar Tiwari v. State of U.P. AIR 1989 SC 33 to the effect, that it is well known that the evidence regarding existence of motive which (sin) in the mind of an assassin is very certain not with the reach of others The motive may not even be known to the victim of the crime. The motive may be known to the assassin only and to none else.

So far the motive is concerned, the prosecution may prove; but is not bound to prove the motive for a crime, and even in cases where innocence of intention is a defence and innocent or praise-worthy motive, if the necessary intent is proved, is irrelevant and affords no defence (See Stephens History of Criminal Law 110 and Halsbury''s LBWS of England, 3rd Edition, Volume X p. 283).

The fact tint motive appears to be inadequate is never by itself a circumstance against the prosecution in as much as the real motive may be invisible to all except the person unfathomable by it Experience shows that sortie of the gravest and most atrocious crimes have been committed from some of the filmiest and most frivolous consideration. Human nature being what it is a man�s passion may be aroused at times by some very trifling circumstances. Motive of men are often so deep seated as to be almost unfathomable. It as been remarked by a Mediaeval jurist "the devil himself knoweth not the thoughts of men".

Wigmore in his Treatise on the Angle-American System of Evidence, Volume I, Section 118, page 559 has observed that it is some titles popularly supposed that in order to establish a charge of crime the prosecution must be a possible motive. But this notion is without foundation.

Wills in his Monumental Work Principles of Criminal and Circumstantial Evidence, 7th Edition at page 67-68 writes:

it occasionally happens that actions of great enormity are committed for which no apparent motive is discoverable The actor is held to be legally accountable for Ms actions.

There may be plan to do the act but there may be no evidence of the preparation, yet the remaining facts map furnish ample proof and the failure to prove evidence of some appropriate motive may result In failure of justice Failure to discover a motive or exciting motion does not signify its non-existence.

It is well settled from a long catena of decisions of the Supreme Court that where the positive evidence against the accused is clear, cogent and reliable, the question of motive Is of no importance See Gurcharan Singh and Another Vs. State of Punjab, , N.N. Naik v. State of Maharashtra AIR 1971 SC 1856 State of A.P. v. Uogam Chanitaith 1986 ACR 490 (SC).

Motiveless murders are not necessarily actus of man and unhinged people. Prosecution is often unable to collect satisfactory evidence on the motive behind crime (See 1975 (2) U.P.(SC.) 239). The Inadequacy of motive is not relevant nor the presence of motive is conclusive and the guilt has to be established by pressure of direct probabilities and direct evidence as has been held in the case of Bishan Das v. State of Punjab 1975 SCC 145.

In the present case, murders were committed in broad day light and the eyewitnesses have given direct evidence which is of an acceptable nature regarding commission of the said offence; hence the question of motive cannot loom large in the mind of the court 1986 ACR 490 (SC) (Supra) also see Babu Lodhi and Others Vs. State of U.P., . However, the prosecution, even if motive is required, has succeeded in an ample measure in showing what motive accused could have for the commission of the crime. Banwari (PW 1) has categorically deposed that there was a dispute over land between deceased Budhia and Chhidda (accused) and that an Incident of ''Marpeet'' has taken place 1-1 1/2 years prior to the occurrence. The witness has not been cross examined at all on this point. Where an particular material assertion is made in examination-in-chief and the witness is not examined in respect of that assertion then it will be taken that the parties affected admit the truth of that assertion See Bal Kishan Vs. State and Another, , The Supreme Court has held that no adverse inference can be drawn regarding the point not at all raised In the cross examination of the witness See Ram Prakash Arora v. State of Punjab 1977 SCC 696;. It has also been held that where a witness is not specifically cross-examined on a particular matter, the court can not presume something adverse to the witness unless his attention is specifically drawn to it See State v. Amit Singh 1988 ACR 62. It has come in the evidence of Munni Lal (PW 4) that accused Lajja Ram and Kunwar killed Smt. Bhanumati with lathi and Kulhari blows after retorting "Khet Logi". This also corroborates the motive for the crime.

Let us now examine the evidence of the prosecution regarding involvement of the accused person. As already stated, the prosecution case hinges on direct evidence. It consists of the evidence of five eye witnesses namely; Banwari (PW I), Pappi alias Kunti (PW 2), Raghunath (PW 3), Manilal (PW 4) and Siya Kara (PW 5).

Pappi alias Kunti (PW 2) is a child witness aged about 6-7 years and her testimony has been discarded by the trial court.

Manilal PW 4 and Siya Ram (PW 5) were declared hostile as they did not support the prosecution regarding the role of accused Chhidda, though, they were present at the time of occurrence and corroborated the prosecution story in all material particulars about the occurrence, against the accused Lajja Ram and Kunwar. Their evidence will be discussed a bit later.

The principal witness of the prosecution is Banwari (PW 1). The occurrence had taken place at his shop end he had lodged the report of the occurrence as stated above. He has unfolded the prosecution story Hit testimony has been criticised on the ground that he is an interested and partisan witness and his post occurrence conduct indicates that he is not truthful witness.

We do act find any substance in the criticism levelled against this witness. It is not denied that he is the resident of village Neoraj and had a blacksmiths shop m the said village. Merely because, the occurrence had taken place at his shop is tot enough to dub hire as an interested and partisan witness. He is an independent witness who had no motive to falsely implicate the accused persons. He is an shown to have any ill will against the accused persons nor any affinity oi relationship with the deceased-lie, being owner of the shop: where the occurrence had taken place, as well as other witnesses who were present at his blacksmith''s shop at that moment, are natural witnesses See State of Andhra Pradesh v. Brahma Das AIR 1986 1769).

Even evidence of partisan and interested witness can be relied upon if it is truthful and acceptable. The Supreme Court in case of Srawan Singh v. State of Punjab 1976 SC 2304, has field that it is not law that the evidence of an interested witness should iii equated with that of tainted evidence or that of an approver so as requite corroboration as a matter of necessity. The evidence of a a interested witness, does not suffer from any infirmity as such, but the courts require as a rule of prudence not as rule of law that the evidence of such witness should be scrutinised with a little care Once that approach is made add the court is satisfied that the evidence of interested witness have ring of truth such evidence could bo relied upon even without corroboration,

In the case of Tameshwar v. State of U.P. 1976 ACC 36, the Supreme Court has held that the evidence of partisan witness may be good foundation for conviction if his presence at the scene cannot be doubted and more so if the same assurance for it is available from the medical evidence.

Banwari (PW 1) has deposed on oath ocular description of the occurrence He has stated that he knew Budhai and Smt Bbanumati who were murdered 1 1/2 years ago. He new the accused prisons whom he identified in the court also. He deposed that on the date of occurrence he was in his shop. Witnesses, Mani Lal, Siya Rata and Raghunath were present at his shop and they had come for getting their Hansiya and Khurpi (agricultural implements) beaten and sharpened He further deposed that at about 12 noon, Budhai accompanied with his daughter Pappi alias Kunti came at his shop with his Hansiya and Khurpi for being beaten and sharpened. He identified Pappi alias Runt, aged about 6-7 year, in court. He proceeded to state that when Budhai was sharpening his Hansiya after being beaten, accused Chhidda came there and after seeing Budhai went away Shortly thereafter, accused Lajja Ram and Kunwar came alongwith Chhidda. Kunwar was arms I with Kulhari and ,Lajja Ram was armed with Lathi. Both these accused swooped on Budhai at the shop and stetted attacking him (Vahi Dukan Far Budhai Ko Dab Liya) Ha further deposed that Chhidda exhorted "Muskil Se Daon Laga Hai, Mar Do Sale Ko Jan Se."

He further deposed that Kuawar and Lajja Ram attacked Budbai with Kulhari and Lathi and then Lajja Ram picked up a Vasoola from his shop and both the accused backed Budhai to death with Basoola and Kulhari. Chhidda went on exhorting them-

Budhai died on the spot. This witness and others, present there, made protest and raised alarm, but the accused scolded them. He further deposed that on hearing hue and cry, Budhia''s wife (Smt Bhanumati came running towards shop. Tie accused leaving Basoola, rushed towards Budhai''s wife (Bhanuniati) and she was attacked by Lajja Rem and Kunwar with Lathi and Kulhari in the field of Bachchan Lal

Chhidda again exhorted to kill her and they also killed her. Thereafter they fled towards the village this witness has been cross-examined at length. Nothing material was elicited in his cross-examination to render his testimony untrustworthy. In his cross examination, Banwari (PW 1) deposed that Budhai wed to visit his shop. He again affirmed that on the day of occurrence Chhidda had come first and after seeing Budhai went to his house Thereafter, his sons Lajja Ram and Kunwar came and 5-10 minutes thereafter, Chhidda came. He further deposed that on reaching his shop, Lajja Ram and Kunwar immediately swooped on Budhai (Meri Dukan Far Ate the Budhai Ko Dab Liya). According to him when these two accused were attacking Budhai, then Chhidda came. He deposed that Chhidda had not attacked but only made -exhortations "Mar Do Sale Ko. Muskil face Daon Laga Hai." At his exhortations, Lajja Ram kept his Latti and pickle up Basoola from his shop Hs categorically deposed that Lajja Ram and Kunwar, backed Budhai to death by Basoola and Kulhari. Thereafter after placing Basoola there and picking up Kulhari, the accused rushed towards village.

No further cross examination was directed regarding the occurrence. The learned A.G.A argued that this witness, has not been at all cross examined regarding the occurrence that took place near the field of. Bachchan Lal In which Smt. Bhanumati was killed nor any suggestion worth the name was put to the witness in that regard. He further argued that the major part of the cross examination was confined regarding lodging of the report and that regarding the occurrence, merely suggestion was put to him that the accused were not assailants and had not committed murders of Budhai and his wife and that he had falsely implicated the accused to save himself.

Learned A.G.A. cited Ganesh Lal v. State of Maharashtra (1992) 3 SCC 166, and referred to the observations made at page 113 of the report which reads "In fact material part of his evidence was not subjected to cross-examination except suggesting that he was deposing falsely. Under this circumstances he is a truthful and reliable witness". Reference has been made above of the case of Bal Kishan v. State and Ram Prakash Arora v. State of Punjab regarding non-cross-examination of witness regarding a particular material assertion Banwari (PW 1) remained consistent in his testimony regarding the occurrence and he was not shaken at all during his cross-examination. There is froes in the contention of the learned A G.A. that the questions regarding the murder of Smt Bhanumati should have been raised by the defence in the cross examination of Banwari (PW 1) and that this having not been done, no adverse inference can be drawn against this witness. The learned Counsel for the Appellants, has referred to the examination-in-Chief of Banwari (PW 1) wherein he stated that Chhidda was armed with Lathi and argued this indicates, untruthfulness of this witness No doubt in his examination-in-chief, this witness made statement that Chhidda was armed with lathi but this by itself is not of much consequence It is net the prosecution case that Chhidda bad attacked Budhai and Smt. Bhanumati nor there is any mention of Lathi in Chhidda''s hand in the First Information Report. In his cross-examination, as already mentioned above, Banwari (PW I) had deposed that Chhidda bad not attacked and had made exhortations only Hence, it cannot be said that Banwari is untruthful witness. Even if Banwari had made false statement in respect of Ghhidda having been armed with Lath), the evidence of this witness cannot be discarded.

The principle "falsus in uno falsus in omnibus" does not apply In India (false in one thing, false in everything). It is not uncommon even for truthful witness to make certain exaggerations or embellishments in his statement. It is the duty of the court to scrutinise the evidence and separate grain from chaff See Ugar Ahir and Others Vs. The State of Bihar, Thefts is hardly a witness whose evidence does not contain a grain of untruth or at any rate exaggeration, embroidery, erubelishment If the remaining evidence is trust-worthy and substratum of the prosecution case remains intact, then the court should uphold the prosecution case, to the extent it is considered safe and mistworthy as has been held by the Supreme Court in a case Ramvir v. State of Punjab AIR 1973 Pun. 1409.

In the present case, scrutiny of the evidence of Banwari (PW 1) leave no room for doubt that he is a trust worthy witness and there no infirmity in his testimony to render it incredible or untrustworthy.

As regards, post-occurrence conduct of Banwari PW 1, it has already been discussed above, that after the occurrence he had even gone to the police out post Bishdhan to inform the police but had to return without lodging the report on account of non-availability of Sub Inspector of Police and Head Constable.

In his cross-examination, he deposed that he had gone to police out past Bishdhan which is at a distance of 1-1 1/2 Kosh (2-3 miles) from the village. Hs deposed that he had gone to call the police at about 2-2 1/2 P.M. He got the report scribed j by one Gyan Babu at about 4-5 P.M. and proceeded to lodge the report at police station Kakwan at 5.30--6 P.M.

Statement of this witness regarding time, cannot be taken with reference to the Striking of clock. It is well known that the village people have little Idea of time and distance. The evidence of the village folk cannot be taken with any exactitude regarding time and distance. It has been held by Supreme court in Sheo Darshan v. State of U.P. 1972 SCC 394, that it is a matter of common experience that the time given by the witnesses and specially in the villages is based by gues and not very accurate.

In another case of Shivaji Saheb Rao Bobade v. State of Maharashtra 1973 CAR 410, the Supreme Court has observed that the sluggish chronometric sense of the country-side community in India In notorious since time is hardly the essence of their slow life, and even urban folk make mistake about there.

Banwari (PW 1) is an old man of about 60 years of age and ghastly murder of Budbal was committed in his presence at his shop and immediately in that sequence, murder of Smt Bhanumati was committed. He must have been stunned and shocked on account of such dastardly occurrence, and after such effect was over, he in his anxiety thought of informing the police and proceeded to the nearby police outpost Bishdhan as stated above. He, however, came back after informing constables about the murders in the village he had even asked Mannilal and Siyaram and other villagers to lodge the report but they did not do so and he bad to get the report scribed by Gyan Bibu as mentioned above. Thereafter in the evening at 5 30-6 P.M. he went on foot to lodge the report at police station Kakwan at a distance of 8 miles.

There is, thus, nothing unnatural in his conduct in view of the facts and circumstances of the case. We have carefully scanned the evidence of this witness and we are in agreement with the lower court in accepting his testimony which contains ring of truth.

Next important witness is Raghunath (PW 3). His evidence has been crticised on two grounds; firstly that he is a chance witness and his presence at the scene of occurrence was tot probable; secondly, that he is not reliable and truthful witness.

Ws have carefully considered the contention of the learned Counsel for the Appellants but we have not been persuaded to accept the same. No doubt, this witness is a resident of another village Chittarpurwa which is at a distance of 8 miles from village" Neoraj. He had come to Banwari''s shop with the purpose of getting his agricultural implements beaten and sharpened He has given ocular evidence about the occurrence which had taken place in his presence about 1-1 1/2 years back. He categorically deposed that he had come at Banwari''s shop for the purpose of beating his Hansiya, he further deposed that Budhai came there alongwith his daughter Kunti for the purpose of getting his Hansiya beaten Chhidda came there and returned after seeing Badhai and again came alogwith Konwar food Lajji Ram He further deposed that Lajja Ram was Ceding lathi while Konwar was welding Kulhari and they both swooped on Budhai (Budhai Ko Dab (sic) started attacking Budhai with their respective weapons Chhidda as exhort log them to kill. Lajja Ram then picked up Basooia from Binwari''s shop and then Lajja Ram and Kunwar hacked Budhai to death He further deposed that he and ethers raised he and cry and the Budhai''s wife (Sint Bhanuaati) came from her house and Lajja Ham and Kunwar killed her with Lathi and Kulhari respectively near the field of Bachchan. He also deposed that Chhidda exhorted them to kill her also Thereafter the accused fled way to their house. The learned Counsel for the Appellants submitted that there was no occasion for this witness to be there at the relevant time. This witness has been thoroughly cross-examined at length As attempt was made in his cross-examination to suggest that Gyan Babu and Gaya Prasad were black smiths in village Lakutiya which is at a distance of one mile away from his village Chhilarpurwa and that they used to visit the village of this witness weekly for black smith''s work This witness has stated that he did not know these two persons an I denied that they visit his village as suggested.

Next attempt was made to show that the residents of his village go to village Bishdhan for blacksmith''s work this was also denied by him. It was urged that if this witness had any work in blacksmiths shop he ought to have gone to village Lakutiya or village Bishdhan for the said purpose. Nothing was elicited in the cross examination of this witness which may cast doubt on his presence at the relevant time in Banwuri''s shop. In cross-examination, he reaffirmed that he had core to Banwari''s shop to get his 5-6 Khuppas and 5-6 Hansiyas beats the shop of Banwari is not at much distance from the village of this witness. His presence at the place of occurrence is fully corroborated by the testimony of Banwari (PW 1), Manni Lal (PW 4), Siya Ram (PW 5). There is no material on record to suggest that this witness is a chance witness. Neoraj is not out of way for this witcess and he bad come to the shop of Banwari in due course for getting his work done by Banwari blacksmith. It has come in his evidence that it was harvesting season and harvest work had stopped for want of Hansiya and that he was in hurry to get his implements sharpened. It was argued by the learned Counsel for the Appellants that this witness has made statement in reply to question No. 25 that he was sitting when the Hansiya of Siya Ram was being beaten and he waited at the shop of Banwari for about 2 hours It was thus, contended that if this witness would have actually come there for the purpose of getting his agricultural implements sharpened, he would not have waited for such a long time and thus his presence does not seem probable at all. On scrutiny of evidence, we do not find any substance in this contention, Raghunath PW 31 had purposely come to the Banwari''s shop for repairs of his agricultural implements. His presence at Banwari''s shop thus cannot be held to be Improbable at the relevant time. He and other witnesses who were present at Banwari''s shop for getting their agricultural implements repaired are natural witnesses, State of Andhra Pradesh v. Bhrahtnadas AIR 1986 SG 1769.

Mere fact that Banwari had done the work of other customers first does not help the defence in showing that Raghunath bad ''not come there. This point was also raised before the lower court and the lower court has rightly pointed out that the witness had come for repairs of his implements and the noon time during summer season is always leisure time for the village people, There could thus be no great hurry for the witness at that time.

The lower court has further opined that it is not known under what circumstances, this witness was kept wetting while implements of others were repaired in the shop of Banwari and that some people are more assertive and get their wok to be done early It is significant to note that Banwnri''s (PW 1) statement regarding presence of this witness at the time of occurrence remains unchallenged and hence no adverse inference can be drawn regarding presence of this witness at the time of occurrence. There is thus nothing improbable for this witness who is aged about 80 years to have waited at Banwari''s shop for about 2 tours during the noon time even if his estimate of time is taken at face values. As already discussed above, the village people have no precise idea of time and distance. The lower court has rightly observed that the estimate given by this witness that he had been waiting for two hours is modest estimate of time.

Raghunath (PW 3) is not the resident of village Neoraj and he had no animosity against the accused nor any interestedness in the deceased. He is an independent witness, whose presence at the time of occurrence cannot be doubled and is fully established. He is not a dunce Unless at till. The fact that the occurrence had taken place at Bagwan''s shop where this witness was present at that moment establishes that he is a natural witness. It is not shown by the defence as to the Raghunath (PW 3) would have perjured and falsely implicated the accused persons. During cross-examination, of this witness, an attempt was made to show that Chhidda accused used to sink veils; that Buddha nephew of this witness, had sunk a well through Chhidda and that a quarry had taken place over payment. This witness denied the suggestion Nothing could be elicited from cross-examination of the witness that he had any motive to falsely implicate the accused

Next ground of criticism against this witness, is that he is not reliable witness and he has made contradictory and inconsistent statements. It was argued that this witness in his examination-in-chief stated about presence of Siya Ram and Kunwar (accused) which is inconsistent with the prosecution story and no reliance should be placed on this witness This contention, to our mind has no force. This witness in his cross examination examined that he had made statement about presence of Manni Ram alongwith Siya Ram but instead of Manni Ram. Kunwar (accused) might have been written. It, thus, appears to be a web mistake or slip of tongue. This inconsistency in examination-in-chief is of no consequence because this witness in his cross examination categorically deposed that Kunwar and Lajja Ram had attacked and hacked Budhai and his wife to death. The credibility of witness is judged from his entire evidence and not from his piece meal evidence it was next argued that there is Infirmity in the evidence of this witness, regarding the place of occurrence and number of blows Inflicted on Budbai. No doubt, this witness has stated in his cross-examination that Smt. Bhanumati was murdered at a place about 20 paces from the shop of Banwari. As already stated, village folk have no precise idea of time and distance. In his examination in chief, this witness categorically deposed that Budhai''s wife (Smt. Bhanumati) was murdered near the field of Bachchan In his cross-examination, he clarified that Smt. Bhanomati was murdered towards the north of field of Bachchan and that there existed a Batha (Path way) and a Babul tree near the place where Smt. Bhanumati was murdered. The site plan (Ex. Ka-9) prepared by the Investigating Officer shows that there existed two fields of Bachchan and they were separated by village path way. The Investigating Officer found blood and broken bangles as evidence of murder of Smt. Bhanumati in the path way between fields of Bachchan and Budhai. This witness, has categorically deposed that Smt Bhanumati was murdered towards the north field of Bachchan which cannot be said to be incorrect. Merely because he has given wrong estimate of distance does not render his testimony unreliable.

Slight discrepancies in the statement of eye witnesses, are not uncommon in the testimony of most truthful witnesses. There are details which, unless the witnesses are tutored, must vary in minor particulars, and, in the normal course of things are found generally to be stated differently by different observers. Such differences or variations are indications of truth rather than falsehood of the version given by the prosecution witnesses. See Yashwant v. Stale of Maharashtra 1972 SCC 684 State of Assam v. Krishna Rao 1973 SCC 222.

The place of occurrence as already discussed above has been fixed by the prosecution and there is no material contradiction or inconsistency appearing in the testimony of (PW 3) Raghunath in that regard.

Next it was argued, that this witness has stated in his cross-examination that 20-25 Kulhari blows were inflicted by accused Kunwar upon deceased Budhai while the accused Lajja Ram inflicted 2-4 Lathi blows and after keeping Lathi inflicted 5-10 or 20 Basoola blows. It was contended that this evidence is not consistent with the medical evidence which does not disclose so-many injuries on the body of the Budhai (deceased). We have given our careful consideration to this contention but we do not find any substance in this contention also No capital can be made out of it. The exact manner and sequence in which the incident took place is tot expected to be noticed either by the injured or by the eye witnesses. There may be some minor discrepancies and contradictions regarding minor details of the incident in the evidence of the prosecution witnesses but that does not destroy the broad features and the substratum of the prosecution case. Minor contradictions and slight discrepancies are bound to come in the evidence of the witnesses, particularly when the incident takes place on a spur of moment There is hardly a witness whose evidence does not contain a grain of untruth or at any rate exaggeration, embroidery or embellishment.

It Is, not expected from a witness of murder that he will count blows Inflicted on the victims in the occurrence witnessed by him. Some times a witness claims to have done so with fear that his testimony may not otherwise be believed if he close not give out his own estimate. The Supreme Court, in a case Himanchal Pradesh Administration v. Om Frakash 1972 SCC 88, has made following observations?

It is not beyond the ken of experienced able and astute lawyers to raise doubts and uncertainties in respect of the prosecution evidence either during trial by cross-examination or by the marshalling of that evidence in the manner in which the emphasis is placed thereon. But what has to be brone in mind is that the penumbra of uncertainty in the evidence before a Court Is generally due to the nature and quality of that evidence. It may be that witnesses as are lying or where they are honest and truthful, they are not certain, It is therefore, difficult to expect K scientific or mathematical exactitude while dealing with such evidence or arriving at a true conclusion.

A careful scrutiny of the testimony of Raghunath (PW 3) leaves no room for doubt, regarding, his presence at tin black-smit shop of Banwari (PW J) at the time of occurrence it is co where suggested by the defence that this witness had enmity with the accused persons or that he was interested in the deceased. A held suggestion was put to him that he was not present on the spot and that he was giving false evidence He emphatically denied this suggestion It does not stated to reason as to why this witness will perjure while he was not blood relation of the deceased nor was inimical to the accused persons Be had come to the shop of Banwari (PW 1) purposely for getting his agricultural implements repaired. There is sufficient corroboration of other witnesses regarding his presence at that time. He was thus natural and probable witness of the occurrence and there are no grounds for rejecting his testimony.

Having given careful consideration to the submissions made by the learned Counsel for the Appellants, we do rot find any force in them and we agree with the finding of the court below that he is natural probable, impartial. Independent end reliable witness Manni Lal and Siya Ram are other eye witnesses who were dared hostile by the prosecution as they did not support the prosecution stony regarding involvement of Chhidda (accused). Their evidence have been criticised on the ground that they are inimical to the accused and that their evidence ''n not at all reliable. Learned A. G. A. rightly argued that mere fact that court gave permission to prosecutor to cross-examine the prosecution vastnesses is not sufficient to completely efface their evidence. The submissions made by the learned A.G.A. find support from catena of authorities of the Supreme Court(See Bhagwan v. State of Haryana 11976 CriLJ 203 -- Babu Lodhi and Others Vs. State of U.P., --State v. Brabmadas. 1986 ACR 555 SQ --Satpai v. Delhi Administration AIR 1976 294--Keshav Ram Bera v. State of Assam 1972 SCC 219.

It is thus settled law that the testimony of witness is not completely effaced merely because he was declared hostile. Such part of testimony of a hostile witness, as (sic) confidence tan be accepted by the court. Partly hostile witness can corroborate. Supreme Court has held In Satpal v. Delhi Administration 1976 SC 294:

Even in a criminal prosecution when, a witness is cross-examined and contradicted with the leave of the court by the party calling him, his evidence cannot, as a matter if law, by treated as washed off the record altogether. It is for the Judge of fact to consider in each case whether as a result of such cross-examination and contradiction, the witness stands thoroughly discredited or can still be believed in regard to a part of his testimony if the Judge finds that in the process, the credit of the witness has not been completely shaken, h.3 may after leading and considering the evidence of the witness, as a whole, with due caution and care, accept in the light of the other evidence on the record, that part of his testimony which he find to be credit worthy and act upon it.

It is thus quite clear from the series of decisions of the Supreme Court that the evidence; of hostile witness is not necessarily to be rejected either in whole or in part and the mere fact that a Witness is declared hostile does not make him an unreliable witness so as to exclude his evidence from consideration altogether See Shri Ravindra Kumar Dey v. State of Orissa 1976 SCC 566.

Let us examine the evidence of these two hostile witnesses in the light of the submissions made by the learned Counsel for the Appellants and to find out whether their testimony can be safely acted upon and whether there was sufficient corroboration in respect of the same.

Both these witnesses have given occular account of the occurrence and have deposed about involvement of the accused Lajja Ram and Kunwar. Both have deposed that occurrence had taken place about 1-1 1/2 years ago. They both were present at the shop of Banwari (PW 1). They had come there for getting agricultural implements beaten. Both have deposed about the presence of each other and also the presence of Banwari and Kaghunath at the relevant time it was about noon, when Bunshai came alongwith his daughter Pappi, for getting his Hansiya beaten, Mancilal PW 4 stated that when Budbai was sharpening Hansiya after being beaten, Chhidda came there and immediately returned. Thereafter, Lajja Ram armed with Lathi and Kunwar armed with Kulhari came there and swooped on Budbai and started attacking. Thereafter Lajja Ram kept lathi and picked up Banscola and then they both hacked Budhai to death with Bansoola and Kulhari. Budhai '' died on the spot. He also deposed that both the accused persons scolded him and threatened him to kill. On hearing hue and cry Bhanumati came upto the field of Bachchan Lal. Lajja Ram leaving Bansoola, picked up Lathi and he alongwith Kunwar, started attacking Bhanumati with Lathi and Kulhari, retorting ''Khet Log Bhanumati died on the sport. The accused ran away towards village This witness was declared hostile as he had not supported the prosecution regarding exhortations made by Chhidda in his cross examination by the prosecution he stated that he had not seen Chhidda when Lajja Ram and Kunwar had swooped on Budbai. In his further cross-examination by the procreation, he also denied about the presence of Chhidda at the place of occurrence where Bhanumsti was hacked to death. This witness was confronted with his earlier statements u/s 161 Code of Criminal Procedure made before the Investigating Officer, but at the witness box he resiled from it. In his statement u/s 161 Code of Criminal Procedure, this witness stated that Chhidda exhorted them to corn it murder. This witness alleged that he did not remember that what he stated before the Investigating Officer He has also not assigned any reasons in respect of his earlier statement nor has imputed any motive to the Investigating Officer to record his statement wrongly. He is nephew of accused Chhidda as well as deceased Budhai. The trial court has observed that this witness was inclined to extricate his uncle Chhidda from the consequences of murder. He was an eye witness of the occurrence and he could not thus muster courage to deny the prosecution case in respect of ghastly murders committed in his sight by accused Lajja Ram and Kunwar. The trial court has further observed that had this witness not been present and seen the occurrence he could have very well denied his presence.

As regards involvement of the accused Lajja Ram and Kunwar, this witness has made categorical statement and has substantially corroborated the prosecution case in his cross-examination by the defence, he has affirmed the involvement of Lajja Ram and Kunwar. He has emphatically denied the suggestion of the defence that he was not present on the spot and was giving false evidence under police pressure. The defenoe has made an attempt to show that this witness was inimical to the accused persons. No doubt this witness has admitted about she proceeding u/s 107/117 Code of Criminal Procedure in which he and deceased Budhai were on one side and Lajja Ram and Kunwar were on other side. The defence has also filed certain documents vide Ex. Kha-3, JCha-4. Kha-5 and Kha-6, showing criminal case u/s 306 IPC against Lalai Babu and Siya Ram and another; criminal case u/s 395 IPC by Chhedi Lal against Fateh Bahadur and others and the criminal case u/s 141, 148, 323, 324 IPC by accused Kunwar against Lalal Babu Ram and Siya Ram and others. It was thus argued by the learned Counsel for the Appellants, that Manni Lal PW-4 as well as Siya Ram PW-S are inimical to the accused persons and no implicit reliance can be placed on their testimony.

No doubt enmity may some time provide motive to implicate falsely but in the present case neither Manni, Lal nor Siya Ram had lodged the first information report against the accused persons. In fact, they both have tried to favour Chhidda which is obvious from the fact that they have extricated Chhidda with oblique motive. In the cross-examination by the defence, nothing has been elicited to create doubt in the testimony of Manni Lal PW 4 who has corroborated the prosecution case in all meterial particulars so far as complicity of accused Lajja Ram?and Kunwar is concerned.

The trial court has observed that the statement of Mannilal (PW-3) regarding the part played by Chhidda in occurrence is not truthful and it can not in any way affect the credibility of the prosecution esse in its entirity or in respect of complicity of accused Chhidda. His statement that when Lajja Ram and Kunwar Swooped on Budhai he did not see Chhidda at that moment is a lie It may be possible that he might not have given attention to the exhortations made by Chhidda It cannot however be inferred from his statement that accused C hhldda was not present there when his sons had killed Budhai and Smt Bhnnumati The testimony of Manni Lal has not been shaken regarding conspicuity of Lajja Ram and Kunwar and this part of his testimony finds corroboration from other evidence. We agree with the lower court in this respect.

The next hostile witness is Siya Ram. He was also present at the scene of occurrence and this is fully established by evidence of other eye witnesses He has stated on oath about the occurrence that had taken place about 1-1 1/2 years ago He has deposed that it was about noon and he had come to Banwari''s shop for getting his Hansiya beaten and that besides Banwari Manni Lal and Raghunath were present there. He further ftated that Budhai came alongwHh his daughter Pappi. When he (Budhai) was sharpening his Hansiya after It was beaten, Lajja Ram and Kunwar armed with Lathi and Kulhari c?.me there and swooped on (Dab Liya) Budhai and started attacking him After witnessing this scene, this witness ran away. He also stated that Budhai was killed in that incident and on the same day his wife Bhanumati was also murdered on the Batha (Path-way) near the field of Bachchanlal, He did not see as to who and how it was committed as be had run-away from the spot. He was, therefore, declared hostile by the prosecution. This witness had supported the prosecution case at the time of Investigation and when confronted with this previous statement u/s 161 Code of Criminal Procedure he resiled from it and could not assign any reason for recording the said statement by the Investigating officer He admitted that Chhidtia was his uncle as also Budhai The lower court has rightly observed that this witness desired to extricate Chhidda from the occurrence which is quite obvious. He was hostile to the extent of complicity of Chhidda. The lower court has observed that this witness was not truthful as far as the part played by Chhidda was concerned and to the extent of the played by other accused persons he was truthful as he has corroborated the prosecution case as far as the accused Kunwar and Lajja Ram were concerned. This witness has totally excluded the involvement of Chhidda from the occurrence but on account of this, his evidence cannot be effaced nor it can be used for discrediting the prosecution case He has categorically supported the prosecution case regarding the involvement of Lajja Ram and Kunwar who had hacked to death Budhai with their respective weapons. Regarding Smt. Bhanuuiati, he could not see the occurrence as he had already run away from the place of occurrence ft is quite natural that in such circumstances it could not have been possible for this witness to have noted the exact manner and sequence in which the Incident had taken place. The fact, however, remains that he has supported broad feature and substratum of the prosecution case. Nothing material has been elicited during his cross-examination by the defence. An attempt was made to show that he was Inimical to accused. He admitted about a case under Sections 147/323 against him on the report of accused Kunwar but denied about any case u/s 107/117 between him and Chhidda and others He also denied the suggestion that he belonged to faction of Fateh Bahadur and Gangacharan in his village. He had no knowdlege about the dacoity case against Fateh Bahadur and others on the report of the Chhidda. He denied the defence suggestion that he was giving false evidence against Lajja Ram and Kunwar on account of enmity. On consideration of testimony of this witness, we agree with the trial court that his testimony cannot be discredited merely because he turned hostile during the trial regarding complicity of Chhidda and that he has corroborated the prosecution case as far as accused Kunwar Lajja Ham are concerned. We are thus not persuaded to accept the contention of the learned Counsel for the Appellants that testimony of the PW 4 Mani Lal and Siya Ram (PW-5) who were declared hostile by the prosecution is not acceptable.

The last witness, is Kumari Pappi alias Kuati, who is a child witness aged about 6-7 years. Her testimony has been discarded by the Trial Court on the basis of her statement, during cross-examination that the news of murder of her parents was sent to Bharampur village and then she along with her maternal grand-father, maternal-grand-mother and maternal uncle came to the village.

The trial court, has declined to draw an inference and has not accepted the contention of the defence that she was a got up witness. The trial court has observed that she was a child witness. She obviously faltered in the cross-examination. The trial court declined to draw to inference that entire prosecution story that Kumar Pappi was there with her father when the occurrence took place was concocted. No doubt this witness, gave occular account of the prosecution story in her examination-in-chief but in view of her cross-examination, the trial court excluded her evidence from consideration. No doubt Kumari Pappi had made statement in cross-examination regarding her visit Neoraj alongwith her maternal grand father and maternal-grand-mother after the death of her parents, but from the it cannot be inferred that the prosecution case is untrue In order to judge the credibility of a witness the court should not confine only with the way in which she witness has deposed but should see under whit particle circumstance she has deposed so See Ram Chandra Ram Bux v. Champa Bai AIR 1965 SC 345 . The jai court did not administer oath to Kutnarl Pappi (PW-2). Certain questions were put to this witness by the court and she stated that her age is six or seven years; that her younger brother is of five years who is three years younger to her She also stated that her elder brother is of five years who is two years elder to her. She also stated that 1, 1/2 months have elapsed since the death of her father. Her statement was recorded on 17-10-78, while the murder of her father Kulhari was committed or; 7-4-77. It is thus quite apparent that the witness and no idea about the time. Further iii her expatiation-in chief she stated with reference to the time of commence that it was summer season and in her cross-examination also she stated that it was summer assassin when she was roaking her statement. It was the month of October when her statement was recorded. Obviously, it was not summer season this witness has faltered only on the point of time sequence. Learned trial court did not record any opinion that this witness was able to understand the nature of questions put to her No doubt, from the cross-examination it is evident that no reliance can be placed on the testimony of this witness and the benefit would go to the accused persons. But no inference can be drawn that she had not accompanied her father at the time of the occurrence, She is a child of 6 or 7 years only and she faltered on account of he ignorance about the idea of time. No capital can be made out of her defective testimony and no inference can be drawn that the prosecution case is false and fabricated and the testimony of other eye-witnesses, therefore, is also unreliable. As already stated above, the testimony of Banwari (PW 1) is cogent, direct and categorical regarding her presence alongwith her father Budhai at his shop at about 12 noon on the date of occurrence. This is simply corroborated by the testimony of Rughunath (PW 3) Manni Lal (PW 4) and Siya Ram (PW 5, No cross examination has been directed on this point, nor any suggestion has been put to these witnesses regarding Pappi alias Kunti. Learned A.G.A argued that the part of the prosecution evidence regarding the presence of Pappi alias Kunti alongwith Budhai at the time of occurrence was nor subjected to cross-examination, hence the truthfulness and reliability of these witnesses in that regard cannot be doubted and that the prosecution evidence clearly shows that Pappi alias Kunti was present at the time of occurrence alongwith her father Budhai. Learned A.G A. cited the case of Ganeshlal Vs. State of Maharashtra, , and referred to page 113 in that connection as has already been mentioned in preceding paragraphs.

The cross-examination was abruptly stopped at the point where this child witness Kumari Pappi faltered. The witness was not reexamined nor the court thought it proper to put question to this witness to clarify about what the had stated in the examination-in-chief and She cross-examination in view of the ignorance about the time and season when the occurrence had taken place and when she had first gone to her maternal father''s place. A perusal of her testimony clearly goes to show that she had no maturity to understand the questions regarding the and season on which she faltered No specific question was put to her That she was not present at the time of occurrence In any way, we also do not rely on the defective and unintelligent testimony of this witness even though she was present at the time of occurrence. She was not a got up witness. The prosecution could not gain any thing by setting up this witness while there were already other adult eye witnesses. We fully agree with the trial court in this regard and in the circumstances, we also exclude her evidence from consideration. It may, however, be made clear that this does not discredit the prosecution case which otherwise has been fully established by the direct, positive, cogent and reliable evidence of the prosecution.

Next, it was contended that the conduct of the deceased and the witnesses present on the spot makes the prosecution version incredible. It was argued by the learned Counsel for the Appellants that neither the deceased Budhai nor the eye witnesses present there, put up any resistance nor tried to save the deceased No doubt courts have to rely more on human probabilities than on assertions of the witnesses (See Vidhya Singh v. State of M. P. 1971 CAR 296 (SC).

It has been seen above that the occurrence took place suddenly when deceased Budhai was sharpening his Hansiya Accused Kunwar. Lajja Ram armed with weapons came there and immediately swooped on Budhai who was sitting aid was sharpening his Hansiya. The deceased was about 50 years of age while accused Kunwar vas about 24 years of age and accused Lajja Ram about 35 years old at the time of occurrence it was thus not difficult for these two young assailants to have over powered Budhai. The witnesses were, no doubt, sitting there but they did not muster courage to resist the attack made by the assonants Banwari PW 1 had categorically deposed that he and the witnesses raised alarm and made protest but the accused scolded them to keep quiet. Other witnesses, namely Raghunath PW 3 Manilal PW 4 also raised alarm. Manilal PW 4 deposed that Lajja Ram end Kunwar scolded him to remain there otherwise he would also be hacked. Siya Ram PW 5 stated that when Lajja Ram and Kunwar with their weapons started attacking Budhai he ran away, As a heady stated above, Mani Lal PW 4 and Siya Ram PW 5 are related to deceased as well as accused persons and they were declared hostile as they wanted to exclude Chhidda. Raghunath PW 3 was resident of another village and was about 79 years of age at the time of occurrence. Similarly, Banwari PW 1 at whose shop the occurrence took place, was about 59 years of age. It is thus quite natural that in the circumstances, these witnesses did not gather up enough courage to put resistance though they raised alarm and made protest. The mere fact that witnesses did not receive any injury or that they did not gather up enough courage to resist the attack and to Intervene, does not show that they had not witnessed the occurrence and whole story is imaginary and made up only for falsely implicating the accused persons See Apren Joseph alias Current Kunjukunju and Others Vs. The State of Kerala, .

In the present case, the witnesses raised alarm and made protest but they were scolded by the accused persons and hence they did not muster courage to intervene. There Is nothing unnatural or improbable in the conduct of these witnesses.

Lastly it was contended that no independent witness of the locality of the village was produce by the prosecution and, therefore, the prosecution case suffers from serious infirmities we have not been persuaded to accept this submission. It is not necessary for the prosecution to multiply the witnesses after witnesses on the same point it is the quality rather than the quantity of the evidence that matters. See Shravan Singh v. State of Punjab AIR 1976 SC 2345 . The real question for determination Is not as to what is the effect of non examination of the certain witnesses as the questions whether witnesses examined in the court on sworn testimony should be believed or not. Once the witnesses examined by the prosecution are believed by the court and the court comes to the conclusion that their evidence is trustworthy, the non examination of other village will not affect the credibility of these witness See Nirpal Singh and Others Vs. State of Haryana, .

In the present case, we have already discussed above that Banwari PW 1 and Raghunath PW 3 are independent and reliable witnesses. Hostile witness Manilal PW 4 and Siyaram PW 5 have corroborated the prosecution case regarding the complicity of the accused Lajja Ram and Kunwar who were the accrual assailants of (he deceased persons. As regards the other persons of the locality, it was argued that there were Khaliyans of other persons nearby but they were not examined. An attempt was made during the cross examination of Slya Ram PW 3 that there were Khalihans of Chhotelal, Sapahilal and others in that ''Bag''. Siya Ram however, deposed in an answer to question No. 15 that he did not see any person in the said Khalihars. It is not prosecution case nor there is any material on record to show that there were other persons present in the nearby Khalihans. There does not thus arise any question of examining the said witnesses. The defence has also not produced any evidence in that regard The contention of the learned Counsel for the Appellants, has thus, no force.

On careful scrutiny of the: entire evidence and the facts and circumstances of the case, we agree with the finding of the trial court which had advantage of watching demeanour of the witnesses before it. The evidence of the reporter Banwari PW 1 is fully corroborated by the First Information Report lodged by him and the evidence of Raghunath PW 3 and to great extent corroborated by the evidence of the hostile witnesses Manni Lal PW 4 and Siya Ram PW 5. There is ring of truth in the statement of Banwari PW 1 and Raghunath PW 3, which is amply corroborated by the evidence of Siya Ram PW 5 end Manni Lad PW 4. The fact that the Lathi, Basoola, Kulhari were used in committing murder of Budhai and thereafter. Lathi and Kulhari were used in committing murder of Smt. Bhanumati is fully corroborated by the medical evidence as already stated above. According to Dr. Pundeer PW 9 Budhai died as result of head injury Nos. 1, 2 and 4 while Smt. Bhanumati died as result of head injury DO. 2. Both the accused Lajjara, and Kunwar were instrumental in committing the murder of Budhai and Smt Bhanumati. Chhidda was present on the spot and he exhorted his sons to commit the aforesaid two murders. It was at the exhortation of Chhidda, Lajja Ram kept his lathi and picked up Basoola from Banwart''s shop in attaking Budhai.

No other point was urged.

We agree with the trial court that the accused Lajja Ram and Kunwar were guilty for committing the murders of Budhai and Smt. Bhanumati u/s 302 IPC and that the accused Chhidda was guilty for the offence u/s 302 read with Section 34 IPC. The accused persons have been awarded life imprisonment for committing aforesaid murder. The judgment and the order of the lower court is confirmed.

The appeal has no force on merits, thus fails, and is accordingly dismissed. The Appellants are on bail. Their bail bonds are cancelled. They shall be taken into custody forthwith to serve out the sentence awarded to them.