JUDGMENT 1. - This appeal is directed against the judgment passed by the learned Sessions Judge, Bikaner dated June 30,1980 by which appellant Likhma Ram was convicted for the offences under sections 302 and 447 of the Indian Penal Code and sentenced to imprisonment for life on the first count and three months R I. on the second count with an order that the sentences awarded on the two counts shall run concurrently. 2. Succinctly narrated the facts of the case giving rise to this appeal are as under: In the Month of September 1966, Gangu Ram, father of the appellant was murdered at village Dudiawali. Bhiyaram deceased was suspected of committing the murder of Gangu Ram and was tried. By the judgment dated November 29, 1969 Ex.P. 18. Bhiya Ram was acquitted of the charge of murder of Gangu Ram by the Sessions Judge, Bikaner. 3. The family of Gangu Ram hatched enmity towards Bhiya Ram. After about 5-6 years of the murder of Gangu Ram, either on account of famine or because of the family of Gangu Ram being inimical to Bhiya Ram, the latter left village Dudiawali and went to Gadsana, at a distance of 20-33 'Kose' from village Dudiawali. For four or five years Bhiya Ram with his family stayed at Gadsana. A week prior to the present incident, Bhiya Ram with his family returned to his village Dudiawali and repaired his dilapidated house. In the intervening night of 1-2 July, 1978 Bhiya Ram with his wife and children was steeping in the court-yard of his house. The court-yard was surrounded by a wall of varying heights at different places with an open door. Bhiya Ram with his little child Uda Ram was sleeping on one cot. surrounded by a wall of varying heights at different places with an open At a little distance, on another cot. Bhiya Ram's wife Smt. Sheo Kauri (P.W. 7) was seeping with her one year old daughter Shanti. On another cot nearby was sleeping Smt. Mohini (P W. 8) daughter of Bhiya Ram with her two brothers. At about mid night, on hearing the sound of foot-steps near the cot of Bhiya Ram. Bhiya Ram's wife Smt. Sheo Kauri (P.W. 7) was seeping with her one year old daughter Shanti. On another cot nearby was sleeping Smt. Mohini (P W. 8) daughter of Bhiya Ram with her two brothers. At about mid night, on hearing the sound of foot-steps near the cot of Bhiya Ram. Smt Sheo Kauri awakened and saw Likhma Ram appellant causing injuries with a 'burchhi' to her husband Bhiya Ram, She also saw Het Ram and Tana Ram (Co-accused, since acquitted by the trial Court) standing in the door with lathis in their hands. Smt Sheo Kauri raised a cry. Likhma Ram warned her that in case she would not keep quiet she would also be killed. On hearing the cry Smt. Mohini also awakened and saw the appellant' Likhma Ram inflicting 'burchhi. injuries to her father. On hearing the cries of the two ladies Kojurarn (P.W. 1), Panna Ram (P.W. 2), Hanuman (P.W. 11), Purkha Ram and other persons rushed towards the house of Bhiya Ram. Meanwhile the appellant Likhma Ram and his companions made good their escape from the house. Smt. Sheo Kauri (P.W. 7) narrated the incident to the villagers and asked them to inform the police. Kojuram (P.W. 1) went to police Station, Loonkaransar, at a distance of 15 miles from village Dudiawali and made an oral report to Kishan Lal (P.W. 10) Head Constable, In-charge of the Police Station. Kishan Lal (P.W. 10) reduced that information into writing which is Ex.P. 1. He chalked the formal F.I.R. and registered the case under sections 459 and 302 read with 34 I.P.C. Kishan Lal telephonically informed Dy. S.P. Nand Ram P.W. 9) abut a case of murder having been registered at the Police Station. The Dy S.P. directed Kishan Lal to proceed to the site and start with the investigation. Kishan Lal, on reaching the house of Bhiya Ram, inspected the site and prepared the site inspection memo Ex.P. 21 and site plan Ex.P. 11. He found some blood stains on the wall in front of the cot of Bhiya Ram. He took the blood smeared earth and the control soil from the site. He prepared the inquest report Ex P. 4 and Panchayatnama Ex P. 3. At 11 00 a m. Dy. S.P. Nand Ram (P.W. 8) reached the site and took charge of the investigation. He took the blood smeared earth and the control soil from the site. He prepared the inquest report Ex P. 4 and Panchayatnama Ex P. 3. At 11 00 a m. Dy. S.P. Nand Ram (P.W. 8) reached the site and took charge of the investigation. He examined Smt. Sheo Kauri, Smt. Mohini and other witnesses. Tile requisition for conducting the postmortem of the dead body was sent to Dr. Chandra Mohan P.W. 5), Medical officer, R.C.P., Mobile Dispensary, Loonkaransar. The Doctor reached village Dudiawali and at 3.55 conducted the autopsy over the dead body of Bhiya Ram. He prepared the injury report Ex.P. 15. The Doctor noted following injuries on the dead body: 1. Incised wound 25 cm, length. Breadth-5 cm - Depth 4 cm. 31/2 cm starting from the front of neck at the level of cricoid cartilege cutting Trachea Oesophagus blood vessels of neck. Rt. side and extends by cutting Rt. lower jaw at a Angles Right side mandible and first and second cervical vertebrae (body) vertebral canal lower position of occipital bone below posterior occipital protrubrance including muscle of neck of right side. 2. Incised wound size 12 cm x 6 cm x 41/2 cm situated about 2 cm. below above noted wound. This wound starts from the Rt. side of neck of the posterior part jaw above the root of neck cutting the muscles, blood vessels. 3. Incised wound - 2 cm x 1 cm x 2 cm on the Rt. side of check below the maxillary bone. 4. Incised wound (oblique) 6 cm x 51/2cm x 2cm. The wound is oblique cutting skin muscles and posterior part of Radius and ulna (bone of forearm) obliquely. The cut do not separate the t o parts of Radius and ulna (wounds). All the injuries were ante-mortem in nature. 4. On dissection of the dead body, the Doctor noted under:- Scalp. Skull and Vertabrae. The posterior part of the skull cut along with membrance showing brain matter. Body of 1st and 2nd cervical vertebrea are also cut due to wound at the-level of second cervical vertebrae. Large Vessels. All the large blood vessels of neck were found cut due to two big external wounds on Rt. side of neck and posterior part of head. Mouth, Pharynx and Oesophagus Mouth is found open and oesophague is found cut at the level of 2nd and 3rd cervical vertebrae. Large Vessels. All the large blood vessels of neck were found cut due to two big external wounds on Rt. side of neck and posterior part of head. Mouth, Pharynx and Oesophagus Mouth is found open and oesophague is found cut at the level of 2nd and 3rd cervical vertebrae. Muscles: Muscles of lower jaw found cut along with the muscle of neck. Stomach and its contents: The stomach contains small amount of semi solid food. 5. In the opinion of the Doctor the cause of death was due to severe Haemorrhage from wounds cutting the blood vessels and vital parts like brain and Traches. 6. The blood smeared clothes, Bhiya Ram was putting on at the time of the incident, were taken in possession and sealed after the post-martem examination. The beddings and the cot, on which Bhiya Ram was sleeping, were also taken in possession and sealed. On July 5, 1978 Kishan Lal (P.W. 10) arrested appellant Likhma Ram vide memo Ex P. 22. Co-accused Het Ram and Tana Ram were arrested by the S.H O. Ram Singh on July 18, 1978. Likhma Ram was entrusted to the Dy. S.P., Incharge of the investigation on July 6, 1978. On July 8, 1978, the appellant furnished information to the Dy. S.P. for getting recovered one 'barchhi' from the heap of grass lying in his residential house. In pursuance of that information 'burchhi' Art. I was recovered at the instance of the appellant. There being suspicion of blood stains on the blade add handle, it was sealed then and there. In pursuance of the information furnished.by Het Ram and Tana Ram on July 21, 1978 lathis Ex.P. 27 and Ex.P. 28 were recovered at their instance from, their house. The articles seized during the course of investigation were sent for Chemical Analysis The report of the Chemical Analyser is Ex.P. 16. From the Forensic Science Laboratery, the articles were sent for Serological test. The report of the Serologist is Ex. P. 17. 7. Upon completion of necessary investigation, charge-sheet against the appellant and the co-accused was filed in the Court of Judicial Magistrate No. 2, Bikener. The learned Magistrate finding a prima facie case exclusively triable by the court of Sessions committed the appellant and the co-accused to the Court of Sessions Judge, Bikaner to stand their trial there. P. 17. 7. Upon completion of necessary investigation, charge-sheet against the appellant and the co-accused was filed in the Court of Judicial Magistrate No. 2, Bikener. The learned Magistrate finding a prima facie case exclusively triable by the court of Sessions committed the appellant and the co-accused to the Court of Sessions Judge, Bikaner to stand their trial there. The learned Sessions Judge, charge-sheeted the appellant for the offence under sections 302 and 448 IPC and other two accused for the offences under sections 302 read with 34 IPC and 447 IPC. All them denied the indictments and claimed to be tried. Prosecution examined 12 witnesses in all to substantiate its case. The statements of the accused under section 313 of the Code of Criminal Procedure were of total denial of the allegations levelled against them. Likhma Ram stated that he was not present in the village at the relevant time. No defence witness was examined. The learned trial Judge did not believe the prosecution case established beyond reasonable doubt against the co-accused Het Ram and Tana Ram and acquitted them of the charges. The learned Judge however placed reliance on the testimony of the two eyewitnesses as far as Likhma Ram is concerned and held him guilty for the offences stated above and passed the judgement under appeal. 8. We heard Mr. Than Chand Mehta. learned counsel for the appellant and Mr. M.D. Purohit, learned Special Public Prosecutor for the State and carefully examined the record of the case. 9. The prosecution has led direct as well as circumstantial evidence in the case. The direct evidence is of Smt. Sheo Kauri (P.W. 7) and Smt. Mohini (P.W. 8). The circumstances evidence is firstly, the motive attributed to the appellant that he took revenge for the murder of his father and secondly, the recovery of 'burchhi' Article 1 at the instance of the appellant in pursuance of his information. 10. Smt. Sheo Kauri (P.W. 7) is the wife of deceased Bhiya Ram. She has stated about her husband being tried and acquitted of the charge of committing the murder of Gangu Ram, father of the appellant. The co-accused are said to be the cousins of the appellant. She has also stated about her husband with family living for 5-7 years in the village after the judgment of that case & then going to Gadswan to earn their livlihood. The co-accused are said to be the cousins of the appellant. She has also stated about her husband with family living for 5-7 years in the village after the judgment of that case & then going to Gadswan to earn their livlihood. According to the witness after staying for 3 or 4 years there, she & her husband along with their children returned to village Dudiwali & collected material to construct the house. That, they had meanwhile repaired the old enclosure and started living in it. The witness has narrated the details as to how she awoke on hearing the sound of foot- steps and saw Likhma Ram causing 'burchhi' injuries to her husband Bhiya Ram. She has stated about her daughter Smt. Mohini sleeping on the next cot and getting up on hearing her cry. Similar is the statement of Smt. Mohini (P.W. 8). She has stated about her awakening at the cry of her mother and seeing Likhma Ram causing a number of injuries to her father with 'burchhi'. The learned counsel for the appellant has assailed the testimony of these two witnesses on a number of grounds which we would discuss at appropriate place. 11. It has been contended by Mr. Mehta that the F.I.R. Ex. P. 1 was not lodged promptly after the incident as alleged by the prosecution, rather was prepared after the investigation at the site had been completed. The learned counsel for the appellant has referred to the statement of Koju Ram (P.W 1) to this effect. In order to strengthen his submission, the learned counsel also referred to the circumstance of delay in sending the F.I R. to the concerned Magistrate. According to the learned counsel, had the information been lodged promptly, there was no reason for the police for not sending it on the same day to the concerned Magistrate. 12. The peculiar feature of the case is that the informant has turned hostile and so also Panna Ram, Hanuman and Purkha Ram, the persons who are :aid to have reached the house of the deceased on hearing the cries of the inmates of the house. According to Kishan Lai (P.W. 10), Incharge of the Police Station, Loonkaransar, Koju Ram lodged an oral report on July 2, 1978 at 5.15 a.m. which was reduced into writting by him and is Ex. According to Kishan Lai (P.W. 10), Incharge of the Police Station, Loonkaransar, Koju Ram lodged an oral report on July 2, 1978 at 5.15 a.m. which was reduced into writting by him and is Ex. P. 1 Nand Ram (P.W.9) has also supported the contention to the effect that he received telephonic message from Kishan Lal about the incident and the case being registered. 13. The learned counsel submitted that in case Smt. Sheo Kauri (P.W. 7) and Smt. Mohini (P.W. 8) would have given the names of the assailant and his companions immediately on the arrival of the villagers, there was no reason for them not to support the prosecution case. 14. There may be number of reasons for a particular neighbour or the villager residing from his, previous statement or the version given in the F.I.R. But merely because the person who reached the site do not support the eyewitnesses that they bad told the names of the assailants, the testimony of the eye witnesses, if otherwise reliable, cannot be discarded. 15. The learned counsel for the appellant emphasised that the two eye-witnesses have not stated that they had told the names of the appellant and the co-accused to Koju Ram or any body also prior to the arrival of the police. The argument has no force. This is correct that it has not come in so many words in the statements of the witnesses but the statements when carefully read show that the details of the incident were narrated by Smt. Sheo Kauri to Koju Ram and others and it was on the basis of that information that Koju Ram had gone to the police station to lodge their report Ex. P. 1. 16. Mr. Mehta referred to that part of the statement of Smt. Sheo Kauri where she has stated that she had told the persons arriving at the site that her husband has been killed so they may go to the police station and lodge the report and thereupon Koju Ram and Pana Ram went to the police station. According to the learned counsel this does not means that she had narrated the details. According to the learned counsel this does not means that she had narrated the details. It is to be noted that a little before this part of the statement, the witness has stated that on hearing the cries, Koju Ram, Panna Ram, Hanuman, Purka Ram and other villagers had reached her house and the accused made good their escape. That, she had told about the incident to those persons at that very time. Smt. Mohini has stated that when Panna Ram, Koju Ram and Hanumau etc. had reached her house, her mothet narrated the incident to the villagers. horn this type of the statements, it cannot be said that they were ignorant of the assailant till the time, villagers reached and Koju Ram was not knowing about the details when he left for the police station. 17. Mr. Mehta next contended that if Ex. P. 1 was recorded at the Police Station at 5.15 a.m. and then Kishan Lal (P.W. 10) left for the site why the information was sent on the next date has not been explained by the prosecution and therefore, it should be inferred that the F.I.R. was not lodged at the time prosecution claims. 18. To emphasise the importance of despatching the information to the concerned Magistrate immediately after its being recorded, Mr. Mehta referred to the case of Ishwar Singh v. State of U P., AIR 1976 SC 2423 , wherein the extraordinary delay in sending the F.I.R. was considered to be a circumstance providing a legitimate basis for suspecting that the F.I.R was recorded much later than the stated date and hour, affording sufficient time to the prosecution to introduce improvements and embellishments and set up a distorted version of the occurrence. It was in view of the peculiar circumstances of the case that the case made in Court differed at least in two very important particulars from narrated in the F.I.R., that it was held that the evidence of the eye-witnesses "cannot be accepted at its face value",. 19. Another case referred to by the learned counsel for the appellant on the point is Falaqsher & another v. State of Rajasthan, 1978 Cr.L.R. (Raj.) 613 . 19. Another case referred to by the learned counsel for the appellant on the point is Falaqsher & another v. State of Rajasthan, 1978 Cr.L.R. (Raj.) 613 . In that case the delay of more than 24 hours in sending the F I R to concerned Magistrate coupled with other infirmities of the prosecution case was taken serious note of and it was observed that the possibility of the story having been thought out subsequently is not ruled out. 20. The learned Public Prosecutor referred to the principles enunciated in the case of Pala Singh and another v. State of Punjab, AIR 1972 SC 2679 . Their Lordships were pleased to emphasise the importance of compliance of Section 157 of the Code of Criminal procedure and observed that this is really designed to keep the Magistrate informed of the investigation of such cognizable offence so as to be able to control the investigation and, if, necessary, to give appropriate direction under section 159 Cr. P.C. Their Lordships however were of the opinion that where the F.I.R. was actually recorded without delay and the investigation started en the basis of that F.I.R., and there is no other infirmity brought to he notice of the Court, then, however improper or objectionable the delayed receipt of the report by the Magistrate concerned, in the absence of any prejudice to the accused it cannot by itself justify the conclusion that the investigation was tainted and the prosecution insupportable. 21. The importance of sending the promptly to the Magistrate concerned need not be over-emphasized. It provides a check for subsequent change, improvement or embroidery to the prosecution version. The unexplained, inordinate delay in compliance of provision of Section 157 of the Code of Criminal Procedure, of course, requires serious consideration by the Court. But at the same time if the circumstances of the case do not raise doubt upon prompt lodging of the F.I.R. and the evidence on record substantiates the case at the F.I.R. was promptly lodged to and recorded by the police and there is no difference in the initial story in F.I.R. and the deposition of the witness at the trial, the delay in sending the F.I.R. by itself would not be fatal to the prosecution. 22. 22. The pecular feature of the present case is that the informant Koju Ram has been cross-examined by the prosecution with the permission of the Court as he has resiled from the version given in the F.I.R. The F.I.R. not being a substantive piece of evidence can only be made used of for corroborating or contradicting the informant. From the careful examination of the statement of Koju Ram, we are not inclined to place reliance on any part of his statement. In this view of the matter all that can be said is that the prosecution machinery "as set to motion by Ex. P. 1 but what its contents were cannot be made use of by either side. Thus the delay. even if any, in sending the report to the concerned Magistrate does not remain an important point for consideration. 23. Another attack on the veracity of the two eye-witnesses by the learned counsel for the appellant is that they being related to the deceased and inimical to the appellant, fall within the category of interested partison witnesses and therefore, without independent corroboration, their testimony should not have been made the basis of conviction of the appellant. 24. Regarding the reliability of the inimical witness, Mr. Mehta referred to the case of Dailp Singh and others v. Emperor, AIR 1927 Lahore, 874 wherein their Lordships were pleated to observe that conviction should not be based on the, evidence of witnesses who are bitter enemies of the accused,unless it is supported by the evidence of reliable and disinterested witnesses Their Lordships were pleased to distinguish the case of one accused from the remaining three and did not consider the evidence of the independent witness as reliable so as to lend support to the evidence of the two brothers of the deceased who had bitter enmity with the accused. 25. The question of corroboration to the evidence of interested reliable witnesses will depend upon the circumstances of a given case. It is not in all cases that the evidence of the eye-witnesses, if their presence at the time of the incident is otherwise proved, should be washed off the record simply because independent corroboration to their testimony is not available. 26. If the crime is committed in night, inside the house, in the natural course, only inmates of the house would be present and therefore, would be available witnesses. 26. If the crime is committed in night, inside the house, in the natural course, only inmates of the house would be present and therefore, would be available witnesses. Presence of outsiders or independent persons cannot ordinarily be expected at such time. It is this principle which has been enunciated in the case of Siya Ram Rai v. The State of Bihar, 1973 SC Cases (Criminal) 236 , wherein their Lordships were pleased to prepound the following principles: "Before throwing overboard the evidence of partison and interested witnesses; the Court will see whether at the time when occurrence had taken place, it was possible for the prosecution to produce independent outsiders as witnesses and whether the evidence of interested and partisan witnesses stand uncorroborated",. 27. In that case, the incident had taken place inside the house at dead of night, and their Lordships were pleased to hold that it would be futile to expect the prosecution to produce independent outsiders as witnesses. 28. In the case of Sat Paul v. Delhi Administration, AIR 1976 SC 294 describing the evidence of interested witnesses, their Lordships were pleased to observe as under : "There is no absolute rule that the evidence of an interested witness cannot be accepted without corroboration. But where the witnesses have poor moral fibre and have to their discredit a load of bad antecedents which indicate their having a possible motive to harm the accused who was an obstacle in their immoral activities, it would be hazardous to accept the testimonies of such witnesses without corroboration on crucial points from independent sources". 29. The next point raised by Mr. Mehta to criticise the evidence of the two eye-witnesses is that there could not be any reason or occasion for them to identify the appellant. The learned counsel emphatically argued that Smt. Sheo Kauri has claimed to identify the appellant as the assailant of her husband by his gait, voice and face, but the scrutiny of her testimony would make it clear that none of these points was available to her. According to the learned counsel when Bhiya Ram with her family had left the village for Cadsana, age of Likhma Ram might be 14-15 years and there was a gap of 4-5 years when they returned to Dudiawali. According to the learned counsel when Bhiya Ram with her family had left the village for Cadsana, age of Likhma Ram might be 14-15 years and there was a gap of 4-5 years when they returned to Dudiawali. That the witnesses had returned only one week prior to the occurrence to Dudiawali and in such a short period it could not be possible for her to get fully acquainted with the face of the appellant especially when she had not visited his house Regarding the voice of the appellant, the argument of the learned counsel is that the utterance of the appellant at the time of the occurrence giving a treat to Smt. Sheo Kauri cannot be said to be supported by Smt. Mohini because her version on the point given in the Court does not find place in her police statement Ex. D.2 Regarding the gait, the contention of Mr. Mehta is that it was only at a little distance from the door that the assailant is said to be standing and so might have walked so little that the witness could not have identified him by his gait. 30. From the record it may be inferred that the age of the appellant at the time of Bhiya Ram and his family leaving the village for Gadsana might be above 14-16 years. Whether a person seeing a boy 4-5 years prior to the occurrence would be in a position to identify him in the dead of the night, will depend upon the opportunity to see and the power of the observation of the witness The witness has stared that about a week prior to the incident, the family had returned to village Dudiawali. Both the eyewitnesses have stated that during that period, they had the occasion to see the appellant a number of times on the way and on the walls. Smt. Sheo Kauri has stated that the distance between her house and that of the appellant is about one bigha and only five or six houses are there in between the two. Smt. Mohini has stated about the appellant being her causin in relation and their playing together in their child-hood 31. Smt. Sheo Kauri has stated that the distance between her house and that of the appellant is about one bigha and only five or six houses are there in between the two. Smt. Mohini has stated about the appellant being her causin in relation and their playing together in their child-hood 31. This is not a case where there is a question of identity of a stranger of whom the witness bad the casual glimpse four or five years prior to the occurrence, rather it is a case where the witnesses had the occasion to see the appellant for a number of years There was a gap of only four or five years in between their seeing the appellant last and subsequently seeing him in the village for a week prior to the occurrence. In order to be acquainted with the features of the person talking with him is not necessary. Ordinarily there would not be a glaring change in the features of a boy of 14-15 and 18-19 years. 32. In view of the above discussed evidence and circumstances, we find force in the argument of Mr. M D. Purohit appearing on behalf of State that there was sufficient opportunity and occasion for the two eye-witnesses to be acquainted with the face of the appellant Likhma Ram so as to enable them to identify him at the time of the occurrence. 33. Regarding the identification by voice Mr. Mehta strenuously contended that even if the prosecution case about the two ladies being acquainted with the face of the appellant is believed, still it could not be possible for them to identify the assailant in that dark night specially when they awoke suddenly. 34. Mr. Mehta referred to the case of Hazura and another v. King Emperor, AIR 1923 Lahore 161 wherein on account of the dark night, the identification of the dacoits by the complainant was believed The complainant in that case is said to have followed the dacoits in the dark night to Rly. Station and later on accused the appellants on suspicion without being certain that they were the men who had been at his village for dacoity. 35. In the present case as admitted by Smt Sheo Kauri, it was a dark night on the day of occurrence. Station and later on accused the appellants on suspicion without being certain that they were the men who had been at his village for dacoity. 35. In the present case as admitted by Smt Sheo Kauri, it was a dark night on the day of occurrence. She has stated that it was in the light of the stars that she could identify the appellant The distance between the witness and the assailant was only 4-5 feet. In other words there was only a cot in between the witness and the assailant. Smt. Mohini was also only at a little distance from her mother. In such circumstances, it cannot be said to be impossible for the two ladies to identify the assailant in the light of the stars specially when they were well acquainted with his face & figure. The two witnesses have given the details of the colour of the dress of the appellant and also the style in which he was putting on the black loongi.This lends support to the argument of the learned Counsel appearing on behalf of the State hat the witnesses had minutely observed the assailant of Bhiya Ram. 36. Mr. Mehta next argued that even if the prosecution case about the two. No eye-witnesses being acquainted with the face of the appellant is believed, still they could not be in a position to identify the appellant at that time because of their sudden awakening from sound sleep. To substantiate his case learned counsel referred to the cases of Mohinder Singh v. State of Punjab, AIR 1955 SC 762 and Falaqsher & another v. State of Rajasthan (supra). 37. In the first case, the main witness of the prosecution had developed catract which rendered his eye sight "extremely week" and as observed by the court he could not make out the fingers of the hand from a distance of two to three feet and could form only a very hazy picture of things lying even at a short distance form him. As the consistent story has been woven round the suspicion of that witness who appeared to have convinced himself beyond all possibility of doubt that it were the two accused who had committed the murder of his son, the evidence of the other witness was not relied upon by the Court. 38. As the consistent story has been woven round the suspicion of that witness who appeared to have convinced himself beyond all possibility of doubt that it were the two accused who had committed the murder of his son, the evidence of the other witness was not relied upon by the Court. 38. In the second case the occurrence took place when the two witnesses were in sound sleep. Their Lordships were pleased to observe that if a person suddenly arises from his sleep in the early part of the night without any previous apprehension, it would be difficult for him to notice or identify assailant or a person at some distance. The two witnesses in the case were sleeping in the room whereas the deceased was sleeping at some distance in the court-yard. The witnesses did not claim that they had come out in the court-yard. One of those witnesses had even stated that she and the other witnesses were watching the assailant from the door of the room only. In this view of the matter the graphic description given by the witnesses of the assault made by the accused was not believed. 39. In the present case, as stated earlier, the two witnesses and the victim were in the same court-yard The three cots were continuous to one another. There was only the cot of Bhiya Ram between Smt. Sheo Kauri and the assailant. There were only two cots between Smt. Mohini and the assailant. In such a situation the question of the witnesses being in sound sleep and suddenly arising would not come in the way of their correct identification of the appellant. 40. Regarding the identification by voice Smt Sheo Kauri has stated that when she awoke and saw the appellant inflicting burchhi' blows to her husband, she cried and was warned by the appellant that in case she would not keep quiet, she would also be killed. The witness was in the same village till the appellant had attained the age of 14-15 years and was again there for a week prior to the occurrence. Mr. Purohit submitted that the witness might not have a direct talk with the appellant but might have a direct talk with the appellant but might have heard him talking. The witness was in the same village till the appellant had attained the age of 14-15 years and was again there for a week prior to the occurrence. Mr. Purohit submitted that the witness might not have a direct talk with the appellant but might have a direct talk with the appellant but might have heard him talking. He referred to the part of the statement of Smt. Sheo Kauri that formerly the relations between the two families were quite cordial. There is nothing in cross-examination of this witness so as to shatter her version that she could recognise the appellant by his voice also. Smt. Mohini has stated at the trial about the appellant giving a threat to her mother but this version is missing in her police statement Ex. D.1 to which her attention was drawn and the witness could not satisfactorily explain the omission. Smt. Mohini's statement on this point, therefore, cannot be said to be a corroboration the testimony of her mother. However as stated earlier, there is no reason to disbelieve Smt. Sheo Kauri on the point. 41. The case of Nga Aung Khin v. Emperor, AIR 1937 Rangoon, 407 referred to by Mr. Mehta does not help him. The principle enunciated in that case is that it is never safe to rely on the identification of a person by his voice, as one is always liable to make a mistake. In that case the witness who claimed to have recognised one of the robbers by his voice never said to the headman who examined her not long after the robbery, that she recognised one of the robbery by his voice. 42. So far as gait is concerned, if a person is acquainted with the assailant it cannot be difficult for him to identify the marl by gait even in case there is no occasion to see him by face. In the present case, it is not only gait that has enabled Smt. Sheo Kauri to identify the appellant rather she as well as Smt. Mohini have given cogent reasons for their being acqaniuted with the face of the appellant. 43. The next criticism levelled against the two eye-witnesses is that their statement are contradictory to each other. Smt. Mohini has stated that her mother had placed her arms around the neck of the deceased (Gaffi Dal Rakhi Thi). 43. The next criticism levelled against the two eye-witnesses is that their statement are contradictory to each other. Smt. Mohini has stated that her mother had placed her arms around the neck of the deceased (Gaffi Dal Rakhi Thi). Smt Sheo Kauri on being questioned as to whether she intervened when the assailant caused injuries to her husband, answered that how could she have done so as when she awoke & saw Likhma Ram had inflicted 3-4 blows to her husband in quick succession. It is relevant to note that Smt. Sheo Kauri was in between the cots of Smt Mohini and the deceased. Simply because Smt. Mohini had an impression of her mother leaning upon her father it cannot be said that her statement is in total contradiction to what her mother has stated. 44. Smt. Sheo Kauri has stood her cross-examination well The learned counsel for the defence has tried to shatter her testimony by referring to her police statement regarding the allegation of Likhma Ram taking revenge of her father's murder. Attention of the witness was drawn to the omission in her police statement Ex D 1 about hatching enmity after the murder of his father Gangu Ram. Her attention being drawn to the police statement, she stated that in that statement the fact of taking revenge for the murder of Gangu Ram is mentioned but the fact of enmity is not there in clear words. The witness has contradicted from her police statement about the sequence of the injuries on neck, jaw and hand of her husband It is however clear that she has stated about all injuries. The learned trial Judge has made a note to the effect that in Ex. D. 1 there is mention of Likhma Ram inflicting three blows on the neck and the hand and one blow having been inflicted on the neck in the beginning. Thus there appears to be no contradiction in the statement of the witness in the police and in the court on any material point. It is pertinent to note that the witness has given intelligent answers to the questions put to her in cross-examination On being asked about her sleeping inside the 'jhumpha' at the relevant time, the witness stated that she was sleeping outside in the court-yard and further stated that who would sleep inside the "joumpha' in that hot weather. It is pertinent to note that the witness has given intelligent answers to the questions put to her in cross-examination On being asked about her sleeping inside the 'jhumpha' at the relevant time, the witness stated that she was sleeping outside in the court-yard and further stated that who would sleep inside the "joumpha' in that hot weather. On being suggested that Smt. Mohini was there at Garsana for grazing the cattle, the witness stated that Smt. Mohini was very mei present at the time of the incident and further stated that how can she leave her grown-up daughter there, away from her. It was suggesteed to the witness that her husband had taken two thousand rupees as consideration of the engagement of his two elder daughters at village-Ajeetmana and married them to different persons at village Himmatsar and therefore, the people of Ajeetmana were inimical to him. The witness denied the suggestions and vehemently stated that who would be so immoral so as to take money from one person and marry the daughter to another.On being questioned whether the foot prints at the site were covered, the witness replied that where arises the question of doing so when the miscreants were identified by her. It is, therefore, clear that the witness could not be shattered despite a long searching cross-examination and cannot be said to be an infirm witness. 45. The learned counsel for the appellant referred to certain facts appearing in the statement of Smt. Mohini to discredit her testimony. One is regarding her mother putting her hands around the neck of her father. The second fact is about her omission in the police statement regarding Likhma Ram giving a warning to her mother to keep quiet otherwise she would also be killed. Both these points have been discussed by as above and, in our opinion, they are not so material so as to throw doubt on the veracity of the testimony of this witness. The learned counsel has referred to that part of the statement of the witness where she without making any effort to see the lathis alleged to have been recovered from Het Ram and Tana Ram co-accused, identified them as the lathis which those two accused had with them at the time of the occurrence. This argument is not such relevant. Firstly because the evidence against. This argument is not such relevant. Firstly because the evidence against. Het Ram and Tana Ram had not believed by the learned trial Judge and they have been acquitted by the judgment under appeal and secondly, because if the witness on such minor point was over enthusiatic she cannot be branded as a liar. Much emphasis has been laid by the learned counsel for the appellant on the inconsistencies between the statement of Smt. Mohini and her mother regarding the directions of the cot and assailant's standing at the time. The witness has categorically stated that she does not understand in direction. Hence asking her questions regarding the direction was only a futile attempt to discredit her testimony which otherwise is quite cognet and credible. 46. The learned counsel for the appellant has raised strong suspicion on the presence of the two witnesses at the site on two grounds. Firstly, absence of blood on the clothes and person of Uda Ram and secondly on clothes and person of Smt. Sheo Kauri. 47. The prosecution case is that child Uda Ram was sleeping on the cot of Bhiya Ram on the fateful night The argument of Mr Mehta is that if a person is murdered on the cot and there is bleeding on account of the injuries, another person sleeping on the same cot would have stains of blood on his persons and clothes. In the present case the evidence of Smt.Sheo Kauri explains the situation She has stated that her husband was sleeping on the cot with his head towards and legs towards east, whereas child Uda was sleeping with his head towards east west and legs towards west. It is not the case that whole of the bedding was smeared with the blood. Hence there is no surprise if Uda did not have blood stains on his clothes. There were some blood stains on the wail in front of the cot. Smt. Sheo Kauri's clothes did not have any blood stains. She has stated that her hands were spoiled with blood, but in the morning, at the instance of the villagers, she had washed her hands. Smt. Mohini has also stated about her mother's hands only being spoiled with blood. The explanation given by the witness is believable. Smt. Sheo Kauri's clothes did not have any blood stains. She has stated that her hands were spoiled with blood, but in the morning, at the instance of the villagers, she had washed her hands. Smt. Mohini has also stated about her mother's hands only being spoiled with blood. The explanation given by the witness is believable. It is not in all cases that absence of the blood on the by standers or the persons coming in contact with the assailant or his weapon may create doubt on the testimony of those witnesses. Reference may be made to the case of Somappa v. State of Mysore, AIR 1979 SC 1831 . In that case the witnesses claimed that they snatched weapons and held the accused. Their Lordships were of the opinion that their evidence could not be rejected because of absence of blood stains on their clothing or on their hands and that from the fact that the weapons were blood stained, it could not be said that the clothes of the witnesses should also have been blood stained. 48. Mr. Mehta, next, argued that the medical evidence is contradictory to the version given by the two eye witnesses and therefore, their presence exactly at the time of the incident, becomes doubtful. 49. Dr. Chandra Mohan (P.W. 5) who conducted the authopsy over the dead body found semi-solid contents in the abdomen of the deceased. According to the Doctor four or five hours are required for complete digestion of the food. In the opinion of the Doctor, Bhiya Ram might have taken food about three hours prior to his death. The two eye-witnesses have stated that Bhiya Ram had taken food just after sun-set on that day and went outside to sit with other villagers for hatahi. According to Smt. Sheo Kauri her husband returned at 9-10 p.m. in the night and went to sleep.The incident according to the two ladies was atabout 12.00 or 1.00 in the night.The learned counsel contended that if the incident would have taken place in the part of night stated by the witnesses, the food would have been completely digested.The argument I is impressive but not appealing.The reason is that the different food-stuffs require different time in digestion and the Doctor also could not say of which type of food-the semi-solid contents were. Apart from it the rustic illietrate ladies are liable to commit mistake in stating the exact hour of the occurrence or even about the deceased taking the food. 50. The case of State of Punjab v. Joginder Singh and others, AIR 1973 SC 1258 referred to by Mr. Mehta does not help the appellant. In that case the High Court did not believe that the palace of occurrence was visible from the Haveli. According to the High Court it was only after a long deliberation between the witnesses and the investigating officer who too was disbelieved that the F.I.R. implicating the accused was given It was in such circumstances that the medical evidence was taken into consideration as an additional fact to discredit the prosecution case. The Doctor was of the opinion that the injured should have died 2 or 3 hours after taking food. On the basis that eight ounces of semi-digested food was found in the stomach on postmortem examination. For that reason, the learned Judges took it as an indication that the murder must have taken place not at the time mentioned by the prosecution witnesses but long thereafter when probably there would have been no body to witness the occurrence. In the present case, the presence of the two ladies was natural and their testimony above inspires confidence. 51. The next argument of the learned counsel for the appellant is that the ladies might have gone outside and must have returned after the incident and than must have raised the cry and therefore, they cannot be said to be the witnesses of the actual occurrence. This argument is based on the fact that Smt. Mohini has stated that her father was lying straight at the time of the incident and the Doctor has stated that the injuries noted by him could not be caused when the person was lying straight or even downwards or on right side. The injuries on the neck start from in front of it and travel towards the right side. Possibility of such injuries being sustained by the person sleeping straight with head in left direction cannot be ruled out. The Doctor had conducted the post-mortem examination at the spot. He has stated that injury no.1 could be caused in the posture the deceased was sleeping on the left side at the time. Possibility of such injuries being sustained by the person sleeping straight with head in left direction cannot be ruled out. The Doctor had conducted the post-mortem examination at the spot. He has stated that injury no.1 could be caused in the posture the deceased was sleeping on the left side at the time. Thus from this fact it cannot be said that the medical evidence is inconsistent with the statement of the eye-witnesses so as to falsify their version. 52. Regarding the circumstantial evidence, relation to the recovery of the burchhi in pursuance of the information furnished by the appellant we may observe that it his no value because the Serologist had not found human blood on it. The learned trial Judge has also not attached any importance to this recovery. 53. The most important circumstance is the motive of the appellant for commission of the crime. Smt.Sheo Kauri has stated about the trial of her husband in the case of murder of Gangu Ram, father of the appellant. She has produced Ex P. 18, the certified copy of the judgment by which her husband deceased Bhiya Ram was acquitted in that case. The fact of old enmity has not been denied by the appellant even. 54. The learned counsel for the appellant contended that Likhma Ram was a small child at the time of the murder of his father and could not have an idea to take revenge from the suspect. It has also been argued by the learned counsel that Likhma Ram and three brothers, one elder and two younger to him and therefore, there appears to be no specific reason for him alone to have such enmity with the deceased so as to commit his murder. 55. The murder of Gangu Ram is said to have taken place in the year 1966 add Bhiya Ram was acquitted of the charge of murder in the year 1969. Admittedly Likhma Ram was a boy of tender age at that time. However Bhiya Ram with his family had stayed in the village for 6 or 7 years subsequent to the conclusion of the trial and the relations between the two families were strained as is evident from the record. When Bhiya Ram had left the village Likhma Ram bad attained the age of 14-15 years. However Bhiya Ram with his family had stayed in the village for 6 or 7 years subsequent to the conclusion of the trial and the relations between the two families were strained as is evident from the record. When Bhiya Ram had left the village Likhma Ram bad attained the age of 14-15 years. A boy of that age may be expected to have that much of maturity of mind so as to distinguish between of friend and foes. The argument of Mr. Purohit has substance that the return of the enemy family in the village could have caused girevance to the family of Gangu Ram and that it is not necessary that all the brothers may have the same temperament and if one of them chooses to wreck vengeance it would not be surprising. 56. In cases based on circumstantial evidence only, motive plays an importance role. But in a case where there is direct evidence for the crime, presence or absence of motive does not matter much. However, in the present case, their is specific reliable evidence about the enmity between the two families and, therefore, this circumstance has rightly been taken into consideration by the learned trial Judge in holding the appellant guilty. It is also to be noted that prosecution case has been found substantiated by the direct evidence of the two eye-witnesses viz, Smt. Sheo Kauri and Smt. Mohini and, I therefore, motive is not the sole basis of conviction rather is a supporting circumstance to the prosecution case. 57. In view of the above discussion, we are inclined to hold that prosecution has succeeded in bringing home, the guilt against the appellant beyond all shadow of reasonable doubt. The findings of the learned trial Judge based on sound reasonings, call for no interference. 58. Consequently, the appeal filed by Likhma Ram falis, and it is hereby dismissed.Appeal dismissed. *******