JUDGMENT I. P. Singh, J. 1. Ram Jiyawan (17 years old on the date of occurrence 2-5-1974) has preferred this appeal against the judgment and order of Sri E. P. Sinha, Additional Sessions Judge, Fatehpur, dated 30-6-1977, passed in S. No. A 302 of 1975 : State v. Ram Jiyawan, convicting and sentencing him under Section 302, IPC to imprisonment for life. 2. The following pedigree, appearing from the prosecution evidence, would be relevant to appreciate certain aspects of this case. One Ram Prasad was married to Smt.Brij Rani (PW 5). Uma Shanker, Rajendra Prasad (PW 1) and Santosh Kumar alias Munna (PW 7) are three sons of said Smt.Brij Rani (PW 5). Smt.Shakuntla (deceased) was the daughter of Uma Shanker who was married to Ram Jiyawan appellant son of Sheo Balak. His sister is Shitaliya. Smt. Sheo Kumari (PW 4) is the wife of Rajendra Prasad (PW 1). 3. It is evident from the evidence of the above witnesses (PWs 1, 4 and 5) that there had been a family partition between the brothers round about in the year 1970 and since then they live separately in different portions of the same house. Their mess is separate and they are not on good terms with each other so much so that other brothers and members of their families had not joined the marriage of Smt. Shakuntla (deceased) with the appellant in the same village Shahbazpur (within Police-station Bindki, district Fatehpur) which had taken place, a year before her murder on 2-5-1974. 4. The prosecution case further is that on 2-4-1975 at about mid-day, Shitaliya, the sister of Ram Jiyawan appellant, had come up to the house of Rajendra Prasad (PW 1) and told Smt.Brij Rani (PW 5) that the appellant wanted to meet her and desired her to come to his house. Smt.Brij Rani went there. The appellant sent his wife Smt.Shakuntla (deceased) with Smt.Brij Rani (PW 5) to their house. He, however, followed them to their house. Santosh Kumar (PW 7) was sitting there. He pointed out to his mother, Smt.Brij Rani (PW 5), as to why she had brought Smt. Shakuntla wearing dirty Dhoti. Smt. Brij Rani told him that there was nothing to mind as it was the matter of her own village and she would wash her Dhoti with soap and it would get cleaned. He pointed out to his mother, Smt.Brij Rani (PW 5), as to why she had brought Smt. Shakuntla wearing dirty Dhoti. Smt. Brij Rani told him that there was nothing to mind as it was the matter of her own village and she would wash her Dhoti with soap and it would get cleaned. The appellant, who had followed them, happened to hear the above talk. He lost his temper. He also happened to carry a Tamancha with him. He gave a blow with the but of the Tamancha on the back of Smt. Shakuntla saying as to why she was telling tales (chugli karti hai). At this, Smt. Brij Rani (PW 5) and Smt. Sheo Kumari PW 4 and Santosh Kumar PW 7 challenged the appellant saying that he had sent Smt. Shakuntla of his own free will. So he will not beat her. At this, Smt. Shakuntla (deceased) also retorted that he should be sent away as she did not want to see his face. The appellant went away with the Tamancha. It is further alleged by the prosecution that at about 4 p.m. the same day, the appellant, carrying a tamancha in his hand, entered the house of Rajendra Prasad PW 1 and found Smt. Shakuntla (deceased) and Smt. Sheo Kumari PW 4 sitting by the side of Tulsi Ka Chabutra. The appellant aimed his Tamancha towards the deceased. She ran away towards north in the Dalan shouting for help to be saved. 5. At this, Smt.Sheo Kumari advanced and grabbed the appellant from his waist and simultaneously raised alarm. However, Ram Jiyawan fired from his Tamancha and hit the deceased injuring her. She fell down. Meanwhile, the appellant has tried to reload his Tamancha, but Smt. Brij Rani PW 5 and Santosh Kumar PW 7 came to the help of Smt. Sheo Kumari PW 4 and managed to snatch away the Tamancha from the hands of the appellant. However, the appellant succeeded in securing his release and making good his escape. 6. Smt. Brij Rani as well as Sheo Balak father of the appellant managed a bullock-cart and took the injured SMT. Shakuntla on that cart for medical aid. On the way near Korwan, she died. Rajendra Prasad PW 1 met them at Korwan, where his mother SMT. Brij Rani narrated all the facts of the incident to him. 6. Smt. Brij Rani as well as Sheo Balak father of the appellant managed a bullock-cart and took the injured SMT. Shakuntla on that cart for medical aid. On the way near Korwan, she died. Rajendra Prasad PW 1 met them at Korwan, where his mother SMT. Brij Rani narrated all the facts of the incident to him. He prepared a written report of the incident and handed it over at Police-station Bindki (seven miles away from village Shahbazpur), the same day at 7.00 p.m. The post-mortem examination of Smt. Shakuntla (deceased) was conducted by Dr. P. S. Misra, Physician Incharge, District Hospital, Fatehpur, on 3-5-1974 at 2.30 p.m. The probable age of the deceased was fifteen years. The probable time since death was one day. It fits in with the alleged hour of the occurrence. 7. The following ante-mortem injuries were found on her person :- (1) Gun shot wound of entrance 1 1/2" x 1 1/2" chest cavity deep on the lower angle of right scapula. Margins were leacerated and inverted. Blackening was present. (2) 6 gun shot wounds of 1/2" x 1/2" around right chest. Margins lacerated and everted. The wound of exit was directed forward and horizontally and corresponded with the wound of entrance. (3) Contusion 2 1/2" x 1" on the back of right elbow joint. (4) Contusion 1" x 1/2" on the left elbow joint. 8. Internal examination revealed that pleura was ruptured, right lung was ruptured, large vessels of right thorax were ruptured. Small and large intestines were lacerated. Male foetus about 6" long was also there. Pieces of wadding were recovered from the chest. In the opinion of the doctor, death was the result of shock and haemorrhage due to gun shot injuries. The above injuries were sufficient in the ordinary course of nature to cause death. The appellant denied having committed the said murder. He pleaded that Rajendra Prasad complainant PW 1 and other prosecution witnesses were inimical to his father-in-law. He had heard that Smt. Sheo Kumari was in the Khalian at the time of the alleged occurrence. Rajendra Prasad complainant PW 1. wanted to usurp the ornaments and other articles belonging to him and his wife Smt. Shakuntla (deceased). For that end, Rajendra Prasad complainant PW 1 got her murdered and falsely implicated him in this case. He had heard that Smt. Sheo Kumari was in the Khalian at the time of the alleged occurrence. Rajendra Prasad complainant PW 1. wanted to usurp the ornaments and other articles belonging to him and his wife Smt. Shakuntla (deceased). For that end, Rajendra Prasad complainant PW 1 got her murdered and falsely implicated him in this case. Rajendra Prasad complainant PW 1 was a strong man having much influence with the police. The witnesses had deposed against him under the influence of Rajendra Prasad complainant PW 1. However, he did not lead any evidence in defence. 9. The prosecution, in all, examined eight witnesses including Rajendra Prasad complainant PW 1, the maker of the first information report and three eye witnesses, namely, Smt. Sheo Kumari PW 4, Smt. Brij Rani PW 5 and Santosh Kumar PW 7. The learned Sessions Judge, after appreciating the evidence on record, convicted and sentenced the appellant as already mentioned above. 10. The prosecution alleged motive on the part of the appellant to commit this murder. In the first information report, it was alleged that when he over-heard the talk between Santosh Kumar PW 7 and Smt. Brij Rani PW 5 as to why the latter had brought Smt. Shakuntla (deceased) wearing a dirty Dhoti, she had promised to wash and clean it. This conduct was not relished by the appellant who shouted at the deceased as to why she was telling tales (Chugli Karti Hai) and gave a blow on her back with the but of Tamancha. This was protested to by Smt. Brij Rani, Smt.Sheo Kumari and Santosh Kumar saying that, as he had sent Smt.Shakuntla to their house of his own free will, he should not beat her. The first information report version is that, on account of this untoward incident, the appellant has returned to the house of Rajendra Prasad complainant PW 1 at about 4.00 p.m. and then murdered Smt.Shakuntla. The argument of the learned counsel for the appellant is that the above circumstances do not afford any motive to the appellant to murder the deceased who was his own wife. It is further argued that the prosecution was conscious of the weakness of the above alleged motive so they did not hesitate to improve upon the matter in the course of the evidence. It is further argued that the prosecution was conscious of the weakness of the above alleged motive so they did not hesitate to improve upon the matter in the course of the evidence. It is pointed out that Rajendra Prasad complainant PW 1 has stated in his examination-in-chief that his niece Smt.Shakuntala (deceased) had white spot (Leukoderma) on her feet and the appellant was also not treating her well and used to beat her and used to say openly that he would marry a second wife. It is further pointed out that Smt.Sheo Kumari PW 4 has not stated in her statement that, after the appellant had hit Smt.Shakuntla on her back with the but of the Tamancha, her relations, namely, Smt.Sheo Kumari PW 4, Brij Rani PW 5 and Santosh Kumar PW 7 had protested that, as he had sent Smt.Shakuntala of his own free will he should not beat her or that Smt.Shakuntala had also retored that she did not want to see his face and he should be turned out. It is pointed out that this missing link was provided by the next witnesses, namely, Smt.Brij Rani PW 5 and Santosh Kumar PW 7 who stated in their examination-in-chief that, on their protest to the appellant that he should not beat Smt.Shakuntala, the latter had also retorted that she did not want to see his face and he should be turned out of the house. The argument is that the said improvements in the prosecution case regarding the motive on the part of the appellant should not be believed. We appreciate the above argument advanced by the learned counsel for the appellant. It is also noteworthy various circumstances i.e. the presence of Leukoderma on the feet of the deceased, the open threats of the deceased to enter into a second marriage or at the time of the incident taking place in the earlier part of the day when Smt.Shakuntala had retorted that she did not want to see the face of the appellant were not disclosed at the earliest when the first information report was lodged. Of course, in the first information report, the only allegation regarding the alleged motive was that the appellant had taken exception when it was said by Santosh Kumar PW 7 that as to why Smt.Shakuntala was brought in a dirty Dhoti. Of course, in the first information report, the only allegation regarding the alleged motive was that the appellant had taken exception when it was said by Santosh Kumar PW 7 that as to why Smt.Shakuntala was brought in a dirty Dhoti. We agree with the learned counsel for the appellant that the prosecution have not been consistent with the alleged motive and even then the said motive, in the circumstances of the case, appears to us to be of very weak type. However, we observe that as the law of our country stands motive has a very limited role to play. It certainly affords circumstance but is never conclusive to hold the person having a motive to be the real criminal. This is so because a person having the strongest motive may not be the real culprit. On the other hand, a person having no motive at all may be the real offender. In cases where the prosecution has direct evidence of the occurrence, motive recedes to the back-ground. In that event, the fate of the case largely depends upon the assessment of the evidence of the eye witnesses. Before we enter into the assessment of the evidence of the eye witnesses, we regard it pertinent to note that admittedly there are strained relations between the three brothers, namely, Uma Shanker (father of the deceased or father-in-law of the appellant) ; Rajendra Prasad PW 1, the make of the first information report and Santosh Kumar PW 7. Rajendra Prasad PW 1 his wife Smt. Sheo Kumari PW 4 and Santosh Kumar PW 7 have giver evidence against the appellant. The argument advanced is that the evidence of these inimical witnesses should not be relied upon. It is true that relations between these three brothers are not cordial ever since the partition of their property was held in the year 1970. The relations were so deeply strained that none of them had joined or participated in the marriage celebrations of Smt.Shakuntala (deceased) with the appellant. But one thing strikes us the most that Smt.Brij Rani PW 5 is the mother of the said three brothers and the grand-mother of Smt.Shakuntala (deceased). The appellant so to say, is the son-in-law of the family. Smt.Brij Rani PW 5 cannot be said or supposed to have any animus against any of her three sons of decendants in their line. The appellant so to say, is the son-in-law of the family. Smt.Brij Rani PW 5 cannot be said or supposed to have any animus against any of her three sons of decendants in their line. What we want to draw out is that she could have no animus against the appellant. 11. It would be in the fitness of things to assess the evidence of Smt. Brij Rani first. IT is a matter of fact that she had played role in the entire incident from the very beginning. She has stated that Shitaliya, the sister of the appellant, had come to her at about mid day on the fateful day informing her that the appellant was wanting her at his house. She accompanied Shitaliya to the house of the appellant. According to her, the mother and father (Sheo Balak) of the appellant were present there. In their presence, the appellant told her that she should take away Shakuntala to her house. She further added that the mother of the appellant had also pressed her to take away Smt.Shakuntala. She brought her to her house i.e. the house of Rajendra Prasad complainant PW 1. She stated that, when she reached the house, she was followed by the appellant and her son Santosh Kumar PW 7 was present there. It was he who complained to her (Smt.Brij Rani) as to why she had brought Smt.Shakuntala wearing a dirty Dhoti. She pacified him by saying that it was a matter within their own village and she would herself clean the Dhoti and wash it. She stated that the appellant had over heard this talk and immediately he gave a blow with the but of the Tamancha, which he was carrying, on the back of Smt.Shakuntala, retorting that why she was telling tales (Chugli Karti Hai). She added that she aswell as Smt.Sheo Kumari PW 4 and Santosh Kumar PW 1, immediately took side with Smt. Shakuntala and protested to the appellant that when he had sent Smt. Shakuntala of his free will then why he should beat her. She also mentioned that Smt. Shakuntala had also reacted by saying that she did not want to see the appellant's face and he should be turned out of the house. The appellant went away. The first part of the incident ended there. 12. She also mentioned that Smt. Shakuntala had also reacted by saying that she did not want to see the appellant's face and he should be turned out of the house. The appellant went away. The first part of the incident ended there. 12. Smt. Brij Rani PW 5 has further stated that, lateron at about 4.00 p.m., the appellant again appeared with a Tamancha in his hand. At that time, SMT. Sheo Kumari PW 4 and SMT. Shakuntala (deceased) were sitting in the Aagan. All of a sudden, she heard the shouts of SMT. Sheo Kumari, at which she and Santosh Kumar PW 7 rushed to the Aagan. She saw SMT. Sheo Kumari PW 4 grabbing the appellant by his waist. She added that the appellant fired a shot at SMT. Shakuntala. She was hit by that shot and was injured. She fell down. Her blood had fallen at that place. SMT. Brij Rani PW 5 has further stated that, after hitting SMT. Shakuntala with the first fire, the appellant tried to reload his Tamancha. They overpowered him and succeeded in snatching away the Tamancha from his hands. According to her, the cartridge which he was trying to reload had also slipped out of the Tamancha and fallen there. However, the appellant succeeded in securing his release from their grip and ran away. It would simply be a repetition of these events if we were to narrate in detail that the other eye witnesse, namely, Smt. Sheo Kumari PW 4 and Santosh Kumar PW 7 have said in this regard. Of course, Rajendra Prasad PW 1 was not an eye witness, but had only lodged the first information report after learning the facts from Smt. Brij Rani PW 5. However, we regard it necessary to refer to those parts of the statement of Smt. Sheo Kumari PW 4, wherein she narrated the incident prior to the arrival of Smt. Brij Rani PW 5 and Santosh Kumar PW 7 on hearing her shouts. She has stated that, at about 4.00 p.m., she and Smt. Shakuntala (deceased) were sitting in the Aagan near the Tulsi Ka Chabutra when the appellant arrived there holding a Tamancha in his hand. He aimed his Tamancha towards Smt. Shakuntala who felt terrified and ran to the north part of the Aagan shouting for help to be saved. She has stated that, at about 4.00 p.m., she and Smt. Shakuntala (deceased) were sitting in the Aagan near the Tulsi Ka Chabutra when the appellant arrived there holding a Tamancha in his hand. He aimed his Tamancha towards Smt. Shakuntala who felt terrified and ran to the north part of the Aagan shouting for help to be saved. Smt. Sheo Kumari PW 4 said that, at this, she advanced and grabbed the appellant from his waist and simultaneously raised an alarm. She added that the appellant had dragged her near the place where Smt. Shakuntala was in the Angan and he fired at her causing injuries He tried to reload his Tamancha, but by then Santosh Kumar PW 7 and Smt. Brij Rani PW 5 had arrived there and they also caught hold of the appellant and succeeded in snatching the Tamancha from his hands. Santosh Kumar PW 7 has corroborated both Smt. Sheo Kumari and Smt. Brij Rani. 13. Learned counsel for the appellant has, in order to discredit these witnesses, tried to draw our attention to ceriam parts of the statements of the witnesses which do not find place either in the first information report or in their statements under Section 161, CrPC. It is pointed out that, though Smt. Sheo Kumari maintains that she was dragged by the appellant to the place where Smt.Shakuntala was but this fact does not find place in the first information report. Again she maintained that Ram Jiyawan appellant had thrown spent cartridge and had tried to reload the second one. Of course, this fact is not mentioned in the first information report. It is further pointed out that, in her cross-examination, she stated both the cartridges were recovered from the ground and none was recovered from the hands of the appellant. However, in her statement under Section 161, CrPC, she happened to say that one Tamanacha and one cartridge were snatched from the hands of appellant Ram Jiyawan. It is next pointed out that Smt. Brij Rani PW 5 had stated that, at one stage of the incident, Smt.Shakuntala had retorted that she did not want to see the face of the appellant and he should be turned out of her house. This statement does not find place either in the first information report or in her statement under Section 161, CrPC. This statement does not find place either in the first information report or in her statement under Section 161, CrPC. Smt.Brij Rani's statement under Section 161, CrPC, avers that the appellant had dragged his daughter-in-law (Smt.Sheo Kumari). However, in her examination-in-chief, she had not mentioned this fact. A few more omissions of this kind are there, but we regard it an unnecessary exercise to mention all of them for we are of the firm opinion that none of these omissions are material so as to go to the root of the case. It is to be remembered that the incident had taken place in the year 1974, whereas the statements of the witnesses were recorded in the year 1977 almost three years after. Such lapses of memory are prone to be there. 14. Learned counsel for the appellant has next pointed out that, according to the prosecution, one blow with the but of the Tamancha was given by the appellant on the back of the deceased. It is pointed out that this blow is supposed to leave a contusion, but it was not found in the post-mortem examination. It is, therefore, argued that the whole structure of the prosecution case falls down. However, it is to be noted that there is nothing to suggest as to with what force the said blow was given. It might be that, before the said blow could have a full impact, the victim, namely, Smt. Shakuntala might have tried to dogge and save her from receiving the said blow. It might, as well, be that though the Tamancha's but had come into contact yet was shorn of the force and was not capable of leaving any confusion mark. In these circumstances, no capital can be made out from the absence of the contusion mark on the back of the deceased. None of the points argued by the learned counsel, in our opinion, are able to shatter the credibility of the witnessess. All the eye witnesses, discussed above, inspire our full confidence and we believe them and hold that the prosecution has succeeded in proving their case beyond all reasonable doubt. 15. In the result, the appeal fails and is dismissed. The conviction and sentence awarded by the learned Additional Sessions Judge to the appellant are confirmed. The appellant is on bail. He shall surrender to his bail bonds to serve out his sentence. 15. In the result, the appeal fails and is dismissed. The conviction and sentence awarded by the learned Additional Sessions Judge to the appellant are confirmed. The appellant is on bail. He shall surrender to his bail bonds to serve out his sentence. He shall be taken into custody. Appeal dismissed.