N. S. GUPTA, J. ( 1 ) APPELLANT Ashiq Lal was convicted by Sri J. M. Srivastava, the then III Addl. Sessions Judge, Fatehpur vide his judgment and order dated 6-8-1980 and was sentenced to 7 years R. I. under Section 304, (II), I. P. C. Feeling aggrieved by the said judgment, he has come up in appeal before this Court. 4. The prosecution story, briefly stated, is as follows :one Banwari had three wives. The eldest was Smt. Ratania, second was Smt. Nanki P. W. 2 and the third was Smt. Maharajiya deceased. He had no son out of any of these three wives. The first wife Smt. Ratania died long ago. Smt. Ratnia left behind her two daughters namely, Smt. Sukhi and Jaggi. The accused appellant Ashiq Lal was the son of Sukhi. The other accused Kishori Lal, (who has since been acquitted by the trial Court itself) was the son of Smt. Jaggi Banwari died about two years prior to the occurrence of this case some where in the year 1976. He left behind Smt. Nanki PW 2 and deceased Smt. Maharajiya as his surviving wives. Banwari owned about 5-6-Bighas of land. After the death of Banwari Smt. Nanki and deceaed Smt. Maharajiya took half share each in the properties of Banwari. They lived in separate rooms in one and the same house situate in village Isanpurwa. 3. The occurrence of this case took place on 10-9-1978 at about 5 a. m. At that time the deceased Smt. Maharajiya was sleeping in her room. Smt. Nani PW 2 was sleeping in another room. Km. Bimla PW 6, who was then minor girl aged about 6 years and was the daughter of the daughter of Smt. Maharajia deceased used to live with Smt. Maharajia, was sleeping on a different cot in the room of Smt. Maharajia along with accused appellant Ashiq Lal. In the early morning Smt. Nanki heard the shrieks of Km. Bimla PW 6. She went to the room of Smt. Maharajia and there she found that Smt. Maharajia was lying in a pool of blood having several injuries on her person. On enquiry from Km. Bimla PW 6, Smt. Nanki was informed that Ashiq Lal and two other perons had inflicted the injuries to her Nani Smt. Maharajia, who died after four days of this incident on 14-9-1978 at District Hospital Fatehpur. 4. On enquiry from Km. Bimla PW 6, Smt. Nanki was informed that Ashiq Lal and two other perons had inflicted the injuries to her Nani Smt. Maharajia, who died after four days of this incident on 14-9-1978 at District Hospital Fatehpur. 4. A written report Ex. Ka-4 purported to have been made by Smt. Nanki PW 2 was lodged at P. S. Kotwali Sadar Fatehpur on 10-9-1978 at 10 a. m. On the basis of this written report, Ex. Ka-4, a Chik report was propared by Ansar Ahmad, Head Moharrir PW 1, on 9-10-1978 at 10 a. m. Since Smt. Maharajia was alive and was admitted to Hospital, therefore, a case punishable under Section 307, I. P. C. against Ashiq Lal and Radhey Shyam as suspect was registered. After the death of Smt. Maharajia on 14-9-1978, the case was converted into one under Section 302, I. P. C. vide G. D. report Ex. Ka-3. 5. The investigation into the case was taken by S. I. Ranvir Singh Solanki PW 4. who was then working as S. I. of police at P. S. Kotwali Fathehpur. He immediately recorded the statement of H. C. Ansar Ahmad, Smt. Nanki PW 2, Km. Bimla PW 6, Ram Asrey PW 3, Gulab Singh and Prem etc. He inspected the scene of occurrence and prepared the site plan Ex. Ka-4. He recovered blood stained and simple earth from the scene of occurrence and prepared the recovery memoes about the same. He raided the houses of the accused persons on 11 -8-1978. The accused persons were not available. After receiving the information about the death of the deceased on 14-9-1978 he prepared inquest report Ex. Ka-7. He sent the dead body of the deceased for post mortem examination and after needful investigation into the matter submitted the charge sheet against the accused Ashiq Lal and Kishori Lal on 6- 10-1978. 6. The post mortem examination on the dead body of the deceased was performed by Dr. J. S. Roy, Medical Officer, District Hospital Fatehpur on 15-9-1978. He found the position as under :-7. The body of the deceased was average built. Rigor mortis was present in lower limb. The bone of the right shoulder of the deceased was broken. Clotted blood was there in the brain. Dr. Roy found the following injuries on the person of the deceased. 1. He found the position as under :-7. The body of the deceased was average built. Rigor mortis was present in lower limb. The bone of the right shoulder of the deceased was broken. Clotted blood was there in the brain. Dr. Roy found the following injuries on the person of the deceased. 1. Stitched wound 2" x 1/10" (stiched) bone deep right side of face 1/2" below the right ear horizontally over the angle of right mandible upto cheek bone, fracture underneath. ( 2 ) STITCHED wound 1/2" x 1/10" (stiched) right side of chest 11/2" below the injury No. 1 mandible bone below the injury fractured. ( 3 ) STITCHED wound 1" x 1/10" front of chin Muscle deep. ( 4 ) INCISED wound 1/2" x 1/4" whole of lobole. Lower part cut off. x right side. ( 5 ) INCISED wound 1/4" x 1/10" muscle deep right side of face 1 1/2" below the injury No. 2. ( 6 ) INCISED wound 1 /4" x 1/10" right side of face 1/3" below and inward to injury No. 5. ( 7 ) STITCHED wound 21/2" ax 1/10" right shoulder joint, anterior posterior aspect. Fracture of right humorus at neck and acrominal process of right scapula latter part. ( 8 ) STITCHED wound 1" (stitched) right shoulder joint. 1" below injury No. 7, muscle deep. The Doctor opined that the deceased had died due to shock and haemorrhage. He also opined that the deceased should have died on 14-9-1978 at about 2 p. m. The injuries found on the person of the deceased should have been caused by sharp-edged weapon. Dr. Roy found that the deceased should have remained unconscious before death because of the injuries found on her person. 8. It appears that the accused appellant Ashiq had surrendered before the Court below on 15-9-1978. He along with Kishori Lal was put up for trial and was charged under Section 302/34, I. P. C. ( 9 ) THE accused appellant Ashiq Lal pleaded not guilty during trial. The accused appellant pleaded that on the night of the occurrence, he was not present in village Isanpurwa. He was rather present in his village Guttaur. He stated that Radhey Shyam had purchased the land of Smt. Maharajia deceased for a sum of Rupees 14000/ -. Smt. Maharajia had deposited the said amount with Radhey Shyam on interest. The accused appellant pleaded that on the night of the occurrence, he was not present in village Isanpurwa. He was rather present in his village Guttaur. He stated that Radhey Shyam had purchased the land of Smt. Maharajia deceased for a sum of Rupees 14000/ -. Smt. Maharajia had deposited the said amount with Radhey Shyam on interest. When Smt. Maharajaia demanded the said money, Radhey Shyam refused to pay the same. The accused appellant stated that in this connection, he scolded Radhey Shyam and went away to his village about 10 days before the date of occurrence of this case. ( 10 ) SIMILARLY Kishore Lal pleaded not guilty and stated that Smt. Maharajia had deposited Rs. 14000. 00 with Radhey Shyam. About 10 days before the date of occurrence of this case, he went along with Smt. Maharajia to Radhey Shyam to demand the money. Ashiq Lal was also with him. Radhey Shyam refused to pay the money. Thereafter he went to his village. ( 11 ) NO evidence in defence was adduced on behalf of the accused appellant or Kishori Lal. After needful trial into the matter, the learned trial Judge gave the benefit of doubt to Kishori Lal on the ground that his name did not figure in the F. I. R. He found the accused appellant Ashiq Lal guilty under Section 304 (II), I. P. C. and convicted and sentenced him as aforesaid; and hence this appeal. ( 12 ) I have heard Sri Kamleshwar Singh, Advocate, for the accused appellant Ashiq Lal and A. G. A. for the State and gone through the record of the case. ( 13 ) THREE witnesses of fact were examined by the prosecution before the court below. They were Smt. Nanki PW 2, Ram Ashrey PW 3 and Km. Bimla PW 6. Smt. Nanki in her statement on oath before the Court below stated that her husband Banwari had three wives, first was Smt. Ratania second was she and third was Smt. Maharajia. She stated that she and Smt. Ratnia were married to Banwari but Smt. Majarajia deceased was kept by her husband. She stated that none of them had any son. Smt. Ratania died long ago, thereafter Banwari had married her. Smt. Ratania had two daughters. One was Smt. Sukhi and the other was Smt. Jaggi. Ashiq Lal accused appellant was the son of Smt. Sukhi. She stated that none of them had any son. Smt. Ratania died long ago, thereafter Banwari had married her. Smt. Ratania had two daughters. One was Smt. Sukhi and the other was Smt. Jaggi. Ashiq Lal accused appellant was the son of Smt. Sukhi. Kishore Lal another accused, who was since acquitted, was the son of Smt. Jaggi. She stated that Banwari had died about two years back and after the death of Banwari she and Smt. Maharajia deceased had entered into the possession of the land, which was about 5-6 Bighas. She stated that she and Smt. Maharajia used to live in separate rooms. After the death of her husband Banwari, she and Smt. Maharajia were in possession of half share of the land owned by Banwari. The accused appellant did not reside with him. Smt. Nanki stated that Smt. Maharajia was murdered about two years before the date of the statement before the Court below. She stated that at that time Smt. Maharajia was in her room and was sleeping in her own room. She very clearl0y stated that along with Smt. Maharajia, her grand-daughter Km. Bimla PW 6 also used to reside. She stated that she was unable to see during night. In the early morning she heard the cries of Km. Bimla and went to the room of Smt. Maharajia. She found that Smt. Maharajia was lying injured in a pool of blood. She stated that on enquiry from Km. Bimla, Km. Bimla did not state her anything. She specifically stated that Km. Bimla never informed him that the accused appellant Ashiq Lal and Kishori Lal had assaulted Smt. Maharajia. She denied to have got any report of the incident lodged and stated that Radhey Shyam got reported it. She stated that in the hospital, she put her thumb impression, but the report was not read out to her. She stated that she never took this report to police station and never stated in the said report that Ashiq Lal was responsible for assaulting Smt. Maharajia. She, however, admitted that the report Ex. Ka-4 was the report, which she had given in the police station. This witness was declared hostile and during the course of her cross-examination by the State counsel, she was unable to state as to how it was written in the report Ex. Ka-4 that Ashiq Lal was responsible for assaulting the deceased. She, however, admitted that the report Ex. Ka-4 was the report, which she had given in the police station. This witness was declared hostile and during the course of her cross-examination by the State counsel, she was unable to state as to how it was written in the report Ex. Ka-4 that Ashiq Lal was responsible for assaulting the deceased. She stated to have been interrogated by the police inspector but denied to have stated to the investigating officer that Km. Bimla was sleeping on a Charpai near the deceased and that the accused appellant had run away after assaulting her. She stated that when she saw Smt. Maharajia she was lying injured. She was immediately taken to hospital. She stated that her statement under Section 164, Cr. P. C. was recorded, but she resiled from that statement as well and maintained that the said statement was got written by the police Inspector. She denied the suggestion of the prosecution on the point that because of her close relationship with the accused persons she was not stating the correct facts. She, however, stated that the accused persons used to stay with her, whenever they came in connection with the case. During the course of cross-examination by the learned counsel for the accused appellant she stated that on the night on which the deceased was assaulted Kishori Lal and Ashiq Lal accused persons were not present in her house. They were not seen for the last 5-6 days. She stated that Ashiq Lal used to live with his parents Jai Ram and Smt. Sukhi in village Mattaur. Similarly accused Kishori Lal also reside in village Rasulpur. Rasulpur and Muttaur were situate at a distance of 8-10 Kosh and are within the jurisdiction of police station Lalauli. She stated that both the accused persons had a quarrel with Radhey Shyam Seth. Seth Radhey Shyam used to reside near her house. Radhey Shyam has installed his Mill on the land belonging to her and Smt. Maharajia. Seth Radhey Shyam was monied man. He owned a rice mill. He is a dealer in diesel and petrol and also a whole sale dealer of kerosine oil. He was on comfortable terms with the police. She stated that Smt. Maharajia had deposited a sum of Rs. 14000. 00 with Seth Radhey Shyam, which the deceased used to demand from him but he did not give. He owned a rice mill. He is a dealer in diesel and petrol and also a whole sale dealer of kerosine oil. He was on comfortable terms with the police. She stated that Smt. Maharajia had deposited a sum of Rs. 14000. 00 with Seth Radhey Shyam, which the deceased used to demand from him but he did not give. ( 14 ) FROM the aforesaid statement of this witness, it stands fully proved that the deceased Smt. Maharajia and she were living in separate rooms in one and the same house, that Smt. Maharajia was assaulted on the date of occurrence as suggested by the prosecution and that Km. Bimla who was then minor girl aged about 6 years used to live with her. It is also clear from her statement that she had put her thumb impression upon a paper which was F. I. R. Ex. Ka-4, which was lodged at the police station. The first information report Ex. Ka-4 lodged by this witness at police station Kotwali Fatehpur reads as under : ( 15 ) ADMITTEDLY Smt. Nanki, was closely related to the accused appellant Ashiq Lal, in as much as, Ashiq Lal was the daughters son of the daughter of Smt. Ratania, another wife of Banwari and Kishori Lal was another son of the other daughter of Smt. Ratania, namely, Smt. Jaggi. It is, therefore, probable for me to believe that the accused appellant prevailed upon Smt. Nanki who was aged about 55 years at the time of her giving the statement before the court below, to this extent as to disown the F. I. R. Ex. Ka-4. ( 16 ) IT has been clearly averred by Ansar Ahmad PW 1 who was working as Head constable at P. S. Kotwali that the First Information Report Ex. Ka-4 was lodged at police station by Smt. Nanki and that on the basis of the said F. I. R. a chik report Ex. Ka-1 was prepared by him. It is thus obvious that the machinery of law was set into motion on the basis of this first information report having been lodged by Smt. Nanki. Smt. Nanki in her first information report had raised suspicion upon Radhey Shyam. According to the suggestion of the defence itself Radhey Shyam was a well to do man who was having rice mill, petrol pump and whole sale kerosine oil business. Smt. Nanki in her first information report had raised suspicion upon Radhey Shyam. According to the suggestion of the defence itself Radhey Shyam was a well to do man who was having rice mill, petrol pump and whole sale kerosine oil business. It is, therefore, not probable that he was responsible for killing the deceased. ( 17 ) RAM Asrey PW 3 was another witness of fact. He stated that the deceased was murdered about two years before the date of giving statement before the court below. He stated that it was 5 a. m. that he was coming after discharging his natural call that he had heard the noise coming out from the house of Smt. Maharajia deceased. He, however, stated that Km. Bimla informed him that Kishori Lal and Ashiq Lal had assaulted her Nani. He stated that at that time, Smt. Maharajia was alive. During the course of cross-examination, he stated that there were 7 or 8 houses in between his house and the house of Smt. Maharajia. He stated that Km. Bimla was minor girl aged about 7-8 years at that time. There were 5-6 ladies in the house of the deceased. They enquired from Km. Bimla and thereupon Km. Bimla told them about the incident. He stated that he did not see Kishori Lal and Ashiq Lal at that place. ( 18 ) ALTHOUGH this witness Ram Asrey stated to have not seen the accused appellant and Kishori Lal near the scene of occurrence, but the fact remains that Km. Bimla who was minor girl aged 7-8 years at that time and informed him and other ladies present there that the accused appellant and Kishori Lal were responsible for the assault on her Nani. It is important to note here that the question No. 4 put to the accused appellant was as under :-The accused appellant has replied that it was correct. ( 19 ) NOW once it is established that the deceased Smt. Maharajia was badly assaulted on the night of the occurrence and when it is admitted to accused appellant himself that Km. Bimla who was then minor girl aged about 7-8 years was residing with the deceased, the question which remains for consideration before this court is to test the veracity of the statement of Km. Bimla, who is only eye witness of the occurrence. Bimla who was then minor girl aged about 7-8 years was residing with the deceased, the question which remains for consideration before this court is to test the veracity of the statement of Km. Bimla, who is only eye witness of the occurrence. Since she was admittedly a child witness aged about 7-8 years on the date of occurrence, her testimony has got to be scrutinised rather with caution. ( 20 ) IT is clear from the observations made by the presiding Officer/judge of the Court below by putting certain questions to this witness that Km. Bimla PW 6 was an intelligent witness who was capable of giving correct answers to the question put to her. Km. Bimla in her statement before the Court below, which was recorded on 29-7-1980 has clearly stated that at the time of the occurrence she was residing with her grand mother Smt. Maharajia and that she was murdered about two years back. She stated that on the date of occurrenece, her Nani was sleeping on a Charpai and she along with Ashiq Lal was sleeping on another Charpai. Ashiq Lal was admittedly the cousin brother of Km. Bimla. She used to say him as Bhaiya. She stated that there was rice mill near her house in which an electricity bulb used to be lightened throughout the night and the said electricity bulb was burning on the night of occurrence. She stated that the accused persons assaulted her grand-mother (Nani) by means of Kulhari and Gandasa. She specifically stated that the accused appellant was armed with a Kulahari and Kishori Lal was aremed with a Gandasa and that she saw these persons assaulting her Nani with her own eyes. She stated that she got up when her Nani had cried and had seen the accused appellant assaulting the deceased. She further stated that she also cried and started weeping. The accused persons asked her to keep silent, otherwise she would be killed. Therefore, she felt frightened and kept silent. She admitted that soon after the occurrence her statement was recorded by the police as well as by the Magistrate under Section 164, Cr. P. C. ( 21 ) IT was vehemently argued before this Court by the learned counsel for the accused appellant that Km. Bimla was a tutored witness. Therefore, she felt frightened and kept silent. She admitted that soon after the occurrence her statement was recorded by the police as well as by the Magistrate under Section 164, Cr. P. C. ( 21 ) IT was vehemently argued before this Court by the learned counsel for the accused appellant that Km. Bimla was a tutored witness. She was brought before the Court from Bombay by the police officer and was tutored although for giving tainted statement. No doubt, a child witness is capable of giving tutored version, but the fact remains that soonafter the occurrence of the case, she narrated the tale of the assault upon her Nani by the accused persons to Smt. Nanki PW 2, who had averred this fact in the first information report Ex. Ka-4 although she disallowed lateron during the course of her examination before the Court below. PW 3 Ram Ashrey who was a villager and was coming after discharging his natural call and had gone to the house of the deceased also stated that Km. Bimla had informed him that his Nani was assaulted by Kishori Lal and Ashiq Lal. The circumstance that Km. Bimla PW 6 being a child at the time of the occurrence, the possibility that she was sleeping along with Ashiq Lal on one and the same cot and got up on hearing the cries of his Nani cannot be ruled out. The circumstance that soonafter the occurrence on enquiry by the villagers as also Smt. Nanki she informed that the accused appellant and Kishori Lal were responsible for fatal assault upon the deceased fully goes to establish that Km. Bimla had seen the occurrence with her own eyes and when she narrated the tale of asssault by the accused appellant and Kishori Lal to Smt. Nanki PW 2 and Ram Ashrey PW 3, there was no scope of any body tutoring her the tale of this woes. ( 22 ) KM. Bimla PW 6 stood well the test of cross-examination before the Court below. She frankly admitted that after coming from Bombay where she had gone after murder of her Nani and where her father was working, stated that after coming from Bombay, she did not go to Isanpurwa for the obvious reason that Nana and Nani were dead. Bimla PW 6 stood well the test of cross-examination before the Court below. She frankly admitted that after coming from Bombay where she had gone after murder of her Nani and where her father was working, stated that after coming from Bombay, she did not go to Isanpurwa for the obvious reason that Nana and Nani were dead. She stated that she stayed at Kotwali Fatehpur along with her father before coming to court below to give the statement. She denied the suggestion of the defence on the point that she was tutored by the police. Of Course, she stated that when her Nani was assaulted, it was early hours of the morning and the sun had come out. She stated that there was some light and people of Mohalla had awakened. When according to the prosecution contention the accused appellant had made murderous assault on the deceased at 5 a. m. it is probable for me to believe that by the time the accused appellant and his associates made good their escape and the people of the locality got up, sun had come out. Km. Bimla stated that when the accused appellant and his associates were assaulting her Nani, none of Mohallawala came. After the escape of the accused persons, men and women came there and that she told to them that the accused persons had assaulted her Nani. Probably that man was Ram Ashrey and woman Smt. Nanki PW 3. She stated that besides these two persons she told this fact to other persons as well. She stated that normally the accused appellant Ashiq Lal and Kishori Lal used to remain out side but before few days of the occurrence of this case, they had started living with her Nani. She stated that her Nani used to love them and there was no quarrel in between her Nani and the accused persons. She was unable to state as to whether Radhey Shyam was owner of rice mill and was a monied man. While giving the version of this occurrence, she stated that on the night of the occurrence Kishori Lal was sleeping on a Charpai outside in front of the door in the verandah. She stated that she along with Ashiq Lal was sleeping on one Charpai and her Nani was sleeping in the room on another Charpai. While giving the version of this occurrence, she stated that on the night of the occurrence Kishori Lal was sleeping on a Charpai outside in front of the door in the verandah. She stated that she along with Ashiq Lal was sleeping on one Charpai and her Nani was sleeping in the room on another Charpai. She stated that Smt. Nanki was sleeping on her Charpai in another room. She further stated that soon after the occurrence, the police had arrived and at that time, the Charpais were lying at the same place. She stated that till the arrival of the police Smt. Nanki remained in the house and that she told Smt. Nanki about the murderous assault by the accused persons on her Nani. She stated that the accused persons ran away along with Kulhari and Gandasa. She has further gone to the extent of stating that the accused persons had brought Kulhari and Gandasa from Smt. Nanki but she did not enquire from Ashiq Lal as to why he was sleeping along with Gandasa. She maintained that when the accused persons had assaulted the deceased Smt. Nanki was sleeping. She stated that she started weeping as soon as she got up and saw the accused persons assaulting the deceased. Km. Bimla stated that Smt. Nanki used to prepare her food separately. The food of the deceased Maharajia, Km. Bimla and the accused persons was prepared on one and the same place. She strongly denied the suggestion of the defence on the point that the accused persons did not assault the deceased or that she had not seen the occurrence. She maintained that the deceased could not speak after the assault. It would thus be seen that the statement of this witness finds full corroboration firstly by the averments of the first information report which was lodged by Smt. Nanki on getting information from Km. Bimla about the assault upon the deceased by Ashiq Lal and two others, as also by the stat ement of Ram Ashrey PW 4. It also finds full corroboration by the medical evidence of Dr. Bimla about the assault upon the deceased by Ashiq Lal and two others, as also by the stat ement of Ram Ashrey PW 4. It also finds full corroboration by the medical evidence of Dr. J. S. Roy who conducted the post mortem examination and found as many as three stitched wounds measuring 2" x 1/10" bone deep right side of face, stitched wound 1/2" x 1/10" right side of face, stitched wound 1" x 1/10" in front of chin besides incised wound 1/2" x 1/4" whole of lobe, lower part cut off right side, incised wound 1/4" x 1/10" muscle deep right side of chest. The fact that as many as six incised wounds and stitched wounds were caused on the face of the deceased at the time of post mortem examination fully go to prove that after sustaining these wounds, the deceased could not have remained in a position to speak. The learned Court below has dealt with the statement of Km. Bimla in detail in its judgment and I find no reason to dis-agree with that finding of fact recorded by the Court below. ( 23 ) IT was argued by the learned counsel for the accused appellant that the learned Court below itself gave benefit of doubt to Kishori Lal although Km. Bimla had named Kishori Lal also as one of the assailants and, therefore no reliance should have been placed upon the statement with regard to accused appellant by the Court below. Reliance was also placed upon a ruling reported in the case of Sripal v. State of U. P. , 1996 ACC 32 : (1996 All Cri C 142? ). It should state here that each criminal case stands upon its own footing and is decided upon the facts and circumstances of the individual case. Thus the said ruling relied upon by the learned counsel for the appellant is of no avail. It was rightly observed by the Court below in the present case that the case of the accused appellant and Kishori Lal appear on different footing, in as much as that in the F. I. R. the name of only Ashiq Lal was mentioned as a culprit and the name of Kishori Lal was not mentioned in the F. I. R. although it was averred in the F. I. R. that besides Ashiq Lal, two other persons were also there. It was observed by the Court below that the omission of the name of Kishori Lal from the array of the accused persons in the first information report created a reasonable doubt so far as Kishori Lal was concerned and, therefore, gave the benefit of doubt to him. Since the State has not preferred any appeal regarding acquittal of Kishori Lal, it is needless for me to comment upon the approach of the learned Sessions Judge for giving benefit of doubt to him in spite of the fact that the eye witness Km. Bimla PW 6 had well implicated him and her statement was very much relied upon by the Court below. The fact, however, remains that the testimony of Km. Bimla PW 6 was rightly relied upon by the Court below and it fully proves beyond any shadow of doubt the guilt of the accused appellant Ashiq Lal under Section 304 (II), I. P. C. ( 24 ) THE theory of defence that the deceased was killed by Radhey Shyam is palpably false on the very face of it for the reason that Radhey Shyam was well to do man so much so that the deceased had self deposited a sum of Rupees 14000/- with him and the accused appellant had a quarrel with the said Radhey Shyam for that money. It therefore, appears to me that the money and property held by the deceased afforded a well founded motive to the accused appellant for killing her. ( 25 ) I, therefore, uphold the finding of fact recorded by the Court below regarding the conviction of the accused appellant under Section 304 (II), I. P. C. ( 26 ) COMING on the point of sentence, I find that since the incident relates to 19 years back, it will meet the ends of justice, if the sentence inflicted by the Court below is reduced by two years. The accused appellant Ashiq Lal is, accordingly, sentenced to R. I. for a period of 5 (five) years. ( 27 ) THUS the appeal against the conviction of the accused appellant is dismissed with the modification on the point of sentence only. The accused appellant is on bail. His bail bonds are cancelled. Let him be taken into custody forthwith and sent to jail to serve out the aforesaid sentence according to law. ( 27 ) THUS the appeal against the conviction of the accused appellant is dismissed with the modification on the point of sentence only. The accused appellant is on bail. His bail bonds are cancelled. Let him be taken into custody forthwith and sent to jail to serve out the aforesaid sentence according to law. ( 28 ) LET the record of the case along with the copy of this judgment be sent to the Court below for needful compliance within a month. Order accordingly. .