Judgment N.Pandey, J. 1. Both the appellant have been held guilty for the murder of Kusum Devi by the judgment dated 26.6.1997 in Sessions Case No. 23 of 1996/4 of 1996 by the 1st Additional District and Sessions judge, Godda. Appellant Bullu Das has been awarded punishment for death under Section 302 of the Indian Penal Code, whereas appellant Doran Das has been sentenced to imprisonment for life under Section 201 read with Section 1 20-B of the Indian Penal Code. 2. The case of the prosecution, in short, is that on 8.8.1995 Kusum Devi, who was an employee of the State Bank of India, started for duty from her house at about 10.15 a.m. Informant Ramphal (PW 1), who was nephew of Kusum Devi, also proceeded with her. But as soon as Kusum Devi reached near the house of Jogendra Das, the informant saw appellant Bullu Das, a resident of the same Mohalla, arriving near Kusum Devi. He all on a sudden took out a pistol and fired at her on account of which she, having received injuries, fell down uttering "Bulla Mar Diya". The injured, demanded some water. The informant brought the same from the house of Ganesh Chamar and offered. Thereafter, while Kusum Devi and being taken to the hospital on rickshaw, she died on the way On that very day, at about 11 Oclock, the fardbeyan of PW 1 was recorded by the Officer Incharge. Godda Police Station, in the Sadar Hospital. 3. It would appear from the fardbeyan that informant (PW 1) was residing with Kusum Devi. It would further appear that Kusum Devi was residing on the ground floor of the house with the two daughters and one son, whereas appellant No. 2 Doran Das on the first floor. The husband of the deceased Arjun Das (PW 5) at the relevant time was posted as Executive Engineer, Jaunpur (U.P.). The Officer-incharge after recording the fardbeyan of PW 1 sent the same to the Police Station for Instituting a regular case. He thereafter prepared a inquest report and proceeded to the place of occurrence in Mohalla-Sheopur near Pushpanjali Rest House in Godda Town. He found a pair of lady sleepers with blood-stains and one red umbrella at the place of occurrence. He also found sufficient blood at the place of occurrence. He thereafter prepared a inquest report and proceeded to the place of occurrence in Mohalla-Sheopur near Pushpanjali Rest House in Godda Town. He found a pair of lady sleepers with blood-stains and one red umbrella at the place of occurrence. He also found sufficient blood at the place of occurrence. Ultimately, having found a prima facie case, the Investigating Officer submitted charge-sheet against the appellants. 4. The Chief Judicial Magistrate thereafter took cognizance of the offence and on due observance of necessary formalities, committed the accused persons to the Court of Sessions to explain charges for the murder of Kusum Devi. 5. Defence of the appellants, as would appear from their statements under Section 313 of the Code Criminal Procedure (in short the Code), is total denial. At the stage of investigation, however, the statement of appellant Bullu Das was recorded by the Officer Incharge on 9.8.1995, and he had disclosed that at the request of appellant Doran Das, he committed the murder of Kusum Devi. This appellant also accepted that Doran Das had paid him a sum of Rs. 10,000/- to commit such murder. In his statement, this appellant had also accepted that in the year, 1992, he had taken part in the murder of one Mahendra Das, a resident of Obra along with other accused persons. The statement of appellant Bullu Das, though not admissible in evidence, but has been brought on record as Ext. 5. 6. The prosecution, in support of its case, has examined altogether 22 witness No defence witness was, however, examined PW 1 Ramphal Das, as noticed above, is the informant of this case. This is not under challenge that at the relevant time, he was residing with his Mami Kusum Devi. This has not been denied by any of the witnesses that on 8.8.1995, when Kusum Devi started from her house to go to the State Bank of India, this witness had also started along with her. In his evidence, this witness has fully corroborated whatever he had stated at the time of recording fardbeyan He has also disclosed the reasons, why appellant Doran Das conspired with the assailant Bullu Das to commit murder of Kusum Devi. The Court below has after giving proper scrutiny of evidence of the informant, found him fully truthful and reliable. 7. PW 2 Sidheshwar Mandal and PW 3 Sita Devi are the parents of the deceased. The Court below has after giving proper scrutiny of evidence of the informant, found him fully truthful and reliable. 7. PW 2 Sidheshwar Mandal and PW 3 Sita Devi are the parents of the deceased. Undisputedly, both of them were residing in a different Mohalla of the same town. Their statements were recorded by the police on the day of occurrence itself. Both of them have said in their evidence that Kusum Devi had purchased certain properties out of her own income in the town itself. They have further said that appellant Doran Das always used to demand share in the properties, which were acquired by Kusum Devi and her husband. They have further stated that on certain occasions Kusum Devi had told that appellant Doran Das (Bhaisur) was threatening and making plans to commit her murder. These witnesses having learnt about the murder of Kusum Devi, arrived at the place of occurrence and learnt that Bullu Das had committed murder. 8. PW 4 Usha Devi and PW 6 Brahmdeo Roy are the sister and brother of the deceased. Both of them have fully corroborated the version of their parents. They have also said that Kusum Devi on different occasions was found apprehending that for the lust of properties, Doran Das may commit her murder. 9. PW 5 Arjun Das is the unfortunate husband of Kusum Devi. He at the relevant was posted at Jaunpur (Uttar Pradesh). When he arrived after having learnt about the murder of his wife., he made his statement before the police. He has also corroborated the case of prosecution that murder of his wife was committed at the instance of appellant Doran Das. He further said that prior to his marriage with Kusum Devi, he always used to give money to his brother (appellant Doran Das). But after marriage, he stopped such payment. This witness has further said that few days before the occurrence, Kusum Devi had informed on telephone that she was apprehending danger on her life. But PW 5 (Arjun Das) asked her not to take any step until his arrival. PW 7 is of course a formal witness and he proved the inquest report. 10. PWs 8 to 15 and 19 have been declared hostile by the prosecution. But PW 5 (Arjun Das) asked her not to take any step until his arrival. PW 7 is of course a formal witness and he proved the inquest report. 10. PWs 8 to 15 and 19 have been declared hostile by the prosecution. No doubt, these witnesses have denied to have seen the occurrence, but as would appeal from the evidence of PW 8 (Kaushalya Devi), PW 10 (Jhakho Devi) and PW 12 (Navin Kumar Jha) that their statements were recorded under Section 164 of the Code at the initial stage and they had also supported the prosecution case. In the Court also though they have been declared hostile, but in cross-examination, these witnesses have said that on hearing Hulla, they arrived at the place of occurrence and found Kusum Devi lying on the road soaked with blood. PW 9 (Manoj Kumar Das), PW 10 (Jhakkho Devi) and PW 12 (Navin Kumar Jha) have supported the case of the prosecution that Kusum Devi was taken to the Hospital on rickshaw in an injured condition from the place of occurrence. 11. PW 17 (Dr. Ajay Kumar Jha) had conducted autopsy of the deceased on the day of occurrence itself. He found that bullet had entered from the back of the chest. The neck injury was described as exist of injury No. 1. In the opinion of the doctor, the cause of death was the bullet injury. PW 21 (Officer-in-charge of Town Police Station) had recorded the statement of appellant. Bullu Das (Ext. 5). PW 22 (Hare Ram Sharma), as noticed above, is the Investigating Officer, who had submitted charge-sheet. I have noticed that this witness after going to the place of occurrence, seized different materials like lady sleeper, handkerchief and lady bag, etc. He has also noticed sufficient blood on these materials. The Investigating Officer also found blood at the place of occurrence. 12. From the facts, noticed above, there appears no dispute that Kusum Devi was done to death by bullet injury at the place of occurrence on the road itself. Trial Court also after proper scrutiny of evidence of the eye-witnesses and other materials brought on record, has held that murder of Kusum Devi was committed by Bullu Das at the instance of appellant Doran Das. 13. Mr. Trial Court also after proper scrutiny of evidence of the eye-witnesses and other materials brought on record, has held that murder of Kusum Devi was committed by Bullu Das at the instance of appellant Doran Das. 13. Mr. Prasad while drawing our attention to the statement of accused persons, recorded under Section 313 of the Code, submitted that no question was put to appellant Bullu Das that Kusum Devi had disclosed his name as assailant. Therefore, such a circumstance has to be excluded from consideration, since this appellant had no chance to explain. He contended that in view of catena of authorities of the apex Court, including that in the case of Sharad Birdhichand Sarda V/s. State of Maharashtra, AIR 1984 SC 1622 : 1984 East Cr C 559 (SC), unless and until the circumstances appearing against an accused is put to him in his examination under Section 313 of the Code, the same can not be used. 14. In my view, having regard to the facts of the present case, such a submission of the learned Counsel has no substance. Because from a bare reference to the statement of accused Bullu Das, it would appear that he was given full opportunity to explain all such allegations. That apart, in the present case, admittedly PW 1 Ramphal Ravidas was eye witness to the occurrence. Therefore, this is not a case where the prosecution is dependent upon circumstantial evidence. One has to bear in mind that in a case where accused was fully aware of the nature of allegations made against him and he had opportunity to explain such allegations and no objection whatsoever was raised before the trial Court as to non-compliance of the provisions of Section 313 of the Code the conviction against such an accused is not vitiated, reference in this regard can be usefully made to a decision of the Supreme Court in the case of Labhchand Dhanpat Singh Jain V/s. State of Maharashtra, AIR 1975 SC 182 . 15. It was next contended that extra-ordinary delay in sending the First Information Report to the Magistrate, is also a circumstance to suspect that the First Information Report was recorded much later than the date mentioned in the fardbeyan. Therefore, it can be safely presumed that the prosecution had sufficient time to introduce improvements and embellishments in order to set out a distorted version of the occurrence. Therefore, it can be safely presumed that the prosecution had sufficient time to introduce improvements and embellishments in order to set out a distorted version of the occurrence. It is stated that from the facts of the case, it would appear that occurrence had taken place on 8.8.1995 at 10.15 a.m. fardbeyan was recorded at 11.00 a.m. in the hospital. The First Information Report was registered at the Police Station on the same day at 12.30 p.m.. But there is no explanation under what circumstances it was received by the Chief judicial Magistrate on 10.8.1995 though the Police Station and the Court are located in the same town. In the background of the facts, stated above, learned Counsel contended that in view of well settled law, in such cases evidence of eye-witnesses should not be accepted on its fact value. In support, of his contention, learned Counsel placed reliance on a decision of the apex Court in the case of Ishwar Singh V/s. The State of Uttar Pradesh, AIR 1976 SC 2423 , and yet another decision in the case of Arjun Marik and others V/s. State Bihar, 1994 BBCJ 116 (SC) : 1994 (1) East Cr C 281. 16. There is no dispute that no convincing material was brought on the record under what circumstances the First Information Report was received by the Magistrate after two days. This also cannot be ignored that as per the command of Section 157 of the Code and the ratio laid down in the above-mentioned cases, an Officer Incharge of Police Station is required to send the copy of First Information Report before the Magistrate forthwith i.e. without any delay and immediately after receipt of the same. But a question arises whether in the facts and circumstances of the present case. Simply because the First Information Report was received by the Magistrate on 10.8.1995, entire prosecution case can be disbelieved. I have just noticed that occurrence in this case took place on 8.8.1995 at 1.0.15 a.m. The fardbeyan was recorded in hospital at 11.00 a.m. i.e. 45 minutes immediately after the occurrence. The First Information Report was registered by the police at 12.30 p.m. This has also come in evidence that officer Incharge after recording the fardbeyan. I have just noticed that occurrence in this case took place on 8.8.1995 at 1.0.15 a.m. The fardbeyan was recorded in hospital at 11.00 a.m. i.e. 45 minutes immediately after the occurrence. The First Information Report was registered by the police at 12.30 p.m. This has also come in evidence that officer Incharge after recording the fardbeyan. prepared inquest report, sent the deadbody for post-mortem examination and soon thereafter rushed to the place of occurrence and seized various materials like ladies bag, sleeper, blood-stained earth, umbrella of the deceased from the place of occurrence. He also examined some of the witnesses in the hospital itself therefore, having regard to the facts, noticed above, mere delay in sending the copy of the First Information Report before the Magistrate cannot raise any doubt of embellishment or improvement in the case at the instance of the prosecution. Reference in this regard can usefully be made to a recent decision of the apex Court in the case of Madru Singh and others V/s. State of Madhya Pradesh, AIR 1997 SC 3527 . In the above-mentioned case, there was a delay of three days in sending the copy of the First Information Report to the Magistrate. But the Court having noticed that the First Information Report in that case was lodged promptly and the police also acting on the basis of the First Information Report, started investigation, therefore, there was no chance of any embellishment or improvement in the case of the prosecution. In support ot the aforesaid views, yet reliance can also be made to a decision of the apex Court in the case of Wariyam Singh and others V/s. State of U.P., AIR 1996 SC 304. Similar views were also expressed by the apex Court in the case of State of U.P. V/s. Gokaran and others, AIR 1985 SC 131 , holding that every delay in sending the report to the Magistrate under Section 157 of the Code would not necessarily lead to the inference that First Information Report was tainted and ante-dated. 17. Mr. Prasad then contended that in any view of the matter. PW 1 Ramphal Ravidas being the solitary eye-witness of the occurrence, no reliance can be made on his evidence unless and until his testimony is wholly reliable and truthful. 17. Mr. Prasad then contended that in any view of the matter. PW 1 Ramphal Ravidas being the solitary eye-witness of the occurrence, no reliance can be made on his evidence unless and until his testimony is wholly reliable and truthful. In support of such a contention reliance was made to a decision of the apex Court in the case of Kathi Odhabhai Bhimabhai and others V/s. State of Gujarat, AIR 1993 SC 1183 . In my view having regard the views expressed by the apex Court in the aforesaid case, there cannot be any controversy in such a submission. But the question arises whether the defence was able to show any material to discredit the testimony of PW 1 save and except that he was a close relation of the deceased. Rather on a close scrutiny of the evidence of the witnesses it would appear that appellant Doran Das being material uncle of this witness can safely be described as a close relation. Therefore, in absence of any material to discredit the version of PW 1 it would not be safe to reject the prosecution version. 18. Learned counsel lastly contended that in absence of any allegation in the First Information Report that appellant Doran Das had conspired with assailant Bullu Das to commit murder of Kusum Devi, convictions for the offence under Section 302 read with Section 120-B of the Indian Penal Code cannot sustain. Because there is no allegation that this appellant was also present at the time of occurrence. True it is in the First Information Report no such allegation was made against appellant Doran Das. But undisputedly as would appear from the evidence of PW 2 (father of the victim), PW 3 (mother of the victim). PW 4 (sister of victim) and PW 5 (her husband) that deceased Kusum Devi had on different occasions apprehended danger on her life at the instance of appellant Doran Das. This has also come in evidence that Kusum Das had acquired certain properties out of her own income. But this appellant was demanding share in that property on denial by Kusum Devi, he had threatened for dire consequences. This has also come in evidence that before the marriage of PW 5 with deceased Kusum Devi, he always used to send money to appellant Doran Das. But immediately after the marriage. PW 5 (husband of the deceased) stopped payment. But this appellant was demanding share in that property on denial by Kusum Devi, he had threatened for dire consequences. This has also come in evidence that before the marriage of PW 5 with deceased Kusum Devi, he always used to send money to appellant Doran Das. But immediately after the marriage. PW 5 (husband of the deceased) stopped payment. Therefore, this was also one of the reasons on account of which this appellant was carrying grudge against the deceased. 19. Apart from the aforesaid, it has also come in evidence, though not fully corroborated by some of the witnesses, that a sum of Rs. 10,000/- was paid by appellant Doran Das to the assailant Bullu Das to commit murder of Kusum Devi. Therefore, for the reasons stated above, in my view, the trial Court appears quite justified while holding this appellant also guilty for the offence under Section 302 read with Section 120-B of the Indian Penal Code. 20. While advancing argument on behalf of appellant Bullu Das, learned Counsel contended prosecution has failed to bring any material on the record to prove the motive of this appellant in committing murder of Kusum Devi. Because no material has been brought to show that this appellant had any grudge against the deceased in any manner. 21. Attack was also made to criticise the findings of the trial Court, where he has relied upon the statements of the witnesses, recorded under Section 184 of the Code or the so-called confessional statement of appellant Bullu Das, marked as Ext. 5. In my view, having regard to the well-settled law, there can not be any controversy that statement of a witness recorded under Section 164 of the Code, cannot be used as a substantial piece of evidence. Similar is the position with regard to confession of the accused before the police. But having regard to the facts of this case and the evidence of the prosecution witnesses, as recorded in the Court, even ignoring statements under Section 164 of the Code or confessional statement contained in Ext. 5, the allegation against appellant No. 1 for committing murder of Kusum Devi at the instance of Doran Das is fully established. There are sufficient evidence on record to establish the total credibility of the prosecution version. 22. 5, the allegation against appellant No. 1 for committing murder of Kusum Devi at the instance of Doran Das is fully established. There are sufficient evidence on record to establish the total credibility of the prosecution version. 22. It was next contended that admittedly appellant Bullu Das was resident of the same Mohalla where deceased Kusum Devi was resident. Therefore, it appears not convincing that this appellant will commit murder of Kusum Devi in a broad-day light without concealing his identification. Learned counsel for the State submitted that in view of the evidence of PW 19. that appellant Bullu Das had a criminal history and had also committed other murders, it was nothing unusual on his part to commit murder of Kusum Devi without concealing his face. Because a dreaded and habitual offender like him would not care even he is identified at the time of commission of murder. In my view, having regard to the evidence of PW 19, the submission of State Counsel appears quite justified. Therefore, there is no substance in this submission also. 23. Coming to the question of sentence, undisputedly this case falls in the category of one of the rarest of the rare cases where death penalty against appellant No. 1 should not be interfered. From the materials brought on record, I have already indicated the cruel manner in which this appellant had committed murder of a young and helpless lady in a broad-day light at a public place. It has also been proved that this appellant had a previous history of committing murder. Therefore having regard to the guidelines enumerated by the Apex Court in the case of Machhi Singh and others V/s. State of Punjab, AIR 1983 SC 957 , there appears no difficulty in concluding that this case falls in the category of one of the rarest of rare cases where death penalty can be fully justified. 24. Therefore, for the reasons stated above, I have no option but to affirm the death sentence, as awarded by the trial Court against appellant Bullu Das. 1 also affirm the conviction and sentence of appellant Doran Das for the offence under Section 302 read with Section 120-B of the IPC. In the result, both the appeals are, therefore, dismissed and reference No. 5 of 1997 stands answered accordingly.