Judgment Sachchidanand Jha and P.N.Yadav JJ. 1. Though the sole appellant Shrawan Thakur was charged under Secs. 302, 307, 376 and 458 of the Indian Penal Code (hereinafter to be referred to as the Code) he on being tried was convicted and sentenced to undergo rigorous imprisonment for life under Sec. 302 and acquitted of the charges under Secs. 307, 376 and 458 of the Code. 2. None knew till the incident was put to an end that the unfortunate one year old child. Hassnain clinging to his mother Nisha Khatoon was predestined to be snatched away by the cruel hands of death from the lap of his mother in the fateful night intervening between the 13th and the 14th October, 1984. The facts of the case giving rise to the instant case may be set out for proper appraisal of evidence adduced on behalf of the prosecution. At about 2 a.m. in the night referred to above while the informant Rasul Azam was asleep at his Darwaza (Palani) attached to his house the appellant alongwith Raju, Babu Saheb and one unknown miscreant having armed themselves with guns and pistols went to him and they asked him about the whereabouts of his brother Akbar. He replied that he was sleeping inside the house whereupon the mis-creants told him that they would kill him and he must not raise alarm. Soon one of the miscreants put gun on his chest while his associates entered into the house. Nisha Khatoon, wife of the informant hearing hue and cry came out of the house adhering to her child Hassnain and she started raising alarm. Just then the appellant opened fire upon her as a result of which she as well as her son Hassnain who was in her lap sustained gun shot injuries. The miscreants who entered into the house dragged Jhuni Khatoon out of her house and they alongwith the one who was standing and keeping watch over the informant Rasul Azam took her away into a sugercane field where, they sexually assaulted her. Before the miscreants caught hold of and dragged Jhuni Khatoon they had also apprehen-ded the informants sister Sakina Khatoon who had concealed herself beneath a cot but she managed to escape and ran away out of her house. 3. Before the miscreants caught hold of and dragged Jhuni Khatoon they had also apprehen-ded the informants sister Sakina Khatoon who had concealed herself beneath a cot but she managed to escape and ran away out of her house. 3. The villagers including the informant set out in search of Jhuni Khatoon and they ultimately found her lying bewildered and perplexed virtually in the state of madness and unconsciousness in the sugarcane field of Jawahar Sah wherefrom she was brought to her house. Thereafter, the informant alongwith his wife Nisha Khatoon and son, victim Hassnain left for Chanpatia Hospital. The ill fated child succumbed to injuries on way to the hospital. 4. The fardbeyan of the informant was recorded by Suresh Prasad Gupta, Sub Inspector of Police at about 6 A.M. on 14-10-1994 at Chanpatia Hospital on the basis of which Chanpatia P.S. Case No. 137 of 1994 was registered. Investigation was taken up and after completion thereof the charge sheet was submitted against the appellant Shra-wan Thakur and Raju Prasad conti-nuing investigation against Sheo Raut @ Sheo Prasad and Babu Saheb @ Binod Singh and finally trial commenced after commitment against the appellant alone as the accused Raju Prasad had absconded. 5. The genesis of the occurrence and the motive attributed behind the commission of crime is that a month or so prior to the incident the appellant had teased and caught hold of the informants sister Sakina Khatoon and he was taking her away in sugarcane field with intent to ravishing her but she was saved by timely arrival of the villagers in pursuance of alarm raised by her. The informants brother Akbar had lodged strong protest against conduct and misdeeds of the appellant. This infuriated the appellant and he threatened him to be killed and ulti-mately the appellant alongwith his associates decided to eliminate him. However, he escaped by fleeing away from his house after hearing sound of firing leaving his wife Jhuni Khatoon there but his wife, Jhuni, his sister-in-law Nisha Khatoon and his nephew Hassnain fell prey to the wrath of the appellant and his associates. 6. In order to prove its case the prosecution examined as many as 13 witnesses. The informant Rasul Azam (PW 6), his wife Nisha Khatoon (PW 5) and his brother Akbar Ansari (PW 8) are material witnesses. PW 2 Dr. 6. In order to prove its case the prosecution examined as many as 13 witnesses. The informant Rasul Azam (PW 6), his wife Nisha Khatoon (PW 5) and his brother Akbar Ansari (PW 8) are material witnesses. PW 2 Dr. Bijay Kumar Bhatt conducted autopsy on the dead body of the child. Hassnain Ansari, PW 9 Suresh Prasad Gupta and PW 12 Bijendra Kumar Sahi are the Investigating Officers, the latter having merely submitted charge-sheet. PW 1 Md. Hanif, PW 3 Isak Mian, PW 4 Ram Bachan Mahto, PW 7 Jhuni Khatoon, PW 10 Rojauddin Mian, father of the informant and PW 13 Sakina Khatoon were declared hostile by the prose-cution. PW 11 Nand Kishore Prasad was a formal witness who proved inquest report. 7. The learned Court below after taking the facts, circumstance and evidence brought on records into account found and held the appellant guilty and he convicted and sentenced him as stated above vide the impugned judgment and order. 8. Before embarking upon appre-ciation of contentions put forward at the bar on behalf of the appellant, it would be relevant and convenient to have a birds eye view on evidence of the prose-cution witnesses which may assist the Court in arriving at a correct conclu-sion. The informant Rasul Azam (PW 6) and his wife Nisha Khatoon (PW 5) were the key eye witnesses to the incident leading to the death of the ill fated child Hassnain and as such their evidence assumed important significance. PW 6 reiterated his early version he rendered before the police about the appellant Shrawan Thakur alongwith his associates Raju, Babu Saheb and one unknown miscreant going to his Darwaza (Palani), two of the miscreants armed with guns keeping watch over him while two others entering into the house and dragging Jhuni Khatoon (PW 7),wife of Akbar Ansari (PW 8) out of her house and her being forcibly taken away and sexually assaulted in the sugarcane field by all the four miscreants including the appellant. The witness also testified to his wife Nisha Khatoon (PW 5) coming out of her house with her one year old son Hassnain in her lap, the shot being fired by the appellant on her causing injury to her as well as the child in her lap soon after she arrived at the Darwaza from her house. The witness also testified to his wife Nisha Khatoon (PW 5) coming out of her house with her one year old son Hassnain in her lap, the shot being fired by the appellant on her causing injury to her as well as the child in her lap soon after she arrived at the Darwaza from her house. PW 6 added after Jhuni Khatoon (PW 7) was brought home by him and the villagers from the sugarcane field where she was lying helter-skelter and unconscious he alongwith his wife Nisha Khatoon and son Hassnain left for Chanpatia Hospital, however, the child succumbed to gun shot injuries on way to the hospital. 9. Let us now switch over to consider the narration of the occurrence made by the other star witness, Nisha Khatoon (PW 5), the wife and the mother respectively of the informant Rasool Azam and the deceased child Hassnain. She stated in her examina-tion in chief that in the fateful night at about 2 A.M. she was feeding her son Hassnain in his house and just then four miscreants arrived at his house and one of them caught her husband (PW 6) and in the meanwhile she came out of her house whereafter the appellant Shrawan Thakur opened fire upon her as a result of which she as well as her son in her lap sustained injuries and while they were going to the hospital the child Hassnain succumbed to injuries on the way. PW 5 claimed to have sustained injuries but no injury report in respect of her injury or evidence of the doctor who examined and treated her was brought on records and probably on that account the appellant was acquitted of the charge under Sec. 307 of the Code and in that view of the matter the question whether PW 5 was inflicted gun shot injury and the appellant made an attempt on her life lost its importance and no longer probe is needed to be made in that regard but on that score alone infliction of gun shot injury on the deceased resulting in his death cannot be disbelieved. She identified the appellant alone amongst the four miscreants. She identified the appellant alone amongst the four miscreants. Akbar Ansari (PW 8) stated that he alongwith his wife Jhuni Khatoon (PW 7) was asleep in his house and he woke up after hearing sound of firing and he out of fear soon ran away out of his house and when he after a few minutes returned home he saw that Nisha Khatoon and Hassnain had sus-tained gun shot injuries and his wife Jhuni Khatoon was being brought home by the villagers in the state of unconsciousness. It is in his evidence that his wife Jhuni Khatoon did not disclose the name of any of the miscreants, however, his Bhabhi Nisha Khatoon disclosed the names of the appellant Shrawan Thakur and co-accused Raju Singh and Babu Saheb @ Binod Singh who were amongst the miscreants. Though, PW 8 was not eye witness to the incident leading to dragging out of his wife and shot being fired on Nisha Khatoon and the deceased his statement constituted a strong piece of circumstantial evidence pointing to the guilt of the appellant. 10. Rojauddin Mian (PW 10), father of PW 6 and PW 8 stated that he woke up at about 2 A.M. in the night on hearing sound of firing and he saw that two miscreants had entered his house and and on torch light being flashed by him the miscreants assaulted him and snatched away his torch and thereafter they forcibly took away his daughter-in-law Jhuni Khatoon from the house and they taking her in a field near Gram Panchayat Bhawan committed rape on her as a result of which she was bewildered and perplexed wherefrom the villagers brought her home. He further made wrong and false statement that his daughter-in-law Nisha Khatoon, grand son Hussnain who had sustained gun shot injuries were taken to Chanpatia Police Station. As a matter of fact they (Nisha Khatoon and her son Hassnain and husband Rasul Azam) went to Chanpatia Hospital and not to Chanpatia Police Station and the fardbeyan of Rasul Azam (PW 6) was recorded by PW 9 at Canpatia Hospital as would be evident from evidence of PW 6 Rasul Azam, PW 5 Nisha Khatoon and PW 9, the investigating officer PW 10 claimed to have identified amongst the miscreant a only Shiva who was not facing trial and against whom investigation was still continuing. He was declared hostile by the prosecution and his attention was drawn to his previous statement regarding the factum of the appellant being identified by him and his opening fire causing injuries to the deceased and his mother made before the Investigation Officer. His statement atleast testified to the miscreants entering into the house and dragging his daughter-in-law Jhuni Khatoon out of her house and her being brought home by the villagers from sugarcane field. However, his such statements is of no avail to the Court in arriving at a conclusion regarding infliction of fire arm injuries on the deceased and his mother causing the death of the latter. PW 7 Jhuni Khatoon merely stated that she woke up on hearing sound of firing and when she started fleeing away she was assaulted by the miscreants, however, she did not identify any of the miscreants and after she went to the hospital she saw gun shot injuries on PW 6 Nisha Khatoon and her deceased son Hassnain. She was declared hostile by the prosecution and her attention was drawn to her previous statement made by her during investigation and she was contradicted by the IO (PW 9) who stated that she had said to him to that she had identified the appellant Shrawan Thakur and also that she was ravished by all the four miscreants. The witness appears to have turned hostile to the truth. PW 1 Md. Hanif arrived at the Darwaza of the informant (PW 6) after he heard sound of firing and he saw there that Nisha Khatoon and her son Hassnain had sustained gun shot injuries and he learnt that Jhuni Khatoon wife of Akbar Ansari had been taken away by the miscreants and hence he alongwith others set out to search her out. It is in his evidence that the wife of Akbar Ansari was found almost in state of unconsciousness and madness in the sugarcane field and they brought her to her house. It is in his evidence that the wife of Akbar Ansari was found almost in state of unconsciousness and madness in the sugarcane field and they brought her to her house. As the witness stated that he was not disclosed the name of any of the miscreants he was declared hostile by the prosecution and his attention was drawn to his previous statement made before the Investigating Officer (PW 9) that the informants wife Nisha Khatoon had described the appellant as assailant of hers and her deceased son Hassnain, PW 3 Ishak Mian, PW 4 Ram Bachan Matho and PW 13 Sakina Khatoon were the other witnesses who were declared hostile by the prosecution. Their evidence need not be discussed at length. 11. Dr. Bijay Kumar Bhatt (PW 2) conducted autopsy on the dead body of the deceased Hassnain at about 11.30 A.M. on 14-10-1994. He found on his person multiple small circular lacerated wounds (pillet injuries) scattered over back on both sides and face. On dissection the pleurae and both lungs were found perforated by the pillets and the chest cavity was found containing blood and blood clots. Three pillets were recovered from the lung substances which were sent to the police in a sealed envelope. In the opinion of the doctor, the death occurred due to shock and haemorrhage caused by the aforesaid fire arm injuries and the time elapsed since death was 18 hours. The medical evidence is in consonance with the eye witness account of the incident leading to infliction of gun shot injuries on the deceased resulting in his death. 12. Suresh Prasad Gupta, Sub Inspector of Police and Officer Incharge of Chanpatia Police Station (PW 9) on receiving O.D. slip from Chanpatia State Dispensary rushed there and he recorded the fardbeyan of Rasul Azam (PW 6) at about 6 A.M. on 14-10-1994 on the basis of which the instant case registered. Thereafter, PW 9 recorded there the statements of Nisha Khatoon (PW 5), Jhuni Khatoon (PW 7) and Anwar Mian (not examined). He saw the dead body of the deceased Hassnain and he prepared inquest report. He said he seized printed cotton Sari and Saya of Jhuni Khatoon and prepared seizure list (Ext. 4). Thereafter, PW 9 recorded there the statements of Nisha Khatoon (PW 5), Jhuni Khatoon (PW 7) and Anwar Mian (not examined). He saw the dead body of the deceased Hassnain and he prepared inquest report. He said he seized printed cotton Sari and Saya of Jhuni Khatoon and prepared seizure list (Ext. 4). He inspected the places of occurrence comprising the Darwaza (Palani or hutment), hutment like house made of Phoos and bamboos of Akbar Mian (PW 8) and the sugarcane field of Jawaher Sah situated at a distance of about half a kilometer from the house of the informant. The witness found blood at the entrance door connecting the house and Palani or Darwaza of the informant, where the deceased and his mother sustained fire arm injuries. PW 5 stated that blood stained cloths of hers and her son Hassnain were handed over to the Police Officer (PW 9). Neither PW 9 spoke of seizure of clothes of PW 5 and her son nor he was cross examined on this point. As regards statement of PW 9 that he seized Sari and Saya of PW 7 Jhuni Khatoon it is to be observed that none of the witnesses including PW 7 made utterances regarding seizure of her Sari and Saya. It is also not mentioned in the seizure list (Ext. 4) as to in respect of seizure of whose Sari and Saya it was prepared. It is also no where in the evidence that Sari and Saya of PW 7 was stained or smeared with blood whereas there was high degree of probability of the clothes of PW 5 Nisha Khatoon and her son Hassnain having been stained with blood as they had sustained bleeding fire arm injuries. In view of abundance of materials available on records to establish that the appellant shot at and caused injuries to PW 5 and her son (deceased) whether the clothes referred to in the evidence of PW 9 and the seizure list belonged to PW 7 or PW 5 is not to be given much weightage and significance. In view of abundance of materials available on records to establish that the appellant shot at and caused injuries to PW 5 and her son (deceased) whether the clothes referred to in the evidence of PW 9 and the seizure list belonged to PW 7 or PW 5 is not to be given much weightage and significance. Again coming to the statement of PW 9 that he did not send the blood stained clothes for chemical analysis and examination and he did not seize the blood stained earth from the place of occurrence as he did not deem it necessary it is to be stated that it was all due to fault and negligence or indifference on his part. But the crux of the matter that faulty investigation cannot lead to total demolition of the prosecution case. Non seizure of blood from the place of occurrence and non transmission of blood stained cloths for chemical analysis cannot, therefore, render the case doubtful. 13. Now adverting to the conten-tions raised on behalf of the appellant to assail and criticise the propriety of findings recorded by the Court below, it is to be observed that it has been contended on behalf of the appellant that evidence of the two eye witnesses, that is PW 5 and PW 6 is inconsistent and discrepant; that all the three material witnesses PWs 5, 6 and 8 and the deceased are related to and interested in each other and no convic-tion can be based on their uncorrobo-rated testimony; that there was no source of light to enable the witnesses to identify the miscreants including the appellant and even if diya was burning in the house its light could not have spread at Darwaza (Palani) and as such neither the informant nor his wife Nisha Khatoon could have identified the appellant and his associates; that there was no strong motive impelling the appellant to commit the crime and that the major part of the prosecution version regarding abduction of Jhuni Khantoon and infliction of sexual assault on her has already been dis-believed by the Court below and that instilled serious doubt in the prose-cution case regarding infliction of gun shot injuries on the informants wife and son resulting in the death of the latter. 14. 14. The informant (PW 6) stated that on being asked by the miscreants he disclosed to them that his brother Akbar Ansari was sleeping in his house and thereafter two of the miscreants entered into his house while the other two remained standing near him and in the meanwhile his wife Nisha Khatoon came out of her house with her son in her lap and just then the appellant opened fire upon her causing injuries to her and her son who was in her lap whereas PW 5 Nisha Khatoon unlike her statement in her examination in chief that soon after she went out of her house she was fired upon stated in cross examination that the shot hit her and the deceased while she was feeding him. She might be making the child drink milk even after she came out of her house with the child in her lap. Again PW 6 stated in his fardbeyan that one of the miscreants kept standing and pointing gun to him and three others entered into the house but in the Court he said that two of the miscreants remained standing near him and the other two entered the house. PW 6 averred in his fardbeyan that after his wife (PW 5) came to Darwaza from the house she started crying whereafter the appellant opened fire upon her but she did not say that she cried. In, her cross examination PW 5 stated that after the occurrence she went to the Police Station but the Investigating Officer (PW 9) said that she did not go to the Police Station nor did he record her statement there rather he recorded her statement at the hospital. It is to be borne in mind that PW 5 in her examination in chief stated that she alongwith the deceased and her husband went to the hospital after the incident. That the hospital and the Police Station situated at one and the same small town of Chanpatia is also to be reckoned with. PW 5 Nisha Khatoon in her cross examination admitted the answer put into her mouth that she did not see the appellant Shrawan Thakur prior to occurrence. That the hospital and the Police Station situated at one and the same small town of Chanpatia is also to be reckoned with. PW 5 Nisha Khatoon in her cross examination admitted the answer put into her mouth that she did not see the appellant Shrawan Thakur prior to occurrence. The appellant is co-villager of PW 5 and in her examination in chief she unambiguously stated it was the appellant Shrawan Thakur who had shot at her as a result of a which she and her son sustained injuries. No conclusion can be drawn in regard to her identification of the appellant on the basis of her stray statement in cross examination that she did not see the appellant before the occurrence without taking into account her statements in totality. From the foregoing discussions it would be crystal clear that the statements of PW 5 and PW 6 are not at all materially inconsistent and discre-pant. Both witnesses were rustic and illiterate villagers hailing from remote corner of the countryside and their statements were recorded after lapse of time and as such they were not expected to give the details of the happenings in verbative terms as narrated by them at the time the incident had taken place and hence whatever inconsistency or contradiction or omission cropped up in their evidence must be said to be of no consequence and they must without being attached any weightage and significance be ignored. 15. No doubt PW 5 Nisha Khatoon, PW 6 Rasul Azam, PW7 Jhuni Khatoon, PW 8 Akbar Ansari, PW 10 Rojauddin Mian and the deceased Hassnain were related to and interested in each other. The contention was that no conviction of the appellant could be based on uncorroborated testimony of relatives and interested witnesses that is PW 5 and PW 6 particularly when their own relatives like PW 7, PW 8, PW 10 and PW 13 did not speak of complicity of the appellant in the commission of crime. The settled principle of law is that evidence of relatives and interested witnesses even without corroboration by independent witness can very well form the basis of conviction if after a close and cautitious scrutiny thereof, it is found to be wholly reliable. The settled principle of law is that evidence of relatives and interested witnesses even without corroboration by independent witness can very well form the basis of conviction if after a close and cautitious scrutiny thereof, it is found to be wholly reliable. The evidence of PW 5 and PW 6 on a close scrutiny has been found to be above board free from inherent taint and infirmity and the same must be accepted. 16. Both PW 5 and PW 6 claimed to have identified the appellant Shrawan Thakur in the light of diya (Lamp). PW 5 was having her one year son in her lap. At about 2 P.M in the night, she was making the child drink milk. A diya was burning in the house. The house and the darwaza were connected with wooden door plank and after PW 5 opened the door the light of the lamp burning in the house might have in all probability spread even at the Darwaza wherefrom she was fired upon by the appellant and in the light of the lamp referred to above both the witnesses (PWs 5 and 6) identified the appellant. Besides, the appellant was co-villager of the witnesses. They could have also identified him from voice and conver-sation going on between the miscreants including the appellant and the infor-mant (PW 6). The witnesses could have also identified the appellant by his gesture, posture and dialogue which would also be deemed to be means of identification. Under the circumstances, identification of the appellant by PW 5 and PW 6 cannot be doubted. 17. The contention that Jhuni Khatoon (PW 7) did not support the allegation against the appellant and his associates that she was ravished by them in the sugarcane field and the appellant was acquitted of the charges under Secs. 307, 376 and 458 of the Code on the basis of the materials available on the records and on same evidence his conviction under Sec. 302 of the Code cannot be sustained seems to be devoid of merit and force. PW 7 Jhuni Khatoon merely said in her deposition that she was assaulted by the miscreants and she suppressed the factum of her being ravished by them. PW 7 Jhuni Khatoon merely said in her deposition that she was assaulted by the miscreants and she suppressed the factum of her being ravished by them. She belonged to a tradition bound non-permissive society and she being simple rustic and illiterate woman might be extremely reluctant to ventilate her grievance regarding sexual assault inflicted on her in open Court for fear that it would reflect upon her chastity and she might be looked down upon by the members of the society. Non lending of assurance by PW 7 to the story regarding sexual assault on her and acquittal of the appellant of the charges under Sec. 376 and certain other section of the Code can by no stretch of imagination instill suspicion in the prosecution version in respect of the deceased having been inflicted fatal gun shot injuries by the appellant. Convic-tion of the appellant under Section 302 of the Code cannot be set aside merely because a part of the prosecution case regarding commission of rape on PW 7 was held not proved. 18. The motive impelling the appe-llant to commit the crime as spelt and exhibited in the fardbeyan and the evidence of the informant (PW 6) was that a month prior to the date of occurrence his sister Sakina Khatoon was teased and caught hold of by the appellant with intent to ravishing her but in the meanwhile her alarm attrac-ted villagers whereafter the appellant freeing the victim Sakina Khatoon fled away, however, later on PW 8 Akbar Ansari reprimanded the appellant for his misdeed and conduct on account of which he was infuriated and enraged and he has threatened him to be killed. The evidence of PW 6 on this point remained unchallenged and unassailed for he was not cross examined on this aspect and as such the statement of the Investigating Officer (PW 9) that PW 6 Rasul Azam did not say to him that the appellant had caught hold of his sister Sakina Khatoon and he was taking her away with intent to ravishing her but he had to free her as the villagers arrived at the scene is of no consequence nor can it pave the ground for discharging the existence of motive for committing the offence as propounded by PW 6 in his fardbeyan as well as in his deposition. Though, motive has no role to play in criminal cases and not often less crime is committed without any motive nor is it possible to ascertain with exactitude the motive behind the commission of crime for, it remains embedded in the heart of the offender, in the instant case the alleged motive stands well proved by the evidence of PW 6. 19. The unimpeachable evidence of PW 5 and PW 6 considered together with the medical evidence as well as the statements of PW 7, PW8, PW 10 and PW 1 constituting a strong piece of circumstantial evidence abundantly established that the occurrence did take place in which Nisha Khatoon (PW 5) and her son in her lap were shot at by the appellant as a result of which they sustained injuries and the child succumbed to injuries so inflicted on him. The appellant opened fire upon PW 5 Nisha Khatoon while her one year old son Hassnain was clinging to her and he was probably taking milk in her lap. The appellant must be knowing that the act of his opening fire was so immi-nently dangerous that it must in all probability cause death or such bodily injury as was likely to cause death and he committed such act without any excuse for incurring the risk of causing death or such injury as aforesaid. The act of firing shot committed by the appellant would obviously come within the purview of clause 4 of Sec. 300 of the Code. The appellant by resorting to firing and causing the death of the deceased rendered himself liable under Sec. 302 of the Code. He was rightly convicted and sentenced by the court below. His conviction and sentence did not warrant interference by this Court. 20. In view of what has been stated and observed in the preceding paragraphs, it is to be held that there is no merit in the appeal which must fail. Accordingly, the appeal is dismissed and the judgment and order of convic-tion and sentence recorded against the appellant stands maintained and confirmed. The appellant is in jail. He shall serve out the sentence awarded to him.