M. C. JAIN, J. Both appeals arise from the judgment and order of conviction and sentence dated 10-4-1986 passed by Sri Sarnam Singh the them III Additional Sessions Judge, Etawah in Sessions Trial Nos. 321 of 1981 and 145 of 1982, which were tried together. The appeals are also being decided by this common order. In Criminal Appeal No. 1251 of 1986 the appellant is Sudhir Kumar Verma whereas Mussa Chikwa alias Virendra is the appellant in Criminal Appeal No. 595 of 1987 which has been preferred from jail. Both of them have been convicted under Section 302 read with Section 34 IPC and sentenced to life imprisonment. In Criminal Appeal No. 595 of 1987 Sri Manish Tiwari was appointed amicus curiae under order dated 15th July, 2002. In Criminal Appeal No. 1251 of 1986 the appellant Sudhir Kumar Verma is represented on record by Sri G. P. Dixit, Advocate who did not turn up. For him also, in the interest of justice, we appointed Sri Manish Tiwari as amicus curiae, who assisted the Court. We have heard his arguments. From the side of the State Sri Shekhar Yadav learned A. G. A. has been heard. 2. There were allegedly two other accused besides the present two appellants. They were Prem Kumar and Naresh Kumar alias Ramesh. The trial of Prem Kumar was separated by lower Courts order dated 16th July, 1984 and Naresh Kumar alias Ramesh died during trial itself. 3. The incident occurred on 29th July, 1981 at about 8 p. m. in Mohalla Homeganj of town Auraiya (then comprising in District Etawah ). The deceased was Sudhir Kumar Sharma whose brother Yogesh Chand Sharma P. W. 5, an eye-witness, lodged FIR at Police Station Auraiya the same night at 8. 30 p. m. The role of catching hold of victim was assigned to the accused appellant Mussa Chikwa alias Virendra and the deceased accused Prem Kumar whereas the appellant Sudhir Kumar Verma and the accused Naresh Kumar alias Ramesh (now dead) allegedly gave knife blows to the victim. At the fateful time, the victim was coming to his house. In the way, he was zeroed in by the accused persons in Mohalla Homeganj. The accused appellant Sudhir Kumar Verma and Naresh Kumar alias Ramesh (now dead) allegedly gave him knife blows whereas the other two caught hold of him during the assault. At the fateful time, the victim was coming to his house. In the way, he was zeroed in by the accused persons in Mohalla Homeganj. The accused appellant Sudhir Kumar Verma and Naresh Kumar alias Ramesh (now dead) allegedly gave him knife blows whereas the other two caught hold of him during the assault. On the hue and cry raised by the victim, his brother Yogesh Chand Sharma P. W. 5 and uncle Shivnandan Lal Sharma rushed up and challenged the assailants. There was sufficient electric light at the spot. All the four culprits ran away, but were very well seen by the said two witnesses as well as by Anil Kumar Singh and Munnu. 4. On receiving injuries Sudhir Kumar Sharma had fallen down and was bleeding profusely. Yogesh Chand Sharma P. W. 5 wrote down an FIR and took his injured brother too to the police station where the FIR was lodged. The distance of police station from the place of occurrence was only 1-1/2 furlong. The victim was then taken to P. H. C. Auraiya at about 8. 45 p. m. The Doctor was not present there and Pharmacist Mukta Prasad P. W. 8 referred him to Helet Hospital, Kanpur. He, however, died on his way to Kanpur. The Investigating Officer Rajvir Singh P. W. 7, it is alleged recorded the statement of the victim at the police station before he was sent for medical examination and treatment. 5. Skipping unnecessary details, we may mention that the autopsy on the dead body of the deceased was conducted by Dr. S. P. Srivastava P. W. 6 on 30th July, 1981 at 4. 20 p. m. He was aged about 24 years and about 3/4 day had passed since he died. The following ante-mortem injuries were found on his person: (1) Contusion 3 cm x 2 cm on the forehead. (2) Stab wound 2-1/2 cm x 1/2 cm x abdominal cavity deep on front of right side of chest. (3) Stab wound 2-1/2 cm x 1-1/2 cm x muscle deep on outer side of left upper arm 15 cm down left shoulder. (4) Stab wound 2-1/2 cm x 1-1/2 cm x muscle deep on back of left upper arm 4 cm away injury No. 3. 6. On internal examination peritoneum was found punctured. Liver and gall bladder were also found punctured. (4) Stab wound 2-1/2 cm x 1-1/2 cm x muscle deep on back of left upper arm 4 cm away injury No. 3. 6. On internal examination peritoneum was found punctured. Liver and gall bladder were also found punctured. Death had occurred due to shock and haemorrhage resulting from ante-mortem injuries. 7. At the trial the defence of the accused appellants was of denial and false implication due to enmity. 8. The prosecution in all examined eight witnesses out of whom, eye-witnesses were Shivnandan Lal Sharma P. W. 4 and Yogesh Chand Sharma P. W. 5, Mahesh Chand P. W. 3 was a witness of the fact that the deceased had been taken by the accused Mussa Chikwa alias Virendra from his shop on the fateful day at about 8 p. m. on the pretext that he had to talk to him. The rest of the evidence related to the post-mortem, investigation and other aspects of the case. Finding the case to be proved, learned trial Judge recorded the impugned judgment. 9. The first contention from the side of the accused appellants is that no motive is assigned in the FIR for the commission of the crime by the accused appellants nor has any motive come to surface in the evidence adduced before the Court. This submission would not detain us for long. It is sufficient to state that motive is the hidden spring of human action which is not always fathomable. Moreover, in a case of direct of ocular evidence, like the present one, the question of motive relegates into insignificance. 10. Secondly, the FIR has been assailed to be ante-timed. As per the prosecution case, the incident took place on 29th July, 1981 at about 8 p. m. and the FIR was lodged by an eye-witness Yogesh Chand Sharma P. W. 5 at the concerned police station at 8. 30 p. m. The argument from the side of accused appellants is that actually it was not lodged at 8. 30 p. m. as alleged but much later and has been ante- timed to present a picture of its lodging at 8. 30 p. m. The argument from the side of accused appellants is that actually it was not lodged at 8. 30 p. m. as alleged but much later and has been ante- timed to present a picture of its lodging at 8. 30 p. m. The argument is sought to be supported by the fact that as per the Head Constable Rajjan Lal Tiwari P. W. 2 general diary entry of the registering of the case bore the date of 1st August, 1981 of the office of Circle Officer and it is an indicator that the report was not lodged on 29th July, 1981 at 8. 30 p. m. We are of the opinion that the mere date given in the office of the Circle Officer on general diary is not conclusive to hold that the FIR was not lodged at the time alleged by the prosecution. There is clear statement of the said Head Constable Rajjan Lal Tiwari P. W. 2 that the FIR had been lodged at the police station on 29th July, 1981 at 8. 30 p. m. as recorded in G. D. No. 43 of the said date and time. There is another speaking fact which guarantees the lodging of the FIR on the said date and time. The police station from the place of occurrence was close by. The victim was alive when the report was lodged and therefrom he was sent to P. H. C. through a constable. The distance of the P. H. C. from the place of occurrence was only 1/2 furlong as stated by Investigating Officer Rajvir Singh P. W. 7 as well as by the eye- witness Shivnandan Lal Sharma P. W. 4 P. H. C. Pharmacist Mukta Prasad P. W. 8 was examined who stated that Dr. R. K. Gupta was not available at the P. H. C. when the victim was brought there by the Constable at 8. 45 p. m. on 29th July, 1981. He had referred him to Kanpur Helet Hospital preparing memo Ex. Ka-17. Reaching of the victim at the Primary Health Centre at 8-45 p. m. completely dislodges the contention that the FIR was ante-timed and had not been taken down at the police station on 29th July, 1981 at 8. 30 p. m. 11. He had referred him to Kanpur Helet Hospital preparing memo Ex. Ka-17. Reaching of the victim at the Primary Health Centre at 8-45 p. m. completely dislodges the contention that the FIR was ante-timed and had not been taken down at the police station on 29th July, 1981 at 8. 30 p. m. 11. Availability of the source of light at the crime spot at the time of the incident has them been challenged. Availability of light at the spot is mentioned in the FIR itself, which is the first version of the prosecution. The eye-witnesses Shivnandan Lal Sharma P. W. 4 and Yogesh Chand Sharma P. W. 5 also clearly stated that there was electric light at the scene of occurrence. The incident took place in a public lane in the town of Auraiya and the availability of light at that spot through an electric bulb on public pole, as stated by the eye-witnesses, sounds to be quite natural. We should also point out that the learned trial Judge had also made a spot inspection and he found the existence of electric pole quite nearby the place of incident with no hindrance in between wherefrom the witnesses allegedly saw the incident. The two eye-witnesses knew the assailants from before and there could be no possibility of any misidentification. We should also point out that the statements of eye-witnesses regarding the source of light were not at all challenged in their cross-examination. 12. Another main argument from the side of the accused appellants is the criticism of the testimony of the eye-witnesses. It has been pointed out that Shivnandan Lal Sharma P. W. 4 is the uncle of the deceased whereas Yogesh Chand Sharma P. W. 5 is his brother. The submission is that there is no independent witness to support the prosecution case. No doubt, these two witnesses examined by the prosecution are the close relatives of the deceased but that does not mean that their testimony has to be thrown over board to be rejected outrightly. The only requirement is to judge their evidence by caution. They are sought to be discredited on the ground that Shivnandan Lal Sharma P. W. 4 was the resident of Behan Tola and he stated that he also used to live in Brahm Nagar. Yogesh Chand Sharma P. W. 5 was the resident of Brahm Nagar, Auraiya. The only requirement is to judge their evidence by caution. They are sought to be discredited on the ground that Shivnandan Lal Sharma P. W. 4 was the resident of Behan Tola and he stated that he also used to live in Brahm Nagar. Yogesh Chand Sharma P. W. 5 was the resident of Brahm Nagar, Auraiya. It is pointed out that as per Shivnandan Lal Sharma P. W. 4 the shortest way to go to Mohalla Brahm Nagar was the way lying near Sankatmochan Temple. From the shop of Muneshwar Dayal (father of the deceased and Yogesh Chand Sharma P. W. 5), wherefrom the two witnesses were proceeding to their house at the time of the incident. There were two routes to reach Sankatmochan Temple from the shop of Muneshwar Dayal, one was shorter and the other longer. The witnesses had adopted the longer route and there could be no justification for the witnesses to do so when the shorter route was available. On analyzing his statement, here comes to be a difference of about 150 paces only in the two routes. It is not possible to attach any importance to this insignificant difference of distance. Indeed, a person does not act on thoughtful reasoning on trivial matters. It was the close of the day. The two witnesses had no business or assignment to attend. They were simply to reach their house. There is nothing unusual if they leisurely adopted one of the two available routes. It cannot be a ground to reject their testimony. 13. Another ground advanced to assail the testimony of the two eye-witnesses is that as per Shivnandan Lal Sharma P. W. 4, the injured Sudhir Kumar had been taken from the spot to the hospital and Yogesh Chand Sharma had gone to lodge the report at the police station, whereas Yogesh Chand Sharma P. W. 5 stated that the injured was taken on rickshaw by him and Iqbal to the police station and then to hospital. According to the learned Counsel, it showed that the two witnesses were not at all present at the time of the incident. The argument is again built on straw. Really speaking, there is no contradiction in the testimony of the two eye-witnesses as complained by the learned Counsel for the appellants. According to the learned Counsel, it showed that the two witnesses were not at all present at the time of the incident. The argument is again built on straw. Really speaking, there is no contradiction in the testimony of the two eye-witnesses as complained by the learned Counsel for the appellants. The truth of the matter is that the victim was first taken from the spot no rickshaw to the police station situated nearby and therefrom he was sent to P. H. C. alongwith a Constable. The statement of Shivnandan Lal Sharma P. W. 4, in fact, is that from the spot he and Yogesh Chand Sharma P. W. 5 had started taking the victim on a rickshaw and after covering a distance of 125-150 paces, he had left for the house to give information of the incident to the family members and on return he found him to be in the hospital. Yogesh Chand Sharma P. W. 5 has explained that Iqbal Ahmad had been available in the way near cinema hall and he had joined him to go to the police station on rickshaw. Naturally, from the police station the victim was sent to P. H. C. The G. D. concerning the registering of the case mentions the name of Iqbal as the person accompanying the informant at the time of the lodging of the FIR. In fact, the crime spot, the police station and the P. H. C. were situated in close range and there is no contradiction in the statements of the two eye-witnesses as to the reaching at the police station and hospital (P. H. C.) of the informant and the victim. 14. It has further been submitted that Shivnandan Lal Sharma P. W. 4 stated that the victim was taken from Auraiya to Kanpur in the company of his mother and witnesss elder brother Jagdishwar Dayal but Yogesh Chand Sharma had not accompanied the victim to Kanpur. However, Yogesh Chand Sharma P. W. 5 stated that he had also accompanied the victim to Kanpur. The said contradiction, in our view, is insignificant. In that tension packed situation everybodys mind was filled with the anxiety to save the life of the victim and all the attention of his family members was focussed on him. However, Yogesh Chand Sharma P. W. 5 stated that he had also accompanied the victim to Kanpur. The said contradiction, in our view, is insignificant. In that tension packed situation everybodys mind was filled with the anxiety to save the life of the victim and all the attention of his family members was focussed on him. Shivnandan Lal Sharma P. W. 4 might not have paid much attention to the presence of Yogesh Chand Sharma P. W. 5 also while going to Kanpur with the victim. 15. The learned Counsel for the appellants then argued that in the FIR the place of incident is described as Mohalla Homeganj. Shivnandan Lal Sharma P. W. 4 and Yogesh Chand Sharma P. W. 5 eye- witnesses examined before the Court, however, stated that the incident took place in Mohalla Halwaikhana. However, it has come on record that the two localities are adjacent to each other. S. I. Rajvir Singh P. W. 7 clearly deposed in this behalf. There is no other locality in between these two Mohallas. There being no well marked signs of demarcation the place of incident may well be described by the name of one or the other locality. We reject this argument that the place of incident has come to be changed by the prosecution. 16. It has next been argued that Shivnandan Lal Sharma P. W. 4, the own uncle of the deceased admitted that he (deceased) was a bad character with a number of enemies. We do not think that it makes any difference. Even if he was a bad character, he continued to be a human being and could not be targeted to be killed. The fact of his having several enemies would also not eclipse and overshadow the trustworthy evidence adduced in the case that he had been knifed on the given date time and place by one of the present appellants, namely, Sudhir Kumar Verma and his companion Naresh Kumar alias Ramesh who died during the pendency of the trial. 17. Learned Counsel for the appellants then assailed the so called statement of the victim recorded under Section 161 Cr. P. C. by Rajvir Singh P. W. 7 which has been relied upon by the learned trial Judge as his dying declaration. It has been urged that he did not follow Regulation 115 of Police Regulations. 17. Learned Counsel for the appellants then assailed the so called statement of the victim recorded under Section 161 Cr. P. C. by Rajvir Singh P. W. 7 which has been relied upon by the learned trial Judge as his dying declaration. It has been urged that he did not follow Regulation 115 of Police Regulations. Suffice it to say in this regard that even on ignoring the so called dying declaration of the victim (who later on died), the acceptable testimony of eye-witnesses Shivnandan Lal Sharma P. W. 4 and Yogesh Chand Sharma P. W. 5 is there which is free from blemish who, though close relatives of the deceased, have given plausible explanation for their presence at the spot and stood firmly the test of cross- examination. 18. It has lastly been argued that the role of catching hold of the victim assigned to the appellant Mussa Chikwa alias Virendra is inconsistent with the stab injuries sustained by the deceased. Making reference to the post-mortem report, it has been pointed out that one stab wound had been received by him in front of right side of chest which was abdominal cavity deep whereas two of the stab wounds were on outer side of left upper arm and back of left upper arm. The submission is that the purpose of catching hold of the victim is to immobile him so as to render him incapable of defence. To achieve this goal, the catching would usually be through waist or from front side inclusive of arms. In the present case, the victim received stab wounds on his chest as well as on left arm. Had he been caught hold of through waist or from front side, he would not have ordinarily received stab wound on the chest. On the other hand, if his arms had been caught hold of then there would not have been any injury on the arm. Having regard to the seats of stab injuries sustained by the deceased in the light of the fact that two persons allegedly caught hold of him when two others stabbed him, we find force in the argument of learned amicus curiae. We do not mean to say that catching hold of the victim is never possible by one of the culprits when the other inflicts injury on the target. We do not mean to say that catching hold of the victim is never possible by one of the culprits when the other inflicts injury on the target. The point we wish to make is that in the present case having regard to the seats of the stab wounds sustained by the victim, it is doubtful that he had been caught hold of by the appellant Mussa Chikwa alias Virendra during the course of operation of inflicting of injuries on him. A reasonable element of doubt persists in this behalf. Therefore, his appeal would be allowed and he would be acquitted. 19. However, the case stands established to the hilt beyond any ray of doubt so far as the other appellant Sudhir Kumar Verma is concerned that he was one of the assailants of the victim who stabbed him. He alongwith the co-accused Naresh Kumar alias Ramesh, acting in concert and sharing common intention of each other, stabbed the victim ultimately resulting in his death. He has rightly been convicted under Section 302 read with Section 34 IPC and sentenced to life imprisonment. 20. In the result, Criminal Appeal No. 595 of 1987 is allowed. The order of conviction and sentence passed against the appellant Mussa Chikwa alias Virendra is set aside. He is acquitted. He is in jail and shall be set at liberty , if not wanted in any other connection. 21. Criminal Appeal No. 1251 of 1986 is dismissed. The order of conviction under Section 302 read with Section 34 IPC and sentence of life imprisonment passed against the appellant Sudhir Kumar Verma is sustained. He is on bail and shall be arrested to be lodged in jail to serve out the sentence passed against him. 22. Sri Manish Tiwari who argued the appeal on behalf of the accused-appellants as amicus curiae, shall be paid Rs. 1,000/- as his fee. 23. A certified copy of this order along with the record of the case be sent to the Court below for needful compliance under intimation to this Court within two months. Criminal appeal No 1251 of 1986 is dismissed & 595 of 1987 is allowed. .