JUDGMENT Rajesh Tandon, J. : The appellants, namely, Puran, Chet Ram, Nanhey and Praveen are aggrieved by judgment and order dated 2nd September, 1983 passed in Sessions Trial No.150 of 1982 by special Judge, Additional Sessions Judge Nainital- convicting them under section 302/34, I.P.C They have been awarded life imprisonment- Therefore, they have come by way of appeal to this Court under section 378(2) of the Criminal Procedure Code. 2. During the pendency of this appeal, it is reported by the Chief Judicial Magistrate Udham Singh Nagar that the appellants No. 1 & 4, namely, Puran & Praveen have been died. Now, only the appellants' No.2 & 3, namely, Chet Ram & Nanhey are alive. Therefore, the appeal on behalf of appellants No. 1 & 4, namely Puran. &. Parveen, Stands abated and is dismissed. Now, we proceed with this case in respect of appellants No.2 & 3, namely, Chet Ram & Nanhey only. Case-of the Prosecution : 3. On 28.9.1981 at about 6.30 p.m. Chhote (deceased), him wife Smt. Kamla Devi PW-1 and his son Madhav Singh PW-2 were returning from their tea shop situated. ,near. Jaspur Bus Stand. When they reached near the cycle repairing shop of Haji Modh. Usman PW3 situated in Mohalla Thana Sabiq, P.S. Kashlpur all the accused came from the front. Accused Puran & Chet Ram were armed with Hansias and Nanhey & Praveen were armed with Tabbal and the remaining four accused, namely Ramesh, Ramla alias Ram Lal, Chhote and Karan, who have been acquitted by the learned Addl. Sessions Judge Nainital, were holding laities. On seeing Chhote (deceased), accused Puran exhorted the other accused to take revenge against him. Chhote (deceased), then, rim towards the shop of Haji Mohd. Usman PW-3 and as soon as. he entered the shop, accused Puran, Chet Ram, Nanhey and Praveen also went inside the shop and started giving Hansia and Tabal blows to Chhote (deceased). Other four accused, who have been acquitted stood outside the shop. Smt. Kamla Devi PW-1 and Madhav Singh PW-2 remained outside the shop. When the accused, who had entered. The shop, killed Chotte (deceased) they came out and told the accused who were standing outside that the work has been done and they fled. Smt. Kamla Devi PW-1, wife of the Chhote (deceased) went inside the shop and saw that her husband was murdered by the accused. When the accused, who had entered. The shop, killed Chotte (deceased) they came out and told the accused who were standing outside that the work has been done and they fled. Smt. Kamla Devi PW-1, wife of the Chhote (deceased) went inside the shop and saw that her husband was murdered by the accused. She then, went to the Police Station Kashipur and lodged the F.I.R (Ex. Ka-1) on the same day at about. 10 p.m. The case was registered at report No. 37 of the General Diary (G.D.) (Ex. Ka-3). Sub Inspector A.S. Sharma PW-5, then, went to the place of occurrence and after appointing the witnesses got the Inquest Report (Ex. Ka-4) and other connected papers (Ex. Ka. 5 to Ka. 8) prepared on the spot. He, then, sealed the body of Chhote (deceased) and handed it over to Constables Govind Ballabh PW-6 and Udiya Nand for taking it to the hospital for post-mortem. The postmortem was carried out on 29.9.1981 at about 2.15 p.m. by Dr. R.P. Rastogi PW-4, Medical Superintendent, Civil Hospital, Kashlpur. 4. The post-mortem report (Ex. Ka2) revealed the following ante-mortem injuries on the person of the deceased: 1. Incised wound 5 cm x 1/2 cm x scalp, deep in top of head. 2. Incised wound 6 cm x 1 cm x skin deep on right eye brow and forehead. 3. Contusion 7 cm x 1 cm on right side of neck. 4. Incised wound 8 cm x 2 cm x bone deep right fore-arm 5 cm below wrist cutting both bones, muscles and vassals. 5. Incised wound 4 cm x 1/2 cm x muscle deep on right middle finger inner side. 6. Incised wound 1 cm x 112 cm x muscle deep right ring finger. 7. Incised wound 4 cm x 2 cm x muscle deep on inner side left forearm middle. 8. Incised wound 4 cm x 1 cm X muscle deep on top of left shoulder. 9. Incised wound 4 cm x 1 cm x muscle deep on back and top of right shoulder. 10. Incised wound 5 cm x 2 cm x bone deep on front of right knee. 11. Incised wound 4 tm x 2 cm x muscle deep on front of right ankle. 5. 9. Incised wound 4 cm x 1 cm x muscle deep on back and top of right shoulder. 10. Incised wound 5 cm x 2 cm x bone deep on front of right knee. 11. Incised wound 4 tm x 2 cm x muscle deep on front of right ankle. 5. All the aforesaid injuries except in jury No.3 i.e. Contusion 7 cm x 1 cm on right side of neck, have been caused by some sharp-edged weapon. Dr. R.P. Rastogi PW-4 prepared the post-mortem report (Ex. Ka-2) and took one Baniyan, one shirt one Pyjama one underwear and one Tabij (Ex. Ka. I to V) from the person of the deceased and after sealing them handed over to the constables, who had brought the body for postmortem. In this regard, the statement of Dr. R.P. Rastogi PW-4 is as follows: 6. The investigation in this case was carried out by the Sub-Inspector A.S. Sharma PW-5, who recorded the statements of the witnesses and prepared the site-plan (Ex. Ka-10) after inspecting the place of occurrence. He also took plain and blood stained earth marked as Ex. VI and VII respectively from the place of occurrence and sealed them in separate conjoiners. He also prepared their memo (Ex. Ka-9). On 29.9.1981, he arrested accused Karan and Ram Lal alias Ram Lal and the other accused surrendered before the Court. 7. After completing the investigation, a charge-sheet (Ex. Ka-11) was submitted against all the accused. Charges were framed under sections 148 and 302/149, I.P.C. against the accused (appellants) namely Puran, Chet Ram, Nanhey and Praveen and under sections 147 and 302/149, I.P.C. against the remaining four accused. The charges were read over and explained to -the accused, who pleaded not guilty. 8. The prosecution examined six witnesses in support of its case, which are as follows : 1. Smt. Kamla Devi PW-1 complainant & widow of the deceased. 2. Madhav Singh PW-2 son of the deceased. 3. Haji Mohd. Usman PW-3 an eyewitness of the incident 4. Dr. R.P. Rastogi PW-4, who had conducted the post-mortem. 5. Sub-Inspector A.S. Sharma PW-5. the I.O. 6. Constable Govind Ballabh PW-6, who had taken the dead body to the hospital for post-mortem. 9. Out of these witnesses, the evidence of Dr. RP. Rastogi Sub Inspector – A.S. Sharma PW-5 and. Constable Govind Ballabh PW-6 is formal in nature. Dr. R.P. Rastogi PW-4, who had conducted the post-mortem. 5. Sub-Inspector A.S. Sharma PW-5. the I.O. 6. Constable Govind Ballabh PW-6, who had taken the dead body to the hospital for post-mortem. 9. Out of these witnesses, the evidence of Dr. RP. Rastogi Sub Inspector – A.S. Sharma PW-5 and. Constable Govind Ballabh PW-6 is formal in nature. Smt. Kamla Devi PW-1 and Madhav Singh PW-2 have been de-dared-hostile. Thus, there remained the solitary-statement of Haji Mohd. Usman PW-3 regarding the incident and the role played by he accused in the commission of the offence. 10. Learned Addl. Sessions Judge, Nainital, after discussing the entire evidence and believing the testimony of eyewitness, namely, Haji Mohd. Usman PW-3, convicted the accused (appellants), namely, Puran, Chet Ram, Nanhey & Praveen under section 302/ 34: I.P.C. to undergo imprisonment for life and the other four accused. 11. The learned Addl. Sessions Judge, while convicting the accused: (appellants), has also discussed the evidence of Smt. Kamla Devi PW-1 as well as Madhav Singh PW-2, who turned hostile. Learned Addl. Sessions Judge has recorded a finding that according to Smt. Kamla Devi PW-1 about three months prior to the murder of Chhote (her husband), all the accused had been instrumental in getting Chhote (deceased), Nanhey and Bhurey arrested for the murder of one Pradeep, son of Thakuri, who was the close relative of accused. Chhote (deceased), Nanhey and Bhurey were released on bail. This annoyed the accused. Accused Ramesh & Praveen are the sons of the sister of Thakuri, accused Ramla & Chhote are the brother-in-laws (Bahnoi) of Thakuri. accused Puran, Chef Ram and Thakuri are brothers and accused Nanhey is the nephew of Thakuri Pradeep, who was murdered prior to the instant incident, was the son of Thakuri and the murder Therefore, all the relatives of Pradeep i.e. the accused had a strong motive for taking revenge" upon the deceased Chhote. Therefore, it is lot surprising that when the accessed saw the deceased Chhote on the road unarmed they thought it a God given opportunity to take revenge and the accused ultimately killed Chhote. When Smt. Kamla Devi PW-1 saw that the accused had succeeded in killing her husband Chhote, (deceased), she became afraid of them and the anxiety to save herself and her son Madhav Singh PW-2 from meeting the same fate, made, her change her version of the incident. 12. When Smt. Kamla Devi PW-1 saw that the accused had succeeded in killing her husband Chhote, (deceased), she became afraid of them and the anxiety to save herself and her son Madhav Singh PW-2 from meeting the same fate, made, her change her version of the incident. 12. The aforesaid fact has completely explained the conduct of Smt. Kamla Devi PW-1 and Madhav Singh PW-2 for turning hostile in order to save the only son Madhav Singh PW-2 and also to save themselves from the clutches of the barbaric act of the accused. 13. Now, Coming to the evidence on record, the FIR (Ex. Ka-1) was lodged at about 7.10 p.m. and the incident took place at about 6.30 p.m. The distance of the Police station from the place of occurrence is about two furlong. The FIR (Ex. Ka-1) also Shows the inhumane act of the accused (appellants). 14. The accused (appellants) were also examined under section 313 of the Code of Criminal Procedure Learned Add\. Sessions Judge has given the complete details with regard to the motive on the part of the accused (appellants) behind the murder. Relevant questions asked in this regard from the accused, namely. Puran Singh (appellant No.1), are as undet : . 15. Similarly, Chet Ram (appellant) No.2) also replied the questions in the same manner. Relevant questions asked to him under section 313 of the Code of Criminal Procedure are also quoted below: 16. Similarly, the other two accused (appellants), namely, Praveen and Nanhey also gave the same reply to the questions No.2 & 3. Although, for question No.1, the replied that they did not know. FINDINGS 17. Learned Counsel for the appellants has argued that there are two shops of Haji Mohd. Usman PW-3 and therefore, he disputed regarding the place of occurrence. 18. We do not find any merit in this argument as Haji Mohd. Usman PW-3 has clearly stated that he is running only one shop as will appear from his statement, which is quoted below: 19. Learned Counsel for the appellants, further, argued that the statement of Haji Mohd. Usman PW-3 is doubtful as he is a police witness when in point of fact, he has frankly stated that he has not given any evidence on behalf of the Police and he has not been a police witness at all. In this regard, his statement is as quoted below: 20. Usman PW-3 is doubtful as he is a police witness when in point of fact, he has frankly stated that he has not given any evidence on behalf of the Police and he has not been a police witness at all. In this regard, his statement is as quoted below: 20. It is further argued by the learned Counsel for the appellants that Smt. Kamla Devi PW-1 and Madhav Singh PW-2 have already been declared hostile and therefore, the appellants cannot be sentenced on account of this fact. 21. In this regard, the reasons for getting hostile of Smt. Kamla Devi PW-1 and Madhav Singh PW-2 have already been mentioned above as discussed by learned Addl. Sessions' Judge. The reason for -their turning hostile is to save themselves from the clutches of the barbaric act of the accused. With regard to the incident, Smt. Kamla Devi PW-1 has clearly stated in her statement, which is quoted below : 22. Learned Counsel for the appellants next argued that there is a clear violation of section 157 of the Code of Criminal Procedure. 23. It was a case where brutal murder has taken place. The evidence of Haji Mohd. Usman PW-3, who is an eye-witness of the incident, fully corroborates the occurrence, the place, time and circumstances of the incident. Further, the statement of Smt. Kamla Devi PW-1 has been fully discussed by the learned Addl. Sessions Judge and the nature of her evidence shows that she was frightened on account of barbaric act of the accused. Therefore, section 157 of the Code of Criminal Procedure is not attracted in this case. Moreover, this question was never raised and asked from the Investigating Officer. At no point of time, this point was ever raised either in the statement under section 313 or in cross-examination. However, any illegality or irregularity of the information does not affect me jurisdiction of the police officer to investigate or the exercise thereof by the police officer under this section. Even if the first information report suffers from an infirmity of not containing factual allegations constituting a cognizable offence, that would not debar a criminal investigation altogether. It cannot hamper the trial in any way looking to the brutal murder. 24. Delay in dispatch of First Information Report to Magistrate is not a circumstance, which can throw out the prosecution case in its entirety. It cannot hamper the trial in any way looking to the brutal murder. 24. Delay in dispatch of First Information Report to Magistrate is not a circumstance, which can throw out the prosecution case in its entirety. In the Circumstances, there is no merit in the above argument advanced on behalf of the appellants. 25. With regard to the motive behind' the crime, in the case of Jogi and another v. State of U.P., 2003 (47) ACC 534 the Hon'ble Allahabad High Court has held as under : "There was strong motive on the part of the accused-appellants to commit this crime. Their solicitation soaked in lewdness had been spurned earlier by the young girl who had even chided and abused them for their advances. It is there in the evidence of Kanhaiya PW-3 (brother of the deceased) that his father was comparatively a poor person whereas the accused-appellants were better placed. Hari Lal PW-1 (father of the deceased) deposed that his daughter had complained to him ten or twelve days before the incident about the lascivious overtures of accused-appellants and he himself had reprimanded them on finding them loafing around his house. It is obvious that they took the insult deep inside and the young girl had to pay the price of her ideal standard of morality by losing her life' as she had declined to fall prey to their lustful advances. Though Hari Lal PW-1 himself is not an eye-witness, but his testimony is very relevant in, unfolding the previous background and motive of the accused appellants for committing this crime. He had reached the spot on the information given by his son Kanhaiya PW3. He was returning from school and it was on his information that Hari Lal had rushed to the place of occurrence to find his daughter lying dead. Jayanti Tewari PW-2 is a witness of fact. Giving plauible explanation for his presence at the spot, he stated that in the morning of the day of occurrence he had gone to the house of his maternal uncle and was returning by bicycle to his village. At 4.30 P.M. Kanhaiya PW3 was raising alarm that his sister was being assaulted by the accused appellants. He alongwith Vasishatha Tewari and Chetan rushed to the scene of occurrence and saw the happening. It is also in his evidence that the accused appellants then ran away. At 4.30 P.M. Kanhaiya PW3 was raising alarm that his sister was being assaulted by the accused appellants. He alongwith Vasishatha Tewari and Chetan rushed to the scene of occurrence and saw the happening. It is also in his evidence that the accused appellants then ran away. Nothing could be elicited from his cross examination to discredit his testimony. There was no reason either for his deposing falsely against the accused appellant. Kanhaiya Lal PW-3 was a lad of about 12 years and could not be expected to closely follow the accused appellants when they were actually killing his sister in the Arhar field, He informed of it to Jayanti Tewari PW2 who was passing by that way and he (Jayanti Tewari) actually witnessed the real incident while he (Kanhaiya PW-3) rushed to inform his father. Nothing more could be expected from a boy aged about 12 years. It also appears that the accused appellants tried everything to make a dent in the prosecution case and they even paid money to Kanhaiya Lal PW-3 as admitted by him in his cross-examination by State Counsel. His statement was recorded in the Court on 31.8.1980. Earlier thereto, he had come to the Court on three dates, but his evidence was not recorded. It is apparent that accused appellants were attempting to nullify the serious legal repercussions of this heinous crime committed by them and to come out of the difficult situation they even bribed Kanhaiya PW-3, a poor person qua their affluence. It is likely that poverty of his father was a conducive factor which provided a foot board to the accused appellants to bribe him (Kanhaiya \ PW3). But despite every misadventure of the accused-appellants, the reality could not be subdued and justice would triumph because testimony of eye-witness Jayanti Tewari PW-2 is of sterling character leaving not even slightest doubt that it were the accused appellants who committed this heinous crime. The facts emerging from the testimony of Hari Lal PW-1 as also from that of Kanhaiya Lal PW3 (child witness) - brother of the deceased (though declared hostile by the prosecution) dancingly bring home the guilt to the accused-appellants. Even on being declared hostile, the statement of Kanhaiya PW-3 goes along way in supporting the prosecution case. The facts emerging from the testimony of Hari Lal PW-1 as also from that of Kanhaiya Lal PW3 (child witness) - brother of the deceased (though declared hostile by the prosecution) dancingly bring home the guilt to the accused-appellants. Even on being declared hostile, the statement of Kanhaiya PW-3 goes along way in supporting the prosecution case. It cannot at all be questioned that he was on the way to his house from his school at about 4.30 P.M. when his sister was murdered in the Arhar field. It was on his information that Jayanti Tewari -PW-2, passing that way, had immediately rushed to the spot to witness the actual incident. Indeed, the statement of Kanhaiya PW-3 is supportive of the prosecution case in a great deal." 26. Under the above circumstances, the substantive charges under section 302/34, I.P.C. is proved beyond reasonable doubt against the appellants. We do not find any infirmity or illegality in the judgment and order dated 2nd September, 1983 passed in Sessions' Trial No. 150 of 1982 by Special Judge - Additional Sessions' Judge, Nainital. 27. Accordingly, we pass the following ORDER Appeal stands dismissed The conviction and sentence of life imprisonment on Chet Ram and Nanhey, appellants No.2 & 3 herein, for offence punishable under section 302/ 34, I.P.C. is upheld. Let copy of this judgment and order alongwith the record of the case be sent to the Court below for compliance. It will submit the compliance report within two months from the date of the receipt of the record. Appeal Dismissed.