JUDGMENT Per Hon'ble Rajesh Tandon, J. This is an appeal against the judgment and order dated 25.1.1986, passed by the Sessions Judge, Pauri Garhwal, convicting the accused-appellant Meharban Singh under section 302 I.P.C. and sentencing him to undergo imprisonment for life. 2. Briefly stated the facts giving rise to the present appeal are that- on 13.10.1983 at about 6.00 PM accused Meharban Singh along with Pitamber Singh, Ram Singh and Guddu were drinking liquor at Mavakot, P.S. Kotdwar. Ram Singh told that he missed forty rupees from his pocket. All the persons present theft made search of each other. Accused Meherban Singh made search and traced the money from the pocket of Pit amber Singh. Some altercation took place between accused Meharban Singh and Pitamber Singh and accused Meharban Singh fired on the chest of Pit amber Singh by a Tamancha (country made pistol) and Pitamber Singh died at the spot. Thereafter accused Meharban Singh fled away towards Kotdwar. 3. P.W.1 Ram Singh ledged report of the incident (Ex.ka-1) in P.S. Kotdwar, on the basis of which check FIR. was prepared and a case was registered under section 302 IPC against the accused. The investigation of the case was conducted by S.L Mahendra Singh (P.W..3). He visited the place of incident and held inquest on the dead' body of Pitamber Singh. He recorded the statement of witnesses. On 14.10.83 he prepared Panchayatnama Ex.ka-4 and collected plain and blood stained earth. He also took the articles found in the pocket of deceased and prepared Memo Ex.ka-8. He also prepared site plan Ex.ka-9. Accused Meharban Singh surrendered before the Court and the Investigating Officer interrogated in the lock up. After completing the investigation he submitted charge sheet Ex.ka-10 on the same day. 4. Accused was charged for the offence punishable under section 302 IPC. He pleaded not guilty and claimed to be tried. 5. The prosecution to prove its case examined P.W..1 Ram Singh, P.W..2 Surendra Mani and P.W..3 Mahendra Singh. The learned counsel for the accused admitted genuineness of the post mortem examination report and formal proof of this document was dispensed with. 6. Dr. P.C. Fuloria, Medical Officer of District Hospital, Pauri Garhwal conducted the post mortem examination of the dead body of Pitamber Singh' and found the following ante mortem injuries. 7. An oval 6 cm. vertical x 5.5 cm. 6. Dr. P.C. Fuloria, Medical Officer of District Hospital, Pauri Garhwal conducted the post mortem examination of the dead body of Pitamber Singh' and found the following ante mortem injuries. 7. An oval 6 cm. vertical x 5.5 cm. horizontal inverted wound with ragged margins with blackening of skin of wound of entry in an area of 3 mm all around, situation over front of chest over the right side which is 5 cm. below from the right sterno clavicular joint and 13 cm. above from the xiphirtunum and 6.5 cm. medially and up ward from the right nipple directed from right to left, downward. The wound is situated over the side of sternum over the III and IV right rib extending the medial end of the II rib. Clotted blood present over the front of chest and around the wound. On sectioning of the wound there was sign of haemorrhage in the underlying tissues. On section of wound in chest underlying muscles, pleura was absent on the wound of entry. On exploration of the wound there was laceration of heart, great vessel of chest, medial part of right lung Libra tube and part of middle tube of the left lung. Clotted blood into the left thoracic cavity with multiple pellets embedded into the lung tissues, heart and thoracic cavity. There was a plastic "Dat" present over the left side of thoracic cavity on the VII rib on left side. There was fracture of VII rib on left side on the mid axillary line. Few pellets were crossing the left chest wall which were embedded in the subcutaneous tissues on the mid axillary line on left side. The heart was lacerated into multiple pieces and a number of pellets were recovered there from. Bladder was empty and partially digested food material was found in the stomach. In the opinion of the doctor the death was caused due to haemorrhage and shock as a result of gun shot injury. 8. The prosecution also got recorded• the statement of P.W.1 Ram Singh and P.W..2 Surendra Mani under section 164 Cr.P.C. and the same were also produced in evidence. 9. On the basis of the evidence on record the learned Sessions Judge, held the accused guilty for the offence punishable under section 302 I.P.C. and convicted and sentenced him as stated above. Feeling:, aggrieved the present appeal has been filed. 10. 9. On the basis of the evidence on record the learned Sessions Judge, held the accused guilty for the offence punishable under section 302 I.P.C. and convicted and sentenced him as stated above. Feeling:, aggrieved the present appeal has been filed. 10. We have heard the learned counsel for the parties and have perused the evidence on record. 11. The learned counsel for the appellant submitted that the prosecution has utterly failed to prove its case against the accused- appellant. The presence of Surendra Mani at the place of occurrence is highly doubtful. The prosecution did not come with clean hand. There was no motive for the accused to commit murder of Pitamber Singh and no case punishable under section.302 IPC. is made out against the accused and he is entitled to be acquitted. 12. The entire prosecution case is based upon the ocular testimony of P.W.1 Ram Singh and P.W.2 Surendra Mani. These two eye witnesses are the resident of village Mavakot which is at a short distance from the place of occurrence. Accused Meharban Singh alias Mehru and deceased Pitamber Singh were residents of village Nimbuchaur which is a neighbouring village. The witnesses from before the incident knew the accused and the deceased and there is no dispute of identity of the accused. 13. P.W. 1 Ram Singh and P.W. 2 Surendra Mani have consistently. stated that on 13.10.1983 they hired a three wheeler from Kotdwar from going to Mavakot crossing. At the same time accused along with Guddu and Pitamber Singh reached there on another three wheeler. They decided to share liquor on the culvert. Ram Singh stated that at about the same movement he divulged the information to all those present on the spot that currency notes of Rs 40/- were missing from his pocket. On this information accused Meharban Singh declared that everyone shall be subjected to search and the missing money was recovered from the pocket of deceased Pitamber Singh. Meharban Singh grabbed Pitamber Singh by the neck and placed the country made pistol on his chest. The deceased tried to pacify Meharban Singh but accused fired the Tamancha and Pitamber Singh succumbed at the spot. 14. Both the eye witnesses were cross-examined at length but nothing was come out to disbelieve their statements. Meharban Singh grabbed Pitamber Singh by the neck and placed the country made pistol on his chest. The deceased tried to pacify Meharban Singh but accused fired the Tamancha and Pitamber Singh succumbed at the spot. 14. Both the eye witnesses were cross-examined at length but nothing was come out to disbelieve their statements. Statements of both the witnesses were recorded under section 164 Cr.P.C. by the Chief Judicial Magistrate, Pauri Garhwal and there is no contradiction in their statements recorded in the trial Court. 15. The learned counsel for the appellant assailed the statements of witnesses recorded under section 164 Cr.P.C. on the ground that these statements were recorded after undue delay and no explanation has been given by the prosecution for such a delay. The occurrence had taken place on 13.10.1983 whereas the statement of witness Surendra Singh was recorded on 31.10.1983 and statement of witness Ram Singh was recorded on 1.11.1983 under section 164 Cr.P.C. by the Chief Judicial Magistrate. No doubt the statements of witnesses under section 164 Cr.P.C. were recorded with a delay of about 17 days but these statements have a little evidentiary value, in view of the fact that P.W.1 Ram Singh and P.W.2 Surendra Mani were appeared in the witness box before the trial Court anp made statement on oath there. Thus the defence has got no help even the statements under section 164 Cr.P.C. were recorded with some delay. 16. So far the argument of the counsellor the appellant with regard to the motive of the accused to commit crime is concerned, there is ocular testimony of the witnesses regarding the incident and in such a case description of motive by the prosecution witnesses is not at all necessary. 17. Apex Court in the case Mani Kumar Thapa v. State of Sikkim (2002) 7 SCC 157 has held as under: "It is a well-settled principle in law that in a trial for murder, it is neither an absolute necessity nor an essential ingredient to establish corpus delicti. The fact of the death of the deceased must be established like any other fact. Corpus delicti in some cases may not be possible to be traced or recovered. The fact of the death of the deceased must be established like any other fact. Corpus delicti in some cases may not be possible to be traced or recovered. There are a number of possibilities where a dead body could be disposed of without a trace, therefore, if the recovery of the dead body is to be held to be mandatory to convict an accused, in many a case the accused would manage to see that the dead body is destroyed- which would afford the accused complete immunity from being held guilty or from being punished. What is therefore required in law to base a conviction for an offence of murder is that there should be reliable and plausible evidence that the offence of murder like any other factum of death was committed and it must be proved by direct or circumstantial evidence albeit the dead body may not be traced. Therefore, the argument that in the absence of corpus delicti the prosecution case should be rejected, cannot be accepted. Similar fate will follow the argument that in the absence of any specific motive there can be no conviction. 18. In the instant case there is ocular testimony of two witnesses who consistently deposed that it was the accused Meharban Singh alias Mehru who caught hold deceased Pitamber Singh and charged gun shot on his chest due to which he died at the spot. 19. The learned counsel for the appellant drew our attention towards the written report where informant Ram Singh has made no description of missing of Rs. 40/- from his pocket. However, this witness has mentioned in his statement before the Magistrate under section 164 Cr.P.C. and in his statement before the trial Court that Rs. 40/- were missing from his pocket which were recovered from the pocket of deceased Pitamber Singh. He stated as under: 20 .The ocular testimony of the occurrence thus apply make it clear that the accused committed the murder as he was annoyed from the deceased as missing money of Ram Singh was recovered from his pocket. 21. P.W.2 Surendra Mani has made similar statement before the trial Court. He stated as under: 22. The learned counsel for the appellant further submitted that Surendra Mani (P.W.2) has been planted by the prosecution as eyewitness of the occurrence when actually he was not present at the place of occurrence. 21. P.W.2 Surendra Mani has made similar statement before the trial Court. He stated as under: 22. The learned counsel for the appellant further submitted that Surendra Mani (P.W.2) has been planted by the prosecution as eyewitness of the occurrence when actually he was not present at the place of occurrence. He urged that informant Ram Singh mentioned in the F.I.R. that after leaving three- wheeler at Mavakot, he and Surendra Mani had gone to their homes. The informant further came to Mavakot Chauraha for his personal work. However, there is no mention that Surendra Mani also returned to Mavakot Chauraha. In this respect P.W.2 Surendra Mani has clearly stated in his statement on oath that when they reached Mavakot Chauraha Ram Singh had gone to his house but Meharban Singh and Guddu demanded Beeri from him and he stayed along with them on the Pulia. He stated as under : 23. From the above statement it is amply clear that Surendra Mani had not gone to his house but he remained sitting with the accused and Guddu at the Pulia at Mavakot Chauraha. The informant under wrong impression has mentioned that Surendra Mani had also gone to his house after leaving three-wheeler at Mavakot Chauraha. Thus in view of the statement of P.W.2 Surendra Mani on oath, the argument of the learned counsel for the appellant in this respect, cannot be accepted. 24. So far as the intention to cause death is concerned, it is determinative from nature of injury, part of body where it is caused, weapon used in causing such injury. In the present case accused fired gun shot by a country made pistol by placing it on the chest of the deceased and as such it cannot be said that the accused had no intention to cause death of the deceased. The accused had full knowledge that gun shot injury on the chest would certainly cause the death of Pitamber Singh and thus the act of the accused fully satisfies the ingredients of Section 302 I.P.C. 25. F.I.R. of the incident was lodged promptly by P.W.1 Ram Singh. He stated that he after travelling on foot for two hours reached to the Police Station and submitted report there. F.I.R. of the incident was lodged promptly by P.W.1 Ram Singh. He stated that he after travelling on foot for two hours reached to the Police Station and submitted report there. The accused is named in the F.I.R. ingredients of the complained offence are disclosed and there is no material to show that the F.I.R. is mala fide, frivolous or vexatious; 26. The accused-appellant is a habitual offender and according to the Investigating Officer he was tried and punished in several Criminal cases. Thus we find that the learned Sessions Judge was quite justified to convict and sentence the accused for the offence punishable under section 302 IPC. 27. The appeal lacks merit and is hereby dismissed.