JUDGMENT Honble A. Mateen, J.—Appellants Nokhey, Shyamu, Chhedi and Gokul preferred this appeal against the judgment and order dated 25.11.1981 passed by IIIrd Additional Sessions Judge, Unnao in Sessions Trial No. 352 of 1981 convicting and sentencing the appellants as under : Nokhey : Under Section 302, IPC to life imprisonment and under Section 148, IPC to two years R.I.; Shyamu : under Section 302, IPC read with Section 149, IPC to life imprisonment and under Section 147, IPC to one years R.I.; and Chhedi : under Section 302, IPC read with Section 149, IPC to life imprisonment and under Section 147, IPC to one years R.I. 2. Appellant Gokul son of Jiya Lal died during the pendency of the appeal and by order dated 25.9.2007 appeal on his behalf was ordered to abate. It is also pertinent to mention here that one Hira Lal was also charged under Section 302, IPC read with Section 149, IPC and Section 147, IPC but he was acquitted by the learned trial Court. 3. The prosecution story as narrated in FIR is to the effect that deceased Shiv Prasad, brother of complainant Gokul, son of Chokhey Lal, was involved in a murder case of one Shanker, brother of accused appellant Shyamu. Deceased Shiv Prasad was tried for the murder of Shanker, but was acquitted. Since then Gangaram and his associates harboured enmity with Shiv Prasad and were after his life. On 17.4.1980, Gangaram had assaulted deceased Shiv Prasad with a Bhala with the intent to kill him. FIR of the incident was lodged under Section 308, IPC. This aggravated the bad blood between Gangaram and his uncle and the complainants family members. Further recital in the FIR is that two days prior to the date of incident accused-appellant Nokhey had uprooted the pegs from the door of the complainant and had tried to forcibly occupy his land. Altercations ensued between accused-appellant Nokhey and deceased Shiv Prasad. Nokhey cautioned Shiv Prasad that some day he (Nokhey) would commit his murder. 4. On the fateful day i.e. 2nd June, 1980 at about 10:00 PM Shiv Prasad was going towards south of the village to ease himself. Suddenly, accused-appellant Nokhey armed with a Gandasa, accused Hira Lal (acquitted accused), accused-appellant Shyamu and accused-appellant Chhedi, sons of Bisshu and Gokul (since deceased) armed with lathi suddenly emerged from the guava grove of Babu Lal. On the fateful day i.e. 2nd June, 1980 at about 10:00 PM Shiv Prasad was going towards south of the village to ease himself. Suddenly, accused-appellant Nokhey armed with a Gandasa, accused Hira Lal (acquitted accused), accused-appellant Shyamu and accused-appellant Chhedi, sons of Bisshu and Gokul (since deceased) armed with lathi suddenly emerged from the guava grove of Babu Lal. They uttered that Shiv Prasad be done to death. Upon this, deceased Shiv Prasad made hue and cry. On hearing his alarm, Gokul Prasad (PW-1), Dwarika (PW-2), Bhure (PW-3), Kalicharan (PW-4), one Babu Lal (not examined by the prosecution) along with other villagers rushed the spot armed with lathi and torches. Meanwhile, all the accused fell down deceased Shiv Prasad. Shyamu and Chhedi pressed the legs of deceased Shiv Prasad, whereas Gokul and Hira Lal caught both his hands and Nokhey severed the neck of deceased Shiv Prasad. The complainant and the witnesses admonished the accused, but were threatened with similar treatment. Nokhey took the head of deceased Shiv Prasad, whereas the other accused grabbed his headless body and threw it near the grave of Shanker. Accused-appellant fled towards river Ganges with the Gandasa and the head of deceased Shiv Prasad. A frantic search in vain was made for the head of deceased Shiv Prasad. On account of fear of the accused, complainant did not lodge FIR on the same night. 5. Complainant Gokul Prasad scribed the written report (Exhibit Ka-1) and lodged it at police station Gangaghat, district Unnao on 3.6.1980 at 8:35 AM. The distance of the police station from the place of incident is six miles. 6. Investigation was entrusted to S.I. Manohar Singh. He recorded the statement of complainant Gokul at the police station itself and on the same day proceeded for the place of the incident. He found headless body of deceased Shiv Prasad lying near the grave of Shanker. He prepared inquest report (Exhibit Ka-2), photo lash (Exhibit Ka-7) and other documents. He seized the blood stained clothes (Bush-shirt and Tahmad) of deceased Shiv Prasad and prepared recovery memo (Exhibit Ka-10). He also collected from the spot plain and blood stained earth and sealed them into separate containers and prepared recovery memo (Exhibit Ka-3). He sent the body of deceased Shiv Prasad for post-mortem. He also made an attempt to recover the head of the deceased, but could not get it. He also collected from the spot plain and blood stained earth and sealed them into separate containers and prepared recovery memo (Exhibit Ka-3). He sent the body of deceased Shiv Prasad for post-mortem. He also made an attempt to recover the head of the deceased, but could not get it. He searched for the accused, who remained untraceable. 7. Accused-appellant Nokhey surrendered on 18.6.1980. Subsequently on 27.11.1980, accused-appellant Chhedi, Gokul and Shyamu surrendered. Acquitted accused Hira Lal was arrested on 23.6.1980. 8. After completing investigation, the investigating officer submitted charge sheet on 30.8.1980 (Exhibit Ka-12). 9. Dr. R. R. Acharya (PW-6) conducted post-mortem examination of the body of the deceased on 4.6.1980 at 10:30 AM. He found the following ante-mortem injuries on the person of the deceased : (1) incised wound with multiple wounds on and around injury 10 cm x 13 cm on the neck. Fifth cervical vertebra was cut transversely from middle. Head was missing and the cut was complete. (2) Incised injury on the left finger tip 1.5 cm x 0.2 cm x bone deep (3) Abrasion on right hand 2 cm x 1.5 cm on the dorsum. (4) Abrasion on the middle right leg 3 cm x 2cm 10. On internal examination, the doctor found that trachea was cut at the fifth vertebra. Blood vessels and esophagus were also cut. Stomach was empty. Small intestine contained semi digested food towards the end and large intestine contained faecal matter together with gases. 11. In the opinion of the doctor, the duration of death was about one to two days, which was caused due to shock and haemorrhage and also due to chopping off the head. He further opined that injury No. 1 in the ordinary course was sufficient to cause death. In his opinion, injuries No. 1 and 2 could be caused by a Gandasa and the other injuries could be the result of fiction against hard substance. In his cross-examination, the doctor opined that there could be a variation of six hours either way in the time of death and admitted that ordinarily vegetarian food is digested within six to eight hours. 12. The case was committed to the Court of Session in the usual manner where the accused-appellants were charged as mentioned herein before. 13. In his cross-examination, the doctor opined that there could be a variation of six hours either way in the time of death and admitted that ordinarily vegetarian food is digested within six to eight hours. 12. The case was committed to the Court of Session in the usual manner where the accused-appellants were charged as mentioned herein before. 13. The prosecution case found favour with the learned trial Court, who convicted and sentences the appellants along with Gokul (since deceased) in the manner stated above. 14. Feeling aggrieved against their conviction and sentence, the present appeal has been preferred by the accused. 15. To prove its case, the prosecution examined six witnesses. Out of them, Gokul son of Chokhey Lal (PW-1), is brother of deceased Shiv Prasad and is an eye-witness. Dwarika (PW-2), Bhure (PW-3) and Kalicharan (PW-4) are also eye-witnesses of fact. S.I. Manohar Singh (PW-5) investigated the case and submitted charge sheet against the accused. Dr. R.R. Acharya (PW-6) conducted the post-mortem and prepared post-mortem report of the deceased. 16. The accused-appellants pleaded not guilty and claimed to be tried. Their defence was that they have been falsely implicated due to enmity. 17. Before proceeding further, it is pertinent to mention it here Dwarika (PW-2), Bhure (PW-3) and Kalicharan (PW-4) were declared hostile and were cross-examined by the prosecution. 18. In his statement, complainant Gokul son of Chokhey Lal (PW-1), has stated that accused Hira Lal, Shyamu and Chhedi are real brothers and accused Gokul is son of accused Shyamu. Accused Nokhey was also resident of his village and he knew all the accused since before. Shanker, (brother of accused Shyamu) for whose murder deceased Shiv Prasad was tried, but was acquitted. He proved the enmity between the parties on account of murder of Shanker. He deposed about the incident in which Gangaram, son of aforesaid Shanker had assaulted deceased Shiv Prasad with a Bhala about which FIR was lodged by complainant Gokul against him. He also deposed about the manner of the incident in which deceased Shiv Prasad was murdered. In his statement, this witness deposed that besides him, Dwarika, Bhure and Kalicharan reached the spot flashing their torches and had witnessed the incident. In his cross-examination, Gokul (PW-1) admitted that both the hands of acquitted accused Hira Lal were weak since his childhood. He also deposed about the manner of the incident in which deceased Shiv Prasad was murdered. In his statement, this witness deposed that besides him, Dwarika, Bhure and Kalicharan reached the spot flashing their torches and had witnessed the incident. In his cross-examination, Gokul (PW-1) admitted that both the hands of acquitted accused Hira Lal were weak since his childhood. He admitted that in the FIR he did not mention that he had neither witnessed nor had mentioned about the fact of he having a torch at the time of the incident. He explained the above admissions by saying that it would not have come to his mind. He also admitted that neither he nor the other witnesses had shown the torches to the investigating officer. 19. This witness has comprehensively stated about the manner in which deceased Shiv Prasad was butchered by the accused-appellants. The defence has utterly failed to extract anything from the evidence of this eye-witness, which could prove this witness to be unworthy of credence. His testimony is unshaken and inspires confidence. 20. Dwarika (PW-2) as mentioned above has been declared hostile. His evidence shows that he has admitted the factum of five persons having overpowered the deceased. He stated that he could not identify the persons, who had caught the deceased, but further states that out of those five persons, one of them had severed the neck of the deceased. He admitted the presence of witnesses Bhure, Kalicharan and Gokul on the spot at the time of incident. He also deposed that four accused had picked away the headless body of deceased and threw it near the grave of Shanker. He also stated in his cross-examination that he had seen that the person, who had severed the head of the deceased, had cut it with a Gandasa. He deposed that he had a torch having three battery-cells. He deposed that when he heard the voice of deceased Shiv Prasad, who was screaming for help lest he would be killed, he ran towards the place of the incident. 21. So far as Bhure (PW-3) and Kalicharan (PW-4) are concerned, they have denied being a witness of the incident or being present at the place of the incident. As mentioned above, these witnesses have also been declared hostile. 22. S.I. Manohar Singh (PW-5) and Dr. 21. So far as Bhure (PW-3) and Kalicharan (PW-4) are concerned, they have denied being a witness of the incident or being present at the place of the incident. As mentioned above, these witnesses have also been declared hostile. 22. S.I. Manohar Singh (PW-5) and Dr. R.R. Acharya (PW-6) are formal witnesses and since we had already made a mention of their evidence in the foregoing paragraphs, we need not burden our judgment by repeating it in detail. 23. Before proceeding furthermore, it may be mentioned that the prosecution has been able to establish motive for the accused-appellants and the acquitted-appellant to commit murder of Shiv Prasad. Admittedly, the accused-appellants Nokhey, Shyamu and Chhedi, deceased accused-appellant Gokul and acquitted-appellant Hira Lal are relatives. The evidence of Gokul, PW-1 corroborates the F.I.R. so far as motive is concerned. In the F.I.R. as well as in the evidence of Gokul, PW-1 it has come that Shanker, brother of accused-appellant Shyamu was murdered and deceased Shiv Prasad was tried for the murder of Shanker. However, the trial ended in acquittal. His evidence further shows that Gangaram son of Shanker had tried to make an attempt on the life of Shiv Prasad with a Bhala with a view to revenge his fathers murder. F.I.R. of this incident was also lodged against Gangaram. Under Section 308, IPC. Two days prior to the incident, accused-appellant Nokhey had uprooted the pegs from the door of this witness with a view to usurp his land and in the resultant altercation, Nokhey had challenged Shiv Prasad that some day he would commit his (Shiv Prasad) murder. The prosecution case, thus, from the very inception was that the accused-appellants were harbouring enmity with the family of the complainant and particularly deceased Shiv Prasad and the murder of Shiv Prasad was result of this enmity between the parties. Rather, the defence of the accused-appellants in their statements recorded under Section 313, Cr.P.C also is that they have been falsely implicated on account of enmity. Thus the motive for the commission of the crime is not only strong but is consistent from the very inception and the defence has not been able to disprove it. This motive also finds mention in the First Information Report and Gokul (PW-1) has in unequivocal terms stated about the motive for the appellants to have committed the murder. Thus the motive for the commission of the crime is not only strong but is consistent from the very inception and the defence has not been able to disprove it. This motive also finds mention in the First Information Report and Gokul (PW-1) has in unequivocal terms stated about the motive for the appellants to have committed the murder. We may also observe that in a case of direct evidence, motive takes a back seat. Our view is in consonance with the observations made by the Apex Court in the case of Santosh @ Santukrao v. State of Maharashtra, JT 2007 (7) SC 223. 24. It is necessary to refer to the pivotal argument of Sri Singh, learned Counsel for the appellants that Gokul (PW.1) is the sole eyewitness in the present case and no conviction should be based on the testimony of sole eyewitness who cannot be described as wholly reliable. 25. In the case of Vadivelu Thevar v. State of Madras, AIR 1957 SC 614 the Apex Court had the opportunity to go into this controversy and it was held that in such a situation, corroboration would be required. In a recent decision in the case of Kanju @ Balchandran v. State of Tamil Nadu, JT 2008 (1) SC 450, the Apex Court has considered the questions of reliability of sole eye-witness and if conviction can be based on the testimony of a sole eyewitness. It was held by the Apex Court that as a general rule the Court can and may act on the testimony of a single witness provided he is wholly reliable. There is no legal impediment in convicting a person on the sole testimony of a single witness. That is the logic of Section 134 of the Indian Evidence Act, 1872. But if there are doubt about the testimony, the Courts will insist on corroboration. It is not the number; the quantity, but the quality that is material. The time honoured principle is that evidence has to be weighed and not counted. 26. As noticed above, the prosecution has examined four eyewitnesses. Out of them Dwarika, PW-2, Bhure PW-3 and Kalicharan PW-4 have turned hostile. Thus, we are left with the testimony of Gokul, PW-1. This witness has narrated the incident. He has also proved the enmity between the warring parties. 26. As noticed above, the prosecution has examined four eyewitnesses. Out of them Dwarika, PW-2, Bhure PW-3 and Kalicharan PW-4 have turned hostile. Thus, we are left with the testimony of Gokul, PW-1. This witness has narrated the incident. He has also proved the enmity between the warring parties. He explicitly stated about the murder of Shanker for whose murder deceased Shiv Prasad was tried. However, the trial ended in acquittal of deceased Shiv Prasad. He has also stated that Gangaram, son of Shanker, had assaulted deceased Shiv Prasad with a Bhala of which FIR was also lodged. By the complainant against him. This witness has also narrated the incident of uprooting of pegs by accused-appellant Nokhey in which hot words were exchanged between Nokhey and deceased Shiv Prasad and Nokhey had declared that some day he would murder him (Shiv Prasad). The witness has further stated that on the day of the incident, while he was at his house, he heard shrieks of deceased Shiv Prasad. He ran towards the side where-from the noise was emitting along with a torch. He flashed the torch towards the side of the noise. He saw Shiv Prasad was caught hold by the accused persons in the field of Mahavir. Accused Nokhey had a Gandasa in his hands while the remaining accused persons were having lathis. Deceased Shiv Prasad was knocked down on the ground. Accused Shyamu and Chhedi had caught hold his legs while Gokul and Hira had caught both his hands and accused Nokhey chopped off his head. He also stated that the incident was witnessed by Dwarika, Bhure and Kalicharan in the light of their torches. The accused persons were challenged by the witnesses who retorted that if they dared to come near, they would also meet the same fate. Thereafter, Nokhey took the severed head of deceased Shiv Prasad and the remaining accused lifted his headless body. They threw the headless body of Shiv Prasad near the grave of Shanker. Nokhey fled away with the weapon of assault, i.e. Gandasa and the head of deceased Shiv Prasad towards river Ganges. This witness also stated in his evidence that they made a search for the head of the deceased but could not get it. They threw the headless body of Shiv Prasad near the grave of Shanker. Nokhey fled away with the weapon of assault, i.e. Gandasa and the head of deceased Shiv Prasad towards river Ganges. This witness also stated in his evidence that they made a search for the head of the deceased but could not get it. Out of fear of the accused, he did not go to the police station to lodge the report and on the next morning he lodged written report at the police station. 27. The manner and time as suggested in the F.I.R and as narrated by this witness finds support from the medical evidence on record. We need not reiterate the evidence of the doctor who conducted the post-mortem on the body of deceased Shiv Prasad. Suffice to mention it here that the doctor had found the trachea cut at the fifth vertebra. In the opinion of the doctor, injuries No. 1 and 2 could be caused by a Gandasa and the remaining two injuries could be result of friction against hard substance. The doctor had specifically stated that death could have occurred about on 2.6.1981 at about 10.00 PM. He also stated that injury No. 1 was sufficient in the ordinary course to cause death. 28. We have analyzed the evidence of this witness and we find it to be cogent, credible and trustworthy. His testimony inspires confidence and has stood the litmus test of truthfulness and veracity. The defence has not been above to extract anything from the evidence of this witness to prove him unworthy of credence and, in our considered opinion, it would be safe to record finding of guilt against the appellants on his sole testimony. 29. Learned Counsel for the appellants also argued that the learned trial Court has erred in convicting and sentencing the appellants by placing reliance on the evidence of Dwarika,(PW-2). In essence, his argument was that the evidence of a hostile witness cannot have corroborative value and thus cannot be considered for convicting the appellants. This argument of learned Counsel for the appellants has to be rejected outright in view of the law enunciated by the Apex Court in a series of cases. Declaration of a witness to be hostile does not ipso facto reject his evidence and does not get wiped out in toto. This argument of learned Counsel for the appellants has to be rejected outright in view of the law enunciated by the Apex Court in a series of cases. Declaration of a witness to be hostile does not ipso facto reject his evidence and does not get wiped out in toto. It can very well be relied upon in part to the extent it corroborates the prosecution version. All that has to be done is that the Court should be extremely cautious and circumspect in such acceptance. Our this view is in consonance with the decisions of the Apex Court in the following cases : (1) Rabindra Kumar Dey v. State of Orissa, (1976) 4 SCC 233 ; (2) Balram Prasad Agarwal v. State of Bihar, (1997) 9 SCC 338 ; (3) Ram Swaroop v. State of Rajasthan, (2004) 13 SCC 134 ; (4) R. Prakash v. State of Karnataka, (2004) 9 SCC 27 ; 30. As mentioned above, evidence of Dwarika (PW-2), who has also been declared hostile, proves the presence of Gokul (PW-1) at the time and place of the occurrence. It also corroborates the manner, time and place of the occurrence as narrated in the F.I.R. and stated by Gokul (PW-1) in his evidence. It also establishes the source of light, i.e. torches in possession of the witnesses. It proves that in the light of the torch, the incident was witnessed by the witnesses. Thus, in our considered view, the submission of learned Counsel for the appellants that the prosecution case becomes suspicious because three eye-witnesses out of four have resiled from the earlier statement made by them in the course of investigation, has no legs to stand and has to be rejected outright. Evidence of this hostile witness can safely be relied upon with a cautious approach. We have exercised this caution, and are of the view that his statement to the extent of establishing the presence of Dwarika (PW-1) on the spot, the manner of the incident, and source of light etc. etc. can very well be relied upon. 31. Evidence of this hostile witness can safely be relied upon with a cautious approach. We have exercised this caution, and are of the view that his statement to the extent of establishing the presence of Dwarika (PW-1) on the spot, the manner of the incident, and source of light etc. etc. can very well be relied upon. 31. The next limb of argument of Sri Singh, learned Counsel for the appellants was that since the investigating officer had not seized the torches and has not prepared recovery memo, as such, so far as presence of torch light is concerned, the prosecution case becomes doubtful to the extent that the incident was witnessed by the eye-witnesses in the torch light in the manner as alleged by the prosecution. This argument of the learned Counsel for the appellants has no legs to stand. The effect of such a contradiction or discrepancy in the investigation may have to be viewed in the light of the facts and circumstances of each case. The consequence of such discrepancy or defective or doubtful investigation would not necessarily discredit the main prosecution case and if the prosecution evidence inspires confidence and circumstances lead to such a conclusion and the prosecution story rings true, the same cannot be thrown aside. [See Dharmendrasinh v. State of Gujarat, (2002) 4 SCC 679 . In the case of Benjamin v. State Rep. by Inspector of Police, JT 2008 (1) SC 511, their Lordships of the Apex Court have held that none seizure of torch and cycle would not be a ground to disbelieve the witness. As we have noticed above, such a discrepancy in the investigation would not demolish the prosecution case in entirety and consequence of defective investigation has to be judged in the facts and circumstances of each case. So far as the case in hand is concerned, the prosecution evidence has the ring of truthfulness and its credibility cannot be doubted and if there was any slackness on the part of the investigating officer, inasmuch as he failed to inspect the torches of the witnesses or non-production of the torches, would not vitiate the prosecution case, which otherwise is reliable and trustworthy. It is pertinent to mention it here that even Dwarika (PW-2) who was declared hostile, has stated that the witnesses had torches in their hands and had witnessed the incident in torch light. It is pertinent to mention it here that even Dwarika (PW-2) who was declared hostile, has stated that the witnesses had torches in their hands and had witnessed the incident in torch light. So far as the argument of learned Counsel for the appellants that F.I.R. was delayed and cannot have corroborative value, it may be mentioned that Gokul (PW-1) has explained the delay in lodging the F.I.R. by stating that due to fear of the accused persons, he could not proceed for the police station since it was 10 OClock in the night. This statement of Dwarika (PW-1) in the circumstances of the case, is quite natural that after being a witness to such a gruesome murder, he could not muster courage to proceed to the police station. It was scribed and lodged the very next morning i.e. on 3.6.1981 at 08.35 AM. The distance of the police station from the spot was 6 six miles. In our opinion, the delay in lodging the F.I.R. has been explained reasonably and it cannot be said to be fabricated. It has all the ingredients of being a truthful first information of the incident. It mentions the motive for the crime; the presence of the witnesses and the manner of the incident which finds corroboration from the evidence of Gokul (PW-1) and hostile witness Dwarika (PW-2) and the medical evidence on record. 32. So far as the argument of Sri Singh, learned Counsel for the appellants that the witnesses were inimical, suffice to mention that the defence has not been able to allay the anxiety of the eyewitnesses to get the real culprit punished. In any event the witnesses would not have falsely involved persons whom they knew since before had they not seen the occurrence. 33. The crux of observations made above is that the prosecution has been able to prove its case against the appellants beyond the shadow of doubt. First Information Report of the incident mentions all the necessary details. The testimony of Gokul (PW-1) and Dwarika (PW-2) to the extent he supported the prosecution case is reliable and is consistent with the FIR version; the factum of the incident as spelt in the FIR has been unblemishly narrated by Gokul (PW-1). The date, time and place of the incident is also established beyond doubt by the medical evidence on record. The date, time and place of the incident is also established beyond doubt by the medical evidence on record. The motive suggested by the prosecution for the appellants to commit the murder is strong and stands proved. 34. In the result, the appeal fails and is accordingly dismissed. The appellants are in jail. They shall serve out the sentence awarded to them by the trial Court. 35. The lower Court record shall be transmitted back within a fortnight. ————