JUDGMENT [Per : Hon’ble Nirmal Yadav, J.] The State of Uttar Pradesh, now State of Uttarakhand, has filed the abovementioned appeal bearing no. 82 of 2001 and complainant Het Ram has filed revision bearing no. 359 of 2001 challenging the judgment dated 06.11.1996 passed by Additional Sessions Judge, Nainital, acquitting the respondents accused Ashok Saxena and Yash Pal Singh of the charges punishable under section 302 Indian Penal Code and under section 302 IPC read with section 34 IPC framed against them respectively. 2. The prosecution story as unfolded in the First Information Report, which was recorded on the statement of PW1 Het Ram vide statement exhibit Ka-1 is that Het Ram (complainant) and the accused Yash Pal Singh are next door neighbours. House of accused Ashok Saxena is in the Transmission Colony and there is only a road between this colony and Hydel Colony where complainant was residing. Joginder Singh, son of the complainant, had been going to Kichcha for learning typing and Surendra Sihgh, son of Yash Pal Singh was also going to learn typing at the same place. Two days prior to the occurrence, Surendra Singh and Joginder Singh (PW2) had some altercations. Joginder Singh disclosed this fact at home, therefore, Maan Singh, nephew of complainant Het Ram, made complainant to this effect to accused Yash Pal Singh. On this account, in the evening Surendra Singh gave beatings to Joginder Singh in the colony. Accordingly, Het Ram made a complainant to his senior officers in this regard. On 25.06.1992 Maan Singh accompanied Joginder Singh to the typing shop. On the way they met accused Ashok Saxena and Yash Pal Singh, who were coming on scooter. They exhorted that since complaints were made every day against them, therefore, they would be taught a lesson on that day. However, Maan Singh as well as Joginder Singh escaped from the spot and reached home. They disclosed the entire matter to deceased Yashoda Devi, the complainant’s wife. Meanwhile, Ashok Saxena and Yash Pal Singh also came to their house and while standing outside they started hurling abuses. In the meantime, Het Ram also came back home after his duties. He was accompanied by Chandra Shekhar, resident of village Kishanpura. He asked both of the accused not to hurl abuses. But both the accused came in an angry mood. In the meantime, Het Ram also came back home after his duties. He was accompanied by Chandra Shekhar, resident of village Kishanpura. He asked both of the accused not to hurl abuses. But both the accused came in an angry mood. Accused Ashok Saxena was carrying a knife while Yash Pal Singh was carrying a hockey. Both of them ran after Het Ram who went inside his house. Both the accused chased and entered the house of Het Ram. At that time, there was no electricity but candles were emitting light in the house of Het Ram. When Yashoda Devi, wife of Het Ram tried to intervene, accused Yash Pal Singh caught hold the hands of Yashoda Devi and Ashok Saxena gave one stab injury in the stomach of Yashoda Devi, who fell down, after receiving injury. The complainant tried to catch hold of both the accused but they ran away. 3. This occurrence took place at 07.45 p.m. The complainant removed his wife to the hospital in a rickshaw. The medical officer of Primary Health Centre, Kichcha informed about the incident to Incharge, Police Station Kotwali vide exhibit Ka-14 at 08.20 p.m. which was received in the police station at 08.40 p.m. A report in this regard was entered in GD No. 46 (exhibit Ka-13) that wife of Het Ram, who had received one stab injury has been admitted in the Hospital. Yashoda Devi was declared dead by the doctors in the hospital. Thereafter, Het Ram sent to the police station and submitted a written report exhibit Ka-1 on the basis of which chick First Information Report exhibit Ka-11 was recorded at 09.40 p.m. The investigation was handed over to PW3 Sub Inspector Surendra Singh. He reached the hospital after receiving exhibit Ka-14. He conducted the inquest report, which is exhibit Ka 2 along with other papers exhibit Ka 3 to Ka 8. He recorded the statements of the witnesses and inspected the spot on 26.06.1992 and prepared scaled site plan (exhibit Ka 9) and arrested the accused. Dead body was handed over to doctor. 4. Postmortem (exhibit Ka-5) was conducted by Dr. Anil Kumar Tiwari on 26.06.1992 at 12.30 noon, who found the following : (i) Incised wound 3 cm x ½ cm x cavity deep on the left side of abdomen towards the mid cavity line, obliquely placed 10 cm above the mid clavicle line. 5. Dead body was handed over to doctor. 4. Postmortem (exhibit Ka-5) was conducted by Dr. Anil Kumar Tiwari on 26.06.1992 at 12.30 noon, who found the following : (i) Incised wound 3 cm x ½ cm x cavity deep on the left side of abdomen towards the mid cavity line, obliquely placed 10 cm above the mid clavicle line. 5. On internal examination of the injury all the muscles, cartilages and the abdominal cavity and left side lobe of the liver were found cut. Right ventricle of the heart was full of blood while left ventricle of the heart was empty. About 1.5 litres blood was present in the abdominal cavity. Abdomen contained some semi digested food. As per the opinion of the doctor, cause of death was shock and haemorrhage due to ante-mortem injuries. As per doctor, death could have been caused during the night of 25.06.1992 and there could be a difference of 4-6 hour duration with regard to death. 6. On completion of the investigation, challans were submitted in the court and the court chargesheeted accused Ashok Saxena for the offence punishable under section 302 IPC and accused Yash Pal Singh for the offence punishable under section 302 IPC read with section 34 IPC to which they pleaded not guilty and claimed trial. 7. In order to prove its case, prosecution examined PW1 Het Ram (informant), PW2 Joginder Singh, son of Het Ram, PW3 SI Surendra Singh and PW4 Anil Kumar Tiwari, who conducted the autopsy. 8. Accused Ashok Saxena when examined under section 313 Cr.P.C. totally denied the incriminating evidence put to him by the prosecution. According to him, he was not present at the spot and at the time of occurrence he was in Mohalla Tanda, Rampur. Accused Yash Pal Singh when examined under section 313 Cr.P.C. denied the incriminating evidence put to him by the prosecution, however, he admitted that his son was going to learn typing but he did not know as to where Joginder Singh was learning typing. In defence he produced application Exhibit Kha 1 which was submitted by Het Ram on 09.09.1996 to his senior Departmental Authority stating that he should be allotted another quarter as he wanted to vacate the quarter, which was next to the quarter of Yash Pal Singh as accused Yash Pal Singh had murdered his wife. In defence he produced application Exhibit Kha 1 which was submitted by Het Ram on 09.09.1996 to his senior Departmental Authority stating that he should be allotted another quarter as he wanted to vacate the quarter, which was next to the quarter of Yash Pal Singh as accused Yash Pal Singh had murdered his wife. He also produced the affidavit of Chandra Shekhar who stated that he had not seen any incident. 9. We have heard learned counsel for the parties and perused the evidence on record. 10. Mr. Nandan Arya, learned AGA vehemently argued that findings of the court below are perverse and the court below has misinterpreted the evidence on record. He further argued that court below has ignored the eye witness account given by PW1 Het Ram (complainant) and PW2 Joginder Singh without any justification. Mr. Nandan Arya, learned AGA has stated that guilt of the accused is fully established, however, the court below ignored the eye witnesses account by relying upon minor discrepancies and held that their testimony is not trustworthy. Learned trial court has also held that First Information Report was not recorded promptly and has been recorded after a 10 delay of about one and a half hours. 11. Learned AGA argued that learned trial court has observed that accused Ashok Saxena, who is alleged to have caused fatal injury to the deceased, had no enmity with the complainant or his wife. It is also argued that learned trial court has wrongly held that time of occurrence, as per medical evidence, is different than the time of occurrence as stated by the complainant. Leaned trial court has erred to hold that there was no source of light, as Investigating Officer did not take into possession the candle, which was alleged to be emitting light at the place of occurrence. 12. Learned AGA submitted that the conclusions arrived at by court below is totally misconceived. According to him, there is no delay in lodging the FIR. The occurrence took place at 07.45 p.m. and immediately thereafter, complainant removed his wife to the hospital in a rickshaw, however, when his wife was declared dead in the hospital he went to the police station. He himself scribed the complaint after taking paper from a medical store situated in front of the hospital. The occurrence took place at 07.45 p.m. and immediately thereafter, complainant removed his wife to the hospital in a rickshaw, however, when his wife was declared dead in the hospital he went to the police station. He himself scribed the complaint after taking paper from a medical store situated in front of the hospital. It must have been the prime concern of the complainant to remove his wife immediately to the hospital, and thereafter, to report the matter to the police. He, therefore, prayed that appeal be allowed and the accused be convicted and sentenced for the offence for which they have been charged. 13. Prayer made by the learned AGA has been vehemently opposed by the learned counsel for the accused respondents. According to him, First Information Report has been reported after two hours and that too after due deliberations and consultations, which is evident from bare perusal of First Information Report that it has been scribed after due deliberations. He further argued that the prosecution has failed to prove as to why accused Ashok Saxena would cause injury to Yashoda Devi, wife of the complainant, as he had no grouse or any enmity on account of which he would commit such a heinous crime. He further stated that there was no source of light and admittedly there was no electricity at the relevant time and it is quite possible that murder might have been committed by some unknown persons and accused Ashok Saxena and Yash Pal Singh have been falsely implicated on account of enmity. Learned counsel argued that in appeal where two views are possible one favouring the accused should be upheld by the appellate court. 14. On hearing the learned counsel for the parties and perusal of entire evidence on record, this court is of the opinion that judgment passed by the trial court is perverse having been passed contrary to the evidence on record. It also reflects misreading and misinterpretation of the evidence. Learned trial court has given too much importance to the fact that First Information Report has been lodged after a delay of 1½ hours. In the present case admittedly, memo exhibit Ka 14 which was sent by the doctor at 08.20 p.m., had been received in the police station at 08.40 p.m. and entry to this effect had been made in GD No. 46 (exhibit Ka 13). In the present case admittedly, memo exhibit Ka 14 which was sent by the doctor at 08.20 p.m., had been received in the police station at 08.40 p.m. and entry to this effect had been made in GD No. 46 (exhibit Ka 13). After injuries were caused to Yashoda Devi by the accused, the complainant must have arranged some vehicle for removing his wife to the hospital. He reached the hospital at 08.20 p.m., where Yashoda Devi was declared dead by the doctor and thereafter, he left the dead body in the hospital and went to police station Kichcha. He himself scribed the report exhibit Ka 1 after taking paper from the medical store and the report was lodged in the police station at 09.40 p.m. 15. To our mind there was no delay in lodging the First Information Report. Since Yashoda Devi received serious injuries it was the prime concern of the complainant to take her to the hospital instead of rushing to the police station. Since intimation had already been sent to the police station by the doctor complainant must have reasonably expected that police on receipt of intimation would come to investigate the matter but even then he went to the police station to lodge the report. The information with regard to the incident had already been made to the police immediately after the occurrence, moreover, the accused were known to the complainant, thus, he had named both the accused and the manner in which occurrence took place in the First Information Report. 16. Delay per se is not fatal to the case of the prosecution. It only puts the Court on caution to analyze entire evidence in threadbare manner. If there exists sufficient evidence on record, which indicates towards the guilt of the accused, delay, if any, in recording the First Information Report, pales into shadow and has to be ignored. The Apex Court in the case of Ram Jag Vs. State of U.P. (1974) 4 SCC 201 has observed as under : “Whether the delay is so long as to throw a cloud of suspicion on the seeds of the prosecution case must depend upon a variety of factors. Even a long delay can be condoned if the witnesses have no motive for implicating the accused. State of U.P. (1974) 4 SCC 201 has observed as under : “Whether the delay is so long as to throw a cloud of suspicion on the seeds of the prosecution case must depend upon a variety of factors. Even a long delay can be condoned if the witnesses have no motive for implicating the accused. On the other hand, prompt filing of the report is not an unmistakable guarantee of the truthfulness of the version of the prosecution. It is true that witnesses cannot be called upon to explain every hour’s delay in filing information and a common – sense view has to be taken in ascertaining whether the first information report was lodged after an undue delay so as to afford enough scope for manipulating evidence.” 17. In the present case before reporting the matter to the police, medical treatment to Yashoda Devi was the prime concern of complainant Het Ram. He removed Yashoda Devi to the hospital where she was declared dead by the doctor. Both PW1 Het Ram and PW2 Joginder Singh have given consistent account of the manner in which occurrence took place. It is not disputed that both the accused are known to the complainant Het Ram and Joginder Singh. It has come in their evidence that 2 days prior to the occurrence, altercations took place between PW2 Joginder Singh and Surendra Singh, son of Yash Pal Singh accused at the place where both of them were learning typing. Therefore, Joginder Singh made complaint to his father. It has also come in the evidence that both the accused were close to each other and were in visiting terms. On the date of occurrence both the accused confronted PW2 Joginder Singh and his cousin Maan Singh while they were going to the typing shop stating that as to why they were making complaints and thereafter, accused, who were living close to the house of the complainant came and started hurling abuses. Meanwhile, complainant Het Ram came back from his duties. He was informed about all the facts. He objected as to why the accused were hurling abuses and thereafter, accused Ashok Saxena armed with knife and accused Yash Pal Singh armed with hockey ran after him, but complainant went inside his house. Accused also entered his house chasing him. Meanwhile, complainant Het Ram came back from his duties. He was informed about all the facts. He objected as to why the accused were hurling abuses and thereafter, accused Ashok Saxena armed with knife and accused Yash Pal Singh armed with hockey ran after him, but complainant went inside his house. Accused also entered his house chasing him. Yashoda Devi, wife of the complainant tried to intervene, thereupon, Yash Pal Singh caught hold of her hands and accused Ashok Saxena caused knife injuries to her. Both the eyewitnesses have been strenuously cross examined but nothing could be elicited to shatter their testimony except minor discrepancies like whether Yash Pal Singh was carrying a danda or a hockey. 18. The mere fact that both the eyewitnesses PW1 Het Ram and PW2 Joginder Singh are related to the deceased Yashoda Devi, the veracity and truthfulness of their testimony cannot be doubted. They have given vivid eyewitness account with regard to entire occurrence. The defence despite lengthy cross examination has failed to demolish their testimony. The evidence on record indicates that both the accused had preplanned to commit the offence as both the accused first confronted Joginder Singh and Maan Singh and thereafter, they started hurling abuses while standing outside the house of complainant and they came armed with a knife and a hockey. Thus, we are of the opinion that prosecution story is fully supported and corroborated by both the eyewitnesses PW1 Het Ram and PW2 Joginder Singh. 19. Learned trial court has given too much importance to the fact that accused Ashok Saxena had no prior enmity with the complainant, therefore, he had no motive to cause heinous crime to commit murder of complainant’s wife. It has come on the record that accused Ashok Saxena and Yash Pal Singh were very close to each other. However, there is nothing on record to suggest that complainant Het Ram or his son Joginder Singh had any enmity or any grouse against accused Ashok Saxena or even against accused Yash Pal Singh to falsely implicate them. It was 2 days prior to the occurrence, Surendra Singh, son of Yash Pal Singh and PW2 Joginder Singh, son of Het Ram had some altercations and thereafter, Surendra Singh had given beatings to Joginder Singh. It was 2 days prior to the occurrence, Surendra Singh, son of Yash Pal Singh and PW2 Joginder Singh, son of Het Ram had some altercations and thereafter, Surendra Singh had given beatings to Joginder Singh. On the date of occurrence in the evening both the accused confronted Joginder Singh and Maan Singh, who were going to the typing class and exhorted that they would be taught lesson for complaining against them and therefore, it is the accused who had a motive to commit the crime. 20. The other ground highlighted by the trial court for doubting the prosecution case while acquitting the accused is that there was no source of light, as the Investigating Officer has not shown any source of light in the site plan (exhibit Ka 9) nor he has taken any candle in possession from the spot. Learned counsel for the respondent accused also pointed out that the Investigating Officer has neither lifted the blood stained earth from the place of occurrence nor blood stained clothes of complainant or his son have been taken in possession. It is pointed that since they had removed deceased Yashoda Devi to the hospital their clothes must have been stained with blood. It is, therefore, argued that the above circumstances show that occurrence did not take place at the place and manner as stated by the prosecution. It was suggested that Yashoda Devi might have been murdered by someone else during the night time and accused have been falsely implicated. This argument of the learned counsel for the accused does not have any force in view of consistent and trustworthy testimony of PW1 Het Ram and PW2 Joginder Singh, who knew the accused being their neighbours. Thus, there is no question of mistaken identity. At the cost of repetition it may be mentioned that even a suggestion was not given to the complainant that he had any motive to falsely implicate the accused persons. Moreover, such like inadvertent mistake and minor discrepancies pointed out by the learned counsel for the accused have to be ignored because these discrepancies and mistakes do not go to the root of the case in view of ratio of judgment of Apex Court in the case State of Punjab Vs. Mela Singh AIR 2004 SC 257. 21. The testimony of eyewitnesses is fully supported by the medical evidence. Mela Singh AIR 2004 SC 257. 21. The testimony of eyewitnesses is fully supported by the medical evidence. As per the post mortem report only one stab injury has been found on left side of abdomen which has proved sufficient to cause death of the injured Yashoda Devi. Learned counsel for the respondents pointed out that as per opinion of the doctor, death might have taken place during the night time and there may be difference of duration of 4 to 6 hours on either side which shows that death could have taken place between 6.00 a.m. to 6.00 p.m. Learned counsel for the accused respondents further pointed out that since there was semi digested food in the stomach of the deceased, occurrence might have taken place during day time and at that time neither complainant Het Ram nor Joginder Singh was present. We do not find any substance in the submission of the learned counsel for the accused respondents and is not at all acceptable. A perusal of statement of PW4 Dr. Anil Kumar Tiwari shows that he conducted the postmortem on 26.06.1992 at 12.30 noon. He clarified in the cross examination that by saying that death had occurred within duration of one day means death must have been caused within 24 hours and there could be variation of 4-6 hours. Thus, from his statement it cannot be presumed that death was caused during day time on 25.06.1992. Moreover, the stand of the learned counsel for the respondent is contradictory. On the one hand, it is argued that death might have taken place during day time whereas a suggestion has been given to PW1 Het Ram as well as to PW2 Joginder Singh that Yashoda Devi might have been murdered by someone else during the dark hours of night. 22. The above discussion clearly indicates towards the guilt of the accused. Now, it is to be seen as to whether under the circumstances and evidence discussed above this court can interfere in the judgment of acquittal, which was passed in favour of accused respondents. The Apex Court in the case of Allarakha K. Mansuri Vs. State of Gujarat reported in 2002 (1) RCR (Criminal) 748 has held as under : “The paramount consideration of the court should be to avoid miscarriage of justice. The Apex Court in the case of Allarakha K. Mansuri Vs. State of Gujarat reported in 2002 (1) RCR (Criminal) 748 has held as under : “The paramount consideration of the court should be to avoid miscarriage of justice. A miscarriage of justice which may arise from the acquittal of guilty is no less than from the conviction of an innocent. In a case where the trial court has taken a view based upon conjectures and hypothesis and not on the legal evidence, a duty is cast upon the High Court to re-appreciate the evidence in acquittal appeal for the purposes of ascertaining as to whether the accused has committed any offence or not. Probable view taken by the trial court which may not be disturbed in the appeal is such a view which is based upon legal and admissible evidence. Only because the accused has been acquitted by the trial court, cannot be made a basis to urge that the High Court under all circumstances should not disturb such a finding.” 23. As noticed in earlier part of the judgment, there is no delay in lodging the First Information Report and prosecution has sufficiently explained delay in lodging the First Information Report. Eye witness account is more probable than the arguments raised by the counsel for the accused respondents. The trial Judge has misread the evidence on all accounts and has given too much importance to the minor technicalities while giving benefit of acquittal to the accused respondents. 24. A careful perusal of the evidence on record leads to the conclusion that respondents accused have committed the offence with which they have been charged. 25. In view of the above, government appeal no. 82 of 2001 and criminal revision no. 359 of 2001 are allowed. Judgment under challenge is set aside. Accused respondents Ashok Saxena is held guilty for the offence punishable under section 302 IPC while accused Yash Pal Singh is held guilty for the offence punishable under section 302 IPC read with section 34 IPC and are convicted accordingly. Both the accused respondents are sentenced to undergo imprisonment for life and are also ordered to pay fine of Rs. 5,000/- each and in default of payment of fine to further undergo imprisonment for 3 month each.