Pankaj Naqvi, J.— 1.Nine persons were put on trial in Sessions Trial No. 194 of 1980 by being charged with committing offences under Sections 147, 148, 302 and 302/149 I.P.C. and also under Section 201 I.P.C. by the learned Second Additional Sessions Judge, Banda. By Judgment dated 16.8.1982, eight accused persons except appellant Barey Lal Singh were acquitted of the above noted charges. The appellant Barey Lal was held guilty only of committing offence under Section 302 I.P.C. and was directed to suffer rigorous imprisonment for life. No sentence of fine was inflicted upon the appellant. The appellant has preferred the present appeal to challenge the correctness of the findings of guilt and appropriateness of the order of sentence dated 19.8.1982 passed by the learned trial Judge. 2.The short facts which led to the trial which ultimately resulted into the impugned Judgment, may be noticed. 3. It was stated by the P.W. 1 Santosh Kumar, who happended to be the son of deceased Pitamber Lal, that while his father was sitting in the sun near the dilapidated well, all the nine accused persons named in the F.I.R. including the present appellant came there. Appellant Barey Lal Singh was armed with a licensed gun whereas acquitted accused Sabal Singh and Shatrughan were carrying bhala and other accused persons were armed with lathis. All the accused persons surrounded the deceased and confronted him by stating him as to how he was accusing them of committing theft of a bullock cart. It is stated that accused Ram Kripal remonstrated others to kill the deceased upon which the deceased raised a halla which attracted the informant (P.W. 1), Rameshwar Singh (not examined), Balram Singh (not examined), Udaibhan Singh (not examined) and other persons of the village including the mother of the informant namely Sukhdeiya(P.W.2). It is stated that this appellant Barey Lal fired a shot which hit the deceased around his neck and he fell down there near the well. The Informant and other persons started raising alarms upon which the accused persons picked up the dead body of his father and threw it into the well. 5. The informant came to the police station with the written report (Ex. Ka-1) stating in it that he had left his mother and Ram Asre (not examined) to keep a watch over the dead body lying in the well and had come to lodge the report. 5. The informant came to the police station with the written report (Ex. Ka-1) stating in it that he had left his mother and Ram Asre (not examined) to keep a watch over the dead body lying in the well and had come to lodge the report. 6. As may appear from the evidence of P.W.- 5, S.I. Raj Narain Shukla, on the receipt of the written report at the police station which was presented by the P.W.-1, the Head Moharrir Devideen Singh drew up the F.I.R. (Ex. ka-11) and also made entries in the relevant station diary. P.W.-5 stated that the officer-in-charge of the Police Station Baberu was not present at the police station and he being the next senior officer available picked up all relevant documents and papers and rushed to the place of occurrence for investigation. 7. P.W.-5 reached at the place of occurrence at 3.30 p.m. He peeped inside the well to find the dead body lying there. He, thereafter, got the same retrieved out of the well and held inquest upon the same. The inquest report has been marked as prosecution Ex.Ka-3. Witnesses, who were associated with the proceeding of inquest, duly signed the report. P.W. 5 seized the blood stained cloths, which were on the dead body like the two kurtas put on by the deceased, one pair of shoes, one bamboo stick, and prepared the seizure memo. Besides, P.W. 5 also seized blood stained earth and prepared the memo (Ex.Ka-8) in respect of seizures made by him. P.W. 5 thereafter created sketch map of the dead body and dead body challan. The two documents have been marked as prosecution Exs.Ka-4 & Ka-5 respectively. P.W. 5 also prepared a letter addressed to the Chief Medical Officer (Ex. Ka-7) requesting him to facilitate holding of post mortem examination on the corpse of the deceased, which had been sealed and a sample specimen of which had been marked as Ex. Ka-7. While dispatching the dead body for autopsy, P.W. 5 ensured that copies of the F.I.R. and the written report also accompanied the dead body challan and letter of request along with the copy of the inquest report and made the entries in this regard in the general diary which part of the document have been marked by the court below as Exs. Ka 14 & Ka 13 respectively. 8. Ka 14 & Ka 13 respectively. 8. It is upto this stage when, as may appear from the evidence of P.W. 5, P.W. 4, S.I. Raj Pal Singh, arrived at the place of occurrence. P.W. 4 states that he arrived at place of occurrence at 5 p.m. when inquest proceedings were still in progress and the report was in the process of being filled up. He stated that he was investigating a different case at village Ahar and distance between village Ahar and village Jalalpur, which was place of occurrence in the present case, was about 13 miles. We do not know what impact this evidence would have made either on the claim of the prosecution as regards the commission of offence by the appellant and others or the defence except that the officers had rendered some explanation for skipping the investigation of a serious offence. In addition to the above, what we further find is that the witness stated that he had looked at the dead body and had also gone through the inquest report and then had taken over the investigation himself. 9. We want to note that the officer was not fairly and honestly making statement on oath. We have noted the evidence of P.W. 5. S.I. Raj Narain Shukla and he has stated that he had conducted the investigation right from the retrieval of the dead body from the well upto sending of the same to mortuary for post mortem examination and in between he had made certain seizures also. The evidence of P.W. 5 is trustworthy in as much as there is no dispute indeed that he was the first police officer, who had reached the place of occurrence, and even some part of the evidence of P.W. 4 S.I. Raj Pal Singh does indicate that he had initially investigated the case. We are of the opinion that P.W. 4 was not honest in making statement rather he was making certain statements on oath which were contrary to some undisputed documents like the inquest report which indicates that inquest was held at 3.30 p.m. and the report was prepared around that time. We are of the opinion that P.W. 4 was not honest in making statement rather he was making certain statements on oath which were contrary to some undisputed documents like the inquest report which indicates that inquest was held at 3.30 p.m. and the report was prepared around that time. Not only that, the dead body had been dispatched to the mortuary through constable Ram Pal with the dead body challan by 5.30 p.m. Thus, the evidence of P.W. 4 was a bit intrepid as regards his claim of arriving at the place of occurrence. We view his evidence with some reservations. 10. At any rate what we found further from the relevant document was that the inquest report mentioned that it was being accompanied by a copy of the F.I.R., the copy of the written report, the sketch of the dead body and the dead body challan along with a request letter addressed to the Chief Medical Officer. Those documents we find attached to the inquest report and all those documents bear the endorsement of their receipt, and post mortem no. 10/80 at 2 p.m. being conducted on the sheet of the inquest report and accompanying documents on 15.1.1980. This evidence we have referred and put on record because there was some serious dispute regarding the genuineness of the F.I.R. 11. P.W. 4, on whose evidence we have some reservations to accept in its entirety, stated that he recorded the statements of witnesses and then inspected the place of occurrence and finding the material sufficient, sent the nine accused persons up for trial. We have already noted that the trial resulted in acquittal of eight accused persons while the solitary appellant was convicted of specific charge under Section 302 I.P.C. 12. The defence of the appellant was suggested to P.W.-1, which appears at page 26 of the paper book. We have already noted that the trial resulted in acquittal of eight accused persons while the solitary appellant was convicted of specific charge under Section 302 I.P.C. 12. The defence of the appellant was suggested to P.W.-1, which appears at page 26 of the paper book. It was suggested that the deceased had been murdered at some other place by some other set of unknown persons and the dead body had been thrown into a nala (drain) and the same was located there and after antedating and forging all records,i.e., F.I.R., inquest report, dead body challan etc., the case was foisted upon nine accused persons for one particular reason that there were two factions in the village and the deceased was dear to one of the leader of one particular faction which was opposed to the set of nine accused persons. 13. In support of the charges, the prosecution examined a total number of five witnesses. P.W. 1 Santosh Kumar, is the informant of the case and son of the deceased, and P.W. 2 is the mother of P.W. 1 who were claiming themselves to be eye witnesses and deposed in that capacity before the court below. P.W. 3 Dr. K.L. Agarwal had held post mortem examination on the dead body of deceased Pitamber Lal and had issued the report (Ex.Ka-2)in that behalf. P.W.-4 was the officer-in-charge of the police station whose evidence we could not accept in its totality and P.W.-5 S.I. Raj Narain Shukla was the first officer who had rushed to the spot after the case was registered on the basis of Ex. Ka-1. As against the above, two defence witnesses were examined by the appellant and other accused persons. D.W. 1 Ram Bhuwan Singh was deposing that deceased had not been killed at the place where the prosecution claimed him to be killed, rather he was seen going by D.W. 1 towards the nala (drain) and subsequently the dead body was found the next morning and then it could be learnt that Pitamber had been killed. D.W. 2 had given evidence that the special report, which was dispatched from the police station in respect of the present incident, had reached the District Magistrate, Banda on 15.1.1980 and, thus, it was deposed by him that it was antedated. D.W. 2 had given evidence that the special report, which was dispatched from the police station in respect of the present incident, had reached the District Magistrate, Banda on 15.1.1980 and, thus, it was deposed by him that it was antedated. After considering the evidence available to him, the learned trial judge passed the impugned Judgment in terms as noted at ther very outset of the present Judgment. 14. It was contended by Sri Raghwendra Dwivedi and Sushree Satya Srivastava, who was appointed amicus curiae and who was also heard by us on account of the zeal shown by her to argue the case and who was also found having invested some time in preparing herself, that the whole case was a fabrication not only as regards the facts but the documents also. It was pointed out to us that written report was not containing any motive except that the accused persons were accused of having stolen away the bullock cart of the deceased. But whatever was stated was not established to the satisfaction of the court as P.W. 1 had himself pointed out in his evidence at page 23 of the paper book. Submission was that no other witness except the two family members of the deceased was supporting the prosecution charges and further that their evidence was not reliable as they were mere chance witnesses besides being interested in the prosecution. Submission was that the dead body was in fact, found lying in the canal and it is the only truth as if at all deceased had been shot and injured and indeed was thrown into the well, as was submitted by Sushree Srivastava then the wife of the deceased, i.e., P.W. 2 and his son P.W. 1, ought to have taken appropriate steps for immediate retrieval of the same and for taking further steps to rush the deceased to doctor so as to ensuring that he had survived. 15. Sri A.N. Mullah, learned A.G.A., has submitted that the evidence of P.W.-1 appears that of an honest and forthright person who was not hesitating even in admitting his follies or mistakes while making statements of facts in the written report. 15. Sri A.N. Mullah, learned A.G.A., has submitted that the evidence of P.W.-1 appears that of an honest and forthright person who was not hesitating even in admitting his follies or mistakes while making statements of facts in the written report. The honesty of P.W. 1 was indicated further when he was admitting that the bullock cart had never been taken away by the accused persons in his presence nor he had seen it being taken away in any other manner and because the accused persons uttered about themselves being accused by his father of having taken away the bullock cart, he could know that it was the reason for the incidence. Sri Mullah was further pointing out to us that the evidence was trustworthy and witnesses were not blending any additional facts with what really had happened or what really the state of things were on that particular date, which was exhibited more by the statement of P.W.-2 that the deceased had not taken any grain or water, which fact was corroborated by the post mortem examination report as the doctor had found the stomach and urinary bladder of the dead body empty. 16. While explaining the evidence of P.W.-1 and P.W.-2, Sushree Srivastava was highlighting one particular fact which, according to her, might be making them incompetent or their claim unacceptable. It was submitted by her that the distance between the place of occurrence and the house of the deceased was something around 150 to 200 yards and one could not have heard shouts of a man from such a long distance so as to rush as fast as to reach the place of occurrence or see the final act being committed by the accused. 17. We have considered the locations of different houses in the sketch map. What we find from it is that the place where the dilapidated well was located was an open space of quite big an area which was surrounded by houses on three sides. There were three by-lanes. One was just to the South of house of one Kallu which was leading to the house of the deceased and the other was a more spacious lane which was situated between the houses and cattle sheds of one Ram Bhawan Gupta and Dharam Pal Singh and also in between the houses of Muthuruwa Bania and Dadu Singh. One was just to the South of house of one Kallu which was leading to the house of the deceased and the other was a more spacious lane which was situated between the houses and cattle sheds of one Ram Bhawan Gupta and Dharam Pal Singh and also in between the houses of Muthuruwa Bania and Dadu Singh. We have also kept in our mind that it was a village which was far far away from the hustle and bustle of a city and in the morning time of a January-day, it could be more convenient for sound waves to traverse faster and longer distance. This is common experience that summer days or nights are not conducive to facilitating passage and hearing of sounds. It is more as a matter of environmental heaviness in the weather and also the calmness in winter morning or night that sounds are heard easily even though they are coming from quite a long distance. The houses were not far away. 150 and 200 yards in a village, when it is measured through the zig-zag by-lanes, could not be said to be creating longer distance so as to make it impossible as regards hearing voices. P.Ws. 4 and 5 both have stated that the pathway was zig-zag and as such the distance was long. One very well should keep in ones mind that zig-zag pathways construct the distance between two places and as such the measure in yards may not be the real measure of the location as the crow flies. It could be within very convenient audible distance that the deceased was sitting near the dilapidated well and was basking himself into the warmth of the sun shine in that winter cold morning. Besides, what we find from the evidence of P.Ws. 1 and 2 is that the old man had left his house in the morning between 7 or 8 for discharging his household obligations of bringing green fodder for the cattle. The wife is the best person to say whether her husband had been fed or not specially when the wife comes from a rural background. If the husband has not been fed, it is necessarily to be assumed in case of rural family that wife could never take a morsel by herself and would probably not provide meals to other family members. If the husband has not been fed, it is necessarily to be assumed in case of rural family that wife could never take a morsel by herself and would probably not provide meals to other family members. The doctor was finding the stomach of the deceased empty and we have already noted that the bladder was also found empty. We have only noted that these two findings of the medical man was raising compulsive inference that the man had not taken even a grain of cereal or drop of water. 18. We have noted one of the most emphatic arguments by Sri Dwivedi that it was the Makar Sankranti day and no household could live without eating as soon as sun had risen. The eating behaviours are not rules. They are mere behaviours which may vary from family to family, man to man specially when the evidence of the landlady, like, P.W. 2 was very clear that no one had taken anything and in fact nothing had been cooked that morning into house. What we find is that the submissions on the distance so as to convince us that the shouts of the deceased could not have reached the two witnesses, besides the probability of the occurrence having not taken place in that particular morning, are not to be accepted as they appear not fitting with the ordinary human conduct and the natural events. 19. The third contention which was raised before us both by Sri Dwivedi and Susri Srivastava was regarding the non-proof of motive. We are very much conscious of the position of law that motive is at all not necessary to be alleged and also to be proved in a case which is based entirely on direct evidence, but if it had been alleged as a fact which had impelled the commission of offence by the accused persons, then that particular fact has also to be established like any other fact of the case. The informant has not stated in his written report that for a particular reason the accused persons had rushed to the place of occurrence with arms like, rifle etc. to kill his father. The informant has not stated in his written report that for a particular reason the accused persons had rushed to the place of occurrence with arms like, rifle etc. to kill his father. He had simply stated that all accused persons came and one out of them stated as to how it was that the deceased had been accusing them of stealing the bullock cart wereafter Ram Kripal remonstrated all of them to kill the deceased and this appellant Barey Lal fired from his rifle. We must emphasize that there was no allegation of any particular motive for which the offence was committed. This is the subtle factual distinction which probably was lost sight of by the learned two defence counsel who were arguing as above and as such the evidence of P.W. 1 at page 22 of the paper book that accused Ram Gopal had not taken away bullock cart in his presence nor any quarrel had taken place about the same within his knowledge nor his father had ever demanded the return of the bullock cart in his presence and, as such, he had not mentioned any story in respect thereof in the written report. These were the lines of evidence which were highlighted by the counsel for the appellant as not establishing the motive. 20. We, on the other hand, find that this witness had very correctly and properly pointed out to the court that he had not mentioned these facts in his written report nor he had any knowledge about those facts. We fully uphold the honesty, forthrightness of P.W.4 in stating a fact. He was honest and he was very much clarifying the questions which were put to him in cross-examination. Those questions were irrelevant because the witness had never stated those facts in his report as motive part of the occurrence or as the genesis of the same. He was stating with some amount of stress as we may find from his evidence at page 23 that he had only stated that the accused persons themselves stated to his father about the accusation of theft against them of the bullock cart and had further mentioned in the report that one of them had remonstrated others to kill his father. The answers, which P.W. 1 was giving to those questions which appear at page 22 and 23 of the paper book, clearly present P.W. 1 as a highly honest person who was not hesitating in clarifying the facts with proper stress and when it came to further clarify any fact which was put to him, as may appear from his evidence at same page 23, that he was admitting that he might have fallen in error in making statements of a particular fact in respect of theft of bullock cart and he was pointing out to the court that the mental state which he had at that time on account of killing of his father might have been the reason for error creping into factual statement made by him. P.W. 1 stated in sufficient details as to how the accused persons had come together and after being remonstrated one of them, that's, appellant, had fired at his father. The witness was cross-examined at page 24 of the paper book and we find that the accused persons surrounded his father on three sides and the shots were fired while the deceased was sitting near the well. When Barey Lal was firing the shot, he was standing at a distance of 7-8 steps from the deceased. P.W. 1 stated very honestly that he did not show those places where the accused persons, specially, where Barey Lal was standing. Everyone knows that the memory of a person is too fragile to retain these minor details of an occurrence of murder which has always the contours of gravity and seriousness besides the act being blended with cruelty. The manner of killing a man, we must keep in our mind, is always sufficient to give serious shocks to a human being and it could never be possible for any spectator of such an incident that he should come out with all precision and finest details to tell the court as to how the man was murdered. The evidence of P.w. 1 was trustworthy as appears from the evidence discussed. 21. Honesty of P.W.-2 could be exhibited from one statement which she was making at page 30 of the paper book. P.W. 2 was put two questions by the defence as to whether she intervened to save her husband. The evidence of P.w. 1 was trustworthy as appears from the evidence discussed. 21. Honesty of P.W.-2 could be exhibited from one statement which she was making at page 30 of the paper book. P.W. 2 was put two questions by the defence as to whether she intervened to save her husband. She stated that when her husband had already been killed, how she could have attempted to save him. The next question was as to why did not she do anything so that the dead body was not thrown into the well. The witness was stating that after killing her husband the accused persons had thrown the dead body into the well and as it was already thrown in the well, how she could have done anything to check them from doing so in that respect. She stated that she remained a mute spectator. She kept standing as a mute spectator and saw everything happening before her. As regards the minor details of the manner of occurrence, the witness was cross-examined and that evidence appears at page 29 of the paper book and we find not much variance in the evidence of P.Ws. 1 and 2. The place from where Barey Lal Singh had fired appears the same and also the distance from which the appellant had fired the shot can also be said to be the same. P.W. 2 was stating that the shot was not fired from a close range rather before firing the shots, the appellant had withdrawn himself some 3-4 steps back and then had fired at her husband. 22. We have already pointed out as to why we should rely on the evidence of P.Ws. 1 and 2 because if they had to tell a lie they could have done it very easily. P.W. 1 had admitted that his father had serious litigation with one Dulla whose son had been murdered. There were many persons who were on the side of Dulla and again there were many persons who were supporting the father of the deceased also. The deceased was an accused in that case and if at all the informant or his mother had any reason to implicate anyone falsely by leaving out the real culprit, she could have very well and very easily implicated Dulla or any other person or persons on his side as accused. The deceased was an accused in that case and if at all the informant or his mother had any reason to implicate anyone falsely by leaving out the real culprit, she could have very well and very easily implicated Dulla or any other person or persons on his side as accused. This particular circumstance also convinces us about the competence of the two witnesses. 23. Some of the arguments on the fabrication of the documents and antedating of the F.I.R. need to be noticed. The most vital of the arguments was the antedating of the F.I.R. The prosecution claims that the F.I.R. had been sent to all concerned officers including the court with all promptitude which has been disputed by the defence merely by cross-examining P.W. 4 on some overwritings made or appearing on some dates in the case diary. P.W. 4 was cross-examined as appears from his evidence at pages 38-39 of the paper book in respect of some overwritings on date 14.1.1980 and it was suggested that earlier the date was 15.1.1980 but 15 was overwritten so as to convert digit 5 to 4 to convert the date 15 into 14. This is the one evidence upon which the defence attempted to make mountain out of a mole. We want to point out that there is nothing before us through the cross-examination of the witnesses which could indicate that the F.I.R. was not dispatched with all ado and promptitude to the nearest Magistrate and to all other authorities/officers. We further want to point out in this connection that it is not only the receipt of the copy of the F.I.R. by the Magistrate which has to be prompt, but the copy of the same document along with some other documents are also required to be dispatched with promptitude and if the court finds from the prompt dispatch of both records that the dispatch was prompt and without any evil design then the argument cannot be acceptable to it. 24. 24. For judging the collusive framing of facts by lodging a belated report, the court must also look as to whether the inquest report was prepared with promptitude, as to whether the copy of that report was transmitted to the mortuary with promptness along with the copy of the written report or the F.I.R., besides the documents accompanyings the dead body, like, the dead body challan and the letter of request to the Chief Medical Officer. 25. In order to consider the submission of the learned counsel for the appellant, we ourselves perused the original records of inquest report, the sketch of the dead body, the dead body challan, the letter of request sent by the Investigating Officer to the Chief Medical Officer, Banda and also the copy of the written report and the F.I.R. We find that the inquest report recites that the above noted documents had accompanied it as its annexures while the dead body was being dispatched to the mortuary for post mortem examination. The Chief Medical Officer has acknowledged receipt of these documents as may appear from the reverse page of the dead body challan on 15.1.1980 from 12.15 p.m. to 2 p.m. as annexure to the letter of request received by him for facilitating autopsy on the dead body. Those documents which were accompanying the inquest report like the copy of the written report and the F.I.R. have duly been marked. They are already available as annexures to the inquest report as prosecution Exts. Ka-12 & Ka 13. The copy of the F.I.R. was received, as we have already noted, by the Chief Medical Officer, Banda on 15.1.1980 and all these documents bear an endorsement that post mortem no. 10/80 was held and the report was prepared on the basis of these records. 26. The occurrence took place on 14.1.1980 at about 11 a.m. P.W. 5 S.I. Raj Narain Shukla has stated that he had handed over the dead body along with all relevant records, as noted by us above, to Constable Ram Pal and there is no dispute in it that it was handed over to him with the dead body along with relevant accompanying records which were received at the mortuary on 15.1.1980 at 10.30 a.m. If this would be the evidence, we have to reject the defence contention on fabrication of the F.I.R. and other records. We find that the learned trial judge has held that the F.I.R. was antedated. We are simply not agreeable to uphold the finding and we find that the finding was not only perverse but was based on no evidence. We do not know why the learned Judge had blundered like this. If the evidence of P.W. 4 could not be acceptable to us, then how the learned trial judge accepted the same and that too when P.W. 4 had not stated any fact which could suggest, even remotely, that any of the documents had been fabricated or forged or antedated. We do not want to say anything more on the finding except which we have already stated that it was perverse. 27. On re-appraising the evidence of prosecution, we find that the conviction of the appellant Barey Lal Singh has rightly been recorded because the two witnesses coming forward to depose stated the fact that this appellant had fired the shot and P.W. 3 Dr. K.L. Agrawal was finding the corresponding injuries in the form of gun shot wounds of entry and exit as per description in Ex. Ka-2 and the evidence of the doctor P.W. 3. The defence was quite ridiculous and that is fit to be rejected. 28. In the result, what we find is that the appeal is devoid of merit and the same is dismissed. 29. The appellant is on bail by virtue of order passed by this Court on 23.8.1982. He shall surrender to the custody of learned IInd Additional Sessions Judge, Banda in connection with Sessions Trial No. 194 of 1980 to serve out the sentence. If he does not surrender within 15 days of the present Judgment, the copy of which must be dispatched with ado along with the record of court below by the registry of the court, the court below shall take necessary steps to ensure that the appellant is arrested and remanded to custody. _____________