JUDGMENT Hon’ble B. Amit Sthalekar, J.—This appeal has been filed by the appellant-Asharfi against the judgement and order dated 4.2.1988 passed by the Special Judge, E.C. Act, Farrukhabad whereby the appellant has been convicted for the offence under Section 302 I.P.C. and sentenced to life imprisonment. The appellant had been granted bail by this Court on 9.8.1989 but thereafter by order dated 29.5.2014 non bailable warrant was issued against the appellant for ensuring his presence before the Court. In compliance of the order of this Court the C.J.M. Farrukhabad sent his report to the effect that the appellant has after disposing off left his village about 25-30 years ago and is not traceable. Therefore, Ms. Rashmi Srivastava was appointed as amicus curiae to argue the appeal on behalf of the appellant. 2. The facts of the case, in brief, are that a report was lodged by Om Veer-complainant on 12.1.1986 at about 11.10 P.M. to the effect that next to the two houses of his house there is the house of Shyam Lal, Brijvasi and Ram Bhajan, all real brothers, which is in a very dilapidated condition. Brijvasi has sold his portion to Kesar Navi of Jhipatti. Shyam Lal, who is aged about 55 years could not be married because he was lame and Ram Bhajan was working in Etah. Asharfi, who was son of Brijvasi and had criminal antecedents wanted to grab the portion of Shaym Lal. Shyam Lal had no source of livelihood and he wanted to sell his portion to maintain his livelihood from the sale consideration. Shyam Lal and Ram Bhajan had agreed to sell their portions to one Gappu son of Baburam Gangwal on a sale consideration of Rs. 19,000/- each and the registry was to take place day after tomorrow. Since the house of Shyam Lal was in a very dilapidated condition, Shyam Lal started living in the Drawing Room of Om Veer’s house in which electricity was installed and he asked Om Veer that after the sale of his portion he will arrange for his living somewhere else. On the date of occurrence the complainant was sleeping after having dinner and at about 10 p.m. he woke up hearing the shouts of Shyam Lal and reached the Drawing room taking with him with his Torch. On the date of occurrence the complainant was sleeping after having dinner and at about 10 p.m. he woke up hearing the shouts of Shyam Lal and reached the Drawing room taking with him with his Torch. He saw that Asharfi, nephew of Shyam Lal, armed with country made pistol and two other persons both armed with country made pistols were present there and were dragging Shyam Lal forcibly from the room and Shyam Lal was shouting. Hearing the shouts of Shyam Lal, Gendan Lal son of Chunamani, Jairam son of Kanauji Kahar and Ram Chandra son of Mohkam Kahar reached there with their Torches and exhorted them in the flash light of their Torches. Asharfi and his two companions fired at Shyam Lal outside the room and he died instantaneously. They have identified the accused persons in the Torch lights. Jairam and Ramchandra have stated that they witnessed the incident in their Torch light and electric light. On the basis of the report Case Crime No. 14 of 1986 was registered at Police Station Kayamganj, Farrukhabad against Asharfi and his two companions under Section 302 I.P.C. 3. S.I. Ram Narain Yadav was posted at Police Station Kayamganj and commenced the investigation and on the same day he reached the place of occurrence and S.I. Shri D.S. Singh was directed by him to prepare Panchanama and the said S.I. Shri D.S. Singh has sent the dead body of the deceased to Fatehgarh through constables for post mortem examination. The investigating officer recorded the statements of Gendanlal on 13.1.1986 has also inspected the place of occurrence and collected the blood stained earth, plain earth and blood stained brick and sealed them. He also recovered one empty cartridge, one bullet, two tikli and Gatta from the place of occurrence. Thereafter he recorded the statement of Ram Chandra and inspected the Torches. Thereafter investigation was taken over by S.I. Shri K.L. Verma and after completing the investigation charge-sheet was submitted against the accused Asharfi. 4. In order to prove its case the prosecution examined Om Veer Singh, P.W.1, Jairam P.W. 2, Ram chandra, P.W.3 as eye-witnesses of the incident, Dr. Rajendra Shukla P.W. -4 is the Doctor who conducted post mortem examination, and Shri Ram Narain Yadav, P.W. 5 who is the investigating officer of the case. 4. In order to prove its case the prosecution examined Om Veer Singh, P.W.1, Jairam P.W. 2, Ram chandra, P.W.3 as eye-witnesses of the incident, Dr. Rajendra Shukla P.W. -4 is the Doctor who conducted post mortem examination, and Shri Ram Narain Yadav, P.W. 5 who is the investigating officer of the case. The accused Asharfi has denied that he wants to grab the portion of his uncle Shyam Lal but he has accepted the fact that Shyam Lal was old and disabled and he was selling his portion to Gappu. He has also accepted that the deceased was living in the drawing room of the complainant as his house was in a very dilapidated condition. He has also stated that the local police has falsely implicated him in this case as he has denied to give statement in favour of the police in other cases. It is further stated by him that the witnesses are deposing against him as they are witnesses of the police. 5. The trial Court has considered the evidence on record and has convicted and sentenced the appellant, as aforesaid. During trial the statement of P.W. 1 Om Veer was recorded and he stated that on the date of occurrence he heard the shouting of Shyam Lal and he came out and saw that three four persons were dragging Shyam Lal by his head. He saw them in the torch light but could not identify them as they had covered their faces. He further stated that because of fear he had closed his door. After about 15/20 minutes several other persons of the village reached there. He has stated that the report has been written by him and signed by him but subsequently he has stated that he got the report written by his brother Ram Veer as there were some injuries in his hand. This witness has been declared hostile by the prosecution. 6. P.W. 2 Jairam has stated that on the date of occurrence at about 10 P.M. after having dinner he was sitting in his house, when he heard noises coming from the house of Permanand. He reached the door of Permanand with his Torch. Genda Lal, Ram chandra and several other persons also reached there. 6. P.W. 2 Jairam has stated that on the date of occurrence at about 10 P.M. after having dinner he was sitting in his house, when he heard noises coming from the house of Permanand. He reached the door of Permanand with his Torch. Genda Lal, Ram chandra and several other persons also reached there. He stated that he saw that Asharfi and his two companions were dragging Shyam Lal from the room and when he asked them not to do so then Asharfi and his two companions fired at Shyam Lal resulting in his death. He stated that the accused Asharfi was trying to grab the portion of house of Shyam Lal and when Shyam Lal made a deal of his portion with Gappu son of Babu Ram, Asharfi committed the murder of Shyam Lal. 7. P.W. 3 has also supported the version of P.W. and has stated that the accused Asharfi alongwith his two companions fired at Shyam Lal resulting in his instantaneous death. He has stated that he has seen the occurrence in the Torch light. 8. P.W. 4 is the doctor who has conducted post mortem examination of the deceased and P.W. 5 is the investigating officer of the case who has submitted the charge-sheet against the accused appellant. 9. Ms. Rashmi Srivastava, Amicus Curiae for the appellant has made the following submissions: 1. The said occurrence took place at 10 P.M. at night but source of light and position of light on the spot is not mentioned in the map. 2. According to the prosecution and Tahreer the said eye-witnesses saw the occurrence and identified the accused/appellant in the light of Bulb on the spot. Therefore, they are concealing the real story and are unreliable witnesses. 3. The manner of assault is not proved. It is settled law that if witnesses are showing specific manner of assault then it is duty of prosecution to prove the story according to that manner. The P.W.1 is saying in his examination in chief that all the accused persons who were 3 or 4 in numbers and all of them had covered their faces, therefore, they could not be identified, but other witnesses P.W.2 and 3 are saying that accused persons were uncovered. 4. The P.W.1 is saying in his examination in chief that all the accused persons who were 3 or 4 in numbers and all of them had covered their faces, therefore, they could not be identified, but other witnesses P.W.2 and 3 are saying that accused persons were uncovered. 4. None of the said eye-witnesses told to the Investigation Officer or any one about the physical feature (Hulia) of the accused persons, even in their Chief Examination they are silent about this. 5. P.W.1, 2, 3 are silent about the part of the body on which deceased received injury which shows that witnesses were not present at the spot at the time of occurrence. 6. P.W.2 and 3 are silent about the presence of P.W.1, when they came to House of P.W.1 after hearing the noise. 7. P.W.2 says in page 14 that when he came to the place of occurrence, P.W.3 was present there while P.W.3 says in page 26, Para-11 that when he came to the place of occurrence P.W.2 was present there which is not possible because they had not come together. 8. It is said by the P.W.2 that the deceased was laying on his back but P.W.4 Doctor says that the injury No. 2 cannot be occurred on such position, therefore medical evidence is against the ocular evidence. 9. P.W.2 says that deceased’s hands and foot got abrasion injury because he was dragged but no such injury is shown in the post mortem report. 10. P.W.2 in para 23 page 21 specifically says that he is unable to tell that which of body of the deceased received gun shot injury. The learned Sessions Court is silent about this very important fact in the judgment which shows that he has passed the conviction order without appreciating this undisputed evidence. 11. No fire arm recovered during the investigation. 12. Key evidence and motive of the incident not proved, because during the investigation I.O. did not record the statement of Gappu and has not collected the said Ikrar name and failed trace other said three unknown person. Therefore, investigation is defective. 13. P.W.3 in para No. 1 in Chief Examination says that accused Asharfi and other two accused were dragging the dead body of deceased while others are saying that deceased was dragged then gun shot injury was caused. 14. Therefore, investigation is defective. 13. P.W.3 in para No. 1 in Chief Examination says that accused Asharfi and other two accused were dragging the dead body of deceased while others are saying that deceased was dragged then gun shot injury was caused. 14. Spot map is not showing the position of the 3 or 4 accused at the time of occurrence and no sign of the soil at the cloth of deceased which shows that deceased was not dragging. 15. Before appreciating the evidence of witnesses learned trial Court drawn inference that appellant is real culprit of the offence and the Hon’ble Court discussed the evidence in the light of the prejudiced mind. 16. In page No. 9 of the judgment, the learned trial Court made a conclusion that the evidence shows that the appellant is a Rikshwa Puller and criminal minded person, he failed to discuss the supporting evidence because criminal history of the appellant was not produced by the prosecution. 17. The page No. 9 of the judgment very clearly shows that the judgment is made on high surmises and conjectures. It is settled law that suspicion however may be grave and strong but cannot made conclusion. 18. It is settled law that the duty of the prosecution to prove his story beyond reasonable doubt and in case of grave offences the liability must be grave. 19. Presence of witnesses, manner of assault and presence of accused on spot at the time of occurrence is not proved beyond reasonable doubt. Hence the order the trial Court is liable to be set aside. In support of her submissions, the learned counsel for the appellant has relied upon the following judgments of the Supreme Court: State of Madhya Pradesh v. Ghudan, (2003) 12 SCC 785 State of Punjab v. Harbans Singh, (2003) 11 SCC 203 Kanju Muhammed and Khumani v. State of Kerala, (2004) 9 SCC 193 Pratap Singh v. State of Madhya Pradesh, (2005) 13 SCC 624 Sunil Kundu and another v. State of Jharkhand, (2013) 4 SCC 422 10. It is an undisputed fact that the occurrence had taken place at 10 P.M. and that the F.I.R. was lodged at about 11.10 P.M. which leads to a conclusion that the F.I.R. was promptly lodged by the complainant immediately after the occurrence. It is an undisputed fact that the occurrence had taken place at 10 P.M. and that the F.I.R. was lodged at about 11.10 P.M. which leads to a conclusion that the F.I.R. was promptly lodged by the complainant immediately after the occurrence. One of the questions raised by the appellant is as to whether the manner of assault in which the occurrence took place is proved by the prosecution or not. According to P.W. 1 he in his examination in chief has stated that all the accused persons who were 3 or 4 in number had committed the offence but they could not be identified as they had covered their faces. The prosecution witnesses are said to have been silent about the part of the body on which the deceased had received injuries and on this basis the appellant could argue that the witnesses were not present at the spot at the time of occurrence. The prosecution story is assailed on the ground that P.W. 2 and 3 are silent about the presence of P.W. 1 when he came to the spot after hearing the noise of gun shot rather P.W. 2 has stated that when he came to the place of occurrence P.W. 3 was present there whereas P.W. 3 says that when he came to the place of occurrence P.W. 2 was present there, it is not possible because they had not come together. 11. Learned A.G.A. appearing for the State would submit that the prosecution had been successful in proving that the offence had been committed by the appellant in the manner and time, date and place which has come in the prosecution story. He also submits that the offence had taken place at about 10 P.M. and the F.I.R. was promptly lodged at about 11.10 P.M. on the same night. Further it is submitted that though P.W. 1 has turned hostile his evidence corroborates the prosecution story and can be considered and from the statements of P.W. 2 and 3 it is apparent that they had proved the guilt of the accused Asharfi. 12. After hearing the counsel for the parties and perusal of the records it appears that the incident had taken place at 10 P.M. on 12.1.1986 and the F.I.R. was also lodged promptly at 11.10 P.M. on the same date. 12. After hearing the counsel for the parties and perusal of the records it appears that the incident had taken place at 10 P.M. on 12.1.1986 and the F.I.R. was also lodged promptly at 11.10 P.M. on the same date. The only minor discrepancy which appears are regarding the posture of the deceased as to whether he was lying on his back and whether the witnesses were present on the spot or not. Another important feature in this appeal is the question of light source. According to the appellant there was no light source as the same has not been shown by the investigating officer in the site plan and that the bulb in the room of the deceased Shyam Lal was also not lit. The Court after considering the evidence and material on record has come to the conclusion that the offence had taken place at 10 P.M. as stated by the prosecution which finds support from lodging of the F.I.R. at 11.10 P.M. immediately after the incident. Though P.W. 2 and 3 might have come from different directions but from their statements it cannot be said that they had not reached the place of occurrence, therefore, it is quite natural for them to say that P.W. 2 was there when P.W. 3 reached there and P.W. 3 was there when P.W. 2 reached there. Infact the statements of P.W. 2 and 3 are complementary to each other. As regards the source of light is concerned it has come in evidence that there was ample light to identify the assailants who were also seen in the torch light by the P.W. 2 and P.W.3 and therefore they have positively identified the accused. In this regard it may also be stated that the light bulb in the room of Omveer was also lit, therefore, if there was no source of light inside the room of the deceased Shyam Lal it would not help the appellant much for the reason that the murder of Shyam Lal was caused in the Verandah and not inside the room where there was no light. 13. The Court below therefore has rightly come to the conclusion that there was ample light on the spot from the room of Omveer, from the street light and from the torches of P.W. 2 and P.W. 3 in which the witnesses have positively identified the assailants. 13. The Court below therefore has rightly come to the conclusion that there was ample light on the spot from the room of Omveer, from the street light and from the torches of P.W. 2 and P.W. 3 in which the witnesses have positively identified the assailants. The minor discrepancies such as in which posture the deceased was or whether faces were covered by Dhadha or opened revealing their faces would became insignificant questions where there is positive ocular evidence of the eye-witnesses P.W. 2 and P.W. 3. 14. Merely because the investigating officer had not shown the source of light in the site plan does not mean that there was no source of light there. The site plan is based upon the personal knowledge of the investigating officer who was investigating the scene of crime. Any lapses on the part of the investigating officer would not benefit the appellant as there are ocular evidence of the eye-witnesses of the incident who have proved the manner of assault as well as the light source. If the statements of P.W. 2 and 3 are read in totality then it would be evidence that that they were ocular witnesses of the incident and their statements cannot be said to be untruthful. If the statements of P.W. 2 and 3 are read in totality then it would be evidence that that they were ocular witnesses of the incident and their statements cannot be said to be untruthful. Thus the trial Court has held as under: “vc ;g ns[kuk gS fd ?kVuk ds le; izdk'k dk lk/ku Fkk ;k ughaA vfHk;kstu ds lHkh lkf{k;ksa us dgk gS fd ';keyky dk fpYykuk lqudj os viuh viuh VkpsZ ysdj nkSM+ dj ogkW igqWps FksA oknh vkseohj rks mlh edku esa nwljs dejs esa Fkk mlus dgk fd mlds dejs esa fctyh dh jks'kuh Fkh vkSj og viuh VkpZ ysdj vius dejs ls fudyk Fkk D;ksfd ';keyky ds dejs esa dksbZ cYc ugha FkkA mlus ;g Hkh dgk fd lM+dks ij ykbV dk Hkh izdk'k ?kVuk LFky rd vk jgk FkkA vU; lk{khx.k t;jke ,oa jkepUnz us Hkh viuh viuh VkpsZ o fctyh dh jks'kuh esa ?kVuk ns[kuh crkbZ gSA bu lkf{k;ksa ds VkpksZ dks Hkh foospukf/kdkjh us ns[kk Fkk vkSj mldh fy[kk i<+h dh FkhA bl ckr ls dksbZ QdZ ugha i<+rk fd foospukf/kdkjh us mu VkpksZ dk iw.kZ fooj.k QnZ esa ugh fy[kkA bu lkf{k;ksa ds nQk 161 lh0vkj0ih0lh0 ds dFku esa lM+d ij fctyh dh jks'kuh gksus dh ckr ugha fy[kh gS ijUrq ,slk blfy;s Hkh gks ldrk gS fd foospukf/kdkjh us VkpZ dh jks'kuh vk tkus dh otg ls mlls izdk'k ds vU; Jksr ds ckjs es muls dqN iwNk gh ugha gksA ;fn ml eksgYys esa fctyh Fkh rks lEHkkouk mlh ckr dh gS fd jkr dks fctyh dk izdk'k Hkh vo'; jgk gksxk tc rd ;g u fn[kyk;k tk, fd ml jkr fctyh dh lIykbZ ugha FkhA^ 15. In our considered opinion the Court has rightly come to the conclusion that it is on hearing the shouts of Shyam Lal that P.W. 2 and P.W. 3 had reached the house of Omveer where Shyam Lal was living in a room. Their houses are very near to the place of occurrence and therefore it is natural for them to have reached there and seen the murder being committed by the assailants. At this stage we may note that it is nobody’s case that the witnesses P.W. 2 and P.W. 3 could not have reached the house of Omveer and could not have witnessed the incidence. At this stage we may note that it is nobody’s case that the witnesses P.W. 2 and P.W. 3 could not have reached the house of Omveer and could not have witnessed the incidence. Neither there was any enmity of the appellant with the police nor with the complainant or the witnesses Jai Ram and Ram Chandra, therefore, there can be no doubt that the witnesses were speaking the truth. Even if we discard the statement of Omveer who has turned hostile it is settled law that part of the statement of a hostile witness can be relied upon in support of the prosecution and reading the evidence of the witness P.W. 1 Omveer we find that there is nothing in his evidence which contradicts the manner of offence having been committed by the accused persons. Any discrepancies in the number of accused persons or that they had covered their faces with dhadha are insignificant in view of the fact that the incident has been described by the eye-witnesses positively and identified the accused persons. The judgements cited by the learned counsel for the appellant have no application in the facts and circumstances of the present case. For the aforesaid reasons we uphold the judgement of the trial Court. The appeal is accordingly dismissed. The bail granted to the appellant is accordingly cancelled and the C.J.M. Farrukhabad is directed to make all possible efforts to get the accused traced and to serve out the sentence awarded by the trial Court and affirmed by us. Office is directed to send a copy of this order to the C.J.M. Farrukhabad within a week for compliance. ——————