JUDGMENT : (Delivered by Hon'ble Mrs. Ranjana Pandya, J) Present appellants, namely, Ayodhya, Chandrika and Amerika have preferred this appeal against the Judgment and order passed by the II Additional Sessions Judge, Gonda on 11.2.1982 in S.T. No. 1981 under Section 396 I.P.C. arising out of Case Crime No. 103 of 1980 P.S. Katra Bazar, District Gonda whereby the accused appellants were found guilty under Section 396 I.P.C. and were sentenced to life imprisonment. 2. The prosecution story as unfolded in the F.I.R. is that the informant Madhav Raj son of Khelawan is resident of Thakuran Purawa Karia, Mauja Gauriya, Police Station Katara Bazar, District Gonda. On the previous night, the informant, after having dinner, went to sleep with the other family members. The lantern, after lowing its light, was also kept in the house as usual. At mid-night, 7-8 miscreants armed with country made pistols, lathis and guns climbed on the roof of the house and entered the house of the informant. They opened the main gate and all the miscreants started beating the informant and started questioning him about the whereabouts of the valuables. The father of the informant was also beaten and he was also compelled to reveal about the valuables. The informant recognized the accused appellants Ayodhya Kahar, Chandrika and Amrika in the light of the lantern and torch as these accused belonged to the same village as that of the informant. Some of the miscreants were tall and some of the miscreants were of average height. They were wearing shirt and dhoti. The informant, when he got opportunity, rushed out of the house and raised hue and cry at which Tulsi Ram, Shaukat Ali, Subarati, Nankau and many others came with torches and lathis in their hands. At this, the dacoits ran away taking the valuables. While they were firing, the father of the informant succumbed to the injuries inflicted by the miscreants. Due to fear of the miscreants, the informant could not go to the police station in the night. The report further bears the details of the valuables which were taken away by the miscreants. 3. On the basis of the F.I.R., the constable prepared the chik report. The report was lodged at the police station on 13.8.1980 at 8.25. Due to fear of the miscreants, the informant could not go to the police station in the night. The report further bears the details of the valuables which were taken away by the miscreants. 3. On the basis of the F.I.R., the constable prepared the chik report. The report was lodged at the police station on 13.8.1980 at 8.25. Investigation of the case was entrusted to S.I. Chhedi Singh P.W.9 who after collecting the papers from the police station proceeded for the spot. He prepared the inquest report on the spot and proved it as Ext. Ka-3, prooved the sample of seal Ext. Ka-12, recorded the statement of Ram Lal, , Malati, Tulsi Ram, Shaukat Ali and Subarati. After that he inspected the spot, prepared the site plan proved it as Ext. Ka-12. The I.O. further collected some empty cartridges from the spot, sealed them and prepared memo and proved it as Ext. Ka-13. After that he was shown the torches of the witnesses. The torches were given in the custody of the informant and proved the memo as Ext. Ka-2. After that statements of the witnesses of the inquest were recorded. Thereafter, attempt was made to trace the accused on 14th. The statements of witness Ram Naresh and Nankau were recorded. On 18.8.1980 the investigation was transferred to Shesh Narain Shukla. This witness has further proved empty cartridges as Exts. 1 and 2. He has further proved the memo Ext. 12. Post mortem of the deceased was conducted by P.W.8 Dr. M.P. Singh on 15.8.1980. This witness found the following ante mortem injuries on the body of the deceased. "Contusion 10 cm x 6cm on lower part in front of neck extending to left side chest. On internal examination he found that the larynges and trachea were congested, rings of trachea in lower part of neck were fractured. Second and third ribs on left side of chest were fractured under the injury. Lungs were congested. Cause of death was asphyxia due to strangulation." 4. Further on internal examination, the larynges and trachea were found congested. The rings of trachea were found broken. The third rib of the left side was found fractured. Lungs were congested. The doctor opined that the death of the deceased was due to asphyxia as a result of ante mortem strangulation. This witness proved the post mortem as Ext.Ka-8. 5. Further on internal examination, the larynges and trachea were found congested. The rings of trachea were found broken. The third rib of the left side was found fractured. Lungs were congested. The doctor opined that the death of the deceased was due to asphyxia as a result of ante mortem strangulation. This witness proved the post mortem as Ext.Ka-8. 5. Prosecution examined P.W.1 Madhav Raj Informant, who is an eye witness and who proved written report Ext. Ka-1. P.W. 2 is Subarati, who is also said to be an eye witness. P.W. 3 is Lallan Singh, who is said to be witness of the inquest report. He has proved the inquest report as Ext.Ka-3. P.W. 4 Munna Singh is also a witness of inquest, who identified his signatures on the inquest report. P.W. 5 is Smt. Ram Lali, widow of the deceased Khelawan. She is also said to be an eye witness. P.W. 6 is Nankau, who is said to be an eye witness. P.W. 7 is Kandhai Lal, who is also said to be an eye witness. P.W. 8 in Dr. M.P. Singh & P.W. 9 is SI Chhedi Singh, Investigating Officer. Thus, the prosecution evidence was closed after examination of the aforesaid nine witnesses. 6. The statements of the accused persons were recorded under Section 313 Cr.P.C. in which all the accused denied the occurrence. The accused Ayodhya said that he belongs to the same village. He has enmity of the fields and, hence, he has been falsely implicated. The accused Chandrika, while denying the allegation, has stated that co-accused Ayodhya is his uncle. Hence, he has been falsely implicated. Accused Amerika, while denying the same, has said that he is student of B.A. and prosecution wants to spoil his career and, therefore, he has been falsely implicated in the present case. No evidence has been adduced in defence by the accused appellants. 7. The learned lower court, after perusing the file and hearing the counsel for the parties, convicted the accused appellants and passed the impugned sentence against which the present appeal has been preferred. 8. We have heard learned counsel for the appellants, Sri Chandra Shekhar Pandey learned A.G.A. for the State, Sri Janardan Singh, learned counsel for the opposite parties and perused the record. 9. Following points have been raised during the course of arguments:- 1.F.I.R. is delayed, hence, it cannot be relied upon. 8. We have heard learned counsel for the appellants, Sri Chandra Shekhar Pandey learned A.G.A. for the State, Sri Janardan Singh, learned counsel for the opposite parties and perused the record. 9. Following points have been raised during the course of arguments:- 1.F.I.R. is delayed, hence, it cannot be relied upon. 2.There is no motive for the accused to commit the offence. 3.There is no recovery from the accused appellant. 4.All the witnesses, who have stated against the accused appellants are family members, hence, their testimony cannot be relied upon. 5.Investigation is defective, hence, the appeal is liable to be allowed. Point No.1:-F.I.R. is delayed, hence, it cannot be relied upon. It has been submitted on behalf of the appellants that the F.I.R. is delayed, hence, there are chances of embellishments and improvements in the prosecution case. Perusal of the chick F.I.R. (Ext. Ka-5) shows that the occurrence took place in the intervening night of 12/13 August 1980 and the report of the matter was lodged on 13.8.1980 at 8.25 a.m., the distance of the police station being four miles from place of occurrence. As regards the delay in lodging the F.I.R., P.W. 1 Madhav Raj has very well explained the delay in lodging the F.I.R. in which he has stated that in the morning he went to the police station to lodge the F.I.R. He has further stated that during fateful night it was raining. Hence, although this witness has not been extensively cross-examined on the point but if the dacoity took place and one man was murdered, the lodging of the F.I.R. at the given time does not indicate that the delay has not been substantially and reasonably explained. In 2009 (1) SCC 420 , State of Himachal Pradesh Vs. Prem Singh, it has been laid down in a tradition bound society prevalent in India, more particularly in rural areas, it would be quite unsafe to throw out the prosecution case merely on the ground that there is some delay in lodging the F.I.R. Even otherwise if the prosecution case is proved beyond reasonable doubt, delay in lodging the F.I.R. cannot be used as right to illustrative formula for doubting the prosecution case and discarding the same solely on the ground of delay in lodging the First Information Report. However, if the delay is explained to the satisfaction of the court, the delay cannot by itself be a ground for disbelieving and discarding the entire prosecution case. Thus, we conclude that there is slight delay in lodging the F.I.R. which has been satisfactorily and reasonably explained by the prosecution. Point No. 2: There is no motive for the accused to commit the offence. Counsel for the appellants has further submitted that there is no motive for the accused to commit the offence rather the informant had motive to falsely implicate the accused appellants. Counsel for the appellants has taken us through the statement of P.W. 1 Madhav Raj who has given out the motive. He has stated that about 4-5 years prior to the incident, the accused Ayodhya had mortgaged his fields in the name of the father of the informant for Rs.300/-. The informant and his father started ploughing the fields about 2-3 months prior to the occurrence. Father of the informant asked accused Ayodhya to pay back his amount at which accused Ayodhya said that he was unable to pay the amount and his fields may be returned to him for which father of the informant was not ready. Ayodhya felt bad for this and said that he would kill the father of the informant within seven days. Later on the panchayat was also held but nothing could be compromised in the panchayat. Although motive has not found placed in the F.I.R. but it is very much there in the evidence. Motive is a double edged weapon which on one side instigate the accused to commit the crime whereas on the other hand helps the accused in implicating innocent persons for the crime. The motive for doing a criminal act is generally a difficult area in the prosecution. One cannot normally see into the mind of another. Motive is the emotion, which impels a man to do a particular act. Such impelling cause need not necessarily be proportionally grave to do grave crimes. Many murders have been committed without any known or prominent motive. It is quite possible that the aforesaid impelling factor would remain undiscoverable. Besides it is well settled law that motive loses its value in the case of direct evidence. P.W. 1 Madho Ram has stated about the motive. Many murders have been committed without any known or prominent motive. It is quite possible that the aforesaid impelling factor would remain undiscoverable. Besides it is well settled law that motive loses its value in the case of direct evidence. P.W. 1 Madho Ram has stated about the motive. The witness Ram Lala, PW-5 the wife of the deceased has also not stated anything about the motive. Thus, although the motive set forth by the prosecution is weak but, however, if the oral evidence is trustworthy and credible, motive loses its value. Point No. 3:-There is no recovery from the accused appellants It has been submitted that there is no recovery from the accused. It is a fact that there is no recovery from the accused but we do not think that this factor shall otherwise affect the prosecution case. Point No. 4: All the witnesses, who have stated against the accused appellants are family members, hence, their testimony cannot be relied upon. It has been submitted on behalf of the counsel for the appellants that the informant PW-1 Madhav Raj is the son of the deceased and P.W.5 Ram Lala is the wife of the deceased. They are interested witnesses. Hence, they are not reliable. It is admitted case that P.W. 1 and P.W. 5 are related to each other and also to the accused but in (2006) 4 SCC 512 , State of A.P. Vs. S. Rayappa and others, it has been laid down as under:- "Testimony of a witness otherwise inspiring confidence cannot be discarded on the ground that he being a relation of the deceased is an interested witness. A close relative who is a very natural witness cannot be termed as an interested witness. The term interested postulates that the person concerned must have some direct interest in seeing the accused persons being convicted somehow or the other either because of animosity or some other reasons. On the contrary, invariably the public is reluctant to appear and depose before the court especially in criminal case because of varied reasons. Criminal cases are kept dragging for years to come and the witnesses are a harassed lot. They are being threatened intimidated and at the top of all they are subjected to lengthy cross-examination. In such a situation, the only natural witness available to the prosecution would be the relative witness. Criminal cases are kept dragging for years to come and the witnesses are a harassed lot. They are being threatened intimidated and at the top of all they are subjected to lengthy cross-examination. In such a situation, the only natural witness available to the prosecution would be the relative witness. The relative witness is not necessarily an interested witness. On the other hand, being a close relation to the deceased they will try to prosecute the real culprit by stating the truth. There is no reason as to why a close relative will implicate and depose falsely against somebody and screen the real culprit to escape unpunished. The only requirement is that the testimony of the relative witnesses should be examined cautiously." . Thus, the evidence of P.W. 1 and 5 cannot be thrown out on the factum of they being related to the deceased. Coming to the evidence of witnesses of fact, Madhav Raj is an injured witness. Hence, there is sure guarantee of his being present at the place of occurrence. Even otherwise at mid night who would be present inside the house? Obviously, the inmates of the house and different family members of the house are expected to be in the house at mid night. Mahav Raj has stated that when the dacoits entered the house, he recognized Ayodhya, Chandrika and Amerika in the light of lantern and in the flash of torch. He has further stated that the main gate was opened by the dacoits after they jumped into the house and started looting the articles from inside the house and started placing them outside the house. The accused had country made pistols, torch and lathis. The dacoits assaulted this witness and his father. In cross-examination, this witness has stated that his house has two apartments and between both the apartments, there was a wall. He was sleeping in the apartment towards the North and in the other apartment his father, mother and sister were lying down. He has further stated that the dacoits initially entered in the apartment in which the informant was sleeping. When his father ran to save him, he was also beaten. He has further stated that when the dacoits caught the neck of his father, he got an opportunity to run out and raise hue and cry. He has further stated that the dacoits initially entered in the apartment in which the informant was sleeping. When his father ran to save him, he was also beaten. He has further stated that when the dacoits caught the neck of his father, he got an opportunity to run out and raise hue and cry. A specific question was put by the court as to who had caught the neck of the deceased to which this witness replied that all the three accused had caught the neck of the deceased. When this evidence is read with the evidence of Ram Lala, she contradicts this witness and says that accused Ayodhya caught the neck of the deceased. P.W. 1 Madhav Raj has stated that he could not count the blows on his father which is natural but he has stated that as soon as he got the opportunity, he fled away after jumping over the wall. He has stated that when he came back, the dacoits had left the place and his father was lying dead. P.W.5 Ram Lala has stated that when the dacoits started climbing the wall she woke up. When she opened her door 8-9 dacoits entered house. They were armed with country made pistols, guns but she does not remember that they were armed with lathis also. The torch of her son was snatched by the dacoits. When her husband came out of the room, his neck was caught and he was thrown down. Neck was caught by Ayodhya. It is very strange that neither the informant nor the eye witness being mother of the informant and wife of the deceased has uttered a word as to what valuables were taken away by the dacoits. Although a list has been annexed with the F.I.R. about the articles which were taken away by the dacoits. P.W. 2 Subrati is also said to be an eye witness who said that at about 12-1 O'clock in the night, he saw 7 to 8 dacoits entering the house of the informant but he could not recognize anybody. But the accused Ayodhya, Amrika and Chandrika were not on the spot. He has further stated that all the dacoits were muffled. The evidence of P.W.3 Lallan Singh and P.W. 4 Munna Singh is formal in nature, hence, it needs no discussion. But the accused Ayodhya, Amrika and Chandrika were not on the spot. He has further stated that all the dacoits were muffled. The evidence of P.W.3 Lallan Singh and P.W. 4 Munna Singh is formal in nature, hence, it needs no discussion. P.W. 6 is Nankau, who has also stated that he could not recognize the dacoits. P.W.7 is Kandhai who has stated that on hearing hue and cry, he proceeded towards the spot. He saw that some miscreants were committing dacoity. He did not recognize the miscreants. Thus, the evidence adduced on behalf of the prosecution as far as the eye witness account is concerned, it is not at all trustworthy or reliable. As regards the medical evidence is concerned, P.W. 8 Dr. M.P. Singh has specifically stated that having regard to the inquiry it appeared that a lot of pressure was put on the neck. He has further stated that the injury could have been caused if the neck was pressed by the knee. But, this is not the case of the prosecution. According to the ante mortem injuries given in the post mortem report, these injuries are not in consonance with the ocular evidence in as much as in the prosecution case the evidence says that the accused caught hold of the neck of the deceased but while being armed with something in one hand, the injury sustained by the deceased could not be caused by only one hand. Besides the injuries of the informant Madhav Raj are simple. Thus, the ocular and medical evidence being contradictory, the ocular evidence has to be relied upon and as said earlier by us the ocular evidence is not worthy of credit. It is contradictory due to which the complete prosecution case falls down like a heap of cards thus the prosecution has failed to prove the case against the accused beyond all reasonable doubt. 5.Investigation is defective, hence, the appeal is liable to be allowed. It has been submitted on behalf of the appellnats that investigation is defective in as much as neither the clothes of the deceased were taken into custody nor blood stained earth was collected by the Investigating Officer. In State of M.P. Vs. Mansingh and others,(2003) 1 SCC 2014, it has been held that even if there were deficiencies in the investigation that cannot be a ground for discrediting the prosecution version. In State of M.P. Vs. Mansingh and others,(2003) 1 SCC 2014, it has been held that even if there were deficiencies in the investigation that cannot be a ground for discrediting the prosecution version. The same view was taken and reiterated in Sheo Shankar Singh Vs. State of Jharkhand and another, (2011) 3 SCC 654 . 10. Another thing which raises suspicion in the mind of the court is that on perusal of the inquest report Ext.Ka-3 it was found that there were no clothes on the body of the deceased. The clothes of the deceased were produced by P.W. 1 when he was examined in the court. This fact remained a mystery as to who removed the clothes of the deceased even before the inquest report was prepared and why the dead body of the deceased was dishonoured in this way. This fact coupled with the oral evidence, which was shaky and unworthy of credence, forces us to conclude that the prosecution has miserably failed to bring home the guilt against the accused persons. 11. Thus, the accused persons are entitled to be acquitted against the charges levelled against them and the appeal is liable to be allowed. 12. The Judgment and order dated 11.2.1982 passed by the II Additional Sessions Judge, Gonda in S.T. No. 17 of 1981, State Vs. Ayodhya and two others is set aside. The accused Ayodhya, Chandrika and Amerika are acquitted of the charges under Section 396 I.P.C. 13. Accordingly, the appeal is allowed. 14. The appellants are on bail. They need not surrender provided all the appellants furnish two sureties and a personal bond of the amount fixed by C.J.M., Gonda to the satisfaction of C.J.M. as per the provisions of section 437-A Cr.P.C. ———————