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2015 DIGILAW 3894 (ALL)

Prempati v. State of U. P.

2015-12-09

SURENDRA VIKRAM SINGH RATHORE

body2015
JUDGMENT Pratyush Kumar, J. – Sri Raj Priya Srivastava, learned counsel for the appellants and Sri Umesh Verma, learned Additional Government Advocate for the State have been heard at length and we have perused the material available on record. 2. The instant appeal, filed by accused/appellants U/S 374 Cr.P.C., is directed against the judgment and order dated 28.8.1982 passed in Sessions Trial No. 223 of 1981 by Sri A.S. Tripathi, the then IIIrd Addl. Sessions Judge, Faizabad, whereby the appellants were convicted U/S- 302/34 and 201/34 I.P.C,. and sentenced to undergo imprisonment for life and rigorous imprisonment for five years respectively. 3. Brief Facts, giving rise to the present appeal, are as under: - On 16.6.1980 at 09.30 P.M. Sharda Prasad Misra handed a written report at P.S. Raunahi stating therein that he was resident of village Misrauli. Bhagwati Prasad also lived in his village. On 09.6.1980 in the evening he brought one pair of bullocks after purchasing them from the market, thereafter his whereabouts were not known. On 10.6.1980 in the morning Sobh Nath and Ram Prasad were seen by Sukh Dev Prasad, Dev Prasad and Ranjit Prasad, leaving his house, when inquired wife of Bhagwati used to reply that Bhagwati had left the house after saying that he was going to Bombay. That day the foul smell was coming out of the house of Bhagwati, when residents of the village asked her where was Bhagwati and why foul smell was coming out, at that she closed the door from the inside and refused to open. Wife of Bhagwati had illicit relations with Sobh Nath and that fact was known to all the villagers. All the residents were suspicious that Bhagwati had been murdered by his wife, Sobh Nath and Ram Prasad and his dead body was concealed in his house. Sobh Nath was not available in his house. Jamuna Prasad and other villagers were watching the house. 4. All the residents were suspicious that Bhagwati had been murdered by his wife, Sobh Nath and Ram Prasad and his dead body was concealed in his house. Sobh Nath was not available in his house. Jamuna Prasad and other villagers were watching the house. 4. At this written report, chick F.I.R. was scribed and Case Crime No. 201 of 1980 was registered, requisite entry in the G.D. was made, thereafter investigation was entrusted to S.I. Bhagwati Prasad, who on the same night proceeded to the village and get the door opened by Appellant No.1, who immediately confessed that 08 days ago she with her paramour Sobh Nath and his friend Ram Prasad had murdered Bhagwati Prasad and after putting his dead body in a gunny bag hidden it in a pit dug at Ghoora (place for storage of garbage to convert that into bio fertilizer), she also volunteered to indicate the place where the dead body was hidden, she was immediately taken into custody and she led the Investigating Officer along with residents of village following, to Ghoora situated in the courtyard inside the house. After placing her hand at a particular point, she started to remove the garbage with her hands, foul smell was coming from there . She told that the dead body was hidden in deep pit where after with the help of residents of the village garbage was removed. After removal of garbage, one tied gunny bag became visible which was taken out, after seeing the gunny bag Appellant No.1 informed the Investigating Officer that inside that gunny bag dead body of Bhagwati Prasad had been kept. After opening the gunny bag the decomposed dead body was recovered, the deceased was wearing one Kurta, his dead body was taken into possession, gunny bag, panni and Rassi were sealed in a bundle and recovery memo was prepared, it was written and signed by the Investigating Officer and witnesses, copy was provided to the Appellant No.1, thereafter Appellant No.1 further volunteered the Investigating Officer that deceased was murdered with the help of Pestle (Iron Mungari) and Brick which were hidden in a kothari (Small room) after placing them in a bucket. She went, with them, to the kothari in question whose door was locked, she took out a key and opened the lock and went to southern side of kothari and took out one blood stained iron Pestle and one open piece of Brick following mark R(Swastik) out of the bucket. 5. After taking these articles into possession, securing them in a sealed bundle, recovery memo was prepared, when it was signed, one copy was provided to the Appellant No.1. Thereafter Investigating Officer conducted investigation and took the other necessary steps, witnesses were examined and charge sheet was submitted against the Appellants. 6. The Magistrate took cognizance of the offences and after complying with the mandatory requirements, committed the case to the Court of Session where the appellants were charged U/S 302 read with Section-34 and 201 I.P.C. The appellants pleaded not guilty and claimed trial. 7. The prosecution filed documentary evidence and also adduced oral evidence. In the documentary evidence written report Ext. Ka-1, Recovery memo Ext. Ka-2 to Ka-4, Inquest report Ext.Ka-5, Postmortem Report Ext. Ka-6, Chick F.I.R. Ext. Ka-7, copy of Rapat No. 29 of G.D. dated 16.6.1980 Ext. Ka-8, Site Plan Ext. Ka-13, copy of G.D. dated 17.6.1980 regarding arrest of Appellant No.1 and deposit of articles in the Malakhana recovered from the place of occurrence Ext. Ka-13 are very material to the case. 8. In oral evidence Sharda Prasad Misra P.W.1 (first informant), Ram Kumar P.W.2- son of the deceased and Appellant No.1 (eye witness), Sunder Singh P.W.3 independent witness of the recovery memos, Dr. R.P.Misra P.W.4 who conducted the post mortem examination on the dead body of Bhagwati Prasad and S.I. Bhagwati Prasad P.W.5 Investigating Officer of the case were examined. 9. The statements of the appellants were recorded under Section-313 Cr.P.C. wherein they had denied the occurrence, correctness of the facts stated by the witnesses showing their complicity in the crime, regarding post mortem examination and facts stated by the formal witnesses they pleaded ignorance. In defence three documents exhibited as Kha-1 to kha-3 were filed by the Appellant No.2. 10. The learned trial judge after conclusion of the trial, heard the arguments of both the parties and passed the impugned judgment and order. In defence three documents exhibited as Kha-1 to kha-3 were filed by the Appellant No.2. 10. The learned trial judge after conclusion of the trial, heard the arguments of both the parties and passed the impugned judgment and order. According to the learned trial judge, Ram Kumar the eldest son of the deceased and Appellant No.1 a child witness who possessed adequate understanding to give the testimony on oath considered his statement and by ignoring some discrepancy considered natural by him, Ram Kumar P.W.2 is a fully reliable witness. He recorded a finding to that effect. Prosecution, with the help of evidence of Sundar Singh, P.W.-3 recovery of incriminating articles, on the pointing out of Smt. Premwati, could successfully prove that Bhagwati Prasad was done to death by violence was established from the medical evidence as well as oral evidence. He rejected the arguments of the defence that in absence of Serologist's report adverse inference should be drawn against the prosecution. This argument was rejected on account of the fact that report of the Chemical Examiner Serologist was found missing during their transmission from the Court of Chief Judicial Magistrate to P.S. Raunahi. He found all the appellants guilty of the charges and sentenced them as above. 11. Feeling aggrieved all the convicted persons preferred the present appeal. 12. We have heard Sri Raj Priya Srivastava, Advocate, counsel appearing for the appellants and Sri Umesh Verma, learned A.G.A. representing the respondent/State. 13. On behalf of the appellants lengthy arguments have been advanced. The learned counsel for the appellants first argued the case of Ram Prasad-Appellant No.3, according to him none of the person had allegedly seen Appellant No. 3 along with Sobh Nath leaving the house of the deceased in the morning of 10.6.1980, none of the witness of this fact named in FIR, was examined by the prosecution, therefore this fact cannot be taken into consideration. He has further submitted that confessional statement of Appellant No.1 was made before the Police Officer therefore under Section 25 of the Evidence Act, these statement with the help of Section-30 of the Evidence Act cannot be taken into consideration. According to him so far as statement admissible under Section-27 of the Evidence Act is concerned, that is confined only to the knowledge of the Appellant No.1, Appellant No.3 has nothing to do with the same. According to him so far as statement admissible under Section-27 of the Evidence Act is concerned, that is confined only to the knowledge of the Appellant No.1, Appellant No.3 has nothing to do with the same. He has further placed his argument that the Appellant No.3 is resident of another village and Ram Kumar P.W.2 who claims to have seen him, is not a trustworthy witness. However, for the sake of argument if he is deemed to be a reliable witness, even then his statement is not sufficient to convict the Appellant No.3 because he was not known to Ram Kumar PW.2 and no identification parade was held. 14. In reference to Appellant No.2's case, he has submitted that on 10.6.1980 Appellant No.2 was present in the Court of Additional Munsif Magistrate, Faizabad where his presence was noted and judgment was pronounced. These facts are established from Ext. Kha-1and Kha-2. He has further submitted that there remains no evidence that it was the Appellant No.2 who on the behest of Appellant No.1 took Ram Kumar from the house of deceased to the mayka of Appellant No.1. He has further submitted that first informant Sharda Prasad Misra P.W.1 has enmity with the Appellant No.2 as is evident from. Ext. Kha-3 copy of the complaint dated 27.10.1977 wherein first informant was made an accused in the complaint of Nanhe, son of Lahuri-relative of Appellant No.2. According to the learned counsel, for this enmity Appellant No.2 has falsely been implicated and against him there is no reliable evidence. 15. In reference to the Appellant No.1 the learned counsel has submitted that Appellant No.1 was, at the relevant time, in her mayka, she was called from mayka by the police on 17.06.1980 and Investigating Officer in collusion with first informant had manufactured false evidence of recovery in order to enable the residents of village to grab the property of the deceased. He has further submitted that the occurrence allegedly took place in the intervening night of 09/10.6.1980, but the eye witness Ram Kumar P.W.2 was examined by the Investigating Officer on 08.07.1980. According to the learned counsel, this delay is inordinate and fatal for the prosecution. 16. He has further submitted that the occurrence allegedly took place in the intervening night of 09/10.6.1980, but the eye witness Ram Kumar P.W.2 was examined by the Investigating Officer on 08.07.1980. According to the learned counsel, this delay is inordinate and fatal for the prosecution. 16. On behalf of the State these arguments have been repelled and it has been submitted that Ram Kumar was removed from the house of deceased immediately after the occurrence so that he could not tell anyone the real story. On account of his removal, he could not be examined on the day when Investigating Officer visited the spot. Thereafter this witness was living elsewhere in another villages, removal of Ram Kumar by the appellant no.1 resulted in delay of his examination, therefore on account of late examination his testimony should not be discarded. 17. Learned A.G.A. has further submitted that during the course of examination Ram Kumar P.W.2 has given answers which indicates that he knew Appellant No.3 prior to the occurrence. The learned A.G.A. has further submitted that the stand taken by the Appellant No.2 is not substantiated from Ext. Kha-1 and Kha-2, copies of order sheet dated 10.6.1980 and judgment dated 10.6.1980 reveal that the name of Appellant No.2 was not mentioned in these papers, rather there is name of Shobhram. In the alternative he has argued that the distance between scene of occurrence and court premises is not so great that after removing Ram Kumar P.W.2 from the house of deceased and handing him over to the house of his maternal uncle, the Appellant No.2 could not have reached the court to attend the case and mark his presence. The learned A.G.A. has argued that it is a brutal murder of a husband by his wife with the help of her paramour and his friend, the only possible witness is Ram Kumar P.W.2-eldest son of the deceased and Appellant No.1, his presence at the time of occurrence cannot be questioned his testimony is worthy of reliance, he is fully reliable witness and from his testimony complicity of all the three appellants in the crime is fully established and the appeal deserves to be rejected. 18. 18. On behalf of the appellants case of Madhu v. State of Kerala, (2012) 2 SCC 399 has been referred as an authority that under Section 27 Evidence Act confessional statement leading to the discovery of the fact would only be admissible when any unknown fact is discovered. 19. On behalf of the State on the point of admissibility of confessional statement under Section-27 of the Evidence Act, case of Pulukuri Kottaya and others v. Emperor (Sir John Beaumont), AIR 1947 Privy Council 67 had been referred. Reliance has been placed on the observations made in para-10 of the report which reads as under: - "10. Section 27, which is not artistically worded, provides an exception to the prohibition imposed by the preceding section, and enables certain statements made by a person in police custody to be proved. The condition necessary to bring the section into operation is that discovery of a fact in consequence of information received from a person accused of any offence in the custody of a Police officer must be deposed to, and thereupon so much of the information as relates distinctly to the fact thereby discovered may be proved. The section seems to be based on the view that if a fact is actually discovered in consequence of information given, some guarantee is afforded thereby that the information was true, and accordingly can be safely allowed to be given in evidence; but clearly the extent of the information admissible must depend on the exact nature of the fact discovered to which such information is required to relate. Normally the section is brought into operation when a person in police custody produces from some place of concealment some object, such as a dead body, a weapon,or ornaments, said to be connected with the crime of which the informant is accused. Mr. Megaw, for the Crown, has argued that in such a case the "fact discovered is the physical object produced, and that any information which relates distinctly to that object can be proved. Upon this view information given by a person that the body produced is that of a person murdered by him, that the weapon produced is that one used by him in the commission of a murder, or that the ornaments produced were stolen in a dacoity would all be admissible. Upon this view information given by a person that the body produced is that of a person murdered by him, that the weapon produced is that one used by him in the commission of a murder, or that the ornaments produced were stolen in a dacoity would all be admissible. If this be the effect of section 27, little substance would remain in the ban imposed by the two proceeding sections on confessions made to the police, or by persons in police custody. That ban was presumably inspired by the fear of the Legislature that a person under police influence might be induced to confess by the exercise of undue pressure. But if all that is required to lift the ban be the inclusion in the confession of information relating to an object subsequently produced, it seems reasonable to suppose that the persuasive powers of the police will prove equal to the occasion, and that in practise the ban will lose its effect. On normal principles of construction their Lordships think that the proviso to Section 26 added by Section 27, should not be held to nullify the substance of the section. In their Lordships' view it is fallacious to treat the "fact discovered" within the section as equivalent to the object produced; the fact discovered embraces the place from which the object is produced and the knowledge of the accused as to this, and the information given must relate distinctly to this fact. Information as to past user, or the past history, of the object produced is not related to its discovery in the setting in which it is discovered. Information supplied by a person in custody that "I will produce a knife concealed in the roof of my house" does not lead to the discovery of a knife; knives were discovered many years ago. It leads to the discovery of the fact that a knife is concealed in the house of the informant to his knowledge, and if the knife is proved to have been used in the commission of offence, the fact discovered is very relevant. But if to the statement the words be added "with which I stabbed A" these words are inadmissible since they do not relate to the discovery of the knife in the house of the informant." 20. But if to the statement the words be added "with which I stabbed A" these words are inadmissible since they do not relate to the discovery of the knife in the house of the informant." 20. In the case of Vasanta Sampat Dupare v. State of Maharashtra, 2015 Cri.L.J. 774 has been referred and argued that principle laid down in the afore-quoted observation is still hold good vide para-20 of the report. Para-26 of the report has been referred as an authority that such recovery would also be admissible under Section-8 of the Evidence Act where previous and subsequent conduct of the accused have been made relevant. Para- 26 of the report is illuminating on the point. We would like to quote it as under: - 26. In A.N. Vekatesh and another v. State of Karnataka it has been ruled that: - "By virtue of Section 8 of the Evidence Act, the conduct of the accused person is relevant, if such conduct influences or is influenced by any fact in issue or relevant fact. The evidence of the circumstance, simpliciter, that the accused pointed out to the police officer, the place where the dead body of the kidnapped boy was found and on their pointing out the body was exhumed, would be admissible as conduct under Section 8 irrespective of the fact whether the statement made by the accused contemporaneously with or antecedent to such conduct falls within the purview of Section 27 or not as held by this Court in Prakash Chand v. State (Delhi Admin.), ( AIR 1979 SC 400 ). Even if we hold that the disclosure statement made by the accused-appellants (Exts. P-15 and P-16) is not admissible under Section 27 of the Evidence Act, still it is relevant under Section 8. The evidence of the Investigating Officer and Pws-1, 2, 7 and PW-4 the spot mahazar witness that the accused had taken them to the spot and pointed out the place where the dead body was buried, is an admissible piece of evidence under Section 8 as the conduct of the accused. Presence of A-1 and A-2 at a place where ransom demand was to be fulfilled and their action of fleeing on spotting the police party is a relevant circumstance and are admissible under Section 8 of the Evidence Act." 21. Case of Suresh and another v. State of Haryana, 2015 Cri. Presence of A-1 and A-2 at a place where ransom demand was to be fulfilled and their action of fleeing on spotting the police party is a relevant circumstance and are admissible under Section 8 of the Evidence Act." 21. Case of Suresh and another v. State of Haryana, 2015 Cri. L. J. 661 has been referred as authority to substantiate the argument that mental knowledge discovered on the basis of recovery of incriminating article has to be further explained by the accused U/S 106 of the Evidence Act. Failure to do so, would be an additional circumstance against him. The reproduction of para-8 of the report would be helpful to clarify the legal position on this point which is as under: - "8. Apart from the above, this is a case where Section 106 of the Evidence Act is clearly attracted which requires the accused to explain the facts in their exclusive knowledge. No doubt, the burden of proof is on the prosecution and Section 106 is not meant to relieve it of that duty but the said provision is attracted when it is impossible or it is proportionately difficult for the prosecution to establish facts which are strictly within the knowledge of the accused. Recovery of dead bodies from covered gutters and personal belongings of the deceased from other places disclosed by the accused stood fully established. It casts a duty on the accused as to how they alone had the information leading to recoveries which was admissible under Section 27 of the Evidence Act. Failure of the accused to give an explanation or giving of false explanation is an additional circumstance against the accused as held in number of judgments, including State of Rajasthan v. Jaggu Ram." 22. On this point case of Alber oraon v. State of Jharkhand, 2014 Cri. L.J. 4238 (SC) has also been referred. In this case conviction was upheld by the Hon'ble Supreme Court with the help of absence of the explanation required to be given in pursuance of Section-106 of the Evidence Act. 23. On the point of falsity of defence learned A.G.A. has submitted that such falsehood would be an additional link in the chain of incriminating circumstance to establish the guilt of the accused. 23. On the point of falsity of defence learned A.G.A. has submitted that such falsehood would be an additional link in the chain of incriminating circumstance to establish the guilt of the accused. He relied on observations made in para-27 of the report in the case of State of Maharashtra v. Suresh, 2000 SCC (Cri) 263, which are extracted here under: "27. It is regrettable that the Division Bench had practically nullified the most formidable incriminating circumstance against the accused spoken to by PW-22 Dr. Nand Kumar. We have pointed out earlier the injuries which the doctor had noted on the person of the accused when he was examined on 25.12.1995. The significant impact of the said incriminating circumstance is that the accused could not give any explanation whatsoever for those injuries and therefore he had chosen to say that he did not sustain any such injury at all. We have no reason to disbelieve the testimony of PW- 22 Dr. Nand Kumar, False answer Offered by the accused when his attention was drawn to the aforesaid circumstance renders that circumstance capable of inculpating him. In a situation like this such a false answer can also be counted as providing "a missing link" for completing the chain." 24. On the point of trustworthiness of the testimony of child witness learned A.G.A. has referred the observations made in para 18 of the report in the case of State of Rajasthan v. Chandgi Ram and others 2014 Cri. L. J. 4571 (Supreme Court). 25. The learned A.G.A. has referred the case of State of Rajasthan v. Chandgi Ram and others 2014 Cri. L. J. 4571 (Supreme Court) in reference to the evidential value of the testimony of the child witness, wherein from para-12 to 14 Hon'ble the Supreme Court has threshed out the legal position in the reference to the probative value of testimony of the child witness. These paras read as under: - "12. L. J. 4571 (Supreme Court) in reference to the evidential value of the testimony of the child witness, wherein from para-12 to 14 Hon'ble the Supreme Court has threshed out the legal position in the reference to the probative value of testimony of the child witness. These paras read as under: - "12. Similarly, we find absolutely no discrepancy in the version of Vikram (PW-15), who was even younger than Kumari Sarita (PW-3) in age at the time of the occurrence but yet his version before the Court as recorded by the trial Court disclosed that he was only speaking the truth and he was able to give the required details as regards the manner in which the occurrence took place, the involvement of the Respondents-accused and the weapons which they used in that process and the ultimate killing of his father at the instance of the Respondents-accused. 13. In this context, it is relevant to rely on a decision of this Court reported in State of Madhya Pradesh v. Ramesh and another, (2011) 4 SCC 786 wherein it laid down as to how the evidence of a child witness should be assessed. Paragraphs 7, 11 and 14 which are relevant for our purpose, are as under: "7. In Rameshwar v. State of Rajasthan this Court examined the provisions of Section 5 of the Oaths Act, 1873 and Section 118 of the Evidence Act, 1872 and held that (AIR p. 55, para 7) every witness is competent to depose unless the court considers that he is prevented from understanding the question put to him, or from giving rational answers by reason of tender age, extreme old age, disease whether of body or mind or any other cause of the same kind. There is always competency in fact unless the court considers otherwise. The Court further held as under: (AIR p. 56, para 11). "11. … it is desirable that Judges and Magistrates should always record their opinion that the child understands the duty of speaking the truth and state why they think that, otherwise the credibility of the witness may be seriously affected, so much so, that in some cases it may be necessary to reject the evidence altogether. But whether the Magistrate or Judge really was of that opinion can, I think, be gathered from the circumstances when there is no formal certificate." 11. But whether the Magistrate or Judge really was of that opinion can, I think, be gathered from the circumstances when there is no formal certificate." 11. The evidence of a child must reveal that he was able to discern between right and wrong and the court may find out from the cross-examination whether the defence lawyer could bring anything to indicate that the child could not differentiate between right and wrong. The court may ascertain his suitability as a witness by putting questions to him [pic]and even if no such questions had been put, it may be gathered from his evidence as to whether he fully understood the implications of what he was saying and whether he stood discredited in facing a stiff cross-examination. A child witness must be able to understand the sanctity of giving evidence on oath and the import of the questions that were being put to him. (Vide Himmat Sukhadeo Wahurwagh v. State of Maharashtra.) 14. In view of the above, the law on the issue can be summarised to the effect that the deposition of a child witness may require corroboration, but in case his deposition inspires the confidence of the court and there is no embellishment or improvement therein, the court may rely upon his evidence. The evidence of a child witness must be evaluated more carefully with greater circumspection because he is susceptible to tutoring. Only in case there is evidence on record to show that a child has been tutored, the court can reject his statement partly or fully. However, an inference as to whether child has been tutored or not, can be drawn from the contents of his deposition." (Emphasis added). 14. To the same effect is the decision reported in Shivasharanappa and others v. State of Karnataka, (2013) 5 SCC 705 . Paragraph 17 can be referred to as under: "17. Thus, it is well settled in law that the court can rely upon the testimony of a child witness and it can form the basis of conviction if the same is credible, truthful and is corroborated by other evidence brought on record. Needless to say, the corroboration is not a must to record a conviction, but as a rule of prudence, the court thinks it desirable to see the corroboration from other reliable evidence placed on record. Needless to say, the corroboration is not a must to record a conviction, but as a rule of prudence, the court thinks it desirable to see the corroboration from other reliable evidence placed on record. The principles that apply for placing reliance on the solitary statement of the witness, namely, that the statement is true and correct and is of quality and cannot be discarded solely on the ground of lack of corroboration, apply to a child witness who is competent and whose version is reliable." 26. In order to appreciate argument of respective parties' we would also like to place the record the defence of the appellants as pleaded before the trial court. The version of the defence as emerged from the statements of the appellants cannot be treated to be evidence, but it would be helpful to consider and appreciate the arguments advanced on behalf of the parties. Before trial court defence of the Appellant No.3 was that he refused to work for Swami Dayal and for that he had been falsely implicated. Defence of the Appellant No.2 was that due to earlier enmity he had been falsely implicated. On 10.6.1980 he was present in the court to hear the judgment. Defence of the Appellant No.1 was that about 15-20 days before occurrence she along with her children had gone to her Mayka and in the night of 09th June Shiv Bahadur came to her Mayka and on 17.6.1980 at 9 A.M. she came back to her house from the Mayka where she was arrested, for grabbing her property, she had been falsely implicated. Her farming was done with the help of Tractor. 27. Further we would like to refresh the observation made by the Apex Court in the case of Ishvarbhai Fuljibhai Patni v. State of Gujarat, [1995 SCC (Crl) 222]. Para-4 of the judgment reads as under: "4. Since, the High Court was dealing with the appeal in exercise of its appellate jurisdiction, against conviction and sentence of life imprisonment, it was required to consider and discuss the evidence and deal with the arguments raised at the bar. Let alone, any discussion of the evidence, we do not find that the High Court even cared to notice the evidence led in the case. None of the arguments of the learned counsel for the appellant have been noticed, much less considered and discussed. Let alone, any discussion of the evidence, we do not find that the High Court even cared to notice the evidence led in the case. None of the arguments of the learned counsel for the appellant have been noticed, much less considered and discussed. The judgment is cryptic and we are at loss to understand as to what prevailed with the High Court to uphold the conviction and sentence of the appellant. On a plain requirement of justice, the High Court while dealing with a first appeal against conviction and sentence is expected to, howsoever briefly depending upon the facts of the case, consider and discuss the evidence and deal with the submissions raised at the bar. If it fails to do so, it apparently fails in the discharge of one of its essential jurisdiction under its appellate powers. In view of the infirmities pointed out by us, the judgment under appeal cannot be sustained." 28. In the case of Lal Mandi, Appellant v. State of West Bengal, Respondent, [1995 CRI.L.J.2659 (Supreme Court), 2659], the Apex Court in para-5 of the report has given the caution to the High Court reminding its duty in the matter of hearing of appeal against conviction. It would be gainful to reproduce the observation made in para-5 of the report, extracted below: "5. To say the least, the approach of the High Court is totally fallacious. In an appeal against conviction, the Appellate Court has the duty to itself appreciate the evidence on the record and if two views are possible on the appraisal of the evidence, the benefit of reasonable doubt has to be given to an accused. It is not correct to suggest that the "Appellate Court cannot legally interfere with" the order of conviction where the trial court has found the evidence as reliable and that it cannot substitute the findings of the Sessions Judge by its own, if it arrives at a different conclusion on reassessment of the evidence. The observation made in Tota Singh's case, which was an appeal against acquittal, have been misunderstood and mechanically applied. Though, the powers of an appellate court, while dealing with an appeal against acquittal and an appeal against conviction are equally wide but the considerations which weigh with it while dealing with an appeal against an order of acquittal and in an appeal against conviction are distinct and separate. Though, the powers of an appellate court, while dealing with an appeal against acquittal and an appeal against conviction are equally wide but the considerations which weigh with it while dealing with an appeal against an order of acquittal and in an appeal against conviction are distinct and separate. The presumption of innocence of accused which gets strengthened on his acquittal is not available on his conviction. An appellate court may give every reasonable weight to the conclusions arrived at by the trial court but it must be remembered that an appellate court is duty bound, in the same way as the trial court, to test the evidence extrinsically as well as intrinsically and to consider as thoroughly as the trial court, all the circumstances available on the record so as to arrive at an independent finding regarding guilt or innocence of the convict. An Appellate Court fails in the discharge of one of its essential duties, if it fails to itself appreciate the evidence on the record and arrive at an independent finding based on the appraisal of such evidence." 29. Scope of jurisdiction and responsibility of the appellate court hearing criminal appeal have been outlined by us here in before. Keeping in view the mandate of the Hon'ble Supreme Court first we would proceed to discuss the evidence of prosecution witnesses, thereafter assess their evidential value. Only then we propose to consider the merits of the arguments submitted before us in this appeal. 30. Sharda Prasad Misra P.W.1 is the first informant. The facts contained in the first information report has been mentioned by him in detail. In his statement on oath, this witness has reiterated the fact mentioned in the first information report. He has also stated that he along with Sukh Dev, Dev Prasad and Ranjit and Tridev had seen the Appellant Nos. 2 and 3 leaving the house of deceased in the morning of 10th June, he had also stated the facts mentioned in recovery memo of the dead body Ext. Ka-2 and recovery memo of bucket, brick and Pestle Ext. Ka-4. He has proved the recovery memo Ext. Ka-2, Ext. Ka-3 and Ext. Ka-4 identified gunny bag, Pestle, bucket, one piece string, one piece of iron pestle material Ext.1 to 4. 31. Ka-2 and recovery memo of bucket, brick and Pestle Ext. Ka-4. He has proved the recovery memo Ext. Ka-2, Ext. Ka-3 and Ext. Ka-4 identified gunny bag, Pestle, bucket, one piece string, one piece of iron pestle material Ext.1 to 4. 31. Ram Kumar P.W.2 was first examined on the point of his maturity, as he possessed sufficient intellect to answer the questions, the learned trial Judge had administered oath to him. Ram Kumar P.W.2, son of the deceased and Appellant No.1 has stated that the Appellant No.1 is his mother and Appellant No.2 was their ploughman (Halwaha) and the Appellant No.3 is the friend of Appellant No. 2. He has stated that whenever his father was not in house, the Appellant No.2 used to visit his house and sit with his mother. One day his father had scolded Appellant No.2 for such conduct. He also rebuked his wife Appellant No.1 when he had brought one pair of Bullocks from the market in the night, he slept with his father on a cot in Osara, lantern was burning there. He got up after hearing his father uttered "Hay Ram" and sat on the cot and saw that Sobh Nath Appellant No.2 and his mother Appellate no.1 were beating his father and Ram Prasad was catching hold of hands of his father. His mother was showering iron Pestle's blow on the head of his father and Sobh Nath was beating his father with the Brick, when he asked his mother what were they doing, his mother warned him to keep silent, otherwise he would be killed in the same manner. Hearing that, he had gone to sleep and meanwhile he saw them taking his father inside the kothari. In the morning when he asked his mother where was father, she told him that he had gone to Bombay and asked him to give same reply whenever inquired. Thereafter his mother sent him to the house of his maternal uncle escorted by Sobh Nath. He has further stated that from there he went to the house of his uncle at village Luhari Saraiya and after one month when the Sub Inspector visited him, he came to know that his father was murdered. Thereafter his mother sent him to the house of his maternal uncle escorted by Sobh Nath. He has further stated that from there he went to the house of his uncle at village Luhari Saraiya and after one month when the Sub Inspector visited him, he came to know that his father was murdered. The night when his father was murdered in the noon of that day Sobh Nath and Ram Prasad came to his house and talked to his mother for a long time, iron Pestle Ext. Ka-2, he has identified it to be used by Appellant No.1 to inflict injuries on the head of his father. He has also identified the piece of Brick used by Appellant No.2 to beat his father. 32. Sunder Singh P.W.3 was the Pradhan of village Mauja Dheranga, he is witness of the recovery of incriminating articles. According to him he was asked by the Investigating Officer who was on his way to village Raunahi to accompany him to village Raunahi. He has fully supported the narrations contained in the recovery memos Ext. Ka-2 to Ext. Ka-4. He is the witness of inquest proceedings also. He has proved his signature on inquest proceedings Ext. Ka-5 and identified iron Pestle, Bucket and Brick. 33. Dr. R.P. Misra P.W.4 was the senior Surgeon in the District Hospital, Faizabad on 18.6.1980 . He has deposed that on that day he conducted the post mortem examination on the dead body of the deceased Bhagwati Prasad aged about 50 years. According to him duration of death was 1 to 2 week from the date autopsy was performed. Deceased was average built, he was sunken and unrecognizable. His legs and stomach were tightened with the help of rope of Patwa. He was wearing one Kurta and the body was in decomposed state. During internal examination below injury no.1 head bone was found fractured. He has also stated that he did not find any piece of Brick inside the body to be pasted. 34. S.I. Bhagwati Prasad Misra P.W.5 has stated that on 16.6.1980 he was posted at P.S. Raunahi, thereafter he gave details of the steps taken by him after chick F.I.R. was scribed. He proved the chick F.I.R. Ext. Ka-7, Copy of G.D. Ext. Ka-8 and narrated the facts mentioned in the recovery memo Ext. Ka-2 to Ext. Ka-4. 34. S.I. Bhagwati Prasad Misra P.W.5 has stated that on 16.6.1980 he was posted at P.S. Raunahi, thereafter he gave details of the steps taken by him after chick F.I.R. was scribed. He proved the chick F.I.R. Ext. Ka-7, Copy of G.D. Ext. Ka-8 and narrated the facts mentioned in the recovery memo Ext. Ka-2 to Ext. Ka-4. Further he proved the signatures of Appellant No.1 on Ext. Ka-2 to Ext. Ka-4. He also identified the material exhibits thereafter reiterated the facts stated in the Ext. Ka-4 recovery memo of the Iron Pestle and Brick. He has stated that Appellant No.2 surrendered before the Court on 23.6.1980 and Appellant No. 3 on 27.6.1980 and proved the charge sheet Ext. Ka-14. 35. Medical evidence engages first our attention. It consists of deposition of Dr. R.P.Mishra and postmortem report Ext. Ka-6. Dr. R.P. Misra P.W.4 was cross examined on behalf of the defence only on the point that dead body was in decomposed state and it was not recognisable. This witness is an official witness who in discharge of his official duty conducted the postmortem on the dead body of deceased. He has no enmity with the appellants nor any affinity with the first informant. He is an impartial witness. He has proved postmortem report Ext.Ka-6. We find him to be a reliable witness and it is noticed by us that after conducting the post mortem examination and while preparing the post mortem report Ext. Ka-6 he gave his opinion that the injuries sustained by the deceased could have been caused by iron pestle and brik. Here we would like to place on the record the ante mortem injuries recorded by this witness in the post mortem report Ext. Ka-6, which are as under: - Antimortem injuries: (1) Depressed deformity on back of head and sides. (2) Injuries (sic & sic) shoulder could not be made out clearly because of advanced decomposition. 36. Evidence of Dr. R.P. Mishra corroborated by the postmortem report Ext. Ka-6 lead us to conclude that the deceased had died a violent death probably one week to weeks prior to his autopsy. 37. Now we propose to re-examine and re-assess the prosecution evidence, indicating the complicity of the appellants in the said homicidal death. 36. Evidence of Dr. R.P. Mishra corroborated by the postmortem report Ext. Ka-6 lead us to conclude that the deceased had died a violent death probably one week to weeks prior to his autopsy. 37. Now we propose to re-examine and re-assess the prosecution evidence, indicating the complicity of the appellants in the said homicidal death. We also propose to consider the grounds taken in the memo of appeal and arguments advanced in support thereof in juxtaposition with the findings recorded by the learned trial judge and the reasons assigned in support thereof. 38. The first point which engaged the attention of the trial judge is the motive. We also think that it would be in the fitness of the things that existence/non-existence of motive should be examined by us also. 39. According to the learned counsel for the appellants, the appellants were falsely implicated by the residents of the village to grab property of the deceased and deprive the Appellant No.1 and her children to inherit the same. Whereas in the first information report, motive of crime has been alleged by the prosecution to be illicit relations between Appellant No.1., i.e., wife of the deceased and Appellant No.2, i.e., Halwaha of the deceased and Appellant No.3 has been said to be closed friend of Appellant No.2. 40. In order to find which of these two different version is correct, we have to visit the background of the deceased. According to Sharda Prasad Misra, P.W.1 deceased was resident of village Luhari Saraiya, District Barabanki. He received in inheritance 40-50 Bigha agricultural land from the side of her maternal grand father. He used to look after his farming himself and Appellant No.2 was his Halwaha. First wife of the deceased had died issueless, the Appellant No.1 is his second wife who gave birth to three sons and one daughter. Eldest of them is Ram Kumar. Incident had taken place in the intervening night of 09/10.6.1980. As per postmortem report his age was opined to be 50 years. On 11.8.1982, statement of Appellant No.1 under Section-313 Cr.P.C. was recorded and according to her at that time she was aged about 35 years. Age of the Sobh Nath in his statement under Section-313 Cr.P.C. has been recorded as 30 years. Thus roughly speaking deceased was at least 17 years elder to the Appellant No.1. On 11.8.1982, statement of Appellant No.1 under Section-313 Cr.P.C. was recorded and according to her at that time she was aged about 35 years. Age of the Sobh Nath in his statement under Section-313 Cr.P.C. has been recorded as 30 years. Thus roughly speaking deceased was at least 17 years elder to the Appellant No.1. This difference of age appears to be significant when we consider the prosecution version regarding motive of the incident. 41. Sharda Prasad Misra P.W.1 has fully supported the averment made in the first information report regarding illicit relations between these two. This witness has been cross examined at length, which runs into 24 pages. During the cross examination his testimony on this point remains unshaken. The only fact which could be extracted in favour of the defence is that the first wife of the deceased had a brother with whom the real sister of this witness was married and he admitted that his relations with the brother of the deceased's first wife were continued. We do not think this fact can possibly be called a reason to falsely depose and cannot be treated to be a factor diminishing the evidential value of this witness because the first wife of the deceased had died 30 years ago. On the point of motive, testimony of Sharda Prasad Misra P.W.1 remain intact. He is neighbour of the deceased and he is in a position to observe the facts which led to his belief about the illicit relations between Appellant No.1 and Appellant No.2. 42. Clinching evidence about the motive is in the form of testimony of Ram Kumar P.W.2, son of the Appellant No.1 and deceased. He has fully supported the facts giving rise to an inference that there were illicit relations between Appellant No.1 and Appellant No.2, which was objected by the deceased and for such conduct both these appellants were scolded and rebuked by the deceased. 43. When both appellants were confronted with the testimony of Sharda Prasad Misra P.W.1 and Ram Kumar P.W.2, on this point. Appellant No.1 admitted the area of agricultural land possessed by the deceased and cultivated by the deceased though she denied that the Appellant No.2 was his Halwaha. Appellant No.2 denied both the facts. Appellant No.1 admitted the death of the first wife of the deceased and her marriage with the deceased and number of children, Appellant No.2 pleaded ignorance. Appellant No.1 admitted the area of agricultural land possessed by the deceased and cultivated by the deceased though she denied that the Appellant No.2 was his Halwaha. Appellant No.2 denied both the facts. Appellant No.1 admitted the death of the first wife of the deceased and her marriage with the deceased and number of children, Appellant No.2 pleaded ignorance. The fact regarding illicit relations were denied by both the appellants. The only point surprises us in their statements is that the Appellant No.2, though resident of same village, pleaded ignorance about the second marriage of the deceased with Appellant No.1 and birth of their children. 44. As discussed earlier, Sharda Prasad Misra, cannot be discredited on the point of motive by the defence. Same is the position of Ram Kumar P.W.2 who is the son of the Appellant No.1. He has no enmity with his mother. He has repeatedly stated that Appellant No.2, in absence of his father, used to come and sit with his mother. He also narrated the occasion when the deceased objected, scolded and rebuked them for such conduct. Ram Kumar P.W.2 was aged about 8 years at that time. His presence in the house is natural. He was not so grown up that his presence would disturb the Appellant No.1 and 2 in taking the liberty with each other. Hence, we find him to be a reliable witness on the point of motive. 45. As against this regarding reasons for false implication, we find that none of the resident of that village was going to be benefited, either by, death of the deceased or, prosecution and eventually conviction of the Appellant No.1, because the deceased had other brothers living in village Luhari Saraiya, who came to Misrauli to look after the children of the deceased and his farming with the help of an old woman who used to look after the children even in the life time of the deceased and she had left her job only on account of her objection to the association of Appellant No.1 with Appellant No.2. All the residents of village were instrumental in the recovery of the dead body. This fact is evident that after murder of deceased, appellant no. 1 was going to be benefited. 46. All the residents of village were instrumental in the recovery of the dead body. This fact is evident that after murder of deceased, appellant no. 1 was going to be benefited. 46. In view of the above, we reject the arguments advanced on behalf of the appellants and agree with the arguments advanced on behalf of the State that the prosecution has successfully proved the motive for the crime. Though the learned trial Judge has dealt this point in a different manner, but his conclusion is same which has been drawn by us. Thus motive for the crime, i.e., illicit relations between Appellant No.1 and Appellant No.2 and objection thereto by the deceased, stand fully proved. 47. The learned counsel for the appellant has preferred to argue the case of each appellant separately, beginning from Appellant No.3, but for the sake of fairness we propose first to consider the evidential value of sole eye witness Ram Kumar P.W.2, thereafter evidence of recovery of incriminating articles on the point out of Appellant No.1 and only after concluding which of these stand(s) proved with the help of cogent and reliable evidence, we propose to examine separately case of each appellant. 48. P.W. 2 Ram Kumar, was aged about 8 years at the time of occurrence. He had no enmity with his mother at that time and even at the time when he deposed before the Court, rather from his testimony we find that even after discovery that his father was murdered by Appellant No.1. He visited Appellant No.1 when she was in custody. 49. His testimony has been impeached on behalf of the appellants on various grounds. First ground is that occurrence was discovered in the intervening night of 16/17.6.1980. However, his statement was recorded by the Investigating Officer on 08.7.1980. According to the learned counsel for the appellants when prosecution case is that he was living with his parents, why he was not promptly examined? 50. The second argument is that in the night of incident child was sleeping on another cot and it was not possible for the witness to see the incident. 51. Third argument of the learned counsel is that burning of lantern has been first time stated by this witness in the Court, therefore, on the point of light there is contradiction between his statement recorded under Section-161 Cr.P.C. and statement recorded on oath. 51. Third argument of the learned counsel is that burning of lantern has been first time stated by this witness in the Court, therefore, on the point of light there is contradiction between his statement recorded under Section-161 Cr.P.C. and statement recorded on oath. This witness was given suggestion by the defence that on tutoring of the uncle he was forced to falsely implicate his mother. This suggestion was vehemently denied by the witness. 52. The presence of the child in the house of his parents during night is most natural and probable, therefore, we find him to be a natural witness of the occurrence. 53. The second objection that whether the witness had opportunity to see the occurrence or not, also need not detain us long because it is natural that the child would be sleeping near his parents. Probability is this that he had three younger sibling, they would be sleeping with their mother and eldest being himself would be sleeping with his father. According to the defence, he was sleeping on separate cot. This witness was subjected to lengthy cross examination which runs into 17 pages. His testimony remains unshaken and nothing adverse could be extracted during the cross examination. It is argued that this witness did not tell the Investigating Officer that on the fateful night he was sleeping with his father on the same cot. This witness, when asked, could not tell the reason why Investigating Officer did not mention this fact in his statement though it was stated by him. This is an omission, but this omission is not sufficient. It is a proved fact that father and son were sleeping in Oshara. After Oshara on eastern side, there is an open courtyard. Since they were sleeping under the same roof and on the same place near open courtyard, we do not think that a child of tender age would be sleeping on a separate cot. There may be several reasons like slip of tongue or non- comprehension of the gravity of the fact by this witness which resulted in this omission when interrogated by the Investigating Officer. For this reason we agree with the findings of the learned trial judge that this witness was sleeping with his father on the same cot. 54. Next ground taken by the defence, was burning of Lantern. For this reason we agree with the findings of the learned trial judge that this witness was sleeping with his father on the same cot. 54. Next ground taken by the defence, was burning of Lantern. On this point the omission has been put to the witness and Investigating Officer. Bhagwati Prasad Misra P.W.5 has proved the omission. We do not think this omission in a peculiar and factual background can be said to be a material omission, because there is a time gap between murder and recording of statement of the child by the Investigating Officer. From the point of a child description of the light could not be so material so as to state it before a sub-inspector because he thinks it to be natural on the basis of daily practise that the may presume that every body knows about it. During the examination in chief burning of Lantern may have been stated by him on the question of public prosecutor therefore, we do not think there is any doubt about the source of light. 55. Next point is that there is delay by the Investigating Officer in recording the statement of this witness. 56. It is well settled that the lapses by the Investigating Officer does necessarily lead to rejection of the prosecution case. The only requirement is that the courts to use extra caution in evaluation of the evidence (State of West Bengal v. Veer Mohd. 2000 (41) ACC 598 (SC). 57. However, there are reasons for his late interrogation and these reasons are manifest, first in the morning of 10.6.1980, he says that he was sent to the house of his maternal uncle by the Appellant No.1 escorted by Appellant No.2. Thus he was removed from the scene of occurrence by the Appellant No.1 and Appellant No.2 so as to make him unavailable from disclosing the occurrence and his interrogation by the police. From the house of his maternal uncle, according to this witness, he was shifted to Lahuri Saraiya with his uncle. There he remained for one month. Whereabouts of this witness were only known to the Appellant No.1 and Appellant No.2. Investigating Officer cannot be blamed for his delayed examination. From the house of his maternal uncle, according to this witness, he was shifted to Lahuri Saraiya with his uncle. There he remained for one month. Whereabouts of this witness were only known to the Appellant No.1 and Appellant No.2. Investigating Officer cannot be blamed for his delayed examination. The learned counsel for the appellants has argued that after the alleged recovery and disclosure statement made by the Appellant No.1, there was no reason for the Investigating Officer for delayed interrogation of this sole eye witness. We have perused the recovery memo of the dead body Ext. Ka-2 and recovery memo of Bucket and iron Pestle Ext. Ka-4. These are also memorandum of the disclosure statement of Smt. Premwati, she has nowhere stated that at the time of occurrence Ram Kumar, her eldest son was present and had seen the incident. The statement of the Investigating Officer P.W.5 also substantiates that the Appellant No..1 did not disclose this fact to the Investigating Officer in her statement leading to the recovery of incriminating articles. We have also perused the statement of Sunder Singh P.W.3- independent witness of the recovery. He has given detailed description how the recovery was made. Sharda Prasad Misra P.W.1 neighbor of the deceased has also given eye witness account of the recovery. His statement is also of the same effect.Thus according to the prosecution at the time of recovery Ram Kumar was not in village Misrauli as he had been shifted to the house of maternal uncle and thereafter he had gone to live with his uncle in village Luhari Saraiya, thus there was no occasion for the Investigating Officer to know about his presence at the time and place of occurrence and his whereabouts. For this reason we do not think that his late examination is a lapse on the part of the Investigating Officer or he is a planted witness. 58. In view of above, we come to the opinion that the presence of the witness is a natural and he is an eye witness of the occurrence, he had opportunity to see the occurrence and his testimony during the cross examination remains unshaken. He has no reason to implicate his mother and servant of the father in brutal crime. 58. In view of above, we come to the opinion that the presence of the witness is a natural and he is an eye witness of the occurrence, he had opportunity to see the occurrence and his testimony during the cross examination remains unshaken. He has no reason to implicate his mother and servant of the father in brutal crime. Perusal of his testimony persuades us to reject the argument that he is a tutored witness, because answers, given by him, during the cross examination are very natural, as for example about his looking after subsequent to the death of his father. His experience in Kachehari specially his replies during the cross examination made on behalf of the Appellant No.3. He was asked, how he knew Appellant No.3. In reply to this, he has said that he has seen him in kachehari and in his house. He has also met him when he had gone to join a feast, no one told him that he was Ram Prasad. He knew him himself. He had met him earlier at Station Devrakot three years before. At that time he was aged about 4-5 years. It is very natural for a child to recollect the facts with the help of his associations that are easily remembered. No one can tutor such answers for the cross-examination. Thus learned trial Judge has rightly treated him to be a fully reliable witness. 59. The other incriminating evidence is the evidence in the form of recovery of dead body, sheet of plastic with which it was tied, string used to bind the dead body with the help of plastic sheet, bucket, iron Pestle and brick, weapons of murder. The recoveries have also been proved by Bhagwati Prasad Misra P.W.5 the Investigating Officer. Sunder Singh P.W.3 an independent witness, though resident of another village situated at a short distance from the village Misrauli and Sharda Prasad Misra P.W.1. All the witnesses were subjected to lengthy cross examination, but nothing adverse could be extracted. The only ground on which this evidence has been impeached is their non examination by chemical examiner and Serologist. Sunder Singh P.W.3 an independent witness, though resident of another village situated at a short distance from the village Misrauli and Sharda Prasad Misra P.W.1. All the witnesses were subjected to lengthy cross examination, but nothing adverse could be extracted. The only ground on which this evidence has been impeached is their non examination by chemical examiner and Serologist. Learned trial Judge has dealt with this point and recorded finding that these articles were sent for scientific examination during investigation, the reports could not be obtained, reason was that from P.S. Raunahi A.S.I. Sri Behari Lal Gupta was to collect this from the court of Faizabad, but they could not be traced out. The learned trial judge refused to raise an adverse inference against the prosecution for with holding the report of scientific examination on the ground of loss of these reports during transmission. 60. Statement of Bhagwati Prasad Misra P.W.5 reveals that Investigating Officer was not cross examined as to why he did not collect scientific examination report. If the report is lost in transmission, specially in court office, no any party can be blamed for this lapse because act of court causes no injury to anyone. Thus we do not think that prosecution can be faulted on account of non production of report of chemical examiner and Serologist. In the present case, eye witness account of the recovery is so truthful and unblemished that we have no hesitation in holding that whatever is written in Ext. Ka-2 and Ka-4, deposed by the witnesses are truthful account and fully reliable. 61. The testimony of Investigating Officer has been dealt with the testimony of other witness discussed herein before. The testimony of Bhagwati Prasad Misra P.W.5 is in no way help the defence of the appellants. Thus the evidence given by Ram Kumar P.W.2 and Sunder Singh P.W.3 is worthy of reliance and commands our confidence. 62. In this background when we examine the case of Appellant No.1, there is no iota of doubt that in intervening night of 09/10.6.1980, she had murdered her husband on account of her illicit relations with Appellant No.2. Thus the evidence given by Ram Kumar P.W.2 and Sunder Singh P.W.3 is worthy of reliance and commands our confidence. 62. In this background when we examine the case of Appellant No.1, there is no iota of doubt that in intervening night of 09/10.6.1980, she had murdered her husband on account of her illicit relations with Appellant No.2. She took active part in causing fatal injuries to the deceased and she also took active part in concealing his dead body and weapons of murder so as to remove the evidence of murder and further she had removed her son Ram Kumar eye witness of the occurrence so as to prevent the disclosure of the incident. 63. Learned counsel for the appellants has argued that Sharda Prasad Misra P.W.1 is not an eye witness of the fact that Sobh Nath in company with Ram Prasad had left the house of deceased in the morning of 10th June, 1980, facts regarding recovery of incriminating articles is admissible only against Appellant No.1 and against Sobh Nath there is no evidence. Prosecution has not examined three persons, namely, Sri Sukh Dev Prasad, Sri Dev Prasad and Ranjit Prasad who were supposed to see leaving of the house of the deceased by Appellant No.2 and 3 at the above stated time, however, we find that Sharda Prasad Misra, P.W.1 has also stated this fact in his statement on oath. On behalf of appellant nos. 2 and 3 this statement has been impeached on the ground that he neither mentioned this fact in the FIR nor in his statement recorded by the Investigating Officer under Section 161 Cr.P.C. Omissions would be treated material contradictions only when they touch substratum of prosecution version. This omission does not touch the prosecution substratum. It is not a material contradiction, hence statement of Sharda Prasad Misra, PW.1 corroborates the statement of Ram Kumar P.W.2 on this point to some extent. This argument is based on the presupposition that Ram Kumar P.W. 2 is a sole eye witness and he being a child, wherefore, his testimony against the Appellant No.2 and 3 remains uncorroborated and on such uncorroborated testimony the Appellant No.2 and 3 cannot be convicted. 64. This argument is based on the presupposition that Ram Kumar P.W. 2 is a sole eye witness and he being a child, wherefore, his testimony against the Appellant No.2 and 3 remains uncorroborated and on such uncorroborated testimony the Appellant No.2 and 3 cannot be convicted. 64. To negate this argument we would also like to refer the observation of the Hon'ble Apex Court in case of State of Rajasthan (supra) in para-14 of the report, legal position has been clearly stated by the Hon'ble Supreme Court, following that we hold that since Ram Kumar P.W.2 is fully reliable witness, his testimony does not require corroboration. Further in this case Appellant No.2 had strong motive and leaving the house of the deceased on 10.061980 in the morning as stated by Sharda Prasad Misra P.W.1, is an additional evidence corroborating testimony of Ram Kumar P.W.2. We do not find any substance in the plea alibi of learned counsel taken for accused-Sobh Nath, on the strength of the copy of judgment and order dated 10.6.1980 to show that on 10.06.1980 he was present in court to hear the judgment. However perusal of the certified copies reveals that name of Sobh Nath Pasi does not find place therein. Name of one Sobhram has been referred therein, even if on the basis of parentage we treat him to be Sobh Nath, even then distance from the place of occurrence and court is not so great that after leaving Ram Kumar at his maternal uncle's house, the Appellant No.2 could not reach the court during court hours, i.e., 10.30 A.M. to 4.00 P.M. and get his presence registered. We hold charges against Sobh Nath stand proved beyond any reasonable doubt. 65. The Appellant No.3 is not resident of the village and he has no motive, on the strength of these facts, learned counsel for the appellants has argued that complicity of Appellant No.3 in crime is highly doubtful. Ram Kumar P.W.2 has been found to be fully reliable witness and Ram Prasad was well known to him. Appellant No.2 and 3 were home-guards, therefore, their association is well established, we think that arguments advanced in support of Appellant No.3 have no substance. His guilt is fully proved on the basis of evidence of Ram Kumar P.W.2. 66. No other argument has been advanced on behalf of the appellants. Appellant No.2 and 3 were home-guards, therefore, their association is well established, we think that arguments advanced in support of Appellant No.3 have no substance. His guilt is fully proved on the basis of evidence of Ram Kumar P.W.2. 66. No other argument has been advanced on behalf of the appellants. Grounds taken in appeal and arguments advanced in support thereof are not substantiated from the record and lack merit. The impugned judgment and order suffer from neither any factual nor legal error. The findings recorded therein are well supported from the material available on the record. Sound reasons have been assigned in support thereof. The learned trial Judge has not committed any legal error, therefore the appeal fails the appeal is liable to be dismissed. 67. Consequently, the appeal is dismissed. 68. All the appellants are on bail. They are directed to surrender their bail before the Sessions Judge, Faizabad, who shall take them into custody and send them to jail to serve their sentences. In case, appellants do not surrender within the stipulated time, the Sessions Judge, Faizabad, shall take appropriate steps to procure their attendance so that they will serve the sentences awarded to them. 69. Office is directed to communicate this order to the court concerned to ensure compliance and further sent back the lower court record. Appeal Dismissed.