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2015 DIGILAW 833 (ALL)

ATTAR SINGH v. STATE OF U. P.

2015-04-16

OM PRAKASH, SHASHI KANT GUPTA

body2015
JUDGMENT : Hon'ble Shashi Kant Gupta, J. (Delivered by Hon'ble Om Prakash-Vii, J.) 1. The present criminal appeal is directed against the judgement and order dated 21.12.1982 passed by learned Sessions Judge, Farrukhabad in Sessions Trial No.136 of 1982 pertaining to Case Crime No. 15 of 1981 whereby the appellant was convicted and sentenced under Sections 302 Indian Penal Code (herein after referred to as I.P.C.) to suffer rigorous imprisonment for life. The trial Court after scanning the evidence and material on record had acquitted the co-accused Sokhay Lal for the charge under Section 302/34 I.P.C. but there is no appeal against acquittal. 2. The prosecution story in nutshell is as follows:- A written report dtd. 09.01.1981 was sent by the informant Ramdas Verma through Deshraj to the concerned Station House Officer (here in after referred to as the S.H.O.) mentioning therein that he is the resident of village Tilakiya, Mauja-chabarapur, Makdoompur. In front of the house of the informant, there is a house belonging to Rameshwar Dayla Lodhi. Kalawati is the first wife of Rameshwar Dayal to whom no child was born out of their wed lock. Thereafter with the consent of his first wife Kalawati, the deceased Rameshwar Dayal Lodhi managed to keep Smt.Kamla, the younger sister of Smt. Kalawati, as his second wife for about 6-7 months. It is also mentioned in the written report that Smt. Kamla had already married with accused-Attar Singh 2-3 years back. Accused-Attar Singh had come two or three times to take back Smt. Kamla but Rameshwar Dayal Lodhi did not permit her to go with Accued-Attar Singh. Smt. Kamla was also not willing to go with accused-Attar-Singh. Rameshwar Dayal Lodhi had to transport his potato to Kanpur, therefore he was taking meal at about sunset hour and Smt. Kamla was cooking bread for him. At the same time, accused Attar-Singh armed with single barrel gun (SBBL gun) and his companions armed with country made guns came from the western side and straightway gone to the roof of Rameshwar Dayal Lodhi and opened fire . At the same time, accused Attar-Singh armed with single barrel gun (SBBL gun) and his companions armed with country made guns came from the western side and straightway gone to the roof of Rameshwar Dayal Lodhi and opened fire . Hearing the sound of four fires, the Informant, Deshraj, Kalawati, Kedar, Virendra Singh, Prabhu Dayal and Ram Bax challenged them then accused-Attar Singh with his companion came down and told that "TUM LOG MERE KAREEB MAT AAO MAIN KAMLA APNI AURAT KO LENE AAYA THA AUR RAMESHWAR DAYAL AUR KAMLA KO GOLI SE MARKAR JA RAHA HOON GAON BALE SE KOI MATLAB NAHIN HAI AUR PASCHIM KO TEJEE SE CHALE GAYE." 3. Due to fear, witnesses present there did not try to overpower them. When accused persons went on, they went on the roof and found the dead bodies of the deceased, namely, Rameshwar Dayal Lodhi and Smt. Kamla lying on the roof in pool of blood. Their skulls were found badly broken (fractured). The copious blood was also found there. It has also been mentioned that the first information report (herein after referred to as the F.I.R.) is being sent through Deshraj and informant can recognize the accused persons if they appear before him. 4. On the basis of report (Exbt. Ka-1) submitted before the concerned police station, a Case Crime No. 15 of 1981 was registered on 09.01.1981 at 20.30 PM marked as Exbt. Ka.4. Information was also entered in the general diary marked as Exbt. Ka.-5. Police reached on the spot and prepared inquest report as Exbts. Ka.-7 & 8. Photo-lash of the dead bodies were prepared, as Exbts. Ka. 9 and 10. Forms No. 13 are marked as Exbts. Ka. 11 and 12. Memo Exbt. Ka-20 of simple earth, blood stained earth and pellets and wads taken into custody (possession) by the police, were also prepared. material found on the place of occurrence were also taken into custody (possession) and were handed over to Smt. Kalawati, a memo exbt ka 21 in this respect had been prepared by the Investigating Officer (herein after referred to as the I.O.). At the time of preparing the inquest report, letters to the C.M.O. concerned marked as Exbts. Ka. 13, 14, 15 and 16, letters to the R.I. marked as Exbts. Ka. 17 and 18 have also been prepared. At the time of preparing the inquest report, letters to the C.M.O. concerned marked as Exbts. Ka. 13, 14, 15 and 16, letters to the R.I. marked as Exbts. Ka. 17 and 18 have also been prepared. The dead bodies were kept in sealed cover and were dispatched to the doctor for post-mortem examination. Autopsy on the dead bodies of the deceased Rameshwar Dayal Lodhi and Smt. Kamla was conducted by Dr. H. P. Srivastava on 11.01.1981 at 8.00 AM and 9.00 A.M. at the Headquarters Mortuary and also prepared post mortem examination reports respectively as Exbts. Ka. -2 and 3. 5. As per post mortem report deceased Rameswar Dayal was aged about 45 years . Time of death has been mentioned 1 and a half days ago. Following anti-mortem injuries were found on the body of Rameshwar Dayal :- I. Traumatic Amputation of left index finger at metacarpo Phalangial joint caused by fire arm injury. II. Five gun shot wounds of entry each 1/4" in diameter in 2" X 2" area just below left clavical inner part directed backward. III. Gun shot wound of exit each 1/3" in diameter in an area of 3" X 2" left side back on chest upper inner par. IV. Gun shot wound resulting in laceration of volt oranium alongwith its soft tissue bone 6" X 8" brain matter flowing out. Wound has involved upper part orbital fossa of right eye ball. Right eye ball coming out. Left is inside orbit. 6. In internal examination Doctor found skull fractured. Membranes and brain were lacerated. Walls and pleura in the thora, were lacerated. There was 6 oz. Of pasty food in the stomach. Small intestine contained semi digested food. Nine pellets were recovered from cranial cavity. 7. On the post-mortem of the dead body of Smt. Kamla following ante-mortem injuries were found: Fire arm lacerated wound 4" X 6.5" extending from right side fore-head just above orbit going backward fracturing all the bones of skull except left parietal and base directed from front to back. 8. In internal examination Doctor found membranes and brain lacerated. There was 4 Oz. semi digested food in small intestines. 9. In the examination report it has been mentioned by the doctor that death of the deceased Rameshwar Dayal and Smt. Kamla were due to shock and haemorrhage as a result of ante-mortem injuries. 10. 8. In internal examination Doctor found membranes and brain lacerated. There was 4 Oz. semi digested food in small intestines. 9. In the examination report it has been mentioned by the doctor that death of the deceased Rameshwar Dayal and Smt. Kamla were due to shock and haemorrhage as a result of ante-mortem injuries. 10. After collecting the evidence,interrogating the witnesses and preparing the site plan, charge sheet was submitted by the I.O. against accused/appellant Attar Singh under Section 302 I.P.C. On the basis of identification parade Memo Exbt. Ka. -6 charge sheet had also been submitted against co-accused Sukhelal Singh and Yadunath under Section 302/34 I.P.C. 11. After taking cognizance, the case was, committed to the court of sessions by the Magistrate concerned. The sessions court framed the charge under Section 302 I.P.C. against appellant Attar Singh to which he denied and claimed his trial. 12. In order to proof its case, the prosecution examined 9 prosecution witness (hereinafter referred to as P.W.) , namely, P.W.-1, Ramdas (the informant), P.W.-2 Dr. H.P. Srivastava, who had conducted the post-mortem examination on the dead bodies. P.W.3, Head Constable Dayaram Dubey, P.W.-4 Constable Brijbhushan Singh, P.W.-5 Smt. Kalawati, P.W.-6 Virendra, P.W.-7 Ram Bax, P.W.-8 Vishwnath Singh, P.W.-9 Mata Bax Singh (sub inspector). 13. After conclusion of prosecution evidence the statement under section 313 Code of Criminal Procedure (herein after referred to as Cr.P.C.) was also recorded. No oral evidence was adduced by the appellant but documentary evidence i.e. Exbt. Kha-1 to 4 were filed. Trial court after hearing the parties vide impugned judgment and order convicted and sentenced the appellant, hence this appeal. 14. P.W.-1, Ramdas has stated before the Court that he knows accused-Attar Singh since earlier. Deceased Rameshwar Dayal was the son of his uncle (Tau). Deceased Smt. Kamla, the real younger sister of Kalawati , was the wife of Attar Singh. Attar Singh was the resident of village Gathiya, Etha. Earlier Smt. Kamla was living with Attar Singh at village Gathiya but she came at village Tilakiya before 6-7 months of the incident and used to live with Rameshwar Dayal as husband and wife. Rameshwar Dayal was married with Kalawati but she had not given birth to a child. Attar Singh had come on two or three occasions to take back Smt. Kamla but Rameshwar Dayal did not send her back. Rameshwar Dayal was married with Kalawati but she had not given birth to a child. Attar Singh had come on two or three occasions to take back Smt. Kamla but Rameshwar Dayal did not send her back. Smt. Kamla was also not willing to go with accused-Attar Singh. On the day of incident at about sunset, this witness was sitting on the courtyard of his house. There was sufficient day-light at that time. House of this witness is situated in front of the house of Rameshwar Dayal. Birendra, Prabhu Dayal, Kedar and Kalawati were also sitting on the courtyard of this witness at that time and were talking with each other. Deshsraj and Ram Bax were present at their doors. Houses of these two persons are also situated near the house of this witness and Rameshwar Dayal's, house could easily be seen from the house of these two persons. At that time Attar Singh armed with SBBL Gun and his companions armed with country made guns came from the western side. They straightway entered into the house of Rameshwar Dayal. Witnesses present on the courtyard of this witness heard the sound of 3 to 4 fires (shots) coming from the roof of Rameshwar Dayal. They ran (rushed) towards the house of Rameshwar Dayal and challenged the accused persons then the accused Attar Singh alongwith his companion came down from the roof and accused Attar Singh told that " TUM LOG MERE KAREEB MAT AAO MAIN KAMLA APNI AURAT KO LENE AAYA THA AUR RAMESHWAR DAYAL AUR KAMLA KO GOLI SE MARKAR JA RAHA HOON GAON BALE SE KOI MATLAB NAHIN HAI AUR PASCHIM KO TEJEE SE CHALE GAYE." Witnesses were frightened, therefore, they did not try to over power them and they went away towards western side. When the witnesses reached on the roof of Rameshwar Dayal, they found the dead bodies of Rameshwar Dayal and Kamla. Blood was oozing from the dead body. Thereafter, this witness prepared written report of the incident and sent it through his neighbour Deshraj to concerned police station. This witness was cross-examined by the defence. 15. P.W.-2, Dr. H. P. Srivastava has stated that he was posted on 11.01.1981 as Medical Officer at Fatehgarh District Hospital. He had performed the autopsy on the dead bodies of Rameshwar Dayal and Kamla Devi at 8 and 9 A.M. respectively. This witness was cross-examined by the defence. 15. P.W.-2, Dr. H. P. Srivastava has stated that he was posted on 11.01.1981 as Medical Officer at Fatehgarh District Hospital. He had performed the autopsy on the dead bodies of Rameshwar Dayal and Kamla Devi at 8 and 9 A.M. respectively. Dead bodies had been brought by constable C.P. 163 Brajbhushan and Constable C.P. 584 Rajendra and they had identified them. Deceased Rameshwar Dayal was aged about 45 years and deceased Kamla was aged about 20 years. The deceased had died one and a half days before. Body of both were of average body built. Rigor mortis was present in the lower part and partially in the upper part. As per this witness, ante- mortem injuries, as we have noted in the above part of the judgement, were found on the bodies of Rameshwar Dayal and Smt. Kamla. 16. In the opinion of the doctor, injuries found on the bodies of the deceased persons were caused by firearms, i.e., gun or country made pistol and in the ordinary course of nature, were sufficient to cause death of the deceased. This witness has proved the post-mortem report Exbts. Ka. 2 and 3. He has also opined that the death of both the deceased would have been caused on 09.01.1981 at about sunset and digesting process could be continued one or two hours after the death of a person. He had kept nine pellets recovered from the body of deceased Rameshwar Dayal in a sealed cover and sent it through the constables to the concerned Senior Superintendent of Police. The pellets recovered from the body of deceased Rameshwar Dayal has been proved by this witness as material Exbt.-1. This witness had also kept pellets recovered from the body of deceased Smt. Kamla in a sealed cover and the same were handed over to the constable which has also been proved by this witness as Material Exbt-2. 17. In the cross-examination, this witness has stated that if the deceased had taken meal between 3 to 4 P.M., there may be variation of 3 to 4 hours in the time of death. If the deceased had taken meal at the time of sunset then variation would be only of two hours. In case the deceased had taken meal at 8.00P.M. in the night then time of death will be 10.00 PM. If the deceased had taken meal at the time of sunset then variation would be only of two hours. In case the deceased had taken meal at 8.00P.M. in the night then time of death will be 10.00 PM. He has also stated that the deceased had taken food two hours before their death. Nothing was found in the mouth of the deceased at the time of post-mortem. It has also been opined that both the deceased might have taken meal at the same time. Brain matters of both the deceased had come out. 18. P.W. -3, Dayaram Dubey, Head Constable has stated that he was posted as Head Moharir in the Gurusahay Ganj police station on 09.01.1981. On that date one Deshraj had brought a written report Exbt. Ka.1 and on that basis this witness prepared chick F.I.R. at 08.30 P.M. Entry made by this witness in the general diary has been proved by him as Exbt. K.-5. In the cross-examination on the suggestion put by the defence, this witness has specifically stated that it is wrong to say that general diary remained opened in the night and first information report was prepared in the morning on 10.01.1981. 19. P.W.-4, Constable Braj Bhushan Singh has stated that he alongwith constable Rajendra had brought the dead bodies of deceased Rameshwar Dayal and Smt. Kamla for post-mortem examination in a sealed condition alongwith police papers. He had also identified the dead bodies of the deceased. 20. P.W.-5, Smt. Kalawati has stated that deceased Rameshwar Dayal was her husband. She had performed her court marriage with Rameshwar Dayal. They were issue less. Deceased Smt. Kamla was her younger sister who had earlier married with accused-Attar Singh. She knows accused- Sukhelal, who was the resident of village, Gathiya. Attar Singh and Smt. Kamla both were living with this witness as she had no child. Rameshwar Dayal was treating Smt. Kamla like his daughter. Rameshwar Dayal and Smt. Kamla were murdered on 09.01.1981 and at that time there was darkness. The culprits had covered their faces. This witness has been declared hostile on the request of prosecution and has also been cross-examined by the prosecution and defence. 21. P.W.-6 Birendra Singh has stated that deceased Rameshwar Dayal was his uncle. House of this witness is situated towards eastern side about distance of 100 yards from the scene of occurrence. The culprits had covered their faces. This witness has been declared hostile on the request of prosecution and has also been cross-examined by the prosecution and defence. 21. P.W.-6 Birendra Singh has stated that deceased Rameshwar Dayal was his uncle. House of this witness is situated towards eastern side about distance of 100 yards from the scene of occurrence. This witness was acquainted with accused Attar Singh and Sukhelal both. Smt. Kamla was the younger sister of the wife of Rameshwar Dayal who was married with Attar Singh. Kalawati was the wife of Rameshwar Dayal, they had no child. Rameshwar Dayal managed to keep Smt. Kamla as also his wife. This fact had been written down. This witness has filed the paper relating to the marriage. The paper filed before the court at that stage has been taken on record by the court under the provision of Section 311 Cr.P.C. Accused Attar Singh was not happy with this fact that Rameshwar had kept Smt. Kamla as his wife. On the day of incident about sunset in the day light, this witness, Ramdas, Kalawati, Prabhu Dayal and Kedar were sitting on the courtyard of Ramdas. Deshraj and Rambax were sitting on the chabutra of their houses. Attar Singh alongwith his companion came. Attar Singh was armed with gun. This witness had identified the persons accompanying accused Attar Singh as he had seen them very well. Accused Attar Singh and his companion entered into the house of Rameshwar Dayal straight-way. This witness heard the sound of 3 to 4 shots then they reached there and challenged the assailant. Thereafter, accused Attar Singh and his companion came down and Attar Singh told that "TUM LOG MERE KAREEB MAT AAO MAIN KAMLA APNI AURAT KO LENE AAYA THA AUR RAMESHWAR DAYAL AUR KAMLA KO GOLI SE MARKAR JA RAHA HOON GAON BALE SE KOI MATLAB NAHIN HAI AUR PASCHIM KO TEJEE SE CHALE GAYE." 22. Witnesses had no weapons therefore due to fear they did not try to catch them. When they reached on the roof of Rameshwar Dayal, they saw the dead bodies of Rameshwar Dayal and Smt. Kamla. As per this witness, he had attended the identification parade of the accused and had identified the accused Sukhelal as one of the culprits. 23. Witnesses had no weapons therefore due to fear they did not try to catch them. When they reached on the roof of Rameshwar Dayal, they saw the dead bodies of Rameshwar Dayal and Smt. Kamla. As per this witness, he had attended the identification parade of the accused and had identified the accused Sukhelal as one of the culprits. 23. P.W.-7, Ram Bax had stated that he knows the accused Attar Singh and also knows the deceased Rameshwar Dayal and Smt. Kamla. On 09.01.1981, about sunset in sufficient light, this witness was sitting in front of his house. Deshraj was also sitting in front of his house. Ramdas, Kalawati, Prabu, Birendra and Kedar were sitting at the door of Ramdas. Four persons came there from the western side out of them accused Attar Singh was armed with single barrel gun ( in short SBBL) and other persons were armed with country made pistols. He had recognized them very well. They entered into the house of Rameshwar Dayal. This witness heard the sound of four shots coming from the roof of the house Rameshwar Dayal. Thereafter, they reached there and challenged to the culprits then the accused persons came down. Accused Attar Singh told that " TUM LOG MERE KAREEB MAT AAO MAIN KAMLA APNI AURAT KO LENE AAYA THA AUR RAMESHWAR DAYAL AUR KAMLA KO GOLI SE MARKAR JA RAHA HOON GAON BALE SE KOI MATLAB NAHIN HAI AUR PASCHIM KO TEJEE SE CHALE GAYE." 24. As per this witness accused persons ran away. Since accused were possessing firearm therefore, they could not overpower them. When the witnesses reached on the spot , saw the dead bodies of deceased. This witness had also attended the identification parade and had identified the accused Sukhelal. 25. P.W.-8, Bishunath Singh has stated that on 27.03.1981, he was posted as Special Magistrate. He had arranged the identification parade in District Jail, Fatehgarh for identification of accused Sukhelal and two other persons. After conducting the identification parade, this witness had prepared identification memo Exbt. Ka.-6 in his handwriting relating to accused Sukhelal and two other accused persons. 26. P.W.-9,Mata Bux Singh has stated that on 09.01.1981, he was posted as Sub-Inspector at P.S. Gurusahay Ganj, Farrukhabad. Papers relating to this case were handed over to him just after registration and immediately, this witness proceeded towards the place of concurrence for investigation. Ka.-6 in his handwriting relating to accused Sukhelal and two other accused persons. 26. P.W.-9,Mata Bux Singh has stated that on 09.01.1981, he was posted as Sub-Inspector at P.S. Gurusahay Ganj, Farrukhabad. Papers relating to this case were handed over to him just after registration and immediately, this witness proceeded towards the place of concurrence for investigation. He had received the papers at the crossing of Gurusahay Ganj through Constable Dinesh Chandra at about 9.15 PM on 09.01.1981 and proceeded to the place of occurrence alongwith Constable Dinesh Chandra and Shivratan Singh. S. I. Ram Jatan Singh, S. I. Jagdish Singh, constables Tajendra Singh and Braj Bhushan Singh also accompanied him in the way. They reached on the place of occurrence at 10.30PM and found the dead bodies lying on the roof of the house of Rameshwar Dayal. Since there was no arrangement of light, therefore, two constables were deputed to take care of the dead bodies. Other police personnel were searching the accused persons. This witness had interrogated Ramdas and Deshraj in the night itself. He again started investigation in the morning of 10.01.1981. S.I. Ram Jatan Singh prepared inquest report and police papers according to the direction of this witness . Since this witness was aware of the writing and signature of S.I. Ram Jatan Singh, therefore, he has proved the police papers. The dead bodies were dispatched for post-mortem examination alongwith police papers by this witness. Thereafter, he has recorded the statement of witnesses Kalawati and Kedar and has also inspected the place of occurrence and prepared the site plan Exbt. Ka. 19. This witness had also taken sample of plain and blood stained earth from the place of occurrence and kept it in a sealed boxes separately. Pellets and wads found from the place of occurrence were also taken in the custody and were kept in sealed condition. Recovery memo was also prepared, marked as Exbt. Ka.-20. This witness had proved the materials as Exbt. Ka.-6, 7 and 8. Other materials found on the place of occurrence were also taken into custody by this witness and were handed over to Smt. Kalawati by preparing memo Exbt. Ka-21. He has also interrogated Birendra Singh, Prabhu Dayal, Ram Bax and others and try to search the accused persons. After completing the investigation, this witness filed a charge sheet against accused Attar Singh as Exbt. Ka. Ka-21. He has also interrogated Birendra Singh, Prabhu Dayal, Ram Bax and others and try to search the accused persons. After completing the investigation, this witness filed a charge sheet against accused Attar Singh as Exbt. Ka. 22 and the charge sheet against other co-accused as Exbt. Ka. 23. This witness has also filed the statement of Kalawati recorded during investigation, which has been marked as Exbt. Ka. 24. 27. After completing the prosecution evidence, trial court has also recorded the statement of the appellant under Section 313 Cr.P.C. 28. In the statement under Section 313 Cr.P.C., the accused Attar Singh has accepted that Smt. Kamla was his wife and Kalawati was the wife of Rameshwar Dayal. Rameshwar Dayal was treating Smt. Kamla as his daughter and the accused Attar Singh as his son. Accused has denied all other facts deposed by the prosecution witnesses. The accused has specifically stated that he has been falsely implicated in this case on the basis of conspiracy hatched by prosecution witnesses. Ramdas and others suspected that Rameshwar Dayal would give his property to accused Attar Singh therefore, a conspiracy was hatched by the culprits to committ the murder of Rameshwar Dayal and Smt. Kamla. Accused Attar Singh had specifically stated under Section 313 Cr.P.C. that an application filed during the course of trial was false and forged and the said application was never moved by Smt. Kamla before the District Magistrate. 29. Accused in his defence has also filed the documentary evidence Exbt. Ka.1 to Exbt. Ka 4, extracts of Khatauni and Khasra. No oral evidence was adduced by appellant. 30. Learned trial court after hearing the parties recorded the impugned judgement and order convicting and sentencing the appellant as above, hence the present appeal. 31. We have heard Sri N. K. Maurya, learned counsel for the appellant as well as learned A.G.A. Sri N. K. Singh Yadav. 32. Sri. N. K. Maurya, learned counsel for the appellant submitted that the trial court has not rightly appreciated the prosecution evidence and has reached a wrong conclusion. There is no eye witness account of the incident. The prosecution has not proved the motive. The Statement of P.W.-5-Kalawati has also not been appreciated in accordance with law by the trial court. Sri. N. K. Maurya, learned counsel for the appellant submitted that the trial court has not rightly appreciated the prosecution evidence and has reached a wrong conclusion. There is no eye witness account of the incident. The prosecution has not proved the motive. The Statement of P.W.-5-Kalawati has also not been appreciated in accordance with law by the trial court. The first information report is ante-timed as prosecution witnesses have stated that the said incident had taken place at about sunset but in the first information report, time of incident is shown as 3-00 P.M. There is belated F.I.R. but the delay has not been properly explained by the prosecution and the trial court has not considered this fact. The investigating officer had collected the material at the place of incident on 10.01.1981 and found hot ashes in 'chulha' which indicates that incident did not take place at the time shown by the prosecution. It is improbable that the said 'chulha' was used in the evening of 09.01.1981 and the hot ashes was present in the morning of 10.01.1981. There is also contradiction regarding exact time of death. Witnesses examined by the prosecution are the relatives and interested witnesses and they had clear motive to falsely implicate the accused-Attar Singh. A reference of the sale-deed executed after incident in respect of landed property of deceased Rameshwar Dayal was also given. It was further argued that the whole case is based on extra judicial confession. The trial court has committed illegality in relying on the said extra judicial confession. There is also contradiction in the statement of the witnesses about the time of Post-mortem. Smt. Kalawati (P.W.-5) had clearly deposed before the trial court that the incident had been committed pursuant to a conspiracy hatched by Birendar, Prabhu and Ramdas to grab the property of Rameshwar Dayal but the trial court erred in not considering this vital fact. Regarding time of death of deceased, reference was made to the statement of P.W.-2 Dr. H.P. Srivastava. Motive alleged by the appellant has been proved , therefore, a prayer has been made to allow the appeal and set aside the impugned judgement and order. 33. Learned A.G.A. has argued that the incident has taken place on the roof of the house of Rameshwar Dayal at about sunset when there was sufficient light on the spot. H.P. Srivastava. Motive alleged by the appellant has been proved , therefore, a prayer has been made to allow the appeal and set aside the impugned judgement and order. 33. Learned A.G.A. has argued that the incident has taken place on the roof of the house of Rameshwar Dayal at about sunset when there was sufficient light on the spot. Witnesses were present in-front of the house of informant. They had seen the accused Attar Singh and his companion while culprits were entering into the house of Rameshwar Dayal. They were armed with SBBL gun and country made pistols. Witnesses thereafter heard the firing of shots and immediately reached the place of occurrence and challenged them. There-fater all the accused got down from the roof and the appellant-Attar Singh made an extra judicial confessional statement. The conduct of the accused persons and the statement made by Attar Singh tantamount to extra judicial confession and form part of the same transaction and also covered under Section 6 of the Indian Evidence Act. Relying on such extra judicial confession and circumstances, the trial court has rightly convicted accused-Attar Singh. There is no time gap between the incident and the time of making of confessional statement. As such, the impugned judgement and order is not liable to be interfered with. Non-examination of Deshraj would not in any manner affect the prosecution case in any way and would not render the evidence of the prosecution unworthy. Although the time of incident in the chick F.I.R. is shown at 3-00 P.M. but from the contents of the written report and the statement of the witnesses it is crystal clear that the incident had taken place at about sunset time when there was sufficient light. Other arguments advanced by learned counsel for the appellant are not of such vital importance, sufficient to disturb the finding of the trial court. Statement of P.W.-5-Kalawati could not be read against the prosecution as she has been declared hostile. Motive alleged by the prosecution has been proved and is believable. Thus, prayer has been made to dismiss the appeal. 34. Learned counsel for the appellant has placed reliance of following case law: 1. Chandru & another Vs. State reported in 2014 Law Suit (All) 26. 2. S. Arul Raja Vs. State of Tamil Nadu reported in 2010 Law Suit (SC) 877. 3. Podyami Sukada Vs. Thus, prayer has been made to dismiss the appeal. 34. Learned counsel for the appellant has placed reliance of following case law: 1. Chandru & another Vs. State reported in 2014 Law Suit (All) 26. 2. S. Arul Raja Vs. State of Tamil Nadu reported in 2010 Law Suit (SC) 877. 3. Podyami Sukada Vs. State of M.P. (now Chhattisgarh) reported in 2010 Law Suit (SC) 494. 4. State of A. P. Vs. E. Satyanarayana reported in 2009 Law Suit (SC) 749. 5. Sahadevan and anr. Vs. State of Tamil Nadu 2012 Law Suit (SC) 3124. 35. We have considered the submission raised by learned counsel for the parties and also gone through the entire records. 36. Findings recorded by the trial court are as under:- I. Variance in evidence as to time of post-mortem examination is not such that the testimony of the doctor about the time of the post-mortem examination should be thrown out. II. There is no evidence that before the incident both the deceased had finished their meals. In villages people generally take their mid-day-meal quite late and if before incident deceased had not taken their evening meals the contents of the stomach and intestines would be the same as noted /deposed by the doctor. III. In case of sudden death all the cells of the body do not die and digestive system continued to function for sometimes. Thus medical evidence supports the prosecution case. IV. The first information report is not an ante-timed document. V. Exbt. Ka.-25 filed in trial court during the course of evidence is a public document. VI. Prosecution has clearly established his case that the deceased Rameshwar Dayal kept Smt. Kamla as his wife to satisfy his urge for an issue/child. Prosecution has also established that Smt. Kamla was dissatisfied with Attar Singh and for that reason, he became very much infuriated. VII. Non-sending of the material collected from the place of occurrence by the Investigating Officer to the forensic science laboratory for chemical examination does not affect the prosecution case as the place of occurrence is clearly established by the prosecution evidence an no serious dispute has been raised by the accused side. Non-inspection of the place by the Investigating Officer where the potatoes had to be sent is also not of much significance. VIII. Non-inspection of the place by the Investigating Officer where the potatoes had to be sent is also not of much significance. VIII. There is no eye witness account in the matter but the testimony of P.W.-1-Ramdas, P.W.-6-Virendar, P.W.-7-Ram Bax provides res-gestae evidence and extra-judicial confessions has been made by Attar Singh immediately after the incident. Ramdas had no motive to falsely implicate the accused. IX. The plea taken by the appellant and the suggestion put by the defence regarding false implication was not found believable as the landed property of the deceased Rameshwar Dayal was inherited by Smt. Kalawati. Therefore, elimination of Rameshwar Dayal and Smt. Kamla would not have facilitated Prabhu and Virendra to inherit the landed property of Rameshwar Dayal. Instances regarding transfer of the landed property of Rameshwar Dayal had taken place after the incident through sale deed. Thus, the trial court has found the charges levelled against the accused Attar Singh proved beyond reasonable doubt. 37. Before analysing the findings of the trial court in consonance with the arguments advanced by learned counsel for the parties, we would like to refer to Section 6 of the Indian Evidence Act; " S. 6. Relevancy of facts forming part of same transaction.-- Facts which, though not in issue, are so connected with a fact in issue as to form part of the same transaction, are relevant, whether they occurred at the same time ;and place or at different times and places." 38. The principle of law embodied in Section 6 of the Evidence Act is usually known as the rule of res gestae recognised in English law. The essence of the doctrine is that a fact which, though not in issue, is so connected with the fact in issue " as to from part of the same transaction" becomes relevant by itself. This rule is, roughly speaking an exception to the general rule that heresay evidence is not admissible. The rational in making such statement on fact admissible under Section 6 of the Evidence Act is on account of the spontaneity and immediacy of such statement or fact in relation to the fact in issue. Therefore, such statement must have been made contemporaneous with the acts which constitute the offence or atleast immediately thereafter. The above view has been propounded by Hon'ble Supreme Court time and again in the following cases: (I) Gentela Vijayavardan Rao Vs. Therefore, such statement must have been made contemporaneous with the acts which constitute the offence or atleast immediately thereafter. The above view has been propounded by Hon'ble Supreme Court time and again in the following cases: (I) Gentela Vijayavardan Rao Vs. State of U.P., AIR 1996 SC 2791 . (II) Arjun Vs. State of U.P., 2003 (46) ACC 233. (III) Vasachandrasekhar Rao Vs. Ponna Satyanarayana, AIR 2000 SC 2138 . (IV) Bhoiron Singh Vs. State of Madhya Pradesh, AIR 2009 SC 2603 39. Hon'ble Supreme Court in the Case of Javed Alam Vs. State of Chhattisgarh reported in (2009) 6 SCC 450 has also held that for the application of Section 6, it is necessary that the fact must not be too remote but a part of single transaction. 40. Hon'ble Supreme Court in the Case of Kambala Nagarjuna Vs. State of A. P. reported in 2009 Cr. LJ 2780 has reiterated that under Section 6 whatever is uttered by the deceased or the accused or by- standers during the assault made by the accused or so shorty before or after it as to form part of transaction, is a relevant fact. 41. Hon'ble Supreme Court in the case of Radha Mohan Singh Vs. State of U.P., AIR 2006 SC 951 on the issue of acceptance of the statement of hostile witnesses has held that the evidence of a prosecution witness can not be rejected in toto merely because the prosecution chose to treat him as hostile and cross-examined him. The evidence of such witness cannot be treated as effaced or washed off the record altogether but the same can be accepted to the extent his version is found to be dependable on a careful scrutiny thereof. 42. In the case of Chacho alias Aniyan Kanju and others Vs. State of Kerala (2004) 12 SCC 269 , Hon'ble Supreme Court has held that it is not important that how many witnesses have been examined by the prosecution but what is the nature and quality of evidence on which it relies is more important. The evidence of a single witness may sustain a sentence of death whereas a host of vulnerable witnesses may fail to support a simple charge of hurt. 43. The evidence of a single witness may sustain a sentence of death whereas a host of vulnerable witnesses may fail to support a simple charge of hurt. 43. Before dealing with the submissions made by the learned counsel for the parties, it is also relevant to note the legal propositions laid down by the Supreme Court in the case of Gangabhavani vs. Rayapati Venkat Reddy and others, JT 2013 (12) SC 117, which is as under (paragraphs 7 to 18 of the said judgment): "7. It is a settled legal proposition that where the evidence of the witnesses for the prosecution is totally inconsistent with the medical evidence or the evidence of the ballistics expert, it amounts to a fundamental defect in the prosecution case and unless it is reasonably explained may discredit the entire case of the prosecution. However, the opinion given by a medical witness need not be the last word on the subject. Such an opinion is required to be tested by the court. If the opinion is bereft of logic or objectivity, the court is not obliged to go by that opinion. After all an opinion is what is formed in the mind of a person regarding a particular fact situation. If one doctor forms one opinion and another doctor forms a different opinion on the same facts, it is open to the Judge to adopt the view which is more objective or probable. Similarly, if the opinion given by one doctor is not consistent or probable, the court has no liability to go by that opinion merely because it is given by the doctor. "It would be erroneous to accord undue primacy to the hypothetical answers of medical witnesses to exclude the eyewitnesses' account which had to be tested independently and not treated as the 'variable' keeping the medical evidence as the 'constant'." 7.1Where the eyewitnesses' account is found credible and trustworthy, a medical opinion pointing to alternative possibilities cannot be accepted as conclusive. The eyewitnesses' account requires a careful independent assessment and evaluation for its credibility, which should not be adversely prejudged on the basis of any other evidence, including medical evidence, as the sole touchstone for the test of such credibility. The eyewitnesses' account requires a careful independent assessment and evaluation for its credibility, which should not be adversely prejudged on the basis of any other evidence, including medical evidence, as the sole touchstone for the test of such credibility. (Vide: Ram Narain Singh v. State of Punjab, AIR 1975 SC 1727 ; State of Haryana v. Bhagirath, AIR 1999 SC 2005 ; Abdul Sayeed v. State of M.P., (2010) 10 SCC 259 ; and Rakesh v. State of M.P., (2011) 9 SCC 698 ). 8. Thus, the position of law in cases where there is a contradiction between medical evidence and ocular evidence stands crystallised to the effect that though the ocular testimony of a witness has greater evidentiary value vis-à-vis medical evidence, when medical evidence makes the ocular testimony improbable, that becomes a relevant factor in the process of the evaluation of evidence. However, where the medical evidence goes so far that it completely rules out all possibility of the ocular evidence being true, the ocular evidence may be disbelieved. CONTRADICTIONS IN EVIDENCE: 9. In State of U.P. v. Naresh, (2011) 4 SCC 324 , this Court after considering a large number of its earlier judgments held: "In all criminal cases, normal discrepancies are bound to occur in the depositions of witnesses due to normal errors of observation, namely, errors of memory due to lapse of time or due to mental disposition such as shock and horror at the time of occurrence. Where the omissions amount to a contradiction, creating a serious doubt about the truthfulness of the witness and other witnesses also make material improvement while deposing in the court, such evidence cannot be safe to rely upon. However, minor contradictions, inconsistencies, embellishments or improvements on trivial matters which do not affect the core of the prosecution case, should not be made a ground on which the evidence can be rejected in its entirety. The court has to form its opinion about the credibility of the witness and record a finding as to whether his deposition inspires confidence. Exaggerations per se do not render the evidence brittle. But it can be one of the factors to test credibility of the prosecution version, when the entire evidence is put in a crucible for being tested on the touchstone of credibility. Exaggerations per se do not render the evidence brittle. But it can be one of the factors to test credibility of the prosecution version, when the entire evidence is put in a crucible for being tested on the touchstone of credibility. Therefore, mere marginal variations in the statements of a witness cannot be dubbed as improvements as the same may be elaborations of the statement made by the witness earlier. The omissions which amount to contradictions in material particulars i.e. go to the root of the case/materially affect the trial or core of the prosecution's case, render the testimony of the witness liable to be discredited." 9.1 A similar view has been re-iterated by this Court in Tehsildar Singh & Anr. v. State of U.P., AIR 1959 SC 1012 ; Pudhu Raja & Anr. v. State, Rep. by Inspector of Police, JT 2012 (9) SC 252; and Lal Bahadur v. State (NCT of Delhi), (2013) 4 SCC 557 ). 10. Thus, it is evident that in case there are minor contradictions in the depositions of the witnesses the same are bound to be ignored as the same cannot be dubbed as improvements and it is likely to be so as the statement in the court is recorded after an inordinate delay. In case the contradictions are so material that the same go to the root of the case, materially affect the trial or core of the prosecution case, the court has to form its opinion about the credibility of the witnesses and find out as to whether their depositions inspire confidence. EVIDENCE OF A RELATED/INTERESTED WITNESSES: 11. It is a settled legal proposition that the evidence of closely related witnesses is required to be carefully scrutinised and appreciated before any conclusion is made to rest upon it, regarding the convict/accused in a given case. Thus, the evidence cannot be disbelieved merely on the ground that the witnesses are related to each other or to the deceased. In case the evidence has a ring of truth to it, is cogent, credible and trustworthy, it can, and certainly should, be relied upon. (Vide: Bhagalool Lodh & Anr. v. State of U.P., AIR 2011 SC 2292 ; and Dhari & Ors. v. State of U. P., AIR 2013 SC 308 ). 12. In State of Rajasthan v. Smt. Kalki & Anr. AIR 1981 SC 1390 , this Court held: "5A. (Vide: Bhagalool Lodh & Anr. v. State of U.P., AIR 2011 SC 2292 ; and Dhari & Ors. v. State of U. P., AIR 2013 SC 308 ). 12. In State of Rajasthan v. Smt. Kalki & Anr. AIR 1981 SC 1390 , this Court held: "5A. As mentioned above the High Court has declined to rely on the evidence of P.W. 1 on two grounds: (1) she was a "highly interested" witness because she "is the wife of the deceased"..........For, in the circumstances of the case, she was the only and most natural witness; she was the only person present in the hut with the deceased at the time of the occurrence, and the only person who saw the occurrence. True it is she is the wife of the deceased; but she cannot be called an 'interested' witness. She is related to the deceased. 'Related' is not equivalent to 'interested. A witness may be called 'interested' only when he or she derives some benefit from the result of a litigation; in the decree in a civil case, or in seeing an accused person punished. A witness who is a natural one and is the only possible eye witness in the circumstances of a case cannot be said to be 'interested'. In the instant case P.W.1 had no interest in protecting the real culprit, and falsely implicating the respondents." (Emphasis added) See also: Chakali Maddilety & Ors. v. State of A. P., AIR 2010 SC 3473 ). 13. In Sachchey Lal Tiwari v. State of U.P., AIR 2004 SC 5039 , while dealing with the case this Court held: "7...........Murders are not committed with previous notice to witnesses; soliciting their presence. If murder is committed in a dwelling house, the inmates of the house are natural witnesses. If murder is committed in a street, only passers-by will be witnesses. Their evidence cannot be brushed aside or viewed with suspicion on the ground that they are mere 'chance witnesses'. The expression 'chance witness' is borrowed from countries where every man's home is considered his castle and everyone must have an explanation for his presence elsewhere or in another man's castle. It is quite unsuitable an expression in a country where people are less formal and more casual, at any rate in the matter explaining their presence." 14. The expression 'chance witness' is borrowed from countries where every man's home is considered his castle and everyone must have an explanation for his presence elsewhere or in another man's castle. It is quite unsuitable an expression in a country where people are less formal and more casual, at any rate in the matter explaining their presence." 14. In view of the above, it can safely be held that natural witnesses may not be labelled as interested witnesses. Interested witnesses are those who want to derive some benefit out of the litigation/case. In case the circumstances reveal that a witness was present on the scene of the occurrence and had witnessed the crime, his deposition cannot be discarded merely on the ground of being closely related to the victim/deceased. DELAY IN LODGING FIR AND ITS CONTENTS: 15. The case of the prosecution cannot be rejected solely on the ground of delay in lodging the FIR. The court has to examine the explanation furnished by the prosecution for explaining the delay. There may be various circumstances particularly the number of victims, atmosphere prevailing at the scene of incidence, the complainant may be scared and fearing the action against him in pursuance of the incident that has taken place. If the prosecution explains the delay, the court should not reject the case of the prosecution solely on this ground. Therefore, the entire incident as narrated by the witnesses has to be construed and examined to decide whether there was an unreasonable and unexplained delay which goes to the root of the case of the prosecution and even if there is some unexplained delay, the court has to take into consideration whether it can be termed as abnormal. (Vide: P. Venkataswarlu v. State of A.P., AIR 2003 SC 574 ; and State of U.P. v. Munesh, AIR 2013 SC 147 ). 16. It is also a settled legal proposition that merely not mentioning all the names of all the accused or their overt acts elaborately or details of injuries said to have been suffered, could not render the FIR vague or unreliable. The FIR is not an encyclopaedia of all the facts. More so, it is quite natural that all the names and details may not be given in the FIR, where a large number of accused are involved. NON-CROSS EXAMINATION OF A WITNESS ON A PARTICULAR ISSUE: 17. The FIR is not an encyclopaedia of all the facts. More so, it is quite natural that all the names and details may not be given in the FIR, where a large number of accused are involved. NON-CROSS EXAMINATION OF A WITNESS ON A PARTICULAR ISSUE: 17. This Court in Laxmibai (Dead) Thr. L.Rs. & Anr. v. Bhagwanthuva (Dead) Thr. L.Rs. & Ors., AIR 2013 SC 1204 examined the effect of non- cross examination of witness on a particular fact/circumstance and held as under: "31. Furthermore, there cannot be any dispute with respect to the settled legal proposition, that if a party wishes to raise any doubt as regards the correctness of the statement of a witness, the said witness must be given an opportunity to explain his statement by drawing his attention to that part of it, which has been objected to by the other party, as being untrue. Without this, it is not possible to impeach his credibility. Such a law has been advanced in view of the statutory provisions enshrined in Section 138 of the Evidence Act, 1872, which enable the opposite party to cross-examine a witness as regards information tendered in evidence by him during his initial examination in chief, and the scope of this provision stands enlarged by Section 146 of the Evidence Act, which permits a witness to be questioned, inter-alia, in order to test his veracity. Thereafter, the unchallenged part of his evidence is to be relied upon, for the reason that it is impossible for the witness to explain or elaborate upon any doubts as regards the same, in the absence of questions put to him with respect to the circumstances which indicate that the version of events provided by him, is not fit to be believed, and the witness himself, is unworthy of credit. Thus, if a party intends to impeach a witness, he must provide adequate opportunity to the witness in the witness box, to give a full and proper explanation. The same is essential to ensure fair play and fairness in dealing with witnesses. (Emphasis supplied) (See also: Rohtash Kumar v. State of Haryana, JT 2013 (8) SC 181; and Gian Chand & Ors. v. State of Haryana, JT 2013 (10) SC 515). 18. The same is essential to ensure fair play and fairness in dealing with witnesses. (Emphasis supplied) (See also: Rohtash Kumar v. State of Haryana, JT 2013 (8) SC 181; and Gian Chand & Ors. v. State of Haryana, JT 2013 (10) SC 515). 18. Thus, it becomes crystal clear that the defence cannot rely on nor can the court base its finding on a particular fact or issue on which the witness has not made any statement in his examination-in- chief and the defence has not cross examined him on the said aspect of the matter." 44. On the point of acceptability of extra judicial confession, Hon'ble Supreme Court in the cases of Chandru and another (supra), Podyami Sukada (supra), State of U.P. VS. e. Satyanarayana (supra) and Sahadevan and anr. (supra), has categorically laid down that for relying upon the extra judicial confession following test has to be complied with by the judicial authority: (i) The extra-judicial confession is a weak evidence by itself. It has to be examined by the court with greater care and caution. (ii) It should be made voluntarily and should be truthful. (iii) It should inspire confidence. (iv) An extra-judicial confession attains greater credibility and evidentiary value, if it is supported by a chain of cogent circumstances and is further corroborated by other prosecution evidence. (v) For an extra-judicial confession to be the basis of conviction, it should not suffer from any material discrepancies and inherent improbabilities. (v) Such statement essentially has to be proved like any other fact and in accordance with law. 45. As is evident from the record that there is no dispute between the parties that Smt. Kalawati.-P.W.-5 was the wife of deceased Rameshwar Dayal and deceased Smt. Kamla W/o accused-Attar Singh was the younger sister of Kalawati and was also residing at the time of incident, in the house of Rameshwar Dayal. This fact has also not been disputed by the defence that Rameshwar Dayal and Smt.Kamla were done to death on the roof top of the house of Rameshwar Dayal. No child was born out of the wedlock of Rameshwar Dayal and Smt. Kalawati. Witnesses Birendra Singh and Prabhu are the nephew of deceased Rameshwar Dayal. Ramdas is the son of real uncle of Rameshwar Dayal. The written report to the concerned police station was sent through Deshraj but he was not examined by the prosecution. No child was born out of the wedlock of Rameshwar Dayal and Smt. Kalawati. Witnesses Birendra Singh and Prabhu are the nephew of deceased Rameshwar Dayal. Ramdas is the son of real uncle of Rameshwar Dayal. The written report to the concerned police station was sent through Deshraj but he was not examined by the prosecution. As per post-mortem examination report death of the deceased Rameshwar Dayal and Smt. Kamla took place due to ante-mortem firearm injuries found on their bodies. There are no eye witnesses account of the incident. The whole prosecution story is based on the motive, circumstantial evidence and extra judicial confession. 46. In this matter first of all we proceed to decide the authenticity of the first information report. As per written report, incident had occurred at the time of sunset. This paper had been prepared just after the incident on the same day by Ramdas and was sent to the concerned police station through Deshraj. Chick F.I.R. indicates the time of incident as 3.00 PM. Learned counsel for the appellant by referring this fact has argued that the first information report was not in existence at the time mentioned in the chick F.I.R. A reference has also been made regarding material collected by the Investigating Officer on the spot. 47. The trial court has opined that the written report to the concerned police station was only sent through Deshraj. He was not the informant of the case. Therefore, mentioning of the name of Deshraj as informant in the general diary is subsequent act of the police and on this score the genuineness of the first information report can not be doubted. 48. It may be noted at this juncture that in the written report, it has not been mentioned that the incident had taken place at 3.00 PM. but at about sunset hour on 09.01.1981 meaning thereby it was winter season. Time of Sunset in the second week of January is between 4.45 PM. and 5. 15 P.M. Even-after the sunset some light known as twilight remains. The distance between the place of occurrence and the police station concerned is about 8 Km. but at about sunset hour on 09.01.1981 meaning thereby it was winter season. Time of Sunset in the second week of January is between 4.45 PM. and 5. 15 P.M. Even-after the sunset some light known as twilight remains. The distance between the place of occurrence and the police station concerned is about 8 Km. Chick F.I.R. has been registered on the day of incident at about 8.30 P.M. Some time would have been consumed by informant Ramdas in preparing the written report and thereafter, considerable time must have been taken by the messenger in carrying the written report to the concerned police station. Therefore, a time-gap of 3 to 4 hours between the incident and lodging of first information report is possible and on this score F.I.R. Can not be termed as delayed or ante-timed. 49. The Investigating Officer had received the papers at Gurusahayganj crossing and subsequent thereto, he alongwith police personnels proceeded to the place of occurrence and reached there at 10.30 P.M. in the night. There was no arrangement of sufficient light for him to start the investigation. As such, these facts do not create any doubt or discredit the first information report. If some prosecution witnesses in their cross-examination have stated that the post-mortem was conducted after 12-00 PM. then also the statement of P.W. 2 Dr. H. P. Srivastava regarding time of conducting the post-mortem would not regarded as unreliable. Since there was no sufficient light to prepare the inquest report, therefore, the same was prepared on 10.01.1981 in the morning. The inquest report and other police papers prepared at that time find place case crime number and Sections, etc. By any stretch of imagination the first information report can not be said to be belated or concocted or after thought document. Statement of constable, who carried the dead bodies, regarding time of post-mortem amounts to minor contradictions. The same does not create any doubt in the existence of F.I.R. at the time mentioned in chick. 50. Apart from this, there are extra judicial confession and circumstantial evidence, therefore, the Court has to analyse and scrutinize the evidence available on records very carefully. The view taken by the learned trial judge on the point of authenticity and existence of first information report is in accordance with evidence adduced and no interference is required by this court. 51. Apart from this, there are extra judicial confession and circumstantial evidence, therefore, the Court has to analyse and scrutinize the evidence available on records very carefully. The view taken by the learned trial judge on the point of authenticity and existence of first information report is in accordance with evidence adduced and no interference is required by this court. 51. As we have already noted that some time would have been consumed in preparing the written report and carrying it to the police station concerned and in the facts and circumstance, the time taken in lodging the F.I.R. cannot be said to be inordinate or giving room for suspicion. Finding of the trial court on this point is also not interfereable. 52.As far as motive of occurrence is concerned, it is mentioned in the first information report that deceased Smt. Kamla was the wife of appellant-Attar Singh, who was living at the time of incident alongwith deceased Rameshwar Dayal as his wife. Appellant Attar Singh had come on two or three occasions to take back Smt. Kamla. Rameshwar Dayal did not permit her to go with Appellant-Attar Singh. Smt. Kamla was also not willing to go back with him. It infuriated Appellant-Attar Singh which ultimately became the cause of the commission of offence causing death of Rameshwar Dayal and Smt. Kamla. 53. Appellant's case is that the deceased Rameshwar Dayal used to treat Smt. Kamla and Attar Singh as his daughter and son respectively. Prosecution witnesses like Birendar, Prabbu and Ramdas apprehended that deceased Rameshwar Dayal would give his entire property to Attar Singh. Therefore, in pursuance to a conspiracy hatched by them, Rameshwar Dayal and Smt. Kamla were murdered. 54. The trial court finding is that the motive attributed in the first information report is believable one as deceased Rameshwar Dayal had kept Smt. Kamla wife of appellant-Attar Singh as his wife because his first wife Smt. Kalawati,could not conceive any child for fulfilling his expectations. 55. On weighing and comparing the finding and evidence, this court is of the view that the findings recorded by the trial court on this issue is not required to be interfered with because if the witnesses like Ramdas, Prabhu and Birendar were involved in committing murder of deceased Rameshwar Dayal, they ought to have been benefited with the property of Rameshwar Dayal. But Smt. Kalawati, who was the wife of Rameshwar Dayal, still survives and had inherited the entire property of Rameshwar Dayal and a sale deed in this regard is said to have been executed in favour of Birendar and Prabhu after the incident. This fact also does not support the motive taken by the appellant. If for the sake of argument, the letter sent by Smt. Kamla to the District Magistrate which was produced during trial be not taken as public document then also the motive taken by the prosecution is believable. Thus, finding recorded by the trial court on this point is also not required to be interfered with. 56. As far as medical evidence and place of occurrence are concerned, it is not disputed by the defence that both the deceased were done to death by firearm weapons. Place of occurrence is the roof of the house of the deceased Rameshwar Dayal. Inquest report also goes to support this fact that the dead bodies of deceased were lying on the roof of the house of Rameshwar Dayal. Certain pellets and other incriminating materials have also been recovered from the place of occurrence. 57. The defence has not put any question to the prosecution witnesses doubting the place of occurrence. P.W. -2, Dr. H. P. Srivastava has clearly opined that the injuries found on the bodies of the deceased were caused by firearm. Membrane of skulls of both the deceased were coming out and skulls of both the deceased were also found fractured at several places and they succumbed to the said injuries. P.W. -2, Dr. H. P. Srivastava has also stated that both the deceased might have taken food two hours before the incident and the injuries found on the bodies of the deceased were sufficient in the ordinary course of nature to cause death of the deceased. He has also opined that the death of both the deceased would have been taken- place at about sunset time on 09.01.1981. If the finding recorded by the trial court is considered in the light of the argument of learned counsel for the appellant then it emerges that in case deceased had taken food at about sunset then variation of time of death would be only of two or three hours. In the stomach and intestines of both the deceased some pasty and digestive food had been found. In the stomach and intestines of both the deceased some pasty and digestive food had been found. On this point it may be noted here that nobody has seen when the deceased had taken food. The witnesses examined in the matter were not present on the roof at the time of firing. The incident is said to have happened in the month of January, 1981 at about sunset, i.e., about 5.00 PM. P.W.-2 Dr. H.P. Srivastave's opinion that deceased might have taken food before two hours of the incident, is based on the material found in the stomach and intestines. Nobody's case is that the deceased had finished the meal at the time of occurrence. The opinion expressed by the doctor about the time of death of deceased is in line of prosecution case. Medical evidence fully supports the prosecution case. On close scrutiny of evidence, the finding recorded by the trial court on this point is not required to be interfered with by us. 58. Prosecution case is also that the deceased was to go somewhere at Kanpur with regard to supply of potato and due to this reason they were taking meals. Reasons given by the prosecution in this regard are quite adequate and can not be discarded. 59. Observation recorded by the trial court that people in the villages generally take mid-day-meal in late hour can not be disturbed. It is pertinent to mention here that if the time of death of both the deceased is about sunset hours, it does not mean that the digestive process came to an end instantaneously. In such situation, digestive process continues to function for sometimes. Suggestion put before P.W.-2, Dr. H. P. Srivastava regarding contents found in the stomach and intestines may be as an illustration in a particular fact and situation but it is not an absolute rule. Dr. Modi in his Medical Jurisprudence has not made an absolute rule but it is the outcome of the experience gained by Dr. Modi. Therefore, findings recorded by the trial court on the point of medical evidence are in accordance with law and material available on record. No absolute rule can be formed that in sudden death's case digestive process comes to an end instantaneously. 60. Modi. Therefore, findings recorded by the trial court on the point of medical evidence are in accordance with law and material available on record. No absolute rule can be formed that in sudden death's case digestive process comes to an end instantaneously. 60. The Investigating Officer has found hot ashes in 'chulha' in the morning of 10.01.1981 at about 10.00 AM but it does not mean that time mentioned in the written report about the incident is not correct. Offence/incident is of the year 1981. Village people generally keep brazier/warming pan (angeethee) in stove (chulha) continuously to use it to flame the woods for cooking without using matchsticks, therefore, hot ashes found in chulha on 10.01.1981 in the morning does not falsify the time of incident merely because the police handed over the materials found at the place of occurrence to Smt. Kalawati instead of sending them for chemical examination will not descredit the prosecution case as the defence has not put any question to any prosecution witness challenging the place of occurrence. 61. Non-recording of the evidence of a person to whom Rameshwar Dayal had to supply the potato and not making an inspection of that place is also not fatal to the prosecution story. These facts does not create any doubt about time and place of occurrence, especially when time, place of occurrence and presence of the witnesses on the scene of occurrence just after the incident have been established by the prosecution beyond reasonable doubt. Thus, we are of the considered view that the medical evidence fully supports the prosecution case and the deceased have been done to death on the roof of the house of Rameshwar Dayal on 09.01.1981 at about sunset causing fire arm-injuries. 62. As far as non-production of witness Deshraj is concerned, it also does not affect the credibility and trustworthiness of other witnesses as they are said to have reached the spot just after the incident. What part has been played by witness Deshraj after the incident has been proved not only by P.W.-1-Ramdas but also by the police witness who had registered the case. What part has been played by witness Deshraj after the incident has been proved not only by P.W.-1-Ramdas but also by the police witness who had registered the case. 63.As far as presence of P.W. -1 Ramdas, Virendar, Prabhu and Kedar on the Chabutra of the house of Ramdas at the time of incident is concerned, it was about sunset time and the villagers enerally after doing their agricultural work used to come back home in the evening and chat with each other. House of Ramdas is situated in front of the house of Rameshwar Dayal separated by a lane. House of Deshraj and Ram Bux are also situated in the same vicinity. The cries raised from the house of Rameshwar Dayal could easily be heard from the houses of Ramdas, Ram Bux and Deshraj. Therefore, their presence on the place shown in the prosecution story just before the incident can not be doubted or questioned. As stated earlier there can be no motive attributable to Ramdas, Birendar and Prabhu for falsely implicating the appellant since no property would have devolved upon them on the death of Rameshwar Dayal, therefore, rushing to the scene of occurrence after hearing the sounds of gun shots is not unnatural or improbable. Since the prosecution witnesses had seen the appellant and his companions going towards the place of occurrence, therefore, findi ng of the trial court that accused appellant alongwith his companions had gone to the place of occurrence armed with SBBL gun and country made pistols does not require any interference. The witnesses had reached the place of occurrence soon thereafter hearing the sounds of shots and challenged the culprits, thereafter the culprits came down from the roof immediately after committing the crime and appellant Attar Singh who was one of the culprits made the confessional statement and this fact clearly comes under the purview of Section 6 of the Indian Evidence Act and form part of the same transaction, i.e., committing the murder of the deceased. As has been noted by us in the earlier part of the judgement that whatever has been stated or uttered by the accused just after the incident before the witnesses whether it is in the form of confessional statement or in any other form related to the incident will be a relevant fact and is admissible in evidence. 64. As has been noted by us in the earlier part of the judgement that whatever has been stated or uttered by the accused just after the incident before the witnesses whether it is in the form of confessional statement or in any other form related to the incident will be a relevant fact and is admissible in evidence. 64. So far as the statement of P.W.-5 Kalawati is concerned, she has admitted that both the deceased have been done to death on the roof of the house of the deceased. The deceased Rameshwar Dayal was issue-less. Deceased Smt. Kamla used to live in his house. It is a settled legal proposition that the whole statement of a hostile witness can not be thrown out but the part of statement which supports the case of a party may be taken into consideration. Therefore, the facts stated by P.W.-5, Kalawati which are in line with the prosecution case may be taken in support of the prosecution case. It is also to be noted here that the statement regarding false implication of the appellant Attar Singh in this case has been made by this hostile witness before the court is not supported by any other witness or evidence. Motive stated by this witness is also not believable as she has inherited the entire property of deceased Rameshwar Dayal. Had Ramdas, Prabhu and Birendar were involved in the incident to grab the property of the deceased Rameshwar Dayal they would not have left the witness Kalawati alive. Therefore, the statement of this witness on this point does not support the defence case and is not material in the matter. 65. Findings recorded by the trial court about the presence of P.W.-1 Ramdas, P.W.-6 Birendar and P.W.-7 Ram Bux on the scene of occurrence just after the incident is not perverse or illegal. They have heard the sounds of four gun shots and they reached the spot soon thereafter. When they challenged the culprits, appellant Attar Singh armed with SBBL gun and his three companions came down and accused appellant had stated to the witnesses " TUM LOG MERE KAREEB MAT AAO MAIN KAMLA APNI AURAT KO LENE AAYA THA AUR RAMESHWAR DAYAL AUR KAMLA KO GOLI SE MARKAR JA RAHA HOON GAON BALE SE KOI MATLAB NAHIN HAI AUR PASCHIM KO TEJEE SE CHALE GAYE." 66. All the witnesses before whom appellant Attar Singh has made confessional statement have consistently and clearly supported this fact. 67.Since there is no eye witness account in the matter therefore on the basis of extra judicial confessional statement made by accused/ appellant before the witnesses examined by the prosecution and on the basis of circumstantial evidence and also on the principle of res gestae, we are of the view that opinion formed by the trial court on the point of guilt of the appellant can not be said to be illegal, perverse or improper. The extra judicial confession has been made by the appellant before the witnesses without any fear or pressure. It has been made voluntarily and the same also inspires confidence because the appellant alongwith his three companions had been seen going toward the spot armed with firearms weapons and witnesses have heard the sounds of gun shots emanating from the roof of Rameshwar Dayal. The extra confessional statement is instantaneous and does not suffer from material discrepancies or impropriety as it has been proved by P.W.-1 Ramdas, P.W.-7 Ram Bux and P.W.-6 Birendar. Since the extra judicial confession has been made within a few moments of the incident, the trial court has rightly taken this evidence as res gestae. Hence the irresistible and inescapable conclusion in our opinion is that the accused Attar Singh alongwith his companions had committed the murder of deceased Rameshwar Dayal and Smt. Kamla on the date, time and place mentioned in the written report. 68. Motive assigned to commit the present offence against accused/appellant Attar Singh has also been proved beyond reasonable doubt by the prosecution. Medical evidence also fully supports the prosecution case. Minor contradiction, omission and inconsistency etc. in the deposition of the witnesses are bound to occur as they have been examined after a passage of day. The contradiction and inconsistency shown by the appellant have been reasonably explained by the prosecution. Minor contradiction regarding time of post-mortem in this case can not be dubbed as fatal to the prosecution case. Witnesses P.W.-1 Ramdas, P.W.-6 Birendar and P.W.-7 Ram Bux are natural and probable witnesses. They have no motive to falsely implicate the appellant-Attar Singh. Therefore, they can not be termed as interested witnesses as has been held in Gangabhavani's case (supra). Minor contradiction regarding time of post-mortem in this case can not be dubbed as fatal to the prosecution case. Witnesses P.W.-1 Ramdas, P.W.-6 Birendar and P.W.-7 Ram Bux are natural and probable witnesses. They have no motive to falsely implicate the appellant-Attar Singh. Therefore, they can not be termed as interested witnesses as has been held in Gangabhavani's case (supra). Although these three witnesses are related to each other but on this score their testimony can not be thrown out because they have no motive to falsely implicate the appellant-accused in this matter. The incident is said to have taken place on the evening of 09.01.1981 at about sunset. Thus, point raised by the appellant on this score is also not acceptable. Merely because the witnesses are close relative would not make them interested witnesses and their testimony can not be said as unbelievable or untrustworthiness. 69. Findings of the trial court that appellant-Attar Singh is guilty of offence under Section 302 I.P.C. is legal one and based on circumstantial evidence and extra judicial confession made by appellant-Attar Singh. Circumstances have been fully proved beyond reasonable doubt. In the facts and circumstances of the case, conviction of the appellant/accused as has been held by the trial court requires no interference by this Court. 70 In view of the discussion made herein above, we do not find any merit in the appeal and the same is liable to be dismissed. As such, the appeal is dismissed and the impugned judgement and order dated 21.12.1982 passed by learned Session Judge, Farrukhabad in Sessions Trial No. 136 of 1982 is hereby confirmed. Appellant-Attar Singh is on bail. The bail bond of Attar Singh is hereby cancelled and he is directed to surrender immediately before the concerned Chief Judicial Magistrate to serve out the sentences imposed upon him. 71 Let a copy of this judgement be also sent forthwith to the concerned Sessions court and to the C.J.M. concerned to take necessary action. Let a compliance report be also submitted to this Court. ———————