JUDGMENT Hon’ble Mukhtar Ahmad, J.—The appellant-Harish Chandra Pandey has preferred this criminal appeal against the judgment and order dated 29.7.1983 passed by Sessions Judge, Basti in S.T. No. 108 of 1982 under Section 302/34 IPC, whereby he has been convicted under Section 302 IPC and sentenced to undergo life imprisonment and the other co-accused persons namely Komal Yadav and Parmanand Pandey have been acquitted giving benefit of doubt. 2. The prosecution story hings on the facts that on 20.1.1982, the first informant-Sri Niwas (PW-1), brother of deceased gave a written information (Ex Ka-1) at the police station, Lalganj district Basti by saying that he is resident of village Barware, police station, Lalganj district, Basti; that there was some dispute between Ram Niwas Pandey and Jag Mohan Pandey of the village in respect of the property left by Ram Samujh Pandey, in which, his brother-Tulsi Ram Misra (deceased) used to support Ram Niwas Pandey, due to which accused Harish Chandra Pandey son of Jag Mohan Pandey had grudge against him; that it was also asserted that ‘Bhabhi’ of Komal Yadav son of Bhikhari of neighboring village-Sukrauli had sold her land to the first informant and his brothers in respect of which a civil litigation was pending in the Civil Court; that on 20-1-1982 his brother,Tulsi Ram Mishra was going for pairavi in that case; that Kailash son of Kalp Nath and Sita Ram(PW-3) both of his village were also accompanying him and when his brother reached in the grove of Onkar Upadhyay situated near Gaura ghat at about 7.30 a.m., the appellant-Harish Chandra Pandey son of Jag Mohan Pandey and the co-accused Komal Yadav son of Bhikhari Yadav resident of village-Sukrauli and another person whom he did not know by name arrived on a motor cycle; that Komal Yadav and unknown persons exhorted Harish Chand Pandey to kill his brother and soon thereafter, Harish Chandra Pandey, opened two fires on him by his DBBL gun, the deceased-Tulsi Ram sustained injuries on his neck and right side of axilla; and succumbed on the spot to the injuries sustained; that on some hue and cry, Paras Nath son of Shiv Baran Pandey of village Ketaha and Ram Shanker son of Suryamani of village Sapha came on the spot; that all these persons tried to catch the accused persons but they ran away therefrom on their motor cycle. On the basis of written information, an First Information Report (Ex-Ka-5) was registered against the accused persons under Sections 302 IPC. The investigation was entrusted to Ram Nath Singh Yadav-S.O. (PW-9), who visited the spot on the same day and prepared site plan; he also recovered empty cartridges, blood stained and plain earth, blood stained clothes and janewoo of the deceased alongwith money and prepared memo (Ex-Ka-12, 13,14 and 15) respectively. Inquest report (Ex-Ka-8) of the dead body was also conducted. Thereafter, the dead body was sealed and sent for post-mortem examination through Constable Ram Kesh and Constable Shambhu Nath Singh. Specimen seal, memo supurdagi Lash, photo Lash, letter to CMO were also prepared and handed over to the aforesaid Constables. Autopsy of the deceased-Tulsi Ram was conducted on 21.1.1982 by Dr. G.M. Lal (PW-2). He found following ante-mortem injuries on the dead body of the deceased; 1- Fire-arm injuries 9 cm x 6 cm x chest cavity deep -3 cm below the right scapula. Margins were ragged. The edges around the margins were scorched but no blackening was present. Wadding material was recovered from this wound of entry. 2- Fire-arm injuries 8 cm x 4 cm x axilla deep on the right side of the chest. Charring was present on the edges of the wound but no blackening was present. Wadding material and pellets were recovered from this wound of entry. 3- Fire-arm injury 1 cm x 1 cm on the left side of neck-5 cm below the ear lobule. The margins were charred and red but no blackening was found. One big pellet was recovered from the other side of the neck. 4- Fire-arm injury .5 cm x.5 cm on the left wrist. 7th and 8th ribs were found fractured on the right side due to injury No. 1. Lungs were also found lacerated. The carotid vessels on the left side were lacerated. In the stomach semi digested food was found. Small and large intestines were found empty. It was opined by the doctor that the death occurred due to shock and haemorrhage due to ante-mortem injuries. 3. During investigation name of Parmanand Pandey also came in to light and was arrested. In identification parade, conducted by Special Executive Magistrate C.P. Srivastava PW-4 he was identified. 4. Small and large intestines were found empty. It was opined by the doctor that the death occurred due to shock and haemorrhage due to ante-mortem injuries. 3. During investigation name of Parmanand Pandey also came in to light and was arrested. In identification parade, conducted by Special Executive Magistrate C.P. Srivastava PW-4 he was identified. 4. The Investigation was initially conducted by Ram Nath Singh PW-9 and thereafter taken over by Devendra Dhar Trivedi-PW-5 who submitted charge-sheet under Section 302 IPC against all the accused persons. The Chief Judicial Magistrate, Basti after providing necessary copies to the accused persons committed the case to the Sessions Judge, Basti on 1.4.1982. 5. Learned Sessions Judge framed charges against Harish Chandra Pandey under Section 302 IPC and a separate charge under Section 302 read with Section 34 IPC was also framed against the accused-Komal Yadav and Parmanand Pandey. The accused persons pleaded not guilty and claimed to be tried. 6. In order to substantiate the charge against the accused persons, the prosecution examined 9 witnesses. PW-1 Sri Niwas is the first informant and brother of the deceased. He is produced as eye-witness as well as to prove chick First Information Report (Ex-Ka-1). PW-2 Dr. G.M. Lal who conducted autopsy on the dead body of the deceased-Tulsi Ram and he has proved the post-mortem report (Ex-ka-2). PW-3 Sita Ram is the uncle of deceased and has deposed as eye-witness account in support of the prosecution version.PW4-C.P. Srivastava, Special Executive Magistrate is a witness of identification parade of accused-Parmanand Pandey. PW-5, S.I. Devendradhar Tiwari is the subsequent Investigating Officer who submitted the charge-sheet against the accused persons. PW-6 Constable Ram Sumer Yadav is the witness who had registered chick report and made entries in the G.D. PW-7 Mohd. Rauf has been produced who corroborate the fact that he brought accused Parmanand Pandey in baparda condition. PW-8 S.I. Saghir Ahmad is the witness who had arrested the accused Parmanand Pandey. PW-9, S.O. Ram Nath Singh is the first Investigating Officer of the matter in hand who had visited the spot, made recovery and prepared requisite memos. An affidavit dated 13-6-1983 was also filed by Constable Rakesh Prasad, who had sent the dead body of deceased for Post-mortem. On the basis of endorsement by defence, he was exempted to be cross-examined. PW-9, S.O. Ram Nath Singh is the first Investigating Officer of the matter in hand who had visited the spot, made recovery and prepared requisite memos. An affidavit dated 13-6-1983 was also filed by Constable Rakesh Prasad, who had sent the dead body of deceased for Post-mortem. On the basis of endorsement by defence, he was exempted to be cross-examined. Besides this, on the request of defence, the Court also called Radhey Shyam, scriber of the First Information Report as CW-1 who has denied scribing the written tahrir and he did not support the prosecution version. 7. After concluding the prosecution evidence, statements of the accused persons under Section 313 Cr. P.C. was recorded. The accused-Harish Chandra Pandey stated that there was enmity between him and Ram Achaiwar on one hand and Sita Ram on the other hand. Ram Achaiwar is his pattidar and civil litigation was going on between him and Ram Achaiwar. He also stated that some quarrel had taken place between him and Sita Ram in the village. He further stated that these two persons have falsely got him implicated in the present case. 8. On behalf of defence, no witness was examined. However, four papers were filed in defence on behalf of accused Parmanand Pandey, which are marked as Ex-Ka-1 to Ex-Ka-4). 9. Learned Sessions Judge after appreciating the evidence on record found the prosecution case proved, convicted the appellant-Harish Chandra Pandey and awarded punishment as stated above. However, accused Komal Yadav and Parmanand Pandey were acquitted of the charge giving benefit of doubt. 10. Aggrieved by the impugned judgment and order of conviction and sentence, the instant criminal appeal has been filed on behalf of Harish Chandra Pandey. 11. We have heard Sri Dileep Kumar and Mr. Rajarshi Gupta learned Counsel for the appellant, learned AGA and have gone through the record and impugned judgment and order too. 12. Learned Senior counsel appearing on behalf of the appellant has assailed the impugned judgment on various grounds. He has submitted that there is no evidence worthy of credence to establish the prosecution case and impugned judgment lies more on surmises than on facts proved beyond reasonable doubt. He further submits that Pw1 Sri Niwas and PW3 Sita Ram are examined by the prosecution as eye-witnesses but they are brother and uncle of deceased respectively so they are highly interested persons. He further submits that Pw1 Sri Niwas and PW3 Sita Ram are examined by the prosecution as eye-witnesses but they are brother and uncle of deceased respectively so they are highly interested persons. Further, their presence on spot at the time of occurrence is highly doubtful and their testimony has severe discrepancies, so their testimony do not inspire confidence. Further, their evidence is not corroborated with the medical evidence and as such, entire prosecution story becomes doubtful. 13. Per contra learned A.G.A. has opposed these arguments and supported the judgment and order impugned. It has also been argued that mere relationship cannot be the ground of discarding the evidence of a witness further minor contradiction in the testimony of the witnesses are bound to occur which also shows that the witnesses are not tutored and they have come to the Court for disclosing the fact in their own way. Minor discrepancies not touching the core of case cannot be the ground for rejection of evidence in entirety. It is further submitted that the testimony of the witnesses of the fact is supportive to the medical evidence. 14. Admittedly, in this matter relationship between P.W.1 and P.W.3 with the deceased has not been denied, but we are of the view that only on the basis of relationship, the witnesses cannot be termed as interested witnesses and their testimony cannot be discarded only on account of relationship. However, scrutiny of their testimony would require great care and caution. 15. The manner of occurrence was deposed to at the trial by P.W.1, Sri Niwas, first informant and brother of deceased,who in his oral testimony has stated that the deceased -Tulsi Ram was his real younger brother who was Pradhan of the village. Disclosing the litigation between Jagmohan Pandey and Ram Naresh, he stated that Tulsi-Ram -deceased was doing pairavi for Ram Naresh and it was the reason that the appellant was having grudge against him, which ultimately resulted in his murder. He also stated that Gauna Devi-Bhabhi of accused -Komal Yadav had transferred her property to the first informant and his brothers and the names of purchasers were mutated in her place. However, a Civil Suit was filed in this regard on behalf of Gauna Devi. On 20-1-1982, he and his brother deceased-Tulsi Ram were going to do pairavi in that case alongwith Kailash and Sita Ram of his village. However, a Civil Suit was filed in this regard on behalf of Gauna Devi. On 20-1-1982, he and his brother deceased-Tulsi Ram were going to do pairavi in that case alongwith Kailash and Sita Ram of his village. As soon as they entered in the grove of Onkar, the appellant-Harish Chandra Pandey alongwith Komal Yadav and one unknown person (subsequently named as Parmanand Pandey) came on Motor Cycle. Komal Yadav and Parmanand Pandey exhorted the appellant to kill Tulsi Ram. Thereafter Harish chand pandey opened two fires by his DBBL gun on his brother causing fire-arm injuries and he succumbed to the injuries on the spot. However accused were tried to be caught, but they succeeded in running away on their Motor Cycle. In his cross-examination, he has admitted that civil litigation pending between Ram Naresh and Jagmohan Pandey was settled by compromise. In his statement under Section 161 Cr. P.C he has stated that eSa Hkh mlh eqdnes dh iSjoh eS dpgjh tk jgk Fkk A rqylh jke us dgk Fkk fd rqe tkuojksa dks f[kyk fiyk dj vkuk A Thereafter, this witness said ^eS Hkh dqvkuks unh ds ikl eafnj ds ikl igqWpk rks ns[kk fd gfj'pUn ik.Ms; esjs xkWo ds dksey ;kno fuoklh lqdjkSyh o ,d vkneh vSkj tks lc ls ihNs eksVj lkbfdy ij cSBk Fkk xksjs jax dk irys pgjs dk djhc 14&15 lky dk Fkk gyqvkiqj dh rjQ ls ekssVjlkbfdy ls vk;s The site plan shows that at Kuano nadi there is Gauraghat and Peepa bridge and towards north, there were fields of Onkar in which wheat crop was standing and thereafter, parti land of Onkar and thereafter, field of Bhika Yadav of Arahar crop is shown and towards north of arahar crop, there is grove where the incident took place. This witness further stated that a temple is towards south of Gauraghat and place of occurrence is about two or two and half bigha from Gauraghat and toward south near this ghat, there is a temple. 16. P.W.3, Sita Ram has also been produced as eye-witness. He is the uncle of deceased. He has stated before the Court that on the day of occurrence he was going to Basti to purchase cloths, Kailash of his village was also with him. Sri Niwas was also coming behind them. Deceased Tulsi Ram was about 15-16 steps ahead to them. P.W.3, Sita Ram has also been produced as eye-witness. He is the uncle of deceased. He has stated before the Court that on the day of occurrence he was going to Basti to purchase cloths, Kailash of his village was also with him. Sri Niwas was also coming behind them. Deceased Tulsi Ram was about 15-16 steps ahead to them. In his statement under Section 161 Cr. P.C, he has stated that Tulsi Ram was going ahead, thereafter Kailash of the village then back to them he was going. He further says that he was about 15-20 steps behind the deceased Tulsi Ram. It has also been stated by him that after the incident, PW-1 Sri Niwas Mishra, running from behind also came on the spot 17. First Investigation Officer P.W 9 has deposed before the Court that Sitaram had not stated while describing the incident that Tulsi Ram was also going with the deceased on that date to Basti. 18. Perusal of record shows that in the FIR, it was not specified that Sri Niwas PW 1 was also going with deceased but when Sri Niwas examined in the Court, he improved his version and stated that he was with deceased. As per his statement under Section 161 Cr. P. C., he was told by deceased to come after feeding the cattles. He further said that he saw the incident when he reached near mandir, which is towards South of Gaura Ghat over Kuano river. PW 3 says that he was about 15-20 steps behind the deceased and PW 1 was coming behind him. In view of the statement of aforesaid witness one thing is clear that PW 1 was not with the deceased. P.W. 1 stated that he witnessed the incident when he was near the temple situated towards South of Gaura Ghat, which is far away from the place of occurrence. As such prosecution is not definite that from where PW 1 witnessed the incident. As for as PW 3 is concerned, he saw the incident from a distance of more than 15-20 steps. It may be added that when P.W.3 was going with the deceased then, this version that he was about 15-20 steps behind the deceased is very surprising. As such prosecution is not definite that from where PW 1 witnessed the incident. As for as PW 3 is concerned, he saw the incident from a distance of more than 15-20 steps. It may be added that when P.W.3 was going with the deceased then, this version that he was about 15-20 steps behind the deceased is very surprising. We therefore, come to the conclusion that the presence of eye-witnesses PW1 and PW3 on the place of occurrence and witnessing the incident by them becomes highly doubtful and their evidence is not reliable on this count. 19. Mr. Dileep Kumar next contended that in this matter the First Information Report is ante timed. No doubt, the First Information Report in a criminal case and particularly in a murder case, is a vital and valuable piece of evidence for the purpose of appreciating the evidence led during trial. The object of insisting upon prompt lodging of the FIR is to obtain the earliest information regarding the circumstances in which the crime was committed, including the names of the actual culprits and parts played by them, the weapons,if any. If the First Information Report is delayed or ante timed, it often results in embellishment, which is a creature of an afterthought. On account of delay, the FIR not only gets bereft of the advantage of spontaneity, danger also creeps in of the introduction of a coloured version of exaggerated story. In this matter, report is allegedly written by Radhey Shyam who was summoned by the Court and examined as Court witness (CW-1). He has not supported the prosecution version and has stated that he had not written tahrir and categorically denied his hand writing and signature too, but no steps to get the opinion of hand writing and signature expert was made by the prosecution. In this matter, chick FIR bears no indication that it was perused by the concerned Magistrate. However, on top left corner, “prapt-02-02-84” is written and if it is accepted the special report, according to Mr. Dileep Kumar, this inordinate delay in receiving of the report is sufficient to discard the prosecution version. The second external check equally important is the sending of the copy of the FIR alongwith the dead body and its reference in the inquest report prepared under Section 174 Cr. Dileep Kumar, this inordinate delay in receiving of the report is sufficient to discard the prosecution version. The second external check equally important is the sending of the copy of the FIR alongwith the dead body and its reference in the inquest report prepared under Section 174 Cr. PC, is aimed at serving a statutory function, to lend credence to the prosecution case. In the inquest report and other papers such as photo-nash, chitthi mazroobi etc. there is only case crime number and section but the name of accused is not shown. It is a matter of great surprise that in the inquest report, Jagmohan Pandey, father of the accused Harish Chandra Pandey is a witness of inquest. According to learned counsel for the appellant, it suggests that at that time First Information Report was not in existence and the inquest report was performed in a routine manner and up to that time, it was not ascertained as to against whom, the FIR was to be lodged and by whom. Otherwise, a father cannot be the witness of inquest, particularly in a case against his own son. Further, the first informant ought to have opposed becoming father of the accused as a witness of inquest. 20. Careful perusal of the inquest report shows that at its first page, time of FIR, time of beginning the inquest process, particulars of first informant, time of sending dead body appears to have been filled up later on and due to slight change in darkness of the ink, it is easily visible by naked eyes. Inquest was conducted leaving the aforesaid columns blank and it was not ascertained up to that time that who shall be the accused and first informant, otherwise, Jagmohan Pandey-father of the appellant would not dare to be present on the sport what to speak about his becoming a witness of inquest. 21. Learned counsel for the State has opposed the arguments by saying that these arguments are based on self imagination of learned counsel for the appellant having no reality. 21. Learned counsel for the State has opposed the arguments by saying that these arguments are based on self imagination of learned counsel for the appellant having no reality. At this stage, in view of aforesaid discussions, arguments of learned counsel for the appellant is indicative of the fact that the prosecution story was still in an embryo state till inquest and had not been given any shape and that the FIR came to be recorded later on after due deliberations and consultations and was then ante-timed to give it the colour of a promptly lodged FIR. According to the scribe, he did not write the report. In our opinion, on account of infirmities as noticed above, the FIR has lost its value and authenticity and it appears to us that the same has been ante-timed and had not been registered till the inquest proceedings were completed at the spot. 22. The next contention raised on behalf of appellant is that the prosecution has failed to prove motive for commission of crime and in absence of clear and emphatic motive, order of conviction is liable to be set aside and the appellant is entitled to acquittal. In this matter, prosecution has come with definite motive that there was litigation between Ram Naresh Pandey and Jagmohan Pandey-father of appellant and the deceased respectively used to do pairavi for Ram Naresh Pandey which ultimately became the cause of murder, but this theory is not believable as the case between Ram Naresh Pandey and Jagmohan Pandey has already been settled amicably prior to the incident. In this regard, statement of P.W.1 has been referred who has stated at page-7(para-18) that in the litigation between Ram Naresh and Jagmohan, a compromise between them was filed. He also submits that after compromise question of pairvi was not there. 23. Learned Government Advocate has denied these arguments by saying that it is always not necessary for the prosecution to establish a definite motive for commission of crime. We are of the opinion that it will not be correct to say that it is an absolute proposition of law that absence of motive always results in acquittal of the accused, if he is otherwise found guilty. We are also of the view that motive is not always necessary but if it is taken, then it should be proved. We are of the opinion that it will not be correct to say that it is an absolute proposition of law that absence of motive always results in acquittal of the accused, if he is otherwise found guilty. We are also of the view that motive is not always necessary but if it is taken, then it should be proved. In this matter, the theory of motive as set up by the prosecution is very weak and the same cannot be treated as prompt motive for commission of the offence. 24. Learned counsel for the appellant has lastly contended that the medical evidence is not supported by the evidence of prosecution witnesses given in the Court. Referring the injuries, it has been stated that four fire-arm injuries were found on the body of deceased and 43 small pellets, 2 corks, 4 tikulies and 2 set of wadding pieces were recovered from the injuries. Learned Counsel for the appellant firstly contended that as per the prosecution version, two fires were opened by the appellant from his DBBL gun but the doctor has opined that all four fire-arm injuries were likely to be caused by different four fire/shots. In his examination-in-chief, in para-9, it has been stated that injury No. 3 was not possible to have occurred due to dispersal of pellets of injury No. 1. In this regard, learned AGA has submitted that as per the prosecution version, the appellant was having a DBBL gun and if both triggers are put to shot together, then all four injuries were likely to be caused but this version of learned AGA appears to be incorrect as P.W.3 in his statement at page-7 (para-25), has stated that just after the firing they shouted. He further says that accused Harish Chand had opened both the fires one after one. The injury report also shows that blackening was not found surrounding the wounds. At this stage, statement of PW 9 Ram Nath Singh (first I.O.) is referred who in para-5 has stated that from the body of deceased, one Gamcha, one Kurta woolen, one woolen sweeter full sleeves, one Baniyan were recovered and in this situation, absence of blackening was not unusual but presence of scorching and charring suggests that firing was made from a close range i.e. not more than 5 feets. P.W.1 Sri Niwas in his statement at page 18 (Para 59) has stated that accused Harish Chand fired on deceased from a distance about 5 yards. In this context, P.W.3 in his statement in para 23, further stated that when accused had fired on deceased then there was about 3-4 steps gap between them. On these grounds, it is further submitted that in view of the statements of the prosecution witnesses, it was not possible to sustain such injury. 25. It cannot be denied that the medical evidence is merely opinion of the Doctor and may or may not corroborate the oral testimony of the witnesses. It is almost settled that merely on the basis of medical report ocular evidence would not be disbelieved but considering the all round facts and circumstances and entire evidence, if presence and statements of the witnesses is found doubtful coupled with the fact that even the medical evidence did not support statements of prosecution witnesses then the ocular evidence would not be reliable considering the cumulative effect and if prosecution case is doubtful then the accused would be entitled for benefit of doubt. 26. As a result of our above discussion, it appears that it was a blind murder and none of the eye-witnesses were actually present at the scene. The ante-timing of the FIR was obviously made to introduce eye-witnesses to support the prosecution case. Our independent analysis of the evidence on the record coupled with the infirmities which we have noticed above, has created an impression to our mind, that the prosecution has not been able to bring home the guilt to the appellant beyond a reasonable doubt. Consequently, appellant is entitled for benefit of doubt. 27. Accordingly, appeal succeeds and is hereby allowed. The conviction and sentence awarded against the appellant by the learned Sessions Judge, Basti is set aside. The bail bonds are cancelled and sureties are discharged. Let this order be communicated to the Court concerned. ——————