JUDGMENT Per: Hon'ble Rajiv Sharma, J Since common questions of law and facts are involved in the above-titled criminal appeals, hence the same are taken up together and are being adjudicated by this common judgment. 2. These appeals are instituted against the judgment and order dated 11.03.2011, rendered by learned Session Judge, Bageshwar in Session Trial No.07 of 2010, whereby the appellants-accused, who were charged with and tried for the offences under Section 302, 201 read with Section 34 of IPC. The accused have been convicted and sentenced to undergo rigorous imprisonment for life under Section 302 of IPC read with Section 34 of IPC. They were further sentenced to undergo rigorous imprisonment punishable under Section 201 read with Section 34 of IPC for a period of three years and to pay a fine of Rs.5,000/- and in default of payment of fine to undergo simple imprisonment for a period of one year. All the sentences imposed under the aforesaid sections were directed to run concurrently. 3. The case of the prosecution, in a nutshell, is that PW1 Virendra Singh has lodged the FIR on 28.05.2009 at P.S. Bageshwar, to the effect that his elder brother Nandan Singh Bhandari has left the house at 9:00 AM. He did not come back. A search was carried out. His dead body was recovered at 7:30 PM from a ditch near Sitapur Eye Hospital bearing multiple injuries. The FIR was registered against unknown persons. The postmortem was conducted and the investigation was carried out and the challan was put up after completing all the codal formalities. The prosecution has examined as many as eight witnesses in its support. The statements of the accused were also recorded under Section 313 of Cr.P.C. and they have denied the case of the prosecution. The accused were convicted and sentenced, as noticed hereinabove. Hence, these appeals. 4. Learned counsel for the appellant has vehemently argued that the prosecution has failed to prove its case. Learned counsel on behalf of the State has supported the judgment dated 11.03.2011. 5. We have heard learned counsel for both the parties and perused the judgment and record carefully. 6. PW1 Virendra Singh has testified that the deceased Nandan Bhandari was his elder brother. He left the house at 8:30 AM on 27.05.2009 to play Billiards. He did not come back in the evening. 5. We have heard learned counsel for both the parties and perused the judgment and record carefully. 6. PW1 Virendra Singh has testified that the deceased Nandan Bhandari was his elder brother. He left the house at 8:30 AM on 27.05.2009 to play Billiards. He did not come back in the evening. His dead body was recovered on 28.05.2009 near Radha Krishna Mandir. They reached Radha Krishna Mandir. He discovered the dead body of his brother bearing multiple injuries. He has got FIR jotted down from Bhagat Dashila. He further deposed that on 27.05.2009 at about 9:00 PM, he has seen his brother in the company of Nikki Sah, Bijju Sah and Anil Balmiki near Vidhyarthi Pustak Bhandar. He identified the accused in the Court. He also deposed that he has told police personnel that the mothers of the accused came to their house and prayed that their children should be pardoned after compromising the matter. He has categorically admitted in his cross-examination that he has not mentioned in the FIR the details of his brother leaving in the company of the accused. He did not know that who was the owner of the Billiard room. He further deposed that one person was detained. He was speaking Punjabi in the police station. He denied that his brother was vagabond. He has also admitted that he told the police that his brother has illicit relations with his bhabhi. He further deposed that he could not assign any reason why he has not mentioned in the FIR that he has seen his brother in the company of the accused. Even though, his statement was recorded twice. 7. PW2 Bhagwat Singh Dasila has deposed that they reached the spot near Radha Krishna Mandir. He stated that PW1 Virendra Singh has asked him to write his complaint. 8. PW3 Smt. Dhna Bhandari is the material witness being the mother of the deceased. She has deposed that at 9:00 AM, her son after taking the breakfast left for the market. He did not come back in the evening. She came to know that the dead body of her son was lying near Radha Krishna Mandir. She reached the spot. She saw the dead body of her son. She noticed multiple injuries on the body. The mothers of the accused have come to her house and pressed for compromise. He did not come back in the evening. She came to know that the dead body of her son was lying near Radha Krishna Mandir. She reached the spot. She saw the dead body of her son. She noticed multiple injuries on the body. The mothers of the accused have come to her house and pressed for compromise. In her cross-examination, she has categorically admitted that she did not know the Sewadaar (caretaker) of Gurudwara. She has not seen any Sardar coming from the hospital side on 27.05.2009. She did not give any statement that she knew the Sewadaar (caretaker) of Gurudwara. She has also not stated that the Sardar was involved in the crime. 9. PW4 Diwan Singh Bisht took the dead body into his possession and sent the same for postmortem examination. 10. PW5 Devendra Singh Rajput is a formal witness. 11. PW6 Dr. S. Ram has conducted the postmortem examination. According to his opinion, the deceased died due to shock and hemorrhage after receiving ante mortem head injuries. 12. PW7 Sohan Singh has deposed that he was residing in Gurudwara, Bageshwar for the last 02 years. He knew the deceased. He knew the accused also. He identifies the accused in the Court. According to him, the accused had come to the Gurudwara at 7:00 PM on 27.05.2009. They were carrying liquor. He consumed the liquor with them. Thereafter, they left the spot. They again came bac at 8:30 PM along with Nandan Bhandari. They went towards the market. The deceased was crossing Saryu Bridge. The accused stopped him. Vineet caught the hands of deceased, Anil Kumar grabbed from his waist. Nikki gave stone blow on the head of the Nandan Singh Bhandari. Nandan Singh Bhandari collapsed. The time was around 11:30 PM. The accused thought that the deceased has died and they threw Nandan Bhandari's body in a ditch near Radha Krishna Mandir. On 28.05.2009 at 5:00 AM, the mother of Bijju Sah came and told him that Nandan Bhandari was murdered. The accused also followed her. Bijju Sah and Nikki Sah also came to Gurudwara and threatened him. He was interrogated by the police. He got his statement recorded before the Magistrate. In his cross-examination, he has categorically deposed that though, the incident has happened five months earlier but his statement was recorded for the first time after 6-7 months. The accused also followed her. Bijju Sah and Nikki Sah also came to Gurudwara and threatened him. He was interrogated by the police. He got his statement recorded before the Magistrate. In his cross-examination, he has categorically deposed that though, the incident has happened five months earlier but his statement was recorded for the first time after 6-7 months. He was kept in police stations Baijnath and Bageshwar. 13. PW8 Inspector C.S. Goswami is the I.O. He recorded the statement of PW3 Smt. Dhna Devi. According to him, PW3 Smt. Dhna Devi has stated that Sohan Singh @ Soni Baba, the caretaker of Gurudwara must have some information above the murder and if he was interrogated, truth would come out. He on the basis of the statement of PW3 Smt. Dhna Devi, on 30.01.2010, went to Udham Singh Nagar. He got the statement of Sohan Singh @ Soni Baba recorded on 30.01.2010. He has recorded the statement after eight months. 14. What emerges from the facts enumerated hereinabove is that PW1 Virendra Singh has lodged the report with the police station stating therein that his brother has left the house at 8:30 AM but did not come in the evening. His dead body was recovered near Sitapur Eye Hospital carrying multiple injuries. 15. PW1 Virendra Singh in his examination-in-chief has categorically deposed that he has seen his brother in the company of the accused on 27.05.2009 near Vidhyarthi Pushtak Bhandar. However, in the FIR, he has not mentioned that the deceased was last seen in the company of the accused on 27.05.2009. His statement was recorded twice but he has not mentioned that he has last seen his brother in the company of the accused. It was a very important fact. In case, he has last seen his brother in the company of the accused, he should have mentioned this fact in the FIR. According to him, the mothers of the accused had come to his family and tried to pressurize for compromise. The accused have never visited the house of the deceased and the statement of the mothers cannot be treated as extra-judicial confession on behalf of their children. 16. According to the case of the prosecution, the dead body of the deceased was recovered on 28.05.2009. The postmortem was conducted and the cause of death of the deceased was shock and hemorrhage due to ante mortem injuries. 16. According to the case of the prosecution, the dead body of the deceased was recovered on 28.05.2009. The postmortem was conducted and the cause of death of the deceased was shock and hemorrhage due to ante mortem injuries. The statement of PW7 Sohan Singh @ Soni Baba was recorded on 30.01.2010, after eight months of the incident. According to Investigating Officer, the statement of the mother of the deceased was recorded and she told that the caretaker of Gurudwara must be having knowledge about the murder of her son and if he was interrogated him, truth would be divulged. Now, the Court will advert to the statement of PW3 Smt. Dhna Devi, the mother of the deceased. She has categorically deposed in her cross-examination that she did not know the caretaker of Gurudwara. She has not seen the caretaker of Gurudwara coming from hospital. On 27.05.2009, she has not given the statement that the caretaker of Gurudwara could be the murderer. She did not know how the police has written this fact. Thus, the very basis of prosecution case is doubtful, after considering the statement of PW3 Smt. Dhna Devi. The other startling fact is that the incident has happened on 27.05.2009. The statement of PW7 Sohan Singh was recorded on 30.01.2010. PW7 Sohan Singh, incase, has seen the murder committed by the accused, he should have informed the police about it or the family of the deceased. 17. Thus, the statement of eye-witness PW7 Sohan Singh cannot be believed without corroboration. He remained silent for eight months and even though, his statement was recorded under Section 164 of IPC on 30.01.2010. The Magistrate who has recorded the statement of PW7 Sohan Singh under Section 164 of Cr.P.C was not examined. The conduct of PW1 Virendra Singh is unnatural. He should have mentioned in FIR, in case, he has last seen his brother in the company of the accused on 27.05.2009. He has made improvements in his statement recorded before the Court. 18. There is no motive attributed to the accused why they have killed the deceased. Motive is important in those cases which are based on circumstantial evidence. 19. Their Lordships of the Hon'ble Supreme Court in (2012) 10 Supreme Court Cases 464, in the case of “Munish Mubar Vs. He has made improvements in his statement recorded before the Court. 18. There is no motive attributed to the accused why they have killed the deceased. Motive is important in those cases which are based on circumstantial evidence. 19. Their Lordships of the Hon'ble Supreme Court in (2012) 10 Supreme Court Cases 464, in the case of “Munish Mubar Vs. State of Haryana", have held that in a case of circumstantial evidence, circumstances must be fully established and all facts so established, must be consistent with hypothesis regarding guilt of accused. It is further held that in the case of circumstantial evidence motive assumes great significance and importance. Their Lordships have held as under:- “28. Undoubtedly, in a case of circumstantial evidence, all the circumstances must be fully established and all the facts so established, must be consistent with the hypothesis regarding the guilt of the accused. The circumstances so established should exclude every other possible hypothesis except the one sought to be proved. The circumstances must be conclusive in nature. The circumstantial evidence is a close companion of factual matrix, creating a fine network through which there can be no escape for the accused, primarily because the said facts, when taken as a whole, do not permit us to arrive at any other inference but one indicating the guilt of the accused." 20. Their Lordships of the Hon'ble Supreme Court in (2013) 4 Supreme Court Cases 122*, 2013 (1) NCC 665 , in the case of “Subodh Nath and another Vs. State of Tripura", have held that motive becomes relevant as an additional circumstance in a case where prosecution seeks to prove the guilt by circumstantial evidence only. Their Lordships have held as under:- “6. Mr Chauhan next pointed out some discrepancies in the evidence of PW 2 and PW 13. He pointed out that PW 2 had stated in his evidence that PW 13 had told him that Appellant 1 (Subodh) had restrained him and had threatened him if he disclosed it to anyone that he had dealt an axe-blow on the deceased. PW 13, on the other hand, has not said that Appellant 1 (Subodh) had restrained him and threatened him, but has only said that Appellant 2 (Paritosh) ran after him. He also pointed out the discrepancies in the evidence of PW 1 and PW 13. PW 13, on the other hand, has not said that Appellant 1 (Subodh) had restrained him and threatened him, but has only said that Appellant 2 (Paritosh) ran after him. He also pointed out the discrepancies in the evidence of PW 1 and PW 13. He submitted that while PW 1 has stated that PW 13 had accompanied him to search for the deceased, PW 13 had stated that he never accompanied PW 1 to search for the dead body of the deceased. He also pointed out some discrepancies in the evidence of PW 2 and PW 19, the investigating officer. He finally submitted that in this case the weapons with which the deceased was alleged to have been killed by the appellants have not been recovered nor any motive of the appellants to kill the deceased proved. He argued that this is a clear case in which the appellants should have been acquitted of the charge under Section 302 read with Section 34 IPC. 16. Once we find that the eyewitness account of PW 13 is corroborated by material particulars and is reliable, we cannot discard his evidence only on the ground that there are some discrepancies in the evidence of PW 1, PW 2, PW 13 and PW 19. As has been held by this Court in State of Rajasthan v. Kalki6, in the deposition of witnesses there are always normal discrepancies due to normal errors of observation, loss of memory, mental disposition of the witnesses and the like. Unless, therefore, the discrepancies are “material discrepancies" so as to create a reasonable doubt about the credibility of the witnesses, the Court will not discard the evidence of the witnesses. The learned counsel for the appellants is right that the prosecution has not been able to establish the motive of Appellant 1 to kill the deceased but as there is direct evidence of the accused having committed the offence, motive becomes irrelevant. Motive becomes relevant as an additional circumstance in a case where the prosecution seeks to prove the guilt by circumstantial evidence only." 21. Their Lordships of the Hon'ble Supreme Court in (2013) 12 Supreme Court Cases 551, in the case of “Rishipal Vs. Motive becomes relevant as an additional circumstance in a case where the prosecution seeks to prove the guilt by circumstantial evidence only." 21. Their Lordships of the Hon'ble Supreme Court in (2013) 12 Supreme Court Cases 551, in the case of “Rishipal Vs. State of Uttarakhand", have held that while motive does not have a major role to play in cases based on eyewitness account of incident, it assumes importance in cases that rest entirely on circumstantial evidence. Their Lordships have held as under:- “15. The second aspect to which we must straightaway refer is the absence of any motive for the appellant to commit the alleged murder of Abdul Mabood. It is not the case of the prosecution that there existed any enmity between Abdul Mabood and the appellant nor is there any evidence to prove any such enmity. All that was suggested by the learned counsel appearing for the State was that the appellant got rid of Abdul Mabood by killing him because he intended to take away the car which the complainant Dr Mohd. Alam had given to him. That argument has not impressed us. If the motive behind the alleged murder was to somehow take away the car, it was not necessary for the appellant to kill the deceased for the car could be taken away even without physically harming Abdul Mabood. It was not as though Abdul Mabood was driving the car and was in control thereof so that without removing him from the scene it was difficult for the appellant to succeed in his design. The prosecution case on the contrary is that the appellant had induced the complainant to part with the car and a sum of Rs 15,000. The appellant has been rightly convicted for that fraudulent act which conviction we have affirmed. Such being the position, the car was already in the possession and control of the appellant and all that he was required to do was to drop Abdul Mabood at any place en route to take away the car which he had ample opportunity to do during all the time the two were together while visiting different places. Suffice it to say that the motive for the alleged murder is as weak as it sounds illogical to us. Suffice it to say that the motive for the alleged murder is as weak as it sounds illogical to us. It is fairly well settled that while motive does not have a major role to play in cases based on eyewitness account of the incident, it assumes importance in cases that rest entirely on circumstantial evidence. (See Sukhram v. State of Maharashtra, Sunil Clifford Daniel v. State of Punjab and Pannayar v. State of T.N.) Absence of strong motive in the present case, therefore, is something that cannot be lightly brushed aside." 22. The prosecution has failed to prove its case against the accused beyond reasonable doubt. Consequently, the appeals are allowed. The judgment dated 11.03.2011 is set-aside. The appellants are on bail. They need not to surrender. Their bail bonds and sureties are discharged. 23. Let a copy of this judgment along with LCR be sent to the trial court.