JUDGMENT : Anant Kumar, J. 1. This Criminal Appeal has been filed by the convict-appellant Dashrath from Central Prison, Bareilly against conviction and sentence dated 05.07.2008, passed by learned Additional District and Sessions Judge/F.T.C., Court No.6, Sitapur in Sessions Trial No. 848 of 2007, Case Crime No.164 of 2007, under Section 302 I.P.C., Police Station Rampur Mathura, District Sitapur whereby the appellant Dashrath was held guilty of the offence under Section 302 I.P.C. and was sentenced to undergo imprisonment for life and a fine of Rs.5,000/-. 2. Brief facts relevant for disposal of this appeal are that the complainant Pavan Kumar, S/o Jagan Mallah, R/o Shuklpur Hazara, Police Station Rampur Mathura, District Sitapur submitted a written complaint dated 23.06.2007 before Station Officer, Police Station Rampur Mathura to the effect that marriage of Dashrath, who was the real uncle of the complainant was performed one year three months back and to arrange money for the same, land of appellant Dashrath was mortgaged. It is alleged that appellant was frequently earning his livelihood outside. One day before the day of occurrence in the evening appellant came and asked the deceased to get his land released from mortgage, whereupon the deceased told the appellant that you are earning outside and out of your earning you should get your land released. Thereafter, the deceased left the place in anger and went towards the village. In the previous night when complainant was sleeping along with his father (deceased) and mother outside the door, at about 10.30 hours appellant Dashrath came there with knife in his hands and started cutting throat of the deceased. When deceased raised alarm, complainant and his mother Sukhmani rushed towards him and caught the appellant and raised alarm. Hearing the commotion, a large number of villagers rushed towards the spot having torch in their hands. Then the appellant rushed towards the northern side. This occurrence was seen by a large number of people of of village. 3. After sometime, deceased Jagan Mallah died and due to night and due to non availability of conveyance, immediate information could not be given to the police and dead body of the deceased was lying infront of the door. A request was made to the police for lodging the report and for taking action. 3. After sometime, deceased Jagan Mallah died and due to night and due to non availability of conveyance, immediate information could not be given to the police and dead body of the deceased was lying infront of the door. A request was made to the police for lodging the report and for taking action. This complaint was got scribed by one Angad Nishad, S/o Ram Aadhar Nishad, R/o Village Arjunpurwa, Police Station Rampur Mathura, District Sitapur. 4. On the basis of complaint, Chik F.I.R. was prepared and F.I.R. was lodged under Crime No. 164/2007, under Section 302 I.P.C. and an entry to this effect was made in G. D. Rapat No.17, at 9.15 hours on 23.06.2007. After lodging the F.I.R., investigation proceeded and inquest report was prepared. Investigating Officer collected plain soil and soil with blood from the scene of occurrence and the body of deceased was sent for post mortem. Post mortem was conducted in District Hospital Sitapur on 24.06.2007 at 4.30 P.M. and as per post mortem report one incised wound 12 C.M. X 2 C.M. X bone deep was found on the front of neck, 5 C.M. below chin. Underneath trachea, esophagus and right side carotid vessels cut. 5. Investigating Officer visited the place of occurrence and prepared the site plan of the place of occurrence. Accused was apprehended and on his pointing out weapon of assault was recovered on 26.06.2017 and the spot memo of the said place was also prepared by the Investigating Officer. The clothing of the deceased along with recovered knife were sealed and sent for chemical examination to Forensic Science Laboratory, Lucknow. After investigation, Investigating Officer filed charge-sheet against the appellant Dashrath under Section 302 I.P.C. and case was committed to the Court of Sessions by Chief Judicial Magistrate, Sitapur vide his committal order dated 05.09.2017 and the same was registered as Sessions Trial No. 848 of 2007 and after committal, charge was framed against the appellant by the Additional Sessions Judge/F.T.C. No. 6, Sitapur. 6. On behalf of prosecution as many as 08 witnesses were examined wherein PW 1, Smt. Sukhmani, wife of decesaed and PW 2 Pawan Kumar, son of deceased were the witness of fact and PW 3 Sukhram, before whom plain soil and soil with blood was collected. PW 4, Dr. K.A. Siddiqui was the person who conducted autopsy of the deceased. On behalf of prosecution as many as 08 witnesses were examined wherein PW 1, Smt. Sukhmani, wife of decesaed and PW 2 Pawan Kumar, son of deceased were the witness of fact and PW 3 Sukhram, before whom plain soil and soil with blood was collected. PW 4, Dr. K.A. Siddiqui was the person who conducted autopsy of the deceased. PW 5, Mathura Prasad was the witness who was declared hostile. PW 6, Anjani Kumar Tiwari was the Investigating Officer and PW 7 was Raghav Prasad, who was the witness of recovery of knife at the instance of appellant. He proved the memo of recovery of knife. PW 8, H.M. 37, Ram Kumar Katiyar, who had prepared the Chik F.I.R. and the G.D. Rapat No. 65. 7. After completion of the prosecution evidence, statement of accused was recorded under Section 313 Cr.P.C. wherein he was referred to the evidence of prosecution recorded against him to which he denied and stated that he was falsely implicated in the case because of the fact that the complainant and his mother wanted to grab his landed property. He further stated that on the date of occurrence he was at his in-laws place. He was given a chance to produce evidence in his defence but he refused to produce any witness. 8. After hearing the arguments of learned Amicus Curiae on behalf of the appellant and learned counsel A.D.G.C. (Criminal), trial court had come to the conclusion that prosecution succeeded to prove the guilt of appellant beyond the shadow of reasonable doubt and as such appellant was convicted and was sentenced to undergo imprisonment for life. Hence, this appeal. 9. In this case appeal has been filed by the appellant Dashrath from jail as the appellant is languishing in jail and on behalf of appellant Shri Rajesh Kumar Dwivedi, Advocate was appointed as Amicus Curiae. 10. We have heard the argument of learned Amicus Curiae for the appellant and learned A.G.A. on behalf of the State. 11. In this case, it is to be seen as to whether the prosecution has succeeded to prove the guilt of convict-appellant beyond the shadow of reasonable doubt or not and as to whether findings and reasonings recorded by the trial court for holding the appellant guilty for the above offence are sufficient in the eye of law? 12. 11. In this case, it is to be seen as to whether the prosecution has succeeded to prove the guilt of convict-appellant beyond the shadow of reasonable doubt or not and as to whether findings and reasonings recorded by the trial court for holding the appellant guilty for the above offence are sufficient in the eye of law? 12. Learned Amicus Curiae has mainly argued that in this case F.I.R. has been lodged with inordinate delay. As per version of F.I.R. occurrence had taken place in the night of 22.06.2007 at 10.30 P.M. whereas F.I.R. was lodged on 23.06.2007 at 9.15 A.M., though distance of police station from the place of occurrence is only 10 Kms. It is argued that F.I.R. has been lodged with much delay without any explanation. So, the version of prosecution is tainted and it should not be believed. 13. It is further argued that as per spot memo, the occurrence had taken place at place ‘X’ as shown in the spot memo under the Sahtoot tree whereas body of the deceased was found at place ‘C’ under the Bair tree. The distance from place ‘X’ to ‘C’ is about 18 steps and it has not been proved by the prosecution as to how the deceased traveled from place ‘X’ to place ‘C’ in such injured condition. It is also argued that trail of blood is not found from place ‘X’ to place ‘C’, which shows that eye witness PW 1 & PW 2 are not infact eye witnesses. The occurrence had taken place in the dead night and nobody had seen the occurrence and the appellant has been falsely implicated in this case. 14. It is also argued that witnesses PW 1 and PW 2 are the wife and son of deceased and they are closely related with the deceased, as such they are interested witnesses and their testimony should not be believed. Except this no other witness has been produced on behalf of the prosecution, inspite of the fact that PW 1 & PW 2 have stated in their statement that on hearing commotion a large number of villagers had gathered on the spot but none of them have been produced to substantiate the contents of the F.I.R. 15. On the above submissions, We have examined the arguments of learned Amicus Curiae. 16. On the above submissions, We have examined the arguments of learned Amicus Curiae. 16. So far as the first point argued by learned Amicus Curiae regarding the delay in lodging the F.I.R. is concerned, in the complaint itself it is mentioned that due to night and because of non availability of any conveyance the complainant could not come to the police station to lodge the F.I.R. in the night. In this regard when complainant Pawan Kumar, PW 2, was examined, he had stated that since there was no conveyance available in the night, he could not come to the police station in the night to lodge the F.I.R.. When this witness was cross examined, he stated that at the time of occurrence his grand-father was not at home and he returned in the morning and by the time his grand-father returned, he was alone with the dead body of his father and after his return, he got the complaint scribed and then he went to police station to get the F.I.R. lodged. 17. To our view merely on the ground that F.I.R. was lodged with delay and it was lodged in the morning, entire prosecution story cannot be thrown out. The learned trial court has also examined this aspect and has given a categorical finding that this witness PW 2 was a boy of 12 years of age at the time of incident and he would have been disturbed due to the occurrence and as such if the complainant had gone to lodge the F.I.R. in the morning, it cannot be said that the F.I.R. was ante time or the prosecution version was not truthful. 18. To substantiate his argument, learned Amicus Curiae has placed reliance on a case law reported in 1980 SCC (Cri) 985, Marudanal Augusti Vs. State of Kerala, wherein the Hon’ble Apex Court has held that “The High Court seems to have overlooked the fact that the entire fabric of the prosecution case would collapse if the F.I.R. is held to be fabricated or brought into existence long after the occurrence and any number of witnesses could be added without there being anything to check the authenticity of their evidence. 19. 19. In this regard reliance can be placed on a case law (2013) 12 SCC 765 , Shanmugham and another v. State, represented by Inspector of Police, Tamil Nadu, wherein the Hon’ble Apex Court has held in paragraph 9.1, 9.2 as under :- “9.1. Delay in the lodging of the FIR is not by itself fatal to the case of the prosecution nor can delay itself create any suspicion about the truthfulness of the version given by the informant just as a prompt lodging of the report may be no guarantee about its being wholly truthful. So long as there is cogent and acceptable explanation offered for the delay it loses its significance. 9.2. Whether or not the explanation is acceptable will depend upon the facts of each case. There is no cut-and-dried formula for determining whether the explanation is or is not acceptable.” 20. From the material on record we are of the view that in the present case entire prosecution story cannot be thrown away merely on the ground that occurrence had taken place in the night and F.I.R. was lodged on the next morning. The prosecution has well explained the delay in lodging the F.I.R. The trial court has also rightly considered the issue. 21. So far as second argument of learned Amicus Curiae that as per spot memo, the occurrence had taken place at place ‘X’, which is Shahtoot tree, whereas the body of the deceased was found at place ‘C’ which is the Bair tree, is concerned, the distance from place ‘X’ to ‘C’ is about 18 steps and it is not proved by the prosecution as to how deceased traveled from place ‘X’ to ‘C’ in the injured condition. In this regard it is also pointed out that as per post mortem report neck of the deceased was cut by knife and the deceased was seriously injured, so how it was possible for the deceased to travel 18 steps, as shown in the spot memo. It is also stated that trail of blood was not found from place ‘X’ to ‘C’ which creates a serious doubt on the theory of prosecution and it appears that deceased was killed under the Bair tree itself where his body was found. 22. It is also stated that trail of blood was not found from place ‘X’ to ‘C’ which creates a serious doubt on the theory of prosecution and it appears that deceased was killed under the Bair tree itself where his body was found. 22. Encountering the argument, learned A.G.A. has submitted that wife of deceased PW 1, Sukhrani has stated in her statement that occurrence had taken place at about 10.30 P.M. and when she reached on the spot deceased had got down from the cot and in an unbalanced condition he was raising voice then the husband traveled some steps and after 10 steps he had fallen down. 23. In this way witness PW 1, Sukhrani has explained the situation under which the deceased had traveled from place ‘X’ to ‘C’ and had fallen there. Deceased was killed at place ‘X’ cannot be doubted because of the fact that the bed sheet on which deceased was sleeping and was having blood stains was recovered by the Investigating Officer and the same was sent for chemical examination to Forensic Science Laboratory, Lucknow, report of which has been proved as Ext. Ka-15 and as per report on the said bed sheet human blood was found. 24. So far as non availability of trail of blood from place ‘X’ to ‘C’ is concerned, it is stated by learned A.G.A. that it is evident from the record that at the time of incident deceased was wearing pant shirt and underwear and all of three clothings were smeared with blood and were taken in possession by the Investigating Officer and were sent for chemical examination to Forensic Science Laboratory. It may be possible that after the incident when deceased traveled from place ‘X’ to ‘C’ the oozing blood would have soaked by the clothes worn by the deceased. To our view the explanation submitted by learned A.G.A. suits to the reasoning because of the fact that on the pant shirt and underwear human blood was found in the chemical examination report, Ext. Ka15. 25. In view of the above mentioned reason, to our view there is no force in the argument of learned Amicus Curiae that merely because body was found on place ‘C’ and occurrence had taken place ‘X’, entire prosecution story comes under doubt. We are of the view that the argument put forth by learned Amicus Curiae has got no substance. In view of the above mentioned reason, to our view there is no force in the argument of learned Amicus Curiae that merely because body was found on place ‘C’ and occurrence had taken place ‘X’, entire prosecution story comes under doubt. We are of the view that the argument put forth by learned Amicus Curiae has got no substance. 26. It has further been argued by learned Amicus Curiae that in this case PW 1, Sukhrani and PW 2, Pawan Kumar, are the wife and son of deceased and they are closely related with the deceased, hence interested witness and their testimony should not be believed and no independent witness has been produced on behalf of the prosecution. 27. In this regard learned Amicus Curiae has relied upon a case law reported in 2005 (52) ACC 258 : Hemraj and others Vs. State of Haryana, wherein the Hon’ble Apex Court has held that as under :- “8. The fact that no independent witness-though available, was examined and not even an explanation was sought to be given for not examining such witness is a serious infirmity in the prosecution case having regard to the indisputable facts of this case. Amongst the independent witnesses, Kapur Singh was one, who was very much in the know of things from the beginning. Kapur Singh is alleged to have been in the company of P.W. 5 at a sweet stall and both of them after hearing the cries joined P.W. 4 at Channi Chowk. He was one of those who kept the deceased on a cot and took the deceased to hospital. He was there in the hospital by the time the first I.O. P.W. 9 went to the hospital. The evidence of the first I.O. reveals that the place of occurrence was pointed out to him by Kapur Singh. His statement was also recorded, though not immediately but later. The I.O. admitted that Kapur Singh was the eye-witness to the occurrence. In the F.I.R., he is referred to as the eye-witness along with P.W.5. Kapur Singh was present in the Court on 6.10.1997. The Additional Public Prosecutor ‘gave up’ the examination of this witness stating that it was unnecessary. The Trial Court commented that he was won over by the accused and therefore he was not examined. There is no factual basis for this comment. The approach of the High Court is different. Kapur Singh was present in the Court on 6.10.1997. The Additional Public Prosecutor ‘gave up’ the examination of this witness stating that it was unnecessary. The Trial Court commented that he was won over by the accused and therefore he was not examined. There is no factual basis for this comment. The approach of the High Court is different. The High Court commented that his examination would only amount to ‘proliferation’ of direct evidence. But, we are unable to endorse this view of the High Court. To put a seal of approval on the prosecution’s omission to examine a material witness who is unrelated to the deceased and who is supposed to know every detail of the incident on the ground of ‘proliferation’ of direct evidence is not a correct approach. The corroboration of the testimony of the related witnesses-P.Ws.4 and 5 by a known independent eye-witness could have strengthen the prosecution case, specifically when the incident took place in a public place.” 28. In this regard in the same case law in paragraph 9, the Hon’ble Apex Court has held that merely non examination of independent witness by itself may not give rise to adverse inference against prosecution. It is only when the evidence of alleged eye witness raises serious doubt on the point of the presence at the time of actual occurrence, the unexplained omission to examine the independent witness would assume significance and for reaching to this conclusion the Hon’ble Apex Court has relied upon a case law reported in 2001 (6) SCC 145 : Takhaji Hiraji v. Thakore Kubersing Chamansing and others, in which the Hon’ble Apex Court has held as under :- “……………………………if already overwhelming evidence is available and examination of other witnesses would only be a repetition or duplication of the evidence already adduced, non-examination of such other witnesses may not be material. In such a case the court ought to scrutinise the worth of the evidence adduced. The court of facts must ask itself — whether in the facts and circumstances of the case, it was necessary to examine such other witness, and if so, whether such witness was available to be examined and yet was being withheld from the court. If the answer be positive then only a question of drawing an adverse inference may arise. The court of facts must ask itself — whether in the facts and circumstances of the case, it was necessary to examine such other witness, and if so, whether such witness was available to be examined and yet was being withheld from the court. If the answer be positive then only a question of drawing an adverse inference may arise. If the witnesses already examined are reliable and the testimony coming from their mouth is unimpeachable the court can safely act upon it, uninfluenced by the factum of non-examination of other witnesses. In the present case we find that there are at least 5 witnesses whose presence at the place of the incident and whose having seen the incident cannot be doubted at all. It is not even suggested by the defence that they were not present at the place of the incident and did not participate therein.” 29. Apart from this, learned A.G.A. has further relied upon the case law of Shanmugam and another Vs. State, (2013) 12 SCC 765 , wherein the Hon’ble Apex Court has held in paragraphs 12 and 13 as under :- “12. As observed by this Court in Raju case [ (2012) 12 SCC 701 : AIR 2013 SC 983 ] , far more important than categorisation of witnesses is the question of appreciation of their evidence. The essence of any such appreciation is to determine whether the deposition of the witness to the incident is truthful hence acceptable. While doing so, the court can assume that a related witness would not ordinarily shield the real offender to falsely implicate an innocent person. In cases where the witness was inimically disposed towards the accused, the courts have no doubt at times noticed a tendency to implicate an innocent person also, but before the court can reject the deposition of such a witness the accused must lay a foundation for the argument that his false implication springs from such enmity. The mere fact that the witness was related to the accused does not provide that foundation. It may on the contrary be a circumstance for the court to believe that the version of the witness is truthful on the simple logic that such a witness would not screen the real culprit to falsely implicate an innocent. The mere fact that the witness was related to the accused does not provide that foundation. It may on the contrary be a circumstance for the court to believe that the version of the witness is truthful on the simple logic that such a witness would not screen the real culprit to falsely implicate an innocent. Suffice it to say that the process of evaluation of evidence of witnesses whether they are partisan or interested (assuming there is a difference between the two) is to be undertaken in the facts of each case having regard to ordinary human conduct, prejudices and predilections. 13. The approach which the court ought to adopt in such matters has been examined by this Court in several cases, reference to which is unnecessary except a few that should suffice. In Dalip Singh v. State of Punjab [ AIR 1953 SC 364 : 1953 Cri LJ 1465 : 1954 SCR 145 ] this Court observed: (AIR p. 366, para 26) “26. A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity against the accused, to wish to implicate him falsely. Ordinarily, a close relative would be the last to screen the real culprit and falsely implicate an innocent person. It is true, when feelings run high and there is personal cause for enmity, that there is a tendency to drag in an innocent person against whom a witness has a grudge along with the guilty, but foundation must be laid for such a criticism and the mere fact of relationship far from being a foundation is often a sure guarantee of truth. However, we are not attempting any sweeping generalisation. Each case must be judged on its own facts. Our observations are only made to combat what is so often put forward in cases before us as a general rule of prudence. There is no such general rule. Each case must be limited to and be governed by its own facts.” (emphasis supplied) 30. The learned trial court has very well considered the statement of eye witnesses PW 1, Sukhrani and PW 2 Pawan Kumar and has totally relied upon them. There is no such general rule. Each case must be limited to and be governed by its own facts.” (emphasis supplied) 30. The learned trial court has very well considered the statement of eye witnesses PW 1, Sukhrani and PW 2 Pawan Kumar and has totally relied upon them. PW 1, Sukhrani has given a detail and vivid account of the occurrence and has stated that accused/appellant had committed the crime and the reason for the same has also been well explained, as she has stated that at the time of marriage of accused/appellant his land was mortgaged to raise money to meet out the marriage expenses and the appellant was pressurizing the deceased to get the said land released from mortgage to which the deceased had denied and had said that since appellant himself was earning outside, he could very well arrange money and may get the land released. This was the bone of contention between the deceased and accused-appellant and out of anger deceased has committed this offence. A similar assertion has been made by PW 2, Pawan Kumar son of deceased. A detail cross examination was done with both the witnesses but nothing has come out in the cross examination which could lead to the conclusion that the witnesses are not telling the truth before the Court. 31. It is also a settled principle of law as held in the case of Shanmugam (Supra) that close relatives will not spare real culprit and will implicate any innocent and outside person. Appellant is real brother of the deceased and there is no occasion for the witness PW 1 and PW 2 to implicate him falsely in the said case. So, to our view merely because independent witnesses have not been produced, entire prosecution story cannot be thrown away. So, to our view the trial court has rightly recorded the finding regarding complicity of the appellant in the crime and concluded that the prosecution has succeeded to prove the guilt of appellant beyond the shadow of reasonable doubt. 32. Lastly, it has been argued by learned Amicus Curiae that in this case recovery of knife on the pointing out of appellant is doubtful because of the fact that one of the witnesses of recovery, namely, Mathura Prasad who was the witness of recovery memo of knife has been declared hostile by the trial court. 32. Lastly, it has been argued by learned Amicus Curiae that in this case recovery of knife on the pointing out of appellant is doubtful because of the fact that one of the witnesses of recovery, namely, Mathura Prasad who was the witness of recovery memo of knife has been declared hostile by the trial court. In this regard learned A.G.A. has argued that merely because one of the witnesses of recovery memo has been declared hostile, entire prosecution story cannot be thrown out. This apart, it is also argued that other witness of recovery, i.e. PW 7, Raghav Prasad has supported the prosecution version and stated that in his presence at the pointing out of accused appellant recovery of knife was made. He has proved the recovery memo, Ext. Ka-10. This witness has stated in his statement that police had taken the accused-appellant to the Piperment field of Jagan from where accused had got the said recovery of knife done. A detailed cross examination has been done with this witness but nothing has come out which could impeach the credibility of this witness. This apart, recovered knife was also sent for chemical examination to Forensic Science Laboratory and as per chemical examination report, Ext. Ka15, human blood was found in the said knife. So, to our view there is no reason for disbelieving the testimony of PW 7, Raghav Prasad and the recovery made on the instance of accused. 33. In view above reason, to our view there is nothing on record to show that appellant has been falsely implicated in this case due to any enmity and to our view the learned trial court has rightly taken a pragmatic view of the matter and has well discussed the entire material on record and has rightly held that the prosecution has succeeded to prove the guilt of accused-appellant beyond the shadow of reasonable doubt. 34. We, accordingly, concur with the findings recorded by the trial court and we are of the view that this appeal has got no force and is liable to be dismissed. Accordingly, the appeal is hereby dismissed. 35. Since the accused-appellant Dashrath is in jail, he was represented by learned Amicus Curiae, Shri Rajesh Kumar Dwivedi, it would be proper that copy of this judgment be served upon the appellant in jail for further course of action. 36. Accordingly, the appeal is hereby dismissed. 35. Since the accused-appellant Dashrath is in jail, he was represented by learned Amicus Curiae, Shri Rajesh Kumar Dwivedi, it would be proper that copy of this judgment be served upon the appellant in jail for further course of action. 36. We appreciate the assistance given by learned Amicus Curiae Shri Rajesh Kumar Dwivedi as well as learned A.G.A. 37. Since Shri Rajesh Kumar Dwivedi, was appointed as Amicus Curiae by this Court, he shall be paid a sum of Rs.20,000/-as his fee for conducting the case.