JUDGMENT : Vikas Kunvar Srivastav, J. 1. The instant criminal appeal is against the judgment and order of sentence dated 25.05.1990 passed by the Additional Sessions Judge, Bareilly in Sessions Trial No.394 of 1987 (State Vs. Netram and Ors.), under Section 302 read with Section 34 of the Indian Penal Code, 1860, Police Station Aonla, District Bareilly, whereby the appellants were sentenced to undergo rigorous imprisonment for life under Section 302 read with Section 34 of the Indian Penal Code, 1860. 2. The instant appeal was preferred by three convicted accused namely Netram, Naresh and Krishna Pal, but during the pendency of the appeal, appellant no.1 “Net Ram” and appellant no.3 “Krishna Pal” died. The appeal to their extent was abated vide order dated 23.07.2019. Presently, the appellant no.2 “Naresh” is the sole surviving appellant who is in jail since 19.08.2019. 3. Heard learned counsel Sri Udai Bhan Singh on behalf of the sole surviving appellant “Naresh” and learned Additional Government Advocate Ms. Arti Agarwal for the State. Factual Matrix 4. Briefly stating the prosecution case as emerged from the first information report lodged on 17.05.1987 on the oral information of the incident given by the informant Ram Kumar S/o Bhawani Singh R/o Village Bahadurpur Gautiya about the incident dated 16.05.1987 at about 07:00 P.M. is that his father-in-law “Ram Charan” R/o Village Bhimlor came to his Village Bahadurpur Gautiya to return his bulls at about 05:00 P.M. He told that his maternal brother “Virendra Pal” R/o Village Baghaul came to his house, therefore, he had to go back home. The informant also accompanied his father-in-law i.e. Ram Charan (deceased) to meet Virendra Pal and they left the village Bahadurpur Gautiya proceeding to village Bhimlor, which was about one mile away from the village of the first informant. At about 07:00 P.M., when they reached infront of the shop of Nankoo, the accused/appellant Naresh, a native of the village Bahadurpur Gautiya of the first informant pounced armed with a country made pistol (tamancha). Seeing him, the father-in-law of the first informant (deceased) ran towards East, the accused “Naresh” chased him and from the East direction accused “Krishna Pal” also appeared armed with a country made pistol alongwith accused “Net Ram” with spear in his hand. Seeing him, the father-in-law of the first informant (deceased) ran towards East, the accused “Naresh” chased him and from the East direction accused “Krishna Pal” also appeared armed with a country made pistol alongwith accused “Net Ram” with spear in his hand. Naresh and Krishna Pal both had fired one shot from their fire arms on the informant’s father-in-law (deceased Ram Charan) and the accused Net Ram inflicted a blow of spear on him. The deceased fell down screaming on the earth. The informant raised alarm for rescue in response to which Virendra Pal R/o Village Baghaul and Nankoo rushed to the spot of the incident from the shop of Nankoo but the accused persons fled away. When the informant alongwith other people gathered at the spot and reached near the victim “Ram Charan”, they found him dead. The motive to commit the crime as stated in the report is about 2 ½ years ago, the assailants had committed dacoity in the house of the deceased “Ram Charan” and a criminal case was pending wherein the statement of witnesses was to be recorded on 05.05.1987 but the accused persons got it adjourned and further date fixed was 20.05.1987. 5. The first information report of the incident was lodged in the morning of 17.05.1987 at about 06:30 A.M., the reason behind the delay in lodging the report has been explained in the first information report itself that the informant could not dare to go to the police station to lodge the report in the night because of the fear of the accused persons. 6. With the lodging of the first information report, criminal case bearing Crime No.118 of 1987, under Section 302 read with Section 34 of the Indian Penal Code, 1860 was registered and the police proceeded to investigate the matter. The proceeding of inquest started about 06:30 A.M. and concluded at about 10:00 A.M. on the same day. The dead body was sealed at the spot and sent for post mortem. The post mortem was conducted on 18.05.1987 at about 04:00 P.M. by the doctor, who observed in his report that the body was about two days old as the same began to rot and no rigour mortis was present on the dead body. There were bristles and pealed off skin on the body. The entire dead body was swollen. Blood oozed out from both nostrils. There were bristles and pealed off skin on the body. The entire dead body was swollen. Blood oozed out from both nostrils. The ante mortem injuries reported in the post mortem examination report are:- “1. gun shot wound of entry 1.5 cm x 1.5 cm x chest cavity deep on right side of chest 4 cm away from right nipple at 3 o’clock position. Margin inverted blackening and scorching present around the wound in an area of 5 cm diameter. 2. Incised wound 2 cm x 1cm x muscle deep the front of left side and neck 4 cm above medial and of left colour bone. 3. Incised wound 2 cm x .5 cm x muscle deep on left side chest 6 cm below left nipple at 7 o’clock position.” 7. The doctor opined in his report that the death was caused by reason of shock and haemorrhage due to ante mortem injuries. The Investigating Officer recorded the statement of witnesses under Section 161 of The Code Of Criminal Procedure, 1973. The site plan was drawn by the Investigating Officer after inspecting the spot of the incident on the orientation of the informant. After getting the post mortem report, the charge sheet was submitted before the court concerned on 29.05.1987. 8. The prosecution has proposed to prove its case by following oral and documentary evidences. P.W.-1, Virendra Pal Singh Cousin brother of the deceased P.W.-2, Ram Kumar (the first informant) Son-in-law of the deceased P.W.-3, Dr. M.M. Sethi Proved the Post Mortem Report Ex. Ka.2 P.W.-4, O.P. Tyagi, Inspector (the Investigating Officer) Proved the following Exhibits:- 1. F.I.R. Ex. Ka.1 2. Site Plan with Index Ex. Ka.3 3. Panchayatnama Ex.Ka. 4 4. Recovery Memo of Blood Stained Clothes Ex. Ka-8. 5. Recovery Memo of Blood Stained & Plain Earth Ex. Ka-9. 6. Search Memo Ex. Ka-10. 7. Charge-Sheet (Mool) Ex.Ka-11. Three witnesses in defence Veer Singh as D.W. Smt. Rajwati as D.W. Roshan Lal as D.W. Arguments of Learned counsels 9. Learned counsel for the appellant argued that two accused persons namely Naresh and Krishna Pal alleged to have made fires on the deceased (Ram Charan) in the incident but gun shot wound of entry is only one, as is clear in the post mortem report. Learned counsel for the appellant argued that two accused persons namely Naresh and Krishna Pal alleged to have made fires on the deceased (Ram Charan) in the incident but gun shot wound of entry is only one, as is clear in the post mortem report. The statement of eye witness is that each of the two accused persons, fired one shot from their fire arms (country made pistol), as such, the prosecution has failed to prove the specific role of the accused persons (Naresh and Krishna Pal) as to who made the fatal fire on the deceased “Ram Charan”. Moreover, prior consult and premeditated plan to kill the deceased “Ram Charan” is not proved so as to implicate any one of them sharing the common intention to kill the deceased. The witnesses are related to the deceased “Ram Charan” and the first informant of the incident “Ram Kumar” as such they are interested and not independent witnesses. Their presence on the spot of the incident is doubtful and even, in the rural milieu of village where no electricity light was available, the incident as alleged could not be seen by the witnesses in darkness fallen in the evening after sunset. The independent (public) witnesses were not produced before the trial court. The witness P.W.-1 by reason of his being closely related with the deceased has falsely projected himself to be an eye witness as he has not been successful in establishing the probability of his presence on the spot of the incident. The evidence of witness P.W.-2 as to the time spent in travelling the distance about 1 mile (1 Mile = 1.609 Km.) from Village Bahadurpur Gautiya in two hours is unbelievable. Likewise, the time spent in lodging the first information report after the incident is not explained and, thus, first information report is found belatedly lodged. The first information report had been lodged after consultation with the police and some other interested persons to falsely implicate the accused persons. The intervening time from the proximate date and time of the incident to the date when the post mortem examination was made is not explained medically and as such the first information report seems also to be ante timed. The prosecution has also failed to prove by cogent and sufficient evidence as to the existence of motive behind the alleged offence. 10. The prosecution has also failed to prove by cogent and sufficient evidence as to the existence of motive behind the alleged offence. 10. Learned counsel lastly argued that the absence of motive and evidence of untrustworthy witnesses were sufficient to discard the case of the prosecution but the learned trial judge misappreciated the evidence on record and convicted all the accused appellants under Section 302 with the aid of Section 34 of the Indian Penal Code, 1860. The impugned judgment of conviction and sentence is liable to be set aside and the appeal deserves to be allowed. 11. Learned Additional Government Advocate in rebuttal has argued that there are two eye witnesses of the incident who have proved the prosecution case cogently. The witnesses are trustworthy and their credibility could not be impeached merely on the ground of them being relatives of the deceased. The accused persons were assigned role in the first information report very distinctly and clearly. They acted in concert with each other in pursuance of their common intention to kill the deceased “Ram Charan”. The motive was a criminal case pending against them for committing dacoity in the house of deceased “Ram Charan” and the same was at the stage of recording of evidence, the date fixed wherein was after three days of the incident viz. 20.05.1987. The said facts could not be contradicted and, as such, the motive behind the murder of deceased “Ram Charan” is well established and proved by prosecution evidence. 12. Learned Additional Government Advocate further argued that the dead body of Ram Charan was reported to have three ante mortem injuries. The entry wounds of fire arm injury are proved to have occurred from different directions. The site plan drawn by the Investigating Officer and proved in the Court has also shown the position of two accused persons namely Naresh and Krishna Pal who fired on the deceased “Ram Charan” from two different places shown at the spot ‘D’ and spot ‘E’; respectively, from the spot ‘A’ where the body was lying after the incident. As such, the prosecution has been successful in proving its case beyond reasonable doubts and the judgment and order of sentence impugned in this appeal does not deserves to be interfered. The appeal is liable to be dismissed affirming the judgment in appeal. Discussions 13. As such, the prosecution has been successful in proving its case beyond reasonable doubts and the judgment and order of sentence impugned in this appeal does not deserves to be interfered. The appeal is liable to be dismissed affirming the judgment in appeal. Discussions 13. The prosecution has proposed two witnesses of fact, namely Virendra Pal Singh (P.W.-1) and Ram Kumar (P.W.-2) with formal witnesses, namely Dr. M.M. Sethi as P.W.-3 and Investigating Officer O.P. Tyagi as P.W.-4. On behalf of the accused persons, in their defence, witnesses Veer Singh, Smt. Rajwati and Roshan Lal; respectively, have been examined as D.W.-1, D.W.-2 and D.W.-3. 14. Before we go through the oral evidences of the witnesses, it would be relevant to discuss their social and personal status to evaluate their evidence in the context of the prosecution case for the purpose of placing our reliance on them. About the Witnesses 15. P.W.-1 “Virendra Pal Singh” does not belong to and reside in the village to which the deceased belonged and the spot of the incident situated. He is resident of another village namely ‘Baghaul’ of District Badaun. The distance between two villages, as stated by the witness P.W.-1, was ten kose (One kose is roughly 1.8 Km.). He was educated up to seventh standard and left studies in the year 1976-77. To earn livelihood, the witness P.W.-1, used to drive tractor and mini bus on hire. At the time, when his statement was recorded on 27.02.1979, he was driving a jeep belonging to one Ajai Babu in Moradabad. He stated that he was not in permanent employment anywhere. The age of this witness as stated was about twenty four years. This witness was related with the deceased “Ram Charan” being his cousin (Son of the sister of P.W.-1’s father). P.W.-2 (Ram Kumar) being son-in-law of his cousin is also related to P.W.-1. This witness has stated about his acquaintance with accused “Net Ram” for about two to three years ago from the date of incident. In cross, he stated that Net Ram used to visit one Madan Lal Meena, a native of his Village, ‘Baghaul’, whose house was situated at a distance of fifty paces from his house. He stated that he also had conversation with the said accused “Net Ram” two to four times when he used to sit around the bonfire in Village Baghaul. He stated that he also had conversation with the said accused “Net Ram” two to four times when he used to sit around the bonfire in Village Baghaul. Madan Lal Meena too was related with the deceased “Ram Charan” being brother of Ram Kumar (informant of the case), son-in-law of the deceased “Ram Charan”. 16. The defence has successfully elicited during cross-examination that Madan Lal Meena and Ram Kumar both were sons of Bhawani Singh. It is further elicited by way of cross-examination that the father-in-law of the accused “Net Ram” was one Karan Singh. Net Ram’s wife’s name was Rama Devi. Karan Singh was real uncle of father of P.W.-1 namely “Shivaran”. Thus, P.W.-1 ‘Virendra Pal Singh’ is related to accused Net Ram. The aforesaid Karan Singh had no male issue and his only issue was aforesaid Rama Devi wife of accused “Net Ram”. It is suggested by the defence during cross-examination that the entire landed property of the Karan Singh was grabbed by the Bhawani Singh, the father of the P.W.-1 and no share was given to the wife of the accused “Net Ram” namely Rama Devi, therefore, the father of P.W.-1 and the accused “Net Ram” had a dispute with regard to the landed property of Karan Singh. During the cross-examination, the father of P.W.-1, Shivaran was also present in the trial court. When asked about the presence of Shivaran Singh in the Court with him, P.W.-1, he replied that Shivaran Singh (his father) has come in the court only to accompany him as there was pressure on him not to depose in the court about the incident. The witness P.W.-1, thus, is established by the prosecution as a witness related with Ram Charan (deceased), Net Ram (accused) and Ram Kumar (the first informant). But there is no evidence of him being inimical to the accused “Net Ram” as there is no evidence on the record as to the claim made by Net Ram or his wife relating to the lands of Karan Singh. No evidence at all has been brought forth before the court as to any civil suit or criminal complaint, pertaining to the lands of Karan Singh, filed against the “Shivaran”, the father of P.W.-1. Thus, P.W.-1 (Virendra Pal) cannot be said to have motive of false implication of the accused. 17. No evidence at all has been brought forth before the court as to any civil suit or criminal complaint, pertaining to the lands of Karan Singh, filed against the “Shivaran”, the father of P.W.-1. Thus, P.W.-1 (Virendra Pal) cannot be said to have motive of false implication of the accused. 17. P.W.-2 “Ram Kumar”, son-in-law of deceased stated that he was well acquainted with the accused Net Ram, Naresh and Krishna Pal. He gave reason of his acquaintance with the accused persons also in connection with an earlier incident of dacoity in the house of his father-in-law Ram Charan (deceased) wherein they were arraigned as accused and a case pertaining to the aforesaid incident of dacoity going on in the court at the time of incident in question. In cross-examination, P.W.-2 admitted Bhawani Singh as his father and that the accused Krishna Pal and Naresh being real brothers. This witness stated that he was illiterate and admitted in cross-examination that Bhawani Singh was his father and Madan Lal Meena his brother. He further disclosed his relation with accused Naresh and Krishna Pal. In cross, he stated that one Motiram, his real uncle. Sister-in-law (saali) of the Motiram was married to Nawab Singh who was brother-in-law of accused “Krishna Pal”. By reason of the incident of dacoity in the house of Ram Charan, the father-in-law of the P.W.-2 “Ram Kumar” in which the accused “Krishna Pal” was also arraigned, enmity of the deceased “Ram Charan” with the accused is established but not with the witness P.W.-2. About the social status of witness, P.W.-2 on the date 24.05.1988 when his evidence was recorded by the trial court, came directly from the jail. He stated that he was detained in jail for 1 and ½ years in a case registered in the Police Station Aonla, District Bareilly under Section 307 of the Indian Penal Code, 1860. The informant of the aforesaid case was one Sri Ram, R/o Village Bahadurpur Gautiya and Bhawani Singh (father of the witness) was also co-accused therein. As such, the evidence tends to establish the social status of the witness as a rustic villager, illiterate and involved in criminal case as offender. The informant of the aforesaid case was one Sri Ram, R/o Village Bahadurpur Gautiya and Bhawani Singh (father of the witness) was also co-accused therein. As such, the evidence tends to establish the social status of the witness as a rustic villager, illiterate and involved in criminal case as offender. This witness is related with the deceased as well as the accused Net Ram and Krishna Pal both, there is no evidence of him being inimical to the accused so as to place a motive on him for false implication of the accused. 18. In the aforesaid context, before going to discuss with the appreciation of their evidences, we think it proper to refer some parameters in general laid down by our Courts from time to time while dealing with the evidences deposed by witnesses. One of such judgment of the Apex Court is Bharwada Bhoginbhai Hirjibhai Vs. State of Gujarat, (1983) 3 Supreme Court Cases 217. The relevant para ‘5’ from the aforesaid is reproduced hereunder:- "(1) By and large a witness cannot be expected to possess a photographic memory and to recall the details of an incident. It is not as if a video tape is replayed on the mental screen. (2) Ordinarily it so happens that a witness is overtaken by events. The witness could not have anticipated the occurrence which so often has an element of surprised. The mental faculties therefore cannot be expected to be attuned to absorb the details. (3) The powers of observation differ from person to person. What one may notice, another may not. An object or movement might emboss its image on one person's mind, whereas it might go unnoticed on the part of another. (4) By and large people cannot accurately recall a conversation and reproduce the very words used by them or heard by them. They can only recall the main purport of the conversation. It is unrealistic to expect a witness to be a human tape-recorder. (5) In regard to exact time of an incident, or the time duration of an occurrence, usually, people make their estimates by guess-work on the spur of the moment at the time of interrogation. And one cannot expect people to make very precise or reliable estimates in such matters. Again, it depends on the time-sense of individuals which varies from person to person. And one cannot expect people to make very precise or reliable estimates in such matters. Again, it depends on the time-sense of individuals which varies from person to person. (6) Ordinarily a witness cannot be expected to recall accurately the sequence of events which takes place in rapid succession or in a short time span. A witness is liable to get confused, or mixed up when interrogated later on. (7) A witness, though wholly truthful, is liable to be overawed by the court atmosphere and the piercing cross-examination made by counsel and out of nervousness mix up facts, get confused regarding sequence of events, or fill up details from imagination on the spur of the moment. The sub-conscious mind of the witness sometimes so operates on account of the fear of looking foolish or being disbelieved though the witness is giving a truthful and honest account of the occurrence witnessed by him --Perhaps it is a sort of a psychological defence mechanism activated on the spur of the moment." 19. In the aforesaid context we further refer the judgment of the Apex Court in Shivaji Sahab Rao Bobade Vs. State of Maharashtra, (1973) 2 Supreme Court Cases 793 (801) which deals the incident of murder in rural area wherein it is held that if the witnesses were rustic, their behavioural pattern perceptive and unperceptive habits have to be judged. The relevant paras from the aforesaid is reproduced hereunder:- "8. Now to the facts. The scene of murder is rural, the witnesses to the case are rustics and so their behavioural pattern and perceptive habits have to be judged as such. The too sophisticated approaches familiar in courts based on unreal assumptions about human conduct cannot obviously be applied to those given to the lethargic ways of our villages. When scanning the evidence of the various witnesses we have to inform ourselves that variances on the fringes, discrepancies in details, contradictions in narrations and embellishments in inessential parts cannot militate against the veracity of the core of the testimony provided there is the impress of truth and conformity to probability in the substantial fabric of testimony delivered. The learned Sessions Judge has at some length dissected the evidence, spun out contradictions and unnatural conduct, and tested with precision the time and sequence of the events connected with the crime, all on the touchstone of the medical evidence and the post-mortem certificate. The learned Sessions Judge has at some length dissected the evidence, spun out contradictions and unnatural conduct, and tested with precision the time and sequence of the events connected with the crime, all on the touchstone of the medical evidence and the post-mortem certificate. Certainly, the court which has seen the witnesses depose, has a great advantage over the appellate Judge who reads the recorded evidence in cold print, and regard must be had to this advantage enjoyed by the trial Judge of observing the demeanour and delivery, of reading the straightforwardness and doubtful candour, rustic naivete and clever equivocation, manipulated conformity and ingenious unveracity of persons who swear to the facts before him. Nevertheless, where a Judge draws his conclusions not so much on the directness or dubiety of the witness while on oath but upon general probabilities and on expert evidence, the court of appeal is in as good a position to assess or arrive at legitimate conclusions as the Court of first instance. Nor can we make a fetish of the trial Judge's psychic insight." 20. Moreover, being relative of the deceased they (P.W.-1 & P.W.-2) could not be said to be interested for any otherwise reason to get the accused persons falsely implicated. 21. In Vijendra Singh Vs. State of Uttar Pradesh with Mahendra Singh Vs. State of Uttar Pradesh, (2017) 11 Supreme Court Cases 129, the Apex Court has held in para ‘31’ as under:- “31. In this regard reference to a passage from [Hari Obula Reddy v. State of A.P., (1981) 3 SCC 675 : 1981 SCC (Cri) 795] would be fruitful. In the said case, a three-Judge Bench has ruled that : (SCC pp. 683-84, para 13) “[it cannot] be laid down as an invariable rule that interested evidence can never form the basis of conviction unless corroborated to a material extent in material particulars by independent evidence. All that is necessary is that the evidence of the interested witnesses should be subjected to careful scrutiny and accepted with caution. If on such scrutiny, the interested testimony is found to be intrinsically reliable or inherently probable, it may, by itself, be sufficient, in the circumstances of the particular case, to base a conviction thereon.” It is worthy to note that there is a distinction between a witness who is related and an interested witness. A relative is a natural witness. If on such scrutiny, the interested testimony is found to be intrinsically reliable or inherently probable, it may, by itself, be sufficient, in the circumstances of the particular case, to base a conviction thereon.” It is worthy to note that there is a distinction between a witness who is related and an interested witness. A relative is a natural witness. The Court in [Kartik Malhar v. State of Bihar, (1996) 1 SCC 614 : 1996 SCC (Cri) 188] has opined that a close relative who is a natural witness cannot be regarded as an interested witness, for the term “interested” postulates that the witness must have some interest in having the accused, somehow or the other, convicted for some animus or for some other reason.” 22. In Sucha Singh and Another Vs. State of Punjab, (2003) 7 Supreme Court Cases 643, it is held that relationship is not a factor to effect the credibility of a witness. It is more often than not that a relation would not conceal the actual culprit and make allegations against an innocent person. Foundation has to be laid if plea of false implication is made. In such cases, the court has to adopt a careful approach and analyse evidence to find out whether it is cogent and credible. Para ‘13’ of the said judgment is quoted under:- 13. We shall first deal with the contention regarding interestedness of the witnesses for furthering the prosecution version. Relationship is not a factor to affect the credibility of a witness. It is more often than not that a relation would not conceal the actual culprit and make allegations against an innocent person. Foundation has to be laid if plea of false implication is made. In such cases, the court has to adopt a careful approach and analyse evidence to find out whether it is cogent and credible. 23. In the context of evidences on record, we are of considered opinion that the argument of the learned counsel for the appellant about the witness being a close relative is a partisan witness and his evidence should not be relied upon, has no substance. This impression in mind of any person that relatives are not independent is not correct. In para ‘14’ of the Sucha Singh and Another Vs. State of Punjab (Supra), the Apex Court has considered it as under:- “14. This impression in mind of any person that relatives are not independent is not correct. In para ‘14’ of the Sucha Singh and Another Vs. State of Punjab (Supra), the Apex Court has considered it as under:- “14. In Dalip Singh v. State of Punjab [ AIR 1953 SC 364 : 1953 Cri LJ 1465] it has been laid down as under : (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 relation 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 generalization. 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.” 24. In this regard, para ‘22’ from the judgment of the Apex Court in the case of Shyam Babu Vs. State of U.P., (2012) 8 Supreme Court Cases 651, is reproduced hereunder:- “This Court has repeatedly held that the version of an eyewitness cannot be discarded by the Court merely on the ground that such eye-witness happened to be a relative or friend of the deceased. It is also stated that where the presence of the eye-witnesses is proved to be natural and their statements are nothing but truthful disclosure of actual facts leading to the occurrence, it will not be permissible for the Court to discard the statement of such related or friendly witnesses. To put it clear, there is no bar in law on examining family members or any other person as witnesses. To put it clear, there is no bar in law on examining family members or any other person as witnesses. In fact, in cases involving family members of both sides, it is a member of the family or a friend who comes to rescue the injured. If the statement of witnesses, who are relatives or known to the parties affected is credible, reliable, trustworthy and corroborated by other witnesses, there would hardly be any reason for the court to reject such evidence merely on the ground that the witness was a family member or an interested witness or a person known to the affected party or friend etc. These principles have been reiterated in Mano Dutt and Another vs. State of Uttar Pradesh, (2012) 4 SCC 79 and Dayal Singh and Others vs. State of Uttaranchal, 2012 (7) Scale 165 .” Spot of the Incident 25. The spot of the incident, mentioned in the first information report, situated at Village Bhimlor was at a distance of 14 Km. South-West from the Police Station Aonla. In the first information report, the informant (P.W.-2 Ram Kumar) has stated that he alongwith his father-in-law (deceased Ram Charan) when reached near the shop of Nankoo in Village Bhimlor, the accused appellant ‘Naresh’, armed with country made pistol in his hand, pounced from the North direction. When deceased “Ram Charan” tried to escape towards East, Naresh chased him but he was intercepted by accused “Krishna Pal” armed with country made pistol from the East side with Net Ram armed with spear. Accused Naresh and Krishna Pal shot one fire each from their country made pistol on the deceased “Ram Charan” whereas Net Ram inflicted the blow of spear (Bhala) in his chest. The father-in-law of the informant (deceased Ram Charan) screamed and fell down on the spot and died. 26. P.W.-2 (first informant) in his examination-in-chief has reiterated the location of the spot of the incident, as described in the first information report. In cross-examination, he further elaborated the position of spot of the incident by saying that where Ram Charan (deceased) was killed there was no population. There existed a hut only in which shop of Nankoo was running. P.W.-2 (first informant) in his examination-in-chief has reiterated the location of the spot of the incident, as described in the first information report. In cross-examination, he further elaborated the position of spot of the incident by saying that where Ram Charan (deceased) was killed there was no population. There existed a hut only in which shop of Nankoo was running. After a distance of 40 to 50 paces towards West, the population of village begins amongst which the house of Nankoo was the first, in front of which the incident of killing of Ram Charan (deceased) occurred. The area on the Eastern side of the Nankoo’s house consists of no population. On the Northern side of it also there was a less populated area, the houses were built there at interspace of approximately 50 to 60 paces. He further stated in the cross-examination that in front of the shop of Nankoo, there was a road leading to the village which is not used for commutation between village to Bazar. When the father-in-law of the informant namely Ram Charan was shot, he was approximately two paces away from the shop of Nankoo. 27. P.W.-4 – The Investigating Officer stated that when he reached on the spot of the incident, he found the dead body of the deceased lying on the earth, covered with a bed sheet. He inspected the spot of the incident and on the orientation of informant (P.W.-2) and other witnesses, he drew a site map at the spot. The said site map was proved by the witness P.W.-4 as Ex. Ka.-3. This witness also has stated about the road lying in front of the spot of the incident (near the shop of Nankoo) in South-North direction. The document Ex. Ka.-3 which is proved by the Investigating Officer shows spot ‘A’, abutting the road running from West to East and towards its Northern side, where the dead body of deceased “Ram Charan” was lying profusely bleeding. The populated area has not been shown in the near vicinity of spot ‘A’. The site plan corroborates the statement of P.W.-2 description of the spot of the incident. From the spot ‘A’, there is an electricity pole shown on the way running from North to South, from where the deceased “Ram Charan” and P.W.-2 had seen the accused ‘Naresh’ pouncing towards them. The site plan corroborates the statement of P.W.-2 description of the spot of the incident. From the spot ‘A’, there is an electricity pole shown on the way running from North to South, from where the deceased “Ram Charan” and P.W.-2 had seen the accused ‘Naresh’ pouncing towards them. Spot ‘D’ is the place wherefrom the accused Naresh shot the fire on the deceased “Ram Charan”. Just in the opposite direction to the spots ‘B’ and ‘D’ towards East, the spot ‘E’ is shown as the place from where the accused Krishna Pal made a fire on the deceased “Ram Charan”. Spot ‘C’ in the site map is shown as the hut wherein a shop is stated to run by Nankoo and also as the place from where the witness P.W.-1 ‘Virendra Pal Singh’ was watching the entire incident of killing the deceased “Ram Charan”. 28. Thus, the spot of the incident as stated in the examination of P.W.-1 and P.W.-2 before the Court is proved by their evidence and further corroborated from the evidence of P.W.-4 (the Investigating Officer) and site map proved in (Ex. Ka.-3). There is no inconsistency in the description of the spot of the incident stated by P.W.-1 (Virendra Pal Singh). P.W.-2 has stated that P.W.-1 had also witnessed the incident from the shop of Nankoo. P.W.-1 in his examination-in-chief stated that the incident of killing of Ram Charan occurred on the relevant date and time in front of the house of Nankoo where he was standing to buy Bidi. He saw the deceased “Ram Charan” coming with P.W.-2 “Ram Kumar” from South direction and Naresh, the accused appeared from the North direction armed with the country made pistol in his hand, seeing them the deceased Ram Charan ran towards East to save himself but Net Ram and Krishna Pal appeared from the East with their respective arms and killed Ram Charan who succumbed to his injuries instantly on the spot. In this way, the spot of the incident is proved by the prosecution witnesses. Probability of presence of witness on the spot of the incident 29. Firstly, we think it relevant to discuss the probability of the presence of informant (P.W.-2) on the spot of the incident. In this way, the spot of the incident is proved by the prosecution witnesses. Probability of presence of witness on the spot of the incident 29. Firstly, we think it relevant to discuss the probability of the presence of informant (P.W.-2) on the spot of the incident. According to the prosecution case, first informant (Ram Kumar) was accompanying his father-in-law “Ram Charan” (deceased) on the relevant date i.e. 16.05.1987 in the evening from village Bahadurpur Gautiya to the native village of the deceased “Ram Charan” i.e. Bhimlor. The incident had occurred at about 06:00 P.M. to 06:30 P.M. 30. P.W.-2 in cross stated that his father-in-law “Ram Charan” used to do his agricultural work himself. He never took help in such type of works. In the examination-in-chief P.W.-1 stated that for the purpose of ploughing his agricultural fields, situated at Village Bhimlor, deceased “Ram Charan” took two bulls from him in the morning of the date of incident. The deceased came in evening to return the said two bulls at his house in the Village ‘Bahadurpur Gautiya’. The distance between two villages, viz. ‘Bhimlor’ and ‘Bahadurpur Gautiya’ as stated is about 1 mile. The deceased wanted to go back home soon as his cousin came to meet him. The first informant (P.W.-2) also desired to meet Virendra Pal Singh (P.W.-1), therefore, he had accompanied his father-in-law (deceased Ram Charan) to go to his house in the Village Bhimlor. The unfateful incident occurred when they were reaching near the shop of Nankoo in the Village Bhimlor at about 06:00 P.M. to 06:30 P.M. in the evening. The defence has suggested that the incident of killing had not occurred in front of the shop of Nankoo and P.W.-2 falsely named Nankoo as witness of the incident and for this reason Nankoo was not produced as witness in the trial. But merely for the reason that if a witness is not produced by the prosecution or if the witness is not willing to come in the witness box, the prosecution case cannot be demolished. From this reason, the statement of the witness appearing before the Court cannot be discarded. Nothing could be carved out by the defence to falsify the relation between witness P.W.-2 and the deceased “Ram Charan” or his having agricultural fields or his purpose to borrow bulls from P.W.-2, the son-in-law for ploughing his fields. From this reason, the statement of the witness appearing before the Court cannot be discarded. Nothing could be carved out by the defence to falsify the relation between witness P.W.-2 and the deceased “Ram Charan” or his having agricultural fields or his purpose to borrow bulls from P.W.-2, the son-in-law for ploughing his fields. Even this had not been elicited in cross-examination that the P.W.-2 was not owner and in possession of the two bulls in his house at Village Bahadurpur Gautiya. Moreover, the month of May is judicially noticeable as ploughing season for agriculturists. 31. The defence has further remained unsuccessful in establishing that witness P.W.-2 was not in the village on the relevant date and time of the incident or there was no possibility of him being present on the spot. Thus, P.W.-2 proved his presence and company with the deceased “Ram Charan” on the spot of the incident at the relevant date and time as quite probable. He could not be disbelieved in this regard. We have to scrutinise his oral evidence with regard to the mode and manner of commission of the offence, whether it crosses the credibility test on the touchstone of trustworthiness of a witness, free of inconsistencies and contradictions. 32. P.W.-1 – The probability of presence of P.W.-1 on the spot of the incident finds place in the statement of P.W.-4 and in the site map drawn by him on the spot of the incident on the very same day of the incident. The place shown as ‘C’ is where the witness Virendra Pal (P.W.-1) was present in the shop of Nankoo and seen the incident with him. 33. P.W.-2 stated that his father-in-law “Ram Charan” when came to his house at village Bahadurpur Gautiya wanted to go back soon as his cousin “Virendra Pal” (P.W.-1) came to his house. The spot of the incident was at a distance of 100 paces from the house of the deceased. He could not asses the actual and correct distance on the suggestion made by the counsel for the defence that the house of the deceased “Ram Charan” was about ½ mile away from the spot of the incident for the reason of his being less educated. 34. He could not asses the actual and correct distance on the suggestion made by the counsel for the defence that the house of the deceased “Ram Charan” was about ½ mile away from the spot of the incident for the reason of his being less educated. 34. The P.W.-1 has stated that from the house of deceased “Ram Charan”, he went to the shop of Nankoo for buying bidi when the incident occurred from 06:00 P.M. to 06:30 P.M. in the evening of 16.05.1987. 35. The next question material is about the presence of P.W.-1 in Village Bhimlor as P.W.-1 is not the resident of Village Bhimlor. His native village as came in the evidence was village Baghaul in Police Station Wazirganj, District Badaun. In his version, P.W.-1 stated that he was not in the permanent employment anywhere but worked on hire to drive mini bus / tractors. He stated that the distance between the Baghaul in Badaun and village Bhimlor in District Bareilly was about 10 kose (1 kose = 1.8 Kms.). The means to reach from village Baghaul to village Bhimlor was through tonga, three wheeler and buses but there was no rail route. The deceased “Ram Charan” borrowed Rs.1,500/-from him about 1 and ½ years ago from the date of the incident due to some personal work and paid only Rs.200/-, so under the expectation of getting payment of his dues, he decided to go to his cousin “Ram Charan”. He reached at about 12:30 P.M. during day of 16.05.1987 from tonga. When he asked payment for his money from Ram Charan (deceased), he told him to wait till the evening and that when he would come from Bahadurpur Gautiya after returning the bulls he would talk to him. 36. Here also the defence could not carve out any fact otherwise with regard to the money borrowed by the deceased “Ram Charan” from his cousin, P.W.-1 “Virendra Pal Singh” nor any incompetency is brought forward with regard to the financial status of P.W.-1. P.W.-2 has also stated about Virendra Pal “P.W.-1” was at the shop of Nankoo for buying bidi. Thus, when the statement of P.W.-1, P.W.-2 and P.W.-4 with the Ex. Ka-3 (the site map) are read cumulatively, the presence of witness P.W.-1 “Virendra Pal” in village Bhimlor from 12:00 P.M. of 16.05.1987 till the relevant time of the incident is convincingly proved. Thus, when the statement of P.W.-1, P.W.-2 and P.W.-4 with the Ex. Ka-3 (the site map) are read cumulatively, the presence of witness P.W.-1 “Virendra Pal” in village Bhimlor from 12:00 P.M. of 16.05.1987 till the relevant time of the incident is convincingly proved. The incident had occurred in between 06:00 to 06:30 P.M. in the evening of 16.05.1987 and the statement of Virendra Pal with the other witness of the incident was recorded by the Investigating Officer under Section 161 Cr.P.C. on the next morning of the incident i.e. on 17.05.1987. The fact also tends to prove the presence of witnesses P.W.-1 on the spot. We have no reason to disbelieve his statement as to his presence on the relevant date and time of the incident at the spot of the incident. The testimony of witnesses pass the credibility test on the touchstone of trustworthiness of the witnesses free from inconsistencies and contradictions in the statement. 37. It is held by the Apex Court in Brahm Swaroop and Another Vs. State of Uttar Pradesh6 as under :- “It is a settled legal proposition that while appreciating the evidence of a witness, minor discrepancies on trivial matters, which do not affect the core of the prosecution case, may not prompt the court to reject the evidence in its entirety. “Irrelevant details which do not in any way corrode the credibility of a witness cannot be labelled as omissions or contradictions.” Difference in some minor details, which does not otherwise affect the core of the prosecution case, even if present, would not itself prompt the court to reject the evidence on minor variations and discrepancies. After exercising care and caution and shifting through the evidence to separate truth from untruth, exaggeration and improvements, the court comes to a conclusion as to whether the residuary evidence is sufficient to convict the accused. Thus, an undue importance should not be attached to omissions, contradictions and discrepancies which do not go to the heart of the matter and shake the basis version of the prosecution witness. As the mental capabilities of a human being cannot be expected to be attuned to absorb all the details, minor discrepancies are bound to occur in the statements of witnesses.” The witnesses having seen the incident – Sufficiency of light 38. As the mental capabilities of a human being cannot be expected to be attuned to absorb all the details, minor discrepancies are bound to occur in the statements of witnesses.” The witnesses having seen the incident – Sufficiency of light 38. The learned counsel for the defence has vehemently argued over the incompetency of the witnesses from the spot where they are alleged to remain present in the course of commission of the incident to witness as it was not possible by reason of the distance as well as insufficiency of light after sunset. 39. P.W.-2 (the informant) is the only person who at the time of incident was accompanying the deceased on the way leading to Village Bhimlor from his Village Bahadurpur Gautiya. He stated in his examination-in-chief firmly that when they reached near the shop of Nankoo in the village at about 06:00 P.M. to 06:30 P.M. in the evening, it was daylight. The shop of Nankoo is shown in Ex. Ka-3 (the site map) prepared by the Investigating Officer as a hut of Nankoo wherein his shop was running at spot ‘C’ in the map, located at the Western side of the road running from North to South. 40. P.W.-2 further stated in his cross-examination that where the deceased was killed, there was only a hut of Nankoo wherein he was running his shop. The populated area is at 40 to 50 paces away towards West from the said shop of Nankoo. At the Eastern side of the shop of Nankoo, there was no populated area. He stated further in the cross-examination that when his father-in-law (deceased Ram Charan) was shot dead, he (P.W.-2) was at a distance of two paces from him. The average day in Bareilly during May is having temperature at 35.50 C with sunrise at 05:22 A.M. and sunset at 06:52 P.M. As such, when it is proved that when the incident occurred in between 06:00 P.M. to 06:30 P.M. in the evening on 16.05.1987, certainly it was the period of day light. Sunset does not mean that darkness suddenly falls but the sun goes below the horizon within one to one and a half hours but depending upon the region, even after sunset, sufficient light remains approximately for about one hour which is called twilight. Sunset does not mean that darkness suddenly falls but the sun goes below the horizon within one to one and a half hours but depending upon the region, even after sunset, sufficient light remains approximately for about one hour which is called twilight. Therefore, the argument of the learned counsel with regard to the incompetency in seeing the incident in the evening at about 06:00 P.M. to 06:30 P.M. as the darkness fell in the evening is incorrect. Moreover, the accused persons were known to the witnesses very well, therefore, even in case of insufficient light, the witness would be able to see and identify them very well. 41. The Supreme Court in State of U.P. Vs. Babu & Ors., Manu/SC/1149/2003 in para ‘7’ has held :- "7. Apart from the mention about the torchlight, one important aspect which cannot be lost sight of and which is of relevance and great significance is that the accused persons are known to the witnesses. When the persons are known, identification is possible from the manner of speech, manner of walking and gesticulating and special features of a person like the physical attributes. The reason indicated to discard PWs 1 and 3 is to the effect that PWs 2 and 9, though they were closely related to the deceased, did not support the prosecution version. That cannot per se be a ground to discard the evidence of other witnesses, one of whom was also a relative, and the other an independent witness. As noted above, the High Court has not discussed the evidence of PWs 1 and 3 to point out any vulnerability. The conclusion arrived at is without reason. Since the High Court has acted on surmises and conjectures, the judgment is indefensible." 42. In similar set of facts before the Supreme Court in Machchi Singh Vs. State of Punjab, (1983) 3 Supreme Court Cases 470 in para ‘5’ it is held that :- "5. The most serious criticism pressed into service by learned Counsel for the appellants in each of the appeals is common. Instead of dealing with the identical criticism, in the identical manner, repeatedly, in the context of each matter, we propose to deal with it at this juncture. The criticism is this. It was a dark night. Electricity had not yet reached the concerned village at the material time. Instead of dealing with the identical criticism, in the identical manner, repeatedly, in the context of each matter, we propose to deal with it at this juncture. The criticism is this. It was a dark night. Electricity had not yet reached the concerned village at the material time. In each crime the appreciation of evidence regarding identification has to be made in the context of the fact-situation that a lighted lantern was hanging in the court-yard where the victims were sleeping on the cots. The light shed by the lantern cannot be considered to be sufficient enough (such is the argument) to enable the eye witnesses to identify the culprits. This argument has been rightly rebuffed by the Sessions Court and the High Court, on the ground that villagers living in villages where electricity has not reached as yet, get accustomed to seeing things in the light shed by the lantern. Their eyesight gets conditioned and becomes accustomed to the situation. Their powers of seeing are therefore not diminished by the circumstance that the incident is witnessed in the light shed by the lantern and not electric light. Moreover, identification did not pose any serious problem as the accused were known to the witnesses. In fact they were embroiled in a long standing family feud. As the culprits had not covered their faces to conceal their identity, it was not difficult to identify them from their facial features, build gait etc. Light shed by the lantern was enough to enable the witnesses to identify the culprits under the circumstances." 43. So far as P.W.-1 is concerned, in the written information reduced into writing on the dictation of the first informant, his name has been given with Nankoo, the shop owner who ran on the alarm raised by the first informant towards the spot of the incident. Further, in his statement P.W.-2 has stated when the accused shot fire near the spot, no one else was there except the witness P.W.-2 and Nankoo with Virendra Pal Singh (P.W.-1). 44. In cross-examination, he further stated that at the time of the incident, P.W.-1 had come at the shop of Nankoo and was standing there. The distance of the shop (spot ‘C’) shown in the Ex. 44. In cross-examination, he further stated that at the time of the incident, P.W.-1 had come at the shop of Nankoo and was standing there. The distance of the shop (spot ‘C’) shown in the Ex. Ka.-3 (the site map) by the Investigating Officer from the spot ‘A’ where the dead body of the deceased was lying after the incident was about 15 paces. 45. The learned counsel for the defence has not elicited in cross-examination any obstructions within the aforesaid distance between the spot ‘C’ and spot ‘A’. Moreover, it has also not been carved out that witness was suffering from any eye disease or weakness of eye sight by reason of which he could not have seen the incident happening before him at the distance of approximately 15 paces away. As such, the witness in the sufficient light at the relevant time of the incident were competent and able to witness the incident from a reasonable distance of approximately 15 paces away from the spot of the incident. Motive 46. In the first information report itself, the motive as set forth by the first informant is that all the three accused persons namely Net Ram, Naresh and Krishna Pal, approximately 2 and ½ years ago, committed dacoity in the house of deceased “Ram Charan” for which criminal case was going on and the date for recording the statement of witnesses was fixed as 20.05.1987 whereas the incident occurred on 16.05.1987. It is alleged that by reason of enmity in connection with the criminal case, they killed Ram Charan in a planned way. 47. There is no denial of the incident of dacoity in the house of the deceased “Ram Charan” allegedly committed by the accused of the present case and a criminal case running against him in that regard. This fact further finds corroboration from the statement of witness P.W.-2 when the suggestion was given to him that the accused persons of the present case were falsely implicated in the case of dacoity. The P.W.-2 further stated that in the case of dacoity, the present accused persons were in jail for about 4 to 5 months and, thereafter, were released on bail. The P.W.-2 further stated that in the case of dacoity, the present accused persons were in jail for about 4 to 5 months and, thereafter, were released on bail. On a suggestion P.W-2, in cross, stated that in the criminal case relating to the dacoity, the accused persons came to his father to mediate for compromise with the deceased but his father did not help and P.W.-2 told the accused persons that since Ram Charan was also in their relation, they could mutually settle the matter. He further made it clear that, in his life time, his father-in-law, never told him that the accused persons had ever gone to him for compromise. 48. As such, the bitter relation for the reason of the criminal case of dacoity committed in the house of deceased “Ram Charan” in which the accused persons were arraigned is proved. The accused were trying hard to get rid of the case, either by compromise or otherwise. This is a relevant and material fact which supports the motive set forth in the present case behind killing of the deceased “Ram Charan”. The motive if proved or established, it affords a key or pointer to scan the evidence in the case in that perspective and as a satisfactory circumstance of corroboration. Where the motive is proved it is evidence of the evil intent and is relevant to show that the person who had the motive to commit a crime actually committed it. Mode and Manner 49. From the version of P.W.-1 & P.W.-2, noted in the foregoing paragraphs, the prosecution has successfully established and proved its version as to the spot of the incident, probability of witness of fact namely P.W.-1 and P.W.-2 being on the spot of the incident. The proved fact as to the spot of the incident is further corroborated by the inquest report as the same was made at the very spot where the dead body of the deceased “Ram Charan” was lying since after the incident of killing in the fateful event occurred on 16.05.1987 at the relevant time about 06:00 P.M. to 06:30 P.M. in the evening. The inquest was concluded by the Investigating Officer who was examined as prosecution witness no.4 (P.W.-4). 50. The inquest was concluded by the Investigating Officer who was examined as prosecution witness no.4 (P.W.-4). 50. P.W.-4, in the examination-in-chief, stated that he reached at the spot of the incident where the body of the deceased was lying covered with a bed sheet and people were gathered there. He, first of all, reduced into writing the statement of witnesses namely the first informant “Ram Kumar”, Chowkidar Kishan Pal and witness P.W.-1 “Virendra Pal Singh” and drew a site map, thereafter, on the orientation of the witnesses, he has proved the said site map as Ex. Ka.3. The report of the inquest proceeding done by him signed by the first informant (P.W.-2) and the Investigating Officer (P.W.-4) is Ex. Ka.-4. P.W.-4 sealed the body on the spot and sent it with the relevant papers with sepoys Hari Singh and Jai Bhagwan for post mortem. The clothes on the person of the deceased namely Dhoti, Baniyan and one shirt of terricot stained with blood, were also sealed and memo was prepared. The said memo was proved as Ex. Ka.-8. The clothes were sent for the chemical examination to the Forensic Science Laboratory but not received back till the statement was recorded. The blood stained soil and plain soil was collected separately from the spot of the incident sealed with preparation of memo therefor. The statement of witnesses of collection and sealing was taken. The said memo had been proved as Ex. Ka.-9. In his cross-examination also, P.W.-4 affirmed that on the same day when the first information report was lodged, he left the police station for the spot of the incident at 07:15 A.M. and reached there at about 08:00 A.M. in the morning. He further stated that the clothes worn on the person of deceased were put down by him except his underwear. Medical evidence in corroboration of mode and manner adopted by the accused in killing of the deceased. 51. We looked at the report of the inquest proceeding which under the head “injuries” mentions blood stained wound at the right side of the chest around where there was blackening. The left side of the chest had blood stained wound as well as on front side of the neck also. Body was sent for the post mortem. 51. We looked at the report of the inquest proceeding which under the head “injuries” mentions blood stained wound at the right side of the chest around where there was blackening. The left side of the chest had blood stained wound as well as on front side of the neck also. Body was sent for the post mortem. In the post mortem done on 18.05.1987 at about 04:00 P.M., the following ante mortem injuries were found on the person of the deceased:- “1. gun shot wound of entry 1.5 cm x 1.5 cm x chest cavity deep on right side of chest 4 cm away from right nipple at 3 o’clock position. Margin inverted blackening and scorching present around the wound in an area of 5 cm diameter. 2. Incised wound 2 cm x 1cm x muscle deep the front of left side and neck 4 cm above medial and of left colour bone. 3. Incised wound 2 cm x .5 cm x muscle deep on left side chest 6 cm below left nipple at 7 o’clock position.” 52. In “Modi’s Medical Jurisprudence and Toxicology”, twenty-third edition Reprint 2011 at page 715, it is stated :- “Firearm wounds generally produce two wounds or apertures, namely, one of entrance and the other of exit of the projectile. When the wound of entrance is present, but not the wound of exit, it means that a bullet is lodged in the body, except in those rare cases where a bullet has been coughed out after entering the respiratory passages or lost in the stool after entering the intestinal tract and also where a bullet by coming in contact with a bone is so deflected as to pass out by the same orifice as it entered. If a bullet gets fragmented inside the body, there may be multiple exit wounds and a single entry wound. It is also possible to have multiple wounds of entrance and exit caused by a single bullet when it passes in and out of two portions of the body.” 53. The internal injuries narrated in the post mortem examination as observed by the Doctor (P.W.-3) are that the fifth and sixth vertebrae of the spinal cord was broken from where a bullet was extracted. Five ribs were also broken, the pleura of the lungs torned towards the right side, the right lung was lacerated, heart was empty. The internal injuries narrated in the post mortem examination as observed by the Doctor (P.W.-3) are that the fifth and sixth vertebrae of the spinal cord was broken from where a bullet was extracted. Five ribs were also broken, the pleura of the lungs torned towards the right side, the right lung was lacerated, heart was empty. Some other observations which are not relevant at this stage of discussion will further be referred when required. The doctor has stated the cause of death was shock and haemorrhage due to ante mortem injuries. 54. When we looked at the gun shot wound of entry into chest cavity on the right side of the chest as reported by the doctor in his report of the post mortem examination, the statement of witnesses of making a shot of country made pistol by the accused facing towards the deceased finds corroboration which also finds corroboration with the inquest report. The statement of witnesses that the accused was in a close proximity with the deceased when he shot fire on him finds corroboration with the blackening and scorching present around the wound in the area present about 5 cm in diameter. The observation of the doctor (P.W.-3) in this regard finds force in scientific context of the medical jurisprudence. 55. In “Modi’s Medical Jurisprudence and Toxicology (Supra)” at Pg. 714 which states “Firearm Wounds” as under:- “The injuries produced by the projectiles discharged from firearms, may present the characteristics of lacerated wounds, but their appearances vary according to the nature of the projectile, the velocity at which it was travelling at the moment of impact, the distance of the firearm from the body at the moment of discharge and the angle at which it struck the part of the body and the part of body struck. The size of the entrance wound due to a bullet gives no direct measurements of the size of the bullet, because the perforation is made with the skin under tension. After the bullet presses through, the skin tends to return to its former size and the margins of the wound contract when the range is short, the perforation or the entry hole is enlarged due to pressure of gases.” 56. After the bullet presses through, the skin tends to return to its former size and the margins of the wound contract when the range is short, the perforation or the entry hole is enlarged due to pressure of gases.” 56. Further at Page 721 of “Modi’s Medical Jurisprudence and Toxicology (Supra)”, the effect of the distance of the fire arm is discussed:- “If a firearm is discharged very close to the body or in actual contact, subcutaneous tissues over an area of two or three inches around the wound of entrance are lacerated and the surrounding skin is usually scorched and blackened by smoke and tattooed with unburnt grains of gunpowder or smokeless propellant powder. The adjacent hairs are singed, and the clothes covering the part are burnt by the flame. If the powder is smokeless, there may be a greyish or white deposit on the skin around the wound. If the area is photographed by infrared light, a smoke halo round the wound may be clearly noticed. Blackening is found, if a firearm like a shotgun is discharged from a distance of not more than three feet and a revolver or pistol discharged within about two feet. In the absence of powder residue, no distinction can be made between one distant shot and another, as far as distance is concerned. Scorching in the case of the latter firearms is observed within a few inches, while some evidence of scorching in the case of shotguns may be found even at one to three fit. 57. In the aforesaid context, it would also be relevant to refer the uncontradicted and free of any inconsistency statement of P.W.-2 that accused persons had fired on the deceased “Ram Charan” from a distance of two paces. They made two fires at the relevant time. The face of the deceased was towards East and that of the accused Krishna Pal was towards West. As such, the prosecution case of firing by the accused on the deceased “Ram Charan” from his front side is proved by the evidence of witness which finds corroboration with the medical evidence namely the post mortem report as also the evidence of doctor (the P.W.-3). This witness has further stated that when the accused Naresh made fire form his pistol, he was facing towards North while the deceased “Ram Charan” was facing towards East. This witness has further stated that when the accused Naresh made fire form his pistol, he was facing towards North while the deceased “Ram Charan” was facing towards East. The deceased “Ram Charan” fell on the ground after getting fire arm injury when the accused Net Ram made a forceful blow of his spear on his chest. The report of ante mortem injury at serial no.2 as reported in the post mortem report is proved by the doctor (P.W.-3) with further corroboration in the post mortem report under the head “Internal Examination” that five ribs were found broken. Lastly the bullet was extracted out from the broken spinal cord at fifth to sixth vertebrae. 58. As such, the narration of the mode and manner of firing on the front side of the deceased from a close distance and stabbing with a forceful blow of spear in the chest and upper neck of the deceased by the accused Net Ram is proved. Firing on the deceased and bullet extracted from the broken spinal cord of the deceased are established and proved by the evidence of the prosecution. Relevant date and time of the incident and medical evidence 59. The learned counsel for the defence tried to create a doubt as to the actual time of death. He suggested the witness P.W.-2 that deceased “Ram Charan” was killed in the night at a time, not known to anyone and no one had seen the incident. P.W.-2 denied and stood firmly on his statement as to the relevant date and time of the incident. Learned counsel for the defence has further suggested to the Doctor witness P.W.-3 that on the date and time of the post mortem examination of the dead body by him, it was 7 to 8 days old. The suggestion was denied and P.W.-3 (the doctor) stood firmly on his assessment of the dead body being approximately two days old on the relevant date and time of the post mortem i.e. on 18.05.1987 at about 04:00 P.M. The bone of the contention of the learned counsel for the defence in this regard is the observation of the doctor (P.W.-3) with regard to the condition of the dead body on 18.05.1987 at 04:00 P.M. when the post mortem examination of the dead body was done. At the cost of repetition, the observation of the doctor (P.W.-3) is being referred again that rigor mortis on the dead body vanished and putrefaction of the dead body began by that time. There were bristles here and there on the body, the skin was pealed off and the entire body was swollen. 60. This would be pertinent to mention here that the evidence on record shows the age of the deceased at the time of incident of killing about 55 years. P.W.-3 (Doctor) has observed him as a man of average body built. The defence has not carved out from the cross-examination of the prosecution witness that prior to the date of incident the deceased was suffering from any kind of prolonged illness or disease. For the purpose of appreciation of condition of dead body, on the date of post mortem, so as to infer the proximate date and time of the death of the victim of the incident in question, the climatic condition and temperature should also be kept into mind. District Bareilly where the spot of the incident in village Bhimlor is situated is a part of Northern India. The climate in the month of May, average temperature may be seen on the website http://weatherspark.com. In District Bareilly, dry season is warm and mostly clear over the course of the year, the temperature typically varies from 490 F to 1020 F and is rarely below 440 C. The hot season lasts for 28 months, from April 9 to July 3, with an average daily high temperature above 95°F. The hottest month of the year in Bareilly is June, with an average high of 99°F and low of 82°F. In the month of May the average high of 900 F with a low of 790 F. On the website http://wanderlog.com, the average temperature in the month of May in District Bareilly does on the average high of 1090 F (430 C) with the average low for 790 F (260 C). 61. We have given the above data of the average temperature during the month of May for the purpose of looking into the post mortem effects occurred on the dead body like rigor mortis and putrefaction of the dead body. 61. We have given the above data of the average temperature during the month of May for the purpose of looking into the post mortem effects occurred on the dead body like rigor mortis and putrefaction of the dead body. In Modi’s Medical Jurisprudence and Toxicology (Supra), it is said that the signs of death at early stage are changes in the eyes, changes in the skin, cooling of the body, cadaveric lividity, hypostasis out post mortem staining. The signs at late stage are (1) cadaveric changes in the muscles (rigor mortis), (2) Putrefaction or decomposition, (3) Adipocere and (4) Mummification. 62. In the case before us, we found that the learned counsel for the defence was eager to know about the ultimate condition of the dead body on the date of post mortem i.e. 18.05.1987 at 04:00 P.M. The date of the incident is 16.05.1987 at about 06:00 P.M. to 06:30 P.M. in the evening. It means that post mortem occurred after approximately 46 hours after the incident. In cross-examination, P.W.-3 elicited the ultimate condition of the dead body on the relevant date and time of the post mortem that putrefaction of the dead body began till then. P.W.-3 stated that he did not find marbles on the dead body. He further added that marbles on the dead body used to remain to a maximum time of 48 hours, however, generally it vanishes from the body within the period of 36 hours from the date of death. He further stated about the bristles over the dead body here and there which occurred only after the cracks in the skin. In the cross-examination, doctor (P.W.-3) denied from the existence of worms, however, there was foul smell oozing out from the dead body. 63. Since the dead body was proved devoid of any cadeveric rigidity or rigor mortis which is also known as death stiffening due to which irreversible changes in the muscles of the body occurred both voluntarily and involuntarily. The state of inelasticity and rigidity is called rigor mortis, which generally occurs while the body is cooling. The rate of cooling of the body may be influenced by reason of age, condition of the body, manner of death and surrounding of the body. The body of young and middle age persons who have a relatively bigger size, cool more slowly then the bodies of children and old people. 64. The rate of cooling of the body may be influenced by reason of age, condition of the body, manner of death and surrounding of the body. The body of young and middle age persons who have a relatively bigger size, cool more slowly then the bodies of children and old people. 64. Here in the case before us, the deceased was a person of middle age of 55 years. Likewise, the surrounding of the dead body also effects the cooling of the dead body. The dead body lying on earth or stone slab in the open air cools rapidly. Thereafter, owing to the setting in the rigor mortis, the muscles of the dead body becomes stiff, opaque and contracted. Rigor mortis first appears in the involuntary muscles and then in the voluntary muscles. The time of onset of rigor mortis varies greatly in differed cases but the average period of its onset may be recorded as 3 to 6 hours after the death in temperate climate and it may take 2 to 3 hours to develop. In India, it usually commences in 1 or 2 hours after death. Duration of the rigor mortis in temperate region usually lasts for 2 to 3 days. In Northern India, the usual duration is of 24 to 48 hours in winter and 18 to 36 hours in summer (District Bareilly in the region of Northern India in the month of May in summer usually suffers a high temperature throughout the day). When rigor mortis sets in early, it passes up quickly and vice versa. In general, rigor mortis sets in 1 to 2 hours after death, is well developed from head to foot in about 12 hours. 65. Atmospheric conditions also influences the commencement of rigor mortis. It is slow but lasts for a long time in dry whereas its commencement is rapid, duration short in warm, moist airs. With the disappearance of the rigor mortis, the muscles becomes soft and flaccid. This depends on the development of putrefaction, for which the temperature is an important factor. In the Modi’s Medical Jurisprudence and Toxicology (Supra), the putrefaction or decomposition and autolysis is described as below. With the disappearance of the rigor mortis, the muscles becomes soft and flaccid. This depends on the development of putrefaction, for which the temperature is an important factor. In the Modi’s Medical Jurisprudence and Toxicology (Supra), the putrefaction or decomposition and autolysis is described as below. “Putrefaction is a certain sign of death, it is slow process and consists of softening and liquefaction brought about by the digestive action of enzymes released after death from tissue cells, this autolysis can occur even in sterile conditions, such as seen in a macerated dead foetus. Also ferments are produced by living saprophytic micro-organisms, which resolve the complex organized tissues of the body into simpler, inorganic compounds. These micro-organisms are both aerobic and gas-forming anaerobic predominantly being cl. Welchii, B Proteus, B. Coli, streptococci and staphylococci and during life are found in large numbers in the alimentary canal but, within a short time after death, are found scattered in the blood and in all the tissues and organs. Postmortem haemolysis is caused by the enzyme lecithinase, which also helps in the hydrolysis and hydrogenation of body fat. As a result of their action the dead body invariably putrefies unless special means are taken to prevent their access or the tissues are rendered unfit for their use. The skeletal remains and the teeth resist putrefaction the most. ” 66. The medical witness (P.W.-3) has also opined that the decomposition of the dead body begins approximately 12 hours after the death. He has also stated about vanishing of the rigor mortis on the dead body when the post mortem was done. The foul smelling of the dead body by reason of gases was also observed. It is stated in the Modi’s Medical Jurisprudence and Toxicology (Supra) at 437:- “From 12 to 18 hours after death in summer, these gases collect in the intestine, resulting in the swelling up of the abdomen. The sphincters relax, and the urine and faeces may escape.” 67. It is stated in the Modi’s Medical Jurisprudence and Toxicology (Supra) at 437:- “From 12 to 18 hours after death in summer, these gases collect in the intestine, resulting in the swelling up of the abdomen. The sphincters relax, and the urine and faeces may escape.” 67. As such, depending on the weather condition of the District Bareilly when the dead body was brought before the P.W.-3 for post mortem, no doubt the P.W.-3 had correctly opined the dead body approximately 2 days old as we had also counted the time when the autopsy was done on the dead body for post mortem examination since the relevant date and time (16.05.1987 at about 06:00 P.M. to 06:30 P.M. in the evening) was approximately 46 hours time had been elapsed. For the above, we have no doubt in the prosecution version with regard to the relevant time and date of killing the deceased “Ram Charan” on 16.05.1987 at about 06:00 P.M. to 06:30 P.M. in the evening. Common intention 68. In the instant appeal the prosecution has arraigned three accused persons as particeps criminis in committing the offence of killing the deceased “Ram Charan”. Section 34 of the Indian Penal Code, 1860 envisages the principle of joint liability arising out of common intention of the accused persons. Section 34 of the Indian Penal Code, 1860 is cited hereunder for ready reference. “34. Acts done by several persons in furtherance of common intention.— When a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone.” 69. When a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it was done by him alone. 70. Though, intention is nowhere defined in the Indian Penal Code, 1860, but finds mentions in Section 34. To constitute liability under this Section, number of persons must be more than one. To constitute an act under Section 34, the following ingredients must be satisfied:- “(i) Criminal Act. (ii) done by several persons. (iii) Active participation in the criminal act. (iv) pursuant to their common intention” 71. To constitute liability under this Section, number of persons must be more than one. To constitute an act under Section 34, the following ingredients must be satisfied:- “(i) Criminal Act. (ii) done by several persons. (iii) Active participation in the criminal act. (iv) pursuant to their common intention” 71. It must be kept into mind that to fix joint liability there must be a blatent act which manifests the common intention. The presence and participation of the accused persons is required at the scene of the crime. In other words, there must exist a unity of purpose or pre arranged plan. In other words, common intention denotes the meeting of minds or pre arranged plan wherein unity of purpose may be formed on the spot; it has been given various meanings vide various judgments from time to time. 72. In Mahbub Shah Vs. Emperor, AIR 1945 PC 118 , it was observed that the participation in a criminal act of a group is a condition precedent in order to fix joint liability. What the “Common Intention” means is held in Saidu Khan Vs. the State, AIR 1951 Allahabad 21 (FB), “it also means evil or ill will intention to commit some criminal act, but not necessarily the same offence which is committed”. In Kripal Singh Vs. State of U.P. AIR 1954 SC 706 , an exception was made to the general rule of the common intention by the Apex Court, “Common intention may develop on the spot as between a number of persons and this is to be inferred from the act and conduct of the accused and facts and circumstances of the case.” 73. In view of the aforesaid position of law on common intention, in the present case before us, where there is no direct and cogent evidence to a pre arranged plan, we have to gather from evidences, the attending circumstances and conduct of the accused persons so as to infer the element of common intention of the accused persons behind killing of the deceased “Ram Charan”. 74. The proved fact of ‘motive’ in the present case, shall also be a fact relevant to infer the common intention. The accused persons having been arraigned with the charge of dacoity in the house of deceased “Ram Charan” were anxious to get rid from the criminal case running in this regard. 74. The proved fact of ‘motive’ in the present case, shall also be a fact relevant to infer the common intention. The accused persons having been arraigned with the charge of dacoity in the house of deceased “Ram Charan” were anxious to get rid from the criminal case running in this regard. The date was fixed 20.05.1987 for recording of the prosecution evidence in that case was an important cause which led the accused persons to commit the offence in question. Further, from the evidence of P.W.-1 and P.W.-2 it is proved conduct of the accused persons that they appeared around the spot of the incident simultaneously, the accused Naresh armed with a country made pistol when appeared pouncing towards the deceased “Ram Charan”, he tried to run towards East, accused Net Ram armed with spear and Krishna Pal with a country made pistol intercepted his way, thus, they acted in concert. The conduct of the accused persons of circumscribing and intercepting the deceased “Ram Charan” in all possible directions where he could have escaped from the scene of the incident, is very much relevant for inferring a pre arranged plan. The purpose of pre arranged plan was to kill deceased “Ram Charan” which is undoubtedly a criminal act. Every accused amongst the group of three, acted in concert with each other, either by making fire on the deceased, inflicting blow of the spear, intercepting the way from all directions, undoubtedly signifies active participation of them in the incident on spot. 75. Therefore, we are of the considered opinion that the accused persons committed the offence on the relevant date and time of the incident in pursuance of their common intention and purpose to kill the deceased “Ram Charan” and they are liable for the result of their act which is consequent in the brutal killing of the deceased “Ram Charan”. Each and every accused persons is, therefore, liable for the killing of the deceased “Ram Charan” jointly. Defence – Plea of alibi 76. In cross-examination of P.W.-2 (the first informant), admittedly, accused Krishna Pal is resident of village Bahadurpur Gautiya to which the informant P.W.-2 also belongs. During cross-examination by the defence, suggestion made to him, as to Krishna Pal’s absence in the village on the date of incident (16.05.1987) and that he had gone to attend the marriage of his brother-in-law Nawab. He negated the above suggestion. During cross-examination by the defence, suggestion made to him, as to Krishna Pal’s absence in the village on the date of incident (16.05.1987) and that he had gone to attend the marriage of his brother-in-law Nawab. He negated the above suggestion. It comes out from the cross-examination of P.W.-2 that the in-laws of the accused Krishna Pal hail from village ‘Musia Nagla’ in District Badaun. He also negated the suggestion that they had gone to attend the marriage of ‘Nawab’ on the date of incident. As such the learned counsel tried to set forth but remained unsuccessful in proving the plea of alibi in defence of the accused Krishna Pal. In cross-examination of P.W.-2, the defence counsel remain unsuccessful in eliciting admission of the suggested presence of accused Krishna Pal on the relevant date and time of incident in Village Musia Nagla in connection with the marriage of ‘Nawab’. 77. It is held in State of Haryana Vs. Sher Singh and Others, (1981) 2 Supreme Court Cases 300, when a plea is particularly taken in defence by the accused, the burden of proving the same lies on the defence. The plea of alibi taken by the accused in the instant case was required to be pleaded specifically and necessarily to be proved by him. 78. To elaborate this burden, we reproduced hereunder Section 103 of the Indian Evidence Act, 1872:- “103. Burden of proof as to particular fact.—The burden of proof as to any particular fact lies on that person who wishes the Court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person. Illustration 1[(a)] A prosecutes B for theft, and wishes the Court to believe that B admitted the theft to C. A must prove the admission. B wishes the Court to believe that, at the time in question, he was elsewhere. He must prove it.” 79. When the accused Krishna Pal was confronted under Section 313 of the Cr.P.C. by the trial judge with the evidence of prosecution witness as to his presence on the spot of the incidence, he simply replied the same as ‘not correct’ but when asked about the defence, if any, he again replied ‘No’. He must prove it.” 79. When the accused Krishna Pal was confronted under Section 313 of the Cr.P.C. by the trial judge with the evidence of prosecution witness as to his presence on the spot of the incidence, he simply replied the same as ‘not correct’ but when asked about the defence, if any, he again replied ‘No’. As such, in his defence, the accused has not taken particularly the plea of alibi, then also the defence counsel has produced the witness D.W.-1 and D.W.-2 for proving his plea of alibi by oral evidences. 80. Once the prosecution is successful in discharging the burden, it is incumbent on the accused who takes the plea of alibi to prove it with absolute certainty. An alibi is not an exception envisaged in the Indian Penal Code, 1860 or any other law, it is a rule of evidence recognized by the Section 11 of the Indian Evidence Act, 1872 that facts inconsistent with facts in issue are relevant. However, it cannot be sole link or sole circumstance to uphold conviction. When a person is charged with murder, he is to prove that he was elsewhere to the satisfaction of the Court. When the prosecution accuses a person of having committed the murder, it would be a complete answer to the accusation for that person to plead that he was at that time elsewhere; this has ofcourse no reference to offence in which time or place are not material factors; and if that person succeeds in establishing that plea technically called the plea of alibi he will be entitled to an acquittal. The plea must be taken at the earliest opportunity, like, at the stage of framing of charge or when the accused disclose a defence prior to the trial. The ultimate opportunity during the trial may be availed by him at the stage of examination of accused under Section 313 Cr.P.C. 81. In the case before us, the accused had not taken in his defence the plea of alibi, either at the stage of charge or at the stage of his examination under Section 313 Cr.P.C. during the trial. The ultimate opportunity during the trial may be availed by him at the stage of examination of accused under Section 313 Cr.P.C. 81. In the case before us, the accused had not taken in his defence the plea of alibi, either at the stage of charge or at the stage of his examination under Section 313 Cr.P.C. during the trial. Since the learned counsel for the defence for the accused ‘Krishna Pal’ remained unsuccessful in carving out from cross-examination of the prosecution witnesses the fact of presence of the accused ‘Krishna Pal’ elsewhere than the specifically proved by the prosecution on the spot of the incident in Village Bhimlor, therefore, leading of evidences on plea of alibi was not legally permissible. 82. Despite the above legal discussion about the plea of alibi not taken by the accused ‘Krishna Pal’ in his defence, we have gone through the statement of witnesses namely D.W.-1 “Veer Singh” and D.W.-2 “Smt. Rajwati”. Both the witnesses have only proved, by their oral evidences, their relation with accused ‘Krishna Pal’. So far as the marriage of Nawab, the younger brother of the D.W.-1 is concerned, no specific time, date and year had been given by the witness. Before the Court, only the proximate time of 2 ½ month less three years from the date of recording of evidence i.e. 23.01.1990 was stated. However, “when the marriage of Nawab taken place”, is not in issue. The issue is, whether the accused ‘Krishna Pal’ attended the marriage of Nawab. To prove that fact, the defence was required to prove (1) the exact time of arrival of the accused ‘Krishna Pal’ in Village ‘ Musia Nagla’, District Badaun and the period for which he stayed there, (2) the means by which, he travelled the distance about 20 miles from Village ‘Bahadurpur Gautiya’ to Village ‘Musia Nagla’, as it has been stated by the D.W.-1 that both the stations are connected by rail network, (3) the absence of accused ‘Krishna Pal’ for a particular period to be proved by some independent witness belonging to Village ‘Bahadurpur Gautiya’ or of any village situated in it’s nearby locality. Both the witnesses D.W.-1 and D.W.-2 who are husband and wife are silent on these points so as to prove the fact on which specific date, the accused ‘Krishna Pal’ with his family, left the Village ‘Bahadurpur Gautiya’ and reached in Village ‘Musia Nagla’. Both the witnesses D.W.-1 and D.W.-2 who are husband and wife are silent on these points so as to prove the fact on which specific date, the accused ‘Krishna Pal’ with his family, left the Village ‘Bahadurpur Gautiya’ and reached in Village ‘Musia Nagla’. The defence witnesses are also silent on the fact that by which means they travelled the distance of 20 miles. Further, no independent witnesses are produced to examine in defence to prove the fact of staying within the specific period in Village ‘Musia Nagla’ which covers the date of incident (16.05.1987). 83. In our considered opinion, the evidence of defence witnesses D.W.-1 and D.W.-2 are not reliable for disproving the proved case of prosecution as to the participation of accused ‘Krishna Pal’ with other co-accused in commission of the offence of killing the deceased ‘Ram Charan’ on 16.05.1987 at the spot of the incident in Village ‘Bhimlor’. Delayed First Information Report 84. The first information report with regard to the incident dated 16.05.1987 occurred at about 07:00 P.M., was lodged in the Police Station Aonla, District Bareilly on 17.05.1987 at about 06:30 A.M. whereas the distance of the police station from the spot of the incident is shown in the first information report itself 14 Km. The learned counsel for the appellant contended that the lodging of the first information report of the incident with extra ordinary delay casts a doubt as to the genuineness of the lodging of the first information report and proved to be on consultation with the police and after thought step taken by the informant. 85. Before looking into the evidence of P.W.-4, the Investigating Officer, we think it pertinent to go back through the evidence of P.W.-2, who is the first informant of the incident who had given the information of the incident orally on 17.05.1987 to the scribe of the report, the Head Moharrir in the Police Station Aonla, District Bareilly. This oral information was reduced into writing by the Head Moharrir and first information report was lodged by him at about 6:30 AM in the morning of 17.05.1987. P.W.-2 in his examination-in-chief, has stated that in the night he did not muster courage to travel upto the police station due to fear of life, he moved to inform the police only after the village Chowkidar ‘Kishan’ met him at about 4:00 A.M. in the morning of 17.05.1987. P.W.-2 in his examination-in-chief, has stated that in the night he did not muster courage to travel upto the police station due to fear of life, he moved to inform the police only after the village Chowkidar ‘Kishan’ met him at about 4:00 A.M. in the morning of 17.05.1987. He accompanying the chowkidar reached the police station at about 6:00 A.M. and informed orally about the incident to the Head Moharrir. In cross-examination, P.W.-2 was confronted with the question about the distance between the spot of the incident and the house of village Chowkidar Kishan, to which he replied that the distance is about 60 paces and further added that by the time of incident, the village Chowkidar was not present in the village, he came after about 20 minutes to the incident on the spot. He was further given suggestion as to the assistance of villagers for filing first information report of the incident, he answered, “none of the person amongst the villagers or the village Chowkidar offered to stay in the village and they would lodge the first information report in the police station” and none of them suggested him to go and come with the licensed gun of his father and to go to the police station instantly for lodging report. He further added that he went to the police station on foot. He further added that since he was not a native of the village of his father-in-law, therefore, he did not know about the people having vehicles like motor cycles. Even P.W.-2 denied any means of transportation from the village to Police Station Aonla, like, bus and tonga in the night. Though he travelled continuously with speed but could not reach the police station before 6:00 A.M. in the morning. The distance of the police station from the spot of the incident is about 5 to 5 and 1/2 kose (1 Kose = 1.8 Km.). He expressed his ignorance about the measurement of kilometre, therefore, unable to state that the Police Station Aonla was stated at a distance of 20 km. from the spot of the incident. He further stated that after lodging the first information report, he came back with police in their jeep on the spot of the incident at about 12:00 P.M. to 01:00 P.M. 86. from the spot of the incident. He further stated that after lodging the first information report, he came back with police in their jeep on the spot of the incident at about 12:00 P.M. to 01:00 P.M. 86. The trial court has observed that the witness P.W.-2 used to wear wrist watch and could read the time in the watch. The police after reaching on the spot of the incident, inspected the dead body for 10 to 15 minutes and took his statement on the spot of the incident itself, the Investigating Officer prepared the other relevant papers on the spot. 87. Nothing could be carved out from the cross-examination or suggestion that there was no fear of life to the informant himself after the incident of killing of deceased “Ram Charan”. Even the distance between the spot of the incident and the police station was also not shown or established otherwise than stated by the witness. The witness has stated that he left the spot of the incident with village Chowkidar in the morning of 17.05.1987 at about 4:00 A.M. 88. We generally find the average time, about the distance a human being can cover in single foot step by walking, that the average walking speed of the human is 3 to 4 miles per hour. The distance that a fit person can walk and an average person can walk depends on the age and fitness of the person. P.W.-2 is a young and fit person of the age about 30 years at the relevant time of the incident, could not be believed that he walked more or less 3 to 4 miles. The distance of the police station from the spot of the incident is given in the first information report is approximately 14 km., as such, the distance of 14 km. travelled by the witness P.W.-2 with village Chowkidar at an average speed of 3 to 4 miles per hour, it seems to have correctly stated in the cross-examination that he took time by speedily going at 04:00 AM to the police and reached there at 6:15 AM is believable. P.W.-4 has proved the first information report lodged by his Head Moharrir and the chik report as Ex. Ka-1, as the Head Moharrir “Veer Bahadur Saxena” was subordinate to him and he was acquainted with the handwriting and signature of the Head Moharrir “Veer Bahadur Saxena”. 89. P.W.-4 has proved the first information report lodged by his Head Moharrir and the chik report as Ex. Ka-1, as the Head Moharrir “Veer Bahadur Saxena” was subordinate to him and he was acquainted with the handwriting and signature of the Head Moharrir “Veer Bahadur Saxena”. 89. Thus, the proved document of Ex. Ka.-1 relates with the statement of P.W.-2 and, therefore, the time taken after the commission of incident in lodging the first information report is well explained and cannot be doubted with regard to the genuineness of the information and lodging of the first information report. Moreover, the P.W.-4 has not been given any suggestion as to the enmity of the police personnels, particularly, the Investigating Officer with any of the accused persons, therefore, the argument as to his interestedness in proceeding against the accused persons is not acceptable and the proof of the document prepared in due course of procedure in accordance with the Criminal Procedure Code cannot be doubted or rebutted only on the suggestion of the accused persons that the first information report was an after thought and was purposely lodged with extra ordinary delay. The argument is further not acceptable as against the proved case of prosecution with regard to the complicity of the accused persons in the killing of the deceased “Ram Charan”. As such, we find no case of miss-appreciation of evidence on record or non-consideration thereof as well as misconstruction of the evidence in recording conviction. Operative 90. On the discussion made hereinabove, we do not find any infirmity in the judgment of conviction and order of sentence dated 25.05.1990 passed by the Additional Sessions Judge, Bareilly in Sessions Trial No.394 of 1987 (State Vs. Netram and Ors.), under Section 302 read with Section 34 of the Indian Penal Code, 1860, the appeal, therefore, deserves to be dismissed, and is hereby dismissed. 91. The judgement of conviction and order of sentence in Sessions Trial No. 394 of 1987 (State Vs. Netram and Ors.), under Section 302 read with Section 34 of the Indian Penal Code, 1860 is affirmed. 92. Certify this judgment to the court below for further necessary action and compliance. The lower court record be sent back to the trial court for further action.