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2022 DIGILAW 562 (ALL)

Mohan v. State of U. P.

2022-04-13

SUNITA AGARWAL, VIKAS KUNVAR SRIVASTAV

body2022
JUDGMENT : Vikas Kunvar Srivastav, J. 1. The instant criminal appeal has arisen out from the judgment of conviction and order of sentence dated 16.11.1989 passed by the Additional Sessions Judge, Mathura in Sessions Trial No. 187 of 1988 (State Vs. Mohan & Ors.) under Sections 147, 148, 149, 302, 201 of Indian Penal Code, 1860, Police Station-Sadabad, District Mathura. Accused-applicant Satendra convicted under Section 147/302 read with Section 149 and 201 Indian Penal Code, is sentenced with life imprisonment and one year rigorous imprisonment for the offence under Section 147 of the I.P.C.; three years rigorous imprisonment under Section 201/149 I.P.C. The accused Mohan and Randheer Singh, convicted under Sections 148/302 I.P.C. read with Section 201/149 I.P.C. are sentenced for two years rigorous imprisonment for the offence under Section 148 I.P.C and three years rigorous imprisonment under Section 201/149 I.P.C. They are sentenced with life imprisonment under Section 302 I.P.C. 2. The present appeal is preferred by three named convicted accused persons namely Satendra S/o Gopichandra, Mohan Singh S/o Brijpal and Randheer S/o Manohar Singh. Two appellants Satendra and Mohan Singh had died during the pendency of the appeal. The present appeal on their behalf stood abated. The appellant no.2, Randheer Singh is the sole surviving appellant in the present appeal. He is in jail since 16.2.2022, in execution of a non-bailable warrant issued by this court for default in the condition of bail granted to him. Factual Matrix 3. Briefly stating the prosecution case as emerging from the written information submitted by the brother of the deceased namely Banwari in the morning of 26.2.1988 is that at about 9:15 p.m. in the intervening night of 25/26.2.1988, he with his mother Shantidevi, his brother-in-law Suresh Kumar and deceased Prakash were going from their dwelling house at Village Garh Umrao to the place of stay of their guests (Nohra) to meet them. Accused Randheer Singh a native of the same village suspecting that the deceased (Prakash) had illicit relation with his sister Kamla, was inimical to him. He was looking for the opportunity to kill him. Accused Randheer Singh a native of the same village suspecting that the deceased (Prakash) had illicit relation with his sister Kamla, was inimical to him. He was looking for the opportunity to kill him. When the informant, his deceased brother and mother alongwith Suresh kumar, (brother-in-law of the informant) were on way to Nohra, accused Mohan Singh armed with Katari (Rapier -a little sword type weapon) and Randheer armed with knife with the accused Satendra and two other unknown assailants were seen standing in front of the door of the house of accused Mohan. Satendra and two unknown persons embraced from behind the deceased Prakash and clung with him. Mohan and Randheer Singh began to inflict blows of their Katari and knife on the deceased Prakash from his front side. When the brother-in-law of the informant, the informant himself and his mother tried to rescue him they threatened them to kill them. On their hues and cries, sons of maternal uncle of the informant namely Vijay Kumar and Madan Lal alongwith some other native villagers rushed to the spot who had seen the incident. None of them came ahead to rescue the deceased under fear of the assailants. They (assailants) dragged away the dead body of Prakash from the door of the accused Mohan’s house to a Dharmshala (hospice) across the road and tried to burn the dead body pouring kerosene oil thereon. The blood stained and half burnt dead body was lying on the door of Dharmsala (Hospice) and the Katari (Rapier) with which the deceased was stabbed to death was found thrown near the dead body. On the basis of the written information submitted by Banwari (brother of the deceased Prakash) in the Police Station -Sadabad, District-Mathura the first information report was lodged bearing Criminal Case No.52 at about 4:30 a.m. of 26.2.1988. The First Information Report reveals the distance between the spot of incident in village Garh Umrao and the police station Sadabad about 18 K.M. far away towards south. Three persons were named as accused in the First Information Report namely Mohan, Randheer and Satendra, all residents of Village Garh Umrao, Police Station-Sadabad, District Mathura with two unknown assailants to whom the informant stated that he could identify whenever they come before him. 4. After registering the First Information Report police conducted the proceeding of inquest, prepared relevant papers thereto. 4. After registering the First Information Report police conducted the proceeding of inquest, prepared relevant papers thereto. The dead body was sealed and handed over to Sepoy Teekam Singh and Rajan Singh for carrying the same for post-mortem examination in District Head Quarter at Mathura. Thereafter, the Investigating Officer proceeded to enquire the spot of the incident, prepared site map, collected blood stained soil and plain soil earth, hairs found at the spot, Katari (Rapier -a little sword type weapon), the blood stained ash of soil, burnt garments, slippers, seized them all and handed over to the companion police officer who entered all the seized samples and articles in the G.D. register on 26.2.1988 promptly at about 7:58 o’clock as entry no.29. The blood stained soil, plain soil and blood stained ash and clothes were sent to the Forensic Science Laboratory for examination. After receiving the report therefrom and the post mortem report, the charge-sheet was submitted before the court concerned. On committal of the case for trial, the Additional Sessions Judge, Mathura charged the accused Mohan, Randheer with Section 148/302 read with Section 149 I.P.C. and Section 201 I.P.C. and the accused Satendra was with Section 147/302 read with Section 149 I.P.C. and Section 201 I.P.C. for which they were tried further. 5. The prosecution proposed to prove the case before the trial court by witnesses and documents given here below in a table for the purpose of easy reference:- P.W.-1, Shanti Devi (mother of the deceased), the eye witness. Proved the written report Ex. Ka-1 Ex.(i) Katari (Rapier -a little sword type weapon) identified by PW-1 and P.W.-6 as weapon of the crime. Ex.(ii) blood stained and half burnt Dhoti. Ex(iii) half burnt Baniyan. Ex(iv) half burnt under garment. Ex(v) half burnt blood stained piece of the shirt identified as the clothes wore by the deceased at the time of incident. P.W.-2, Kamal Kishore Proved Chick report Ex. Ka-2 Copy of the G.D. reports at Sr. No.5 dated 26.2.1988 Ex. Ka-3 Copy of the G.D. report no.29 dated 26.2.1988 in the signature and hand writing of B.P. Singh, S.S.I. Ex. Ka-4 P.W.-3, Sepoy Teekam Singh P.W.-4, Dr. B.K. Gupta Proved Post mortem report Ex. Ka-5. P.W.-5, J.P. Gautam Proved copy of the G.D. having report at Sr. Ka-2 Copy of the G.D. reports at Sr. No.5 dated 26.2.1988 Ex. Ka-3 Copy of the G.D. report no.29 dated 26.2.1988 in the signature and hand writing of B.P. Singh, S.S.I. Ex. Ka-4 P.W.-3, Sepoy Teekam Singh P.W.-4, Dr. B.K. Gupta Proved Post mortem report Ex. Ka-5. P.W.-5, J.P. Gautam Proved copy of the G.D. having report at Sr. No.4 about 3:20 a.m. dated 26.2.1988 who send the information for lodging the report at Police Station posted at Police post Mai, Police Station Sadabad on 26.2.1988 who proved the G.D. at Sr. No.4 regarding his departure from the Police Station to the spot of incident Ex. Ka-6 Inquest report and other relevant papers Ex. Ka-7 to Ex. Ka-10 Copy of the First Information Report sent with the dead body to the post-mortem house Ex. Ka-11. P.W.-6, B.D. Sharma, the Investigating Officer Site map Ex. Ka-12 Memo of the sample collected from the spot namely plain soil, blood stained soil, blood stained Katari (Rapier - a little sword type weapon), ash, piece of clothes worn by the deceased at the time of the incident, two slippers, etc.1 Ex. Ka-13. 6. After recording the statement of prosecution witnesses produced before the trial court for examination the accused persons were confronted with the evidence coming from the statement of prosecution witnesses seeking their explanation. Arguments of the learned counsels 7. The instant appeal is pending since 1989 and is one of the oldest pendency in this court, therefore, we paid a lengthy and anxious hearing to the learned counsel for the sole surviving appellant Randheer Singh and learned A.G.A. for the State. 8. Learned counsel for the appellant opened his arguments with the contention that the first informant of the case, ‘Banwari’ was not produced before the trial court for his examination in support of the prosecution case. He further submitted that the independent witnesses were not examined to prove the prosecution story with regard to killing of the deceased Prakash as stated in the First Information Report. The deceased Prakash himself was a man of mischievous character, had inimical relation with numerous people of the locality, might have been murdered by some anonymous enemies. He further submitted that the independent witnesses were not examined to prove the prosecution story with regard to killing of the deceased Prakash as stated in the First Information Report. The deceased Prakash himself was a man of mischievous character, had inimical relation with numerous people of the locality, might have been murdered by some anonymous enemies. The police with a view to show good work has arraigned falsely the accused persons namely Randheer Singh, Mohan Singh and Satendra and with a view to bring them in vicarious liability with the aid of penal provisions of Section 147, 148 and 149 of the I.P.C. shown them committing the offence with their two anonymous companions. The next argument of the learned counsel for the appellant with regard to the falsity of the case based on the allegation as to the First Information Report being ante timed. 9. Learned counsel further impressed on the fact that no one else than the mother of the deceased, who is highly interested witness, is posed as the eye witnesses by the prosecution. Her evidence as eye witness is also false because she is the only one amongst many people who were present on the spot of the incident as alleged eye witness. It is also argued that the weapon of the crime is alleged to be a Katari (Rapier -a little sword type weapon) and a knife and the manner of commission of crime is said to by inflicting blows thereof on the front portion of the body whereas the post-mortem report shows the skull bones and vertebra of the dead body were broken. The ocular evidence as such does not find support from the medical evidence. It is also argued that the identification of the accused was not possible as there was dark night on the relevant date and time of the incident. The mother of the deceased ‘Shanti Devi’, the alleged eye witness, could not have seen the incident in dark. He further argued that the spot, where the accused persons allegedly attacked the deceased Prakash, is a place distinctly different from the place where the dead body was inspected at the time of inquest in a Dharmsala (Hospice). It is alleged but not proved that the deceased was dragged away upto Dharmsala (Hospice) where his body was burnt. He further argued that the spot, where the accused persons allegedly attacked the deceased Prakash, is a place distinctly different from the place where the dead body was inspected at the time of inquest in a Dharmsala (Hospice). It is alleged but not proved that the deceased was dragged away upto Dharmsala (Hospice) where his body was burnt. It is not made clear that wherefrom the kerosene oil used for burning the body, was procured or which of the assailants brought the kerosene oil. No container of kerosene oil was found near the place where the body was found half burnt. Learned counsel for the appellant submitted that the motive though set in the First Information Report itself but has not been proved, as such, in the absence of the motive for commission of offence, the accused appellants cannot be held guilty. 10. On the aforesaid ground, the learned counsel for the appellant submitted that the judgment of conviction and order of sentence are suffering from mis-appreciation of evidence on record and even the prosecution remained unsuccessful in proving its case beyond all reasonable doubt. The learned Additional Sessions Judge, Mathura convicted the accused appellants under Sections 148 and 149 of the I.P.C. and also in the aid of the Sections 302 and 201 of the I.P.C. Learned counsel for the appellants impressed on the fact that two unknown assailants as companions of three named accused persons could not be identified throughout the trial. The judgment and order of conviction, therefore, is not sustainable in the eye of law. 11. Learned A.G.A. in rebuttal submitted that the prosecution case is proved by direct and first hand evidence of the eye witness namely Shantidevi (mother of the deceased Prakash). The motive, thus, does not play any role in deciding the liability of the accused for commission of the offence. Rebutting the argument as to the failure of the prosecution in producing witnesses in addition to and other than the closely related and highly interested witness Shanti Devi it was argued that the Indian Evidence Act, 1872 does not require the quantity of witnesses for proving a fact in issue but relies on the quality of the witness only. Rebutting the argument as to the failure of the prosecution in producing witnesses in addition to and other than the closely related and highly interested witness Shanti Devi it was argued that the Indian Evidence Act, 1872 does not require the quantity of witnesses for proving a fact in issue but relies on the quality of the witness only. If the witness has succeeded in crossing the test of trustworthiness and credibility on the norms setforth by the Evidence Act and the judgments of our courts, undoubtedly conviction can be based on evidence of the sole witness also. Moreover, the evidence of the sole witness is sufficiently corroborated with the other evidence on record like the post mortem report and the inquest report. The murder weapon blood stained Katari (Rapier) collected from the spot of the incident near the dead body, the blood stained soil, simple soil, ash of the blood stained soil, blood stained piece of clothes, undergarments worn by the deceased at the time of incident, all were sent for forensic examination, the reports whereof verify and confirms human blood thereon. The evidence of formal witnesses proving the proceeding of inquest and other relevant memos are also corroborating the manner of commission of offence by the accused persons as stated by the P.W.1 (mother of the deceased). 12. Learned A.G.A. argued that even motive is proved by the oral evidence in examination of PW-1 when she replied that when the accused Randheer Singh complained her of suspected illicit relation of his married sister with the deceased Prakash, she forbade and explained him that it was improper. The incident is of the year 1988. The milieu of the rural locality in District Mathura even today is not free of apprehension of honour killing in such suspicion. The people of the patriarchal society usually feel dishonour when such illicit relations come into light. No one from the locality came forward on the hue and cry by the mother of the deceased to rescue and save the life of the deceased. This is why other independent witnesses could not be produced by the prosecution in the trial court out for the fear of the people of the locality. 13. Learned A.G.A. lastly submitted that the F.I.R. was promptly lodged in the morning of 26.2.1988 at 4:30 a.m. of the incident occurred at about 9:15 p.m. in the nights of 25/26.2.1988. This is why other independent witnesses could not be produced by the prosecution in the trial court out for the fear of the people of the locality. 13. Learned A.G.A. lastly submitted that the F.I.R. was promptly lodged in the morning of 26.2.1988 at 4:30 a.m. of the incident occurred at about 9:15 p.m. in the nights of 25/26.2.1988. It was the winter season of February, the locality was rural, distance of the Police Station was 18 k.m. police post in-charge (PW-5, J.P. Gautam) posted at the police post Mai proved that the informant Banwari had come to his police post with information of the incident at about 3:20 a.m. but as the police post was not the reporting police post, therefore, P.W.5 redirected him to go to the Police Station-Sadabad for lodging the First Information Report. The aforesaid fact with the chronological sequence of other events occurring in between the time of the incident and the time of lodging the F.I.R. is not unexplained whereupon the lodging of F.I.R. may be termed as ante timed. Moreover, there is no such evidence of interestedness of police for lodging the F.I.R. ante timed against the accused person. The argument as to ante timed F.I.R. is not acceptable. The judgment of the trial court regarding conviction and sentence dated 16.11.1989 is not suffering from any error or mis-appreciation of evidence. The same deserve to be affirmed with the dismissal of the appeal. Discussion 14. Before discussing the evidence on record with regard to the manner and mode in which the offence in question has been committed and the liability of the accused appellants, it would be pertinent to reproduce an extract from the judgment of Apex Court in Shivaji Sahab Rao Bobade Vs. State of Maharashtra, (1973) 2 Supreme Court Cases 793 (801) which deals an incident of murder in a rural area where the witnesses to the case were rustic and so it was observed that their behavioural pattern perceptive and un-perceptive habits have to be judged as such. The relevant para from the aforesaid judgment 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 relevant para from the aforesaid judgment 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 postmortem 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." 15. It would not be out of relevance to impress on the fact that from the evidence on record it can be seen that PW-1 is a rustic villager women and mother of the deceased (Prakash). While appreciating the evidence of such witnesses, the Apex Court in Bharwada Bhoginbhai Hirjibhai Vs. State of Gujarat (1983) 3 Supreme Court Cases 217, has held that the court has to keep in mind that- "(1) By and large a witness cannot be expected to possess a photographic memory and to recall the details of an incident. While appreciating the evidence of such witnesses, the Apex Court in Bharwada Bhoginbhai Hirjibhai Vs. State of Gujarat (1983) 3 Supreme Court Cases 217, has held that the court has to keep in mind that- "(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. 16. With a view to appreciate the testimony of the eye witness, we have to consider and look for the following factors appearing in her testimony. (i) credibility of the witness of fact (eye witness). (ii) presence of the witness at the spot and it’s probability. (iii) witness having seen the incident. Credibility of the sole witness of fact (eye witness) Fear factor and non production of other witness. 17. It is argued vehemently by the learned counsel for the appellant that by reason of the sole witness of fact and no other supporting oral evidence about the mode and manner of the incident she is not credible. Two named eye witnesses Banwari and Suresh were not produced by the prosecution to prove its case. We gone through the statement of P.W.-1 to see whether non production of two other eye witnesses is explained therein. We find it of relevance to reiterate the mode and manner of the incident as stated in the written information that the anonymous accused persons embraced from behind and clunged the deceased Prakash in their arms, when he reached in front of the house of accused-Mohan. Randheer as well as Mohan wielded their arms respectively knife and Katari (Rapier -a little sword type weapon) with full force on the body of the deceased. He fell down and died on the spot. They dragged away the dead body from the spot of the incident to a Dharamsala (Hospice) where accused Mohan poured kerosene oil on the dead body and lit fire. The accused persons stayed there for 10 to 15 minutes warding off the witness P.W.1 and her companions who were trying to reach near the dead body. They dragged away the dead body from the spot of the incident to a Dharamsala (Hospice) where accused Mohan poured kerosene oil on the dead body and lit fire. The accused persons stayed there for 10 to 15 minutes warding off the witness P.W.1 and her companions who were trying to reach near the dead body. The entire incident, as narrated by P.W.1, even if imagined, is apparently fierce, brutal and gruesome. 18. In the context of aforesaid narration of the incident, when we look into the statement of witnesses PW-1, we find that the written information (Ex. Ka-1) when produced before her in the course of examination, she identified the writing and signature of her son Banwari who scribed the information, as such, the written information alongwith its entire content were proved before the Court. This could not be disproved by the defence either by way of cross examination or by explaining the proved evidence of this fierce, brutal and gruesome incident of killing the deceased Prakash. No explanation was given during examination under Section 313 Cr.P.C. in the trial court. Even with a view to disprove the information and the report with regard to the mode and manner of the incident of killing no defence witness has been produced. 19. Our discussion to this effect is only to notice the factum of fear spread in the society. The fear radiated from the incident was sufficient to prevent a common man, independent or relative to the deceased. For P.W.-1, to come forward during investigation and before the court in the witness box required a lot of courage. It seems P.W.1 being mother of the deceased came forward shunning fear for her own life. 20. In the examination-in-chief, P.W.-1 stated that Banwari, her son, earlier came to the court on the date fixed but he was caught by the accused persons at the tanga stand and they threatened him to cut like his brother Prakash (deceased), if he went to depose in the court. Since, then whereabouts of Banwari was not known to her. She further stated because of fear Madan and Vijay, her two relatives who were eye witnesses did not come forward to depose in the court. Even the trial court has observed both the said persons though were standing in the court room but hearing that statement they went out of the court. She further stated because of fear Madan and Vijay, her two relatives who were eye witnesses did not come forward to depose in the court. Even the trial court has observed both the said persons though were standing in the court room but hearing that statement they went out of the court. This stand explained that other eye witnesses were not willing to depose about the incident in the court by reason of fear and threat to life. P.W.1 stated that none of the villager on alarm raised by her, in course of the commission of the offence, came to rescue the deceased Prakash. This witness, thus, has satisfactorily and sufficiently explained ‘the fear factor’ emerged from the incident, because of its fierce, brutal and gruesome nature, in the society of the village as well amongst the near relatives of the deceased. Even Banwari the scribe of the written information and brother of the deceased was not available as his whereabouts was not known to anyone and his presence could not be procured by the prosecution before the court. Anything contrary to this is not carved out by the defence. P.W.-1 being the only eye witness available before the court to depose about the incident, her credibility cannot be thrashed out by reason of her being a sole witness or being close relative of the deceased allegedly as an interested witness. 21. It is well known principle of law that reliance can be based on the solitary statement of a witness, if the court comes to the conclusion that his statement is the true and correct version of the case of the prosecution. 22. Section 134 of the Indian Evidence Act, 1872 for ready reference is quoted hereunder:- “134. Number of witnesses.—No particular number of witnesses shall in any case be required for the proof of any fact.” It is settled that the courts are concerned with the merit of the statement of a particular witness and they are not concerned with the number of witnesses examined by the prosecution. The time honored rule of appreciating evidence is that it has to be weighed and not counted; the law of evidence does not require any particular number of witness to be examined to prove any fact. The time honored rule of appreciating evidence is that it has to be weighed and not counted; the law of evidence does not require any particular number of witness to be examined to prove any fact. As a rule of caution, based on the testimony of a single witness, the court may classify the oral testimony of a single witness, into three categories namely (i) wholly reliable, (ii) wholly unreliable; (iii) neither wholly reliable nor wholly unreliable. In the third category of cases, the court has to be circumscribed and has to look for corroboration in material particulars by reliable testimony, direct or circumstantial, before acting upon the testimony of a single witness; Lallu Manjhi Vs. State of Jharkhand AIR 2003 SC 254. 23. In Veer Singh Vs. State of U.P. it is held that conviction can be based on the evidence of sole witness in a criminal trial as quality of evidence matters not the quantity. Closely related witness and issue of their interestedness 24. Every witness who is related to the deceased cannot said to be an interested witness. Evidence of close relative cannot be ruled out solely on the ground that they are interested witness. It is, however, duty of the court to scrutinize the evidence of such witnesses very carefully and if there is any doubt with regard to their trustworthiness the court may discard their evidence. Ordinarily, the close relative would be the last person to save the real culprit and falsely implicate the innocent person, hence a mere fact of the relationship of the witnesses with the deceased cannot be a ground to reject the testimony of a witness. 25. It would be relevant to refer the decision of the Apex Court in Darya Singh Vs. State of Punjab, AIR 1965 SC 328 (331) which speaks about related witness, a close relative of the victim that can not be necessarily branded as an interested witness. The Apex Court in Mahendra Singh Vs. State of U.P. (2017) 11 SCC 129 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. The Apex Court in Mahendra Singh Vs. State of U.P. (2017) 11 SCC 129 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. 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". 26. The passage from aforesaid judgment is relied in Vijendra Singh Vs. State of Uttar Pradesh with Mahendra Singh Vs. State of Uttar Pradesh, (2017) 11 Supreme Court Cases 129. 27. 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 discredit 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. But 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’ and ‘14’ 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. But 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’ and ‘14’ 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. 14. In Dalip Singh v. State of Punjab [ AIR 1953 SC 364 : 1953 Cri LJ 1465] it has been laid down as under : “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.” 28. In the present case, P.W.1 (the mother of the deceased Prakash) had no inimical relation with any of the accused persons. Inspite of the fear factor spread in the locality and native villagers and her relatives, she mustered courage to come forward in the court as a witness to depose about the incident in question. In the present case, P.W.1 (the mother of the deceased Prakash) had no inimical relation with any of the accused persons. Inspite of the fear factor spread in the locality and native villagers and her relatives, she mustered courage to come forward in the court as a witness to depose about the incident in question. She has no reason to falsely implicate the accused persons so as to save the real culprits. When the accused Randheer Singh was confronted with the entire prosecution evidence by the trial court under Section 313 Cr.P.C. he has denied any inimical relation with deceased Prakash by reason of the alleged illicit relations with his sister Kamla but when asked whether he want to say something in his defence, he stated something else that Jaipal Singh, who went to lodge the report of the incident in the Police Station Sadabad had falsely implicated them because of a matrimonial dispute between the daughter of the maternal uncle of Jaipal and her husband whow was uncle of accused Randheer Singh. Mahendra and Jaipal called on a panchayat meeting wherein they abused his uncle and threatened him to see further. This so called inimical relation between the accused Randheer’s uncle Subhash and his wife can not be said to have been a distinct concern with the deceased Prakash, his brother Banwari or his mother (P.W.-1) for their interestedness in false implication of the accused persons. In cross examination of P.W.1, the defence has been unsuccessful to fortify the aforesaid vague ground of interestedness of witness. 29. In view of the discussions made hereinabove and in the preceding paragraphs, we are of the considered opinion that P.W.-1 is a trustworthy witness having no interestedness in false implication of the accused persons. If she deposed about the incident without any contradiction or inconsistency, her evidence deserves to be relied for deciding the role and liability of the accused persons in commission of the offence for their conviction. Spot of the incident 30. In written information (Ex.Ka-1) the spot of the incident with regard to the first instance of fatal attack over the deceased Prakash was described as the door of house of the accused Mohan Singh where the accused Randheer Singh and Satendra with two unknown accused were standing with him. Spot of the incident 30. In written information (Ex.Ka-1) the spot of the incident with regard to the first instance of fatal attack over the deceased Prakash was described as the door of house of the accused Mohan Singh where the accused Randheer Singh and Satendra with two unknown accused were standing with him. In continuation of the offence committed on the first spot of the incident, second spot of the incident where subsequent to killing the deceased Prakash accused persons dragged his body was a Dharamsala (Hospice), where they poured kerosene oil on the dead body and lit fire. In cross examination, P.W.1 stated that it was a populated area of village around two spots of the incident. The intervening space from her house to Nohara was populated with the houses of village, the pathway leading from the house and Nohara was about 3 to 4 yards in width, which was not pitched at the time of incident and was ‘katcha rasta’. The place Dharamsala (Hospice) where the dead body of the deceased was burnt was just in across the house of accused Mohan Singh. When the incident took place P.w.1 was proceeding alongwith the deceased Prakash, her son Banwari and a relative of Banwari namely Suresh, from her house to the Nohara and they were nearing the door of the house of accused Mohan. P.W.1 was three to four yards behind the deceased Prakash who was leading them. No inconsistency as to the location of the spot of the incident from that stated in the written information and the examination-in-chief by the P.W.1 could be carved out during her cross examination. Thus, the witness has proved the spot of the incident. Her statement finds further corroboration from the site map drafted on the spot and proved by the Investigating Officer, P.W.6. Further the evidence of P.W.1 as to the spot of the incident finds further corroboration in the recovery memos of Katari (murder weapon) near the dead body of the deceased, blood stained soil, plain soil collected by the investigating officer from the spot and proved as Ex.Ka-13, the half burnt clothes on the person of the dead body. All of them were sent to the Forensic Science Laboratory. All of them were sent to the Forensic Science Laboratory. The material exhibit Katari, blood stained soil, burn ash of the blood stained soil, the clothes worn by the deceased at the time of the incident are Ex.Ka-(i) to Ex. Ka.-(v). All these items were reported to have stained with human blood as is evident from the FSL report. The oral evidence of P.W.1 with regard to the spot of the incident, thus finds corroboration from the aforesaid material evidence. Presence of the witness on the spot and its probability 31. PW-1, Shantidevi (the mother of the deceased), a 60 year old women of the village Garh Umrao has firmly stated in the examination-in-chief and in her cross examination that she alongwith her sons Prakash, Banwari and his relative namely Suresh was going from her home to Nohara (place of stay) where her guest relatives who came to attend the last rite ceremonies of her father-in-law were staying. She further stated that the last rite ceremony (terahvi) was two to three days later from the date of the incident. By the time of the incident, the guest had taken their dinner and PW-1 alongwith her companions was going to meet and sit with them for sometime. She further stated that the Nohara was about 100 yards away from her dwelling house. Since the house was occupied by other guests that time, therefore, at Nohara also there were 4 to 6 cots were laid for the guest relatives. She denied the suggestion given by the defence that at Nohara there was no place to stay. She further replied that neighboring to her dwelling house, the house of her brother-in-law (devar) was situated which consisted of only one room. As such, P.W.1 had made it clear without any contradiction or inconsistency that she had reason to go from her house to Nohara. 32. P.W.1 has further impressed on the statement in the written information of the incident that deceased Prakash was going with her from their dwelling house to Nohara where guests were staying. In cross examination the suggestion of the defence made with a view to illustrate improvement in her statement; negating the same she stated that the Investigating Officer did not ask her about the fact, Prakash was leading to her on the way from the house to Nohara. In cross examination the suggestion of the defence made with a view to illustrate improvement in her statement; negating the same she stated that the Investigating Officer did not ask her about the fact, Prakash was leading to her on the way from the house to Nohara. She thus stood firmly with her statement in the examination-in-chief that at the relevant date and time of the incident Prakash (deceased) was about two hands ahead from her on the way to Nohara. In this way she proved firmly her position on the spot of the incident wherefrom she was capable to see the incident clearly. P.W.-1 being the head of the family was reasonably expected to go and see the guests who came to attend the last rite ceremony and were staying at Nohara. The defence remained unsuccessful in carving out any inconsistency or improbability about the presence of P.W.1 at the spot of the incident on the relevant date and time with deceased Prakash. Witnesses having seen the incident:- 33. Since the deceased Prakash was leading to them (PW-1, Banwari and Suresh), therefore, quite naturally deceased Prakash was in the visible range of the witnesses’ eye sight. The defence has not tried to carve out any incapacity of the eye witness of the incident P.W.-1 by reason of trouble in her vision. No question was put to the P.W.-1 with regard to the same. In cross examination, this witness stated that she watched the incident from a distance of about three to four hands and when she sighted the accused persons they were standing at the spot and they caught the deceased Prakash when he reached near them. In cross examination, it has further become clear that accused persons were standing in front of the house of Mohan situated on the way to the Nohara. The accused persons except two unknown assailant in the incident were the natives well known to the witnesses. They could easily be identified even in the darkness of night by reason of acquaintance of witness from their posture, manner and style of movement and the body shape etc. However, the witness when suggested about the darkness of night she assertively stated that night of the incident was moon night and she watched the entire incident in the moon light. However, the witness when suggested about the darkness of night she assertively stated that night of the incident was moon night and she watched the entire incident in the moon light. The defence could not carve out any inconsistency, falsity or improbability in witnessing the incident by P.W.-1 on the spot in the moon light. 34. In similar set of facts, the Supreme Court in Machchi Singh Vs. State of Punjab, (1983) 3 SCC 470 in para 5 has observed as under:- "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. 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." 35. In State of U.P. Vs. Babu & Ors., Manu/SC/1149/2003 in para 7 it was held that:- "7. Light shed by the lantern was enough to enable the witnesses to identify the culprits under the circumstances." 35. In State of U.P. Vs. Babu & Ors., Manu/SC/1149/2003 in para 7 it was held that:- "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." Mode and manner of the commission of offence 36. P.W.-1 the only prosecution witness of fact, the eye witness of the incident, was produced before the court for examination on oath on 3.6.1989 which has to be kept in mind while considering the oral evidence of this witness as to the incident occurred on 25/26.2.1988. Her testimonies have been recorded after approximately more than one past quarter year time may have been elapsed with the passage of time. She recollected her memories during the examination-in-chief and stated, accordingly, that at about 9:15 p.m. she was going to the ‘Nohra’ (place of stay of her guests) with her sons namely Prakash and Banwari alongwith brother-in-law of Banwari namely Suresh from her house, the guests were assembled there in connection with the last rite ceremonies of her father-in-law. On the way, when they reached at the door of accused Mohan Singh, three accused persons namley Randheer Singh Mohan and Satendra with two anonymous persons were seen standing there. She identified Randheer Singh, Satendra and Mohan in the Court as the accused assailants on that night. She further stated that two anonymous persons accompanying the accused Randheer, Satendra and Mohan caught Prakash. She identified Randheer Singh, Satendra and Mohan in the Court as the accused assailants on that night. She further stated that two anonymous persons accompanying the accused Randheer, Satendra and Mohan caught Prakash. Randheer Singh wielded knife, Mohan wielded Katari (Rapier -a little sword type weapon) on the deceased Prakash. Consequent thereon, Prakash fell down and died instantly. The accused persons dragged away the dead body of Prakash across the road toward Dharmsala (Hospice), poured kerosene upon the dead body and lit fire. She further stated about the roles of the accused persons saying that Mohan poured kerosene oil over the dead body and lit fire. The night of the incident was a moon lit night and she watched the entire incident in the moon light. The accused persons stood at the spot of the incident in Dharmshala about 10 to 15 minutes, thereafter, they left the place of incident and then only the witnesses could reach near the dead body. This statement of P.W.-1 Shanti Devi (mother of the deceased) shows that none other than the witness herself, her son Banwai and his brother-in-law, Suresh were present at the spot of the incident at the relevant date and time of the incident, the villagers reached at the spot only after commission of the crime. This witness has further explained as to why Banwari who was another eye witness of the incident and a close relative of the deceased had not appeared in the witness box. This witness has further stated that though she tried to rescue her son Prakash but accused Mohan brandished his Katari (Rapier) shouting that all would be cut down. This witness has also identified and proved the Katari (Rapier) left near the body of the deceased Prakash, burnt and blood stained clothes worn by the deceased at the time of incident, which were exhibited. 37. P.W.1, Shantidevi proving her presence at the spot of incident at the relevant date and time of the incident has categorically stated about the manner in which accused persons attacked the deceased Prakash. There is no variation and deviation than her previous statement including the version in the F.I.R. Her statement can not be said to be suffering from any deficiency and embellishment in any manner. Medical Evidence 38. There is no variation and deviation than her previous statement including the version in the F.I.R. Her statement can not be said to be suffering from any deficiency and embellishment in any manner. Medical Evidence 38. The mode and manner in which the accused Randheer Singh and Satendra killed the deceased Prakash is also found corroboration from the medical evidence. The post mortem report Ex.Ka-5 indicates the following ante mortem injuries:- “1. Incised wound 9 x 5.0 cm x bone deep on back of right side head, 10 cm below right ear, obliquely and behind underlying bond cut through. 2. Incised wound 5 x 1.0 cm x bone deep left side head, obliquely 15.0 cm above left ear, underlying bone cut through. 3. Incised wound 3 x 0.5 cm x scalp deep, left side head, 9.0 cm above left year, antero posteriorly in direction. 4. Incised wound 12.0 x 6.0 cm x bone deep, left side head, just above through. 5. Incised wound 8 x 3.0cm x bone deep on forehead transversely. Bone cut through just above eye brows. 6. Incised wound 10 x 3.0 cm x muscle deep along left jaw and just below left ear. 7. Incised wound 8 x 5.0 cm x bone deep on right side front of neck.” 39. On appreciation of medical evidence, the Apex Court in Bharwada Bhoginbhai Hirjibhai Vs. State of Gujarat, (1983) 3 Supreme Court Cases 217 in para 5 observed that:- " ……………….. (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." 40. P.W.4, Dr. 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." 40. P.W.4, Dr. B.K. Gupta who had conducted the post-mortem of the body proved his report and stated the cause of death was shock and hemorrhage due to ante mortem injuries. He further assessed the proximate time of death on the basis of his observation as to the autopsy of the body that death had occurred on 25.2.1988 at about 9:00 to 9:15 p.m. The location of the injuries on the person of the deceased further lends support to the oral testimony of the P.W.1. Motive 41. The motive stated in the written information is that there was some illicit relation of the deceased Prakash with the married sister of accused Randheer Singh. Oral evidence on record is only that of the P.W.1 (the mother of the deceased Prakash). The illicit relation, according to her, was complained by the accused Randheer Singh to her with the threat to teach a lesson to her son Prakash (deceased) but no evidence is on record either of the wife or of any other relative or villager with regard to illicit relation of the deceased Prakash with sister of accused Randheer Singh. This is admitted by the P.W.1 in her statement that Randheer was married and living with his wife. She has also stated about the good character of her son deceased Prakash, as such, whatever proved is only the complaint of illicit relation made by the accused Randheer who had denied any such illicit relation of deceased with her sister in his examination under Section 313 Cr.P.C. Therefore, motive as a probative element for killing of the accused cannot be said to have been proved. 42. However, in a case where the prosecution relies on the testimony of eye witnesses as to the occurrence, absence of motive would not itself make any material difference. 43. In cross examination of the P.W.-1, the defence has not elicited any element of enmity of P.W.-1 with the accused persons. Even inimical relation of deceased with accused persons was not setforth as defence. 43. In cross examination of the P.W.-1, the defence has not elicited any element of enmity of P.W.-1 with the accused persons. Even inimical relation of deceased with accused persons was not setforth as defence. However, in the written information and F.I.R. the motive of accused appellant setforth by the informant for the killing of the deceased is that the accused Randheer Singh was suspicious of illicit relation of deceased Prakash with his sister Kamla and due to that suspicion, Randheer and Mohan became inimical with the deceased (Prakash) which led the accused persons to kill the deceased Prakash. Therefore, enmity is not a factor available with the P.W.-1 for false implication against the accused persons. 44. In the case of G. Parshawnath Vs. State of Karnataka, (2010) 8 SCC 593 , it is held "It is well established that there is a clear distinction between cases where the prosecution relies upon circumstantial evidence on the one hand and those where it relies upon the testimony of eye witnessses on the other. In the former category of cases proof of motive is given the importance it deserves, for proof of a motive itself constitute a link in the chain of circumstances upon which the prosecution may rely. Proof of motive, however, recedes into the background in cases where the prosecution relies upon an eye witness account of the occurrence. That it is because if the court upon a proper appraisal of the deposition of the eye witnesses comes to the conclusion that the version given by them is credible, absence of evidence to prove the motive is rendered inconsequential. Conversely, even if the prosecution succeeds in establishing a strong motive for the commission of the offence, but the evidence of the offence, but the evidence of the eye witnesses is found unreliable or unworthy of credit, existence of a motive does not by itself provide a safe basis for convicting the accused. That does not, however, mean that proof of motive even in a case which rests on an eyewitness account does not lend strength to the prosecution case or fortify the court in its ultimate conclusion. Proof of motive in such a situation certainly helps the prosecution and supports the eyewitnesses." Ante Timed First Information Report 45. The information of the incident was given in writing by the son of P.W.1 namely Banwari, the real brother of deceased Prakash. Proof of motive in such a situation certainly helps the prosecution and supports the eyewitnesses." Ante Timed First Information Report 45. The information of the incident was given in writing by the son of P.W.1 namely Banwari, the real brother of deceased Prakash. First informant could not be produced before the trial court though he was found present at the spot of incident with P.W.1. The reason behind his non production before the court had been well explained in the statement of P.W.1. 46. PW.1 who was acquainted with the hand writing and signature of her son Banwari had proved the written report of the incident being in his hand writing and signature. She was competent enough to prove the writing and contents of the written document in the present case. The written information submitted to the police by the aforesaid Banwari on 26.21988 with regard to the incident happened on 9:15 p.m in the night of 25/26.2.1988 was read over to her. In her examination-in-chief P.W.1 stated that after the incident her son Banvari went to the police for lodging the F.I.R. who first went to the police post ‘Mai’ at about 9:15 p.m. soon after the incident. It is also proved by P.W.1 that after killing the deceased Prakash, accused persons dragged his body to the Dharmshala (hospice) where they burnt it and after liting fire they stayed there approximately for 15 to 20 minutes. Thereafter, they fled away from the spot. She has further stated that Banvari had gone to village from the spot of the incident at about 1:30 a.m. to 2:00 a.m. in the night of 25/26.1998. On confrontation by the defence that whether village chaukidar or Village Pradhan came to the spot and whether the villagers advised her to lodge the F.I.R. up to 1:30 a.m. to 2:00 p.m., she answered, she could not tell about that as she was in grief of the incident. None had appeared on the spot despite her hue and cry out from the population of nearby vicinity. Taking into account the aforesaid statement as to the time passed over after the incident at about 9:15 p.m., upto 1:30 a.m. to 2:00 a.m. in the night of 25/26.2.1998, the period so spent seems natural. P.W.1 and her son Banwari were taken over by the shock and pain of the incident and they found themselves helpless. Taking into account the aforesaid statement as to the time passed over after the incident at about 9:15 p.m., upto 1:30 a.m. to 2:00 a.m. in the night of 25/26.2.1998, the period so spent seems natural. P.W.1 and her son Banwari were taken over by the shock and pain of the incident and they found themselves helpless. The evidence on record further shows that the F.I.R. was lodged at about 4:30 a.m. on 26.2.1988 in the Police Station Sadabad, District Mathura. The spot of the incident as indicated in the FIR was at a distance about 4 to 5 k.m. from the police post ‘Mai’ as proved by P.W.5 the incharge of the police post ‘Mai’. P.W.5 stated that at about 3:20 a.m. the informant Banvari reached at the police post Mai and intimated about the incident. P.W.5 redirected Banvari to go to Police Station Sadabad for lodging the report as police post Mai was not a reporting post. However, in the G.D maintained in the police post, P.W.5 entered his departure from the police post to the spot of the incident which was produced in original before the trial court and proved being in his writing and signature as Ex. Ka.-6. The time spent by the informant Banvari in traveling 4 to 5 km distance from the spot of the incident at about 1:30 a.m. to 2:00 a.m. to the police post of Mai is well explained. P.W.1 had also stated in her cross-examination that police reached in the morning and stayed there upto 10:00 a.m. 47. P.W.5 in his statement further stated that after directing the first informant to go to the Police Station Sadabad at 3:20 a.m., he proceeded to the spot of the incident. He had prepared the inquest report and collected the information about the names of the accused persons from the mother of the deceased. 48. The inquest report was proved by P.W.5. The time to start the inquest proceeding as entered in the report of the inquest Ex. Ka-7 is 7:00 a.m. and completion thereof is entered as 10:00 a.m. which found support from the oral statement of P.W.1. The distance of the spot of the incident from the police station Sadabad is given as 15 km south west. 49. The time to start the inquest proceeding as entered in the report of the inquest Ex. Ka-7 is 7:00 a.m. and completion thereof is entered as 10:00 a.m. which found support from the oral statement of P.W.1. The distance of the spot of the incident from the police station Sadabad is given as 15 km south west. 49. P.W.6, the Inspector, Police Station-Sadabad proved the lodging of the FIR on the basis of the written information submitted by Banvari in the police station Sadabad. He stated that in his presence the case was registered by Head Moharrir Kamal Kishore Mishra who was examined as P.W.2. He has proved that on the basis of information in the written report, chick report no.52 as Ex. Ka-2 at about 4:30 a.m. was prepared and was entered in the G.D. at Sr. No.5 at about 4:30 a.m. itself on 26.2.1988. The original G.D. was produced before the court wherein the witness identified his handwriting and signature proved as Ex. Ka-3. P.W.6 stated that after entering the information and registration of F.I.R., the S.H.O. alongwith other police personnels moved towards the spot of the incident and came back from the spot of the incident at about 17:15 p.m dated 26.2.1988 which is entered in G.D. at Sr. No.29. The time spent by the first informant in submission of the information of the incident to the police at the police post Mai has been reasonably explained. There is no delay in submitting the information nor any delay in registering the F.I.R. could be found. The argument of the learned counsel about the ante timing of the F.I.R. is, thus, not acceptable. 50. In Jai Shree Yadav vs State Of U.P., (2005) 9 Supreme Court Cases 788 in almost similar set of facts and circumstances, the Apex Court in para 15 stated as under:- “It is the case of the prosecution that PW-3 Arif Ali who is a resident of village Nawalpur within the limits of Salempur Police Station came to the said police station on 23.9.1993 at 5.30 p.m. and gave a written report Ext.Ka-2 to PW-8 the Officer-in-Charge of the said police station. According to PW-8, he registered a crime based on the said complaint of PW-3 at 5.50 p.m. on the same day, which has been proved by the production of the general diary of the police station Ex.Ka-8. According to PW-8, he registered a crime based on the said complaint of PW-3 at 5.50 p.m. on the same day, which has been proved by the production of the general diary of the police station Ex.Ka-8. He also submitted that he sent a special report to the Jurisdiction Magistrate on 23.9.1993 at about 7 p.m. through Constable Dheeraj. He further stated that from the entry in the general diary, it is seen that Constable Dheeraj reported back to the police station at about 8 a.m. on 24.9.1993 . He has denied that the special report was not sent on 23.9.1993. A perusal of the entry made by the Chief Judicial Magistrate, Deoria in the special report shows that the same was received by him on 24.9.1993 but the actual time of the report is not noted in the said entry, however it is clear that the said report was received by him at his residence. Based on this the learned counsel for the appellants had argued that it is possible that this report might have reached later in the day on 24.9.1993, but this argument is not supported by any material on record. On the contrary from the entry made in the general diary of the police station, it is clear that Constable Dheeraj who was entrusted with the job of delivering the special report to the Magistrate had returned back to duty at Salempur Police Station at 8 O'clock on 24.9.1993. Bearing in mind that the distance between Salempur Police Station and Deoria is about 28 to 29 kms. as seen from the records it is clear that the special report has reached the Jurisdiction Magistrate much earlier than 8 O'clock in the morning of 24.9.1993. Bearing in mind that the distance between Salempur Police Station and Deoria is about 28 to 29 kms. as seen from the records it is clear that the special report has reached the Jurisdiction Magistrate much earlier than 8 O'clock in the morning of 24.9.1993. Though it would have been more appropriate and less controversial if only the concerned Magistrate had noted the actual time of receipt of the special report, still on facts and circumstances of this case as stated above, we are of the opinion that the special report must have reached the Jurisdictional Magistrate much earlier than 8 a.m. Since by then the constable who carried the report had come back to Salempur on 24.9.1993 which fits in with the prosecution case that the same was sent from the police station in the evening of 23.9.1993 at about 7 p.m. So on this count, it cannot be said that the FIR is anti timed.” 51. In view of the above discussion, we are of the considered opinion that the information of the incident by eye witness Banwari was promptly given to the police post ‘Mai’ from where he was redirected to the Police Station Sadabad where his report was entered in G.D. and F.I.R. was registered. All these events were proved by producing the original G.D. in the Court. No extraordinary delay or any probable delay is found in the registration of the F.I.R. 52. Against the proved case of prosecution by direct evidence of P.W.1 which finds corroboration from the other material evidence on record, the plea of ante timed F.I.R. is not tenable and rejected. Common Object 53. The mode and manner of the commission of offence by all the accused persons jointly and there presence together with throughout the commission of offence is proved by the P.W.1. In our considered opinion the prosecution has become successful in proving the accused namely Satendra, Randheer Singh and Mohan Singh with two unknown accused persons acted in concert and presence of each other pursuant to their common object of killing the deceased Prakash. In our considered opinion the prosecution has become successful in proving the accused namely Satendra, Randheer Singh and Mohan Singh with two unknown accused persons acted in concert and presence of each other pursuant to their common object of killing the deceased Prakash. The two unknown accused out of five clunged with the deceased Prakash by embracing him from behind in their arms when he reached near the house of accused Mohan and simultaneously the accused Randheer and Mohan stabbed forcefully their sharp edged weapons respectively knife and Katari in the front portion of the body of the deceased over his head and neck and thus done him to death instantly on the spot, from where the dead body was dragged to Dharmsala (Hospice) where accused Mohan burn the dead body by pouring oil and setting the same into. Accused Mohan was warding off the witness P.W.1 and her companions Banvari and Suresh from coming near the body threatening them through Katari. The accused Satendra and two unknown accused assailants with accused Randheer and Mohan remain together from the very preparation of the killing of the deceased Prakash waiting on the way near the door of the house of accused Mohan with lethal weapons like knife in the hand of Randheer Singh and Katari with the accused Mohan, killed the deceased, dragging away the dead body up to the Dharmsala (Hospice), burning the dead body so as to vanish the evidence and thereafter fleeing away after 10 to 15 minutes. They assembled for an unlawful purpose, remain throughout the course of the commission of incident, they acted in pursuance of their illegal object of killing the desired. They are vicariously liable for the consequence of the deceased result of the unlawful assembly. 54. The evidence of P.W.1 and other corroborative facts and circumstances prove the unlawful assembly of the accused persons having illegal common object of killing the deceased Prakash, their preparation to commit the offence, assembling unlawfully with lethal weapons in the hands of two accused is in itself relevant as conduct under Section 8 of the Indian Evidence Act, 1872. P.W.1 has sufficiently proved the number of accused persons involved in the commission of crime “Five”, naming three of them in the written information of the incident and two unknown accused persons. P.W.1 has sufficiently proved the number of accused persons involved in the commission of crime “Five”, naming three of them in the written information of the incident and two unknown accused persons. The unknown accused persons could not be identified by reason of no other independent witness came forward in witness box. The three accused persons named in the offence were trying in their defence to prove their absence on the spot of incident and involvement in the crime. Therefore, they could not be expected to confess inculpatory their involvement in the crime with two other companions who assist them in the commission of crime. The proved case of prosecution by the evidence of P.W.1 and other corroborative evidence of the formal witnesses, the materials collected from the spot of incident and the report of Forensic Science Laboratory that they are stained with human blood, has no reason to be discarded. The number of the accused persons “Five” including two unknown assailants in the crime with three named accused persons stands proved, nothing could be carved out by the defence counsel from evidence on record nor explained in defence under Section 313 Cr.P.C. before the court during their examination. We have already discussed under the head “Mode and Manner of commission of the offence”, the accused persons forming unlawful assembly even through out the commission of offence as such they acted in concert in killing of the deceased Prakash and burning his body on other place like Dharmsala (hospice), thereafter they fled away from the spot of incident together. They are held to commit the offence in furtherance of their common object. 55. Section 149 of the Indian Penal Code is reproduced hereunder for easy reference:- 149. Every member of unlawful assembly guilty of offence committed in prosecution of common object.—If an offence is committed by any member of an unlawful assembly in prosecution of the common object of that assembly, or such as the members of that assembly knew to be likely to be committed in prosecution of that object, every person who, at the time of the committing of that offence, is a member of the same assembly, is guilty of that offence. 56. In Mrinal Das and Others Vs. State of Tripura, (2011) 9 Supreme Court Cases 479, it is held that common object does not necessarily required proof of prior meetings of minds or pre consult. 56. In Mrinal Das and Others Vs. State of Tripura, (2011) 9 Supreme Court Cases 479, it is held that common object does not necessarily required proof of prior meetings of minds or pre consult. 57. In Anil Rai Vs. State of Bihar with Subhash Chand Rai and another Vs. State of Bihar with Awani Rai Vs. State of Bihar, (2001) 7 Supreme Court Cases 318, Hon’ble the Apex court held sharing of common object and participation in the occurrence by each of the accused members of the unlawful assembly must be positively proved. Para 31 and 32 of the aforesaid judgment is quoted hereunder:- “31. In Lalji v. State of U.P. [ (1989) 1 SCC 437 : 1989 SCC (Cri) 211] this Court held: (SCC pp. 441-42, para 9) “9. Section 149 makes every member of an unlawful assembly at the time of committing of the offence guilty of that offence. Thus this section created a specific and distinct offence. It other words, it created a constructive and vicarious liability of the members of the unlawful assembly for the unlawful acts committed pursuant to the common object by any other member of that assembly. However, the vicarious liability of the members of the unlawful assembly extends only to the acts done in pursuance of the common objects of the unlawful assembly, or to such offences as the members of the unlawful assembly knew to be likely to be committed in prosecution of that object. Once the case of a person falls within the ingredients of the section the question that he did nothing with his own hands would be immaterial. He cannot put forward the defence that he did not with his own hands commit the offence committed in prosecution of the common object of the unlawful assembly or such as the members of the assembly knew to be likely to be committed in prosecution of that object. Everyone must be taken to have intended the probable and natural results of the combination of the acts in which he joined. It is not necessary that all the persons forming an unlawful assembly must do some overt act. When the accused persons assembled together, armed with lathis, and were parties to the assault on the complainant party, the prosecution is not obliged to prove which specific overt act was done by which of the accused. It is not necessary that all the persons forming an unlawful assembly must do some overt act. When the accused persons assembled together, armed with lathis, and were parties to the assault on the complainant party, the prosecution is not obliged to prove which specific overt act was done by which of the accused. This section makes a member of the unlawful assembly responsible as a principal for the acts of each, and all, merely because he is a member of an unlawful assembly. While overt act and active participation may indicate common intention of the person perpetrating the crime, the mere presence in the unlawful assembly may fasten vicariously criminal liability under Section 149. It must be noted that the basis of the constructive guilt under Section 149 is mere membership of the unlawful assembly, with the requisite common object or knowledge.” 32. In Shamshul Kanwar v. State of U.P. [ (1995) 4 SCC 430 : 1995 SCC (Cri) 753] it was held that to infer common object it is not necessary that each one of the accused should have participated in the attack when the evidence of the eyewitnesses clearly established that each one of those convicted accused was a member of the unlawful assembly whose common object was to commit murder. Where the prosecution fails to prove the existence of sharing of common object by all the members of the unlawful assembly, it is unsafe to convict all the accused persons merely on proof of their presence or some overt act which did not cause the death of the deceased. Both the courts below have not found on facts that all the accused persons including A-3 to A-7 shared the common object with A-1 and A-2 and A-2 and fired the shots. Neither any direct evidence nor any circumstances have been brought on record to hold or infer the existence of such a common object. Learned counsel for the appellants have submitted that there is nothing in the evidence to show that the rest of the accused shared the common object with A-1 and A-2 to cause death of Lal Muni Rai and Chand Muni Rai. Even if the existence of a common object is held proved, it cannot be the common object for any offence other than committing the offence of rioting. Even if the existence of a common object is held proved, it cannot be the common object for any offence other than committing the offence of rioting. I find substance in such a submission in the peculiar facts and circumstances of the case. The proved case of the prosecution is that when Lal Muni Rai along with others was coming back, he was intercepted by the accused persons who were armed with weapons and if the object of the unlawful assembly was to cause his death, there was no cause or occasion for them to only catch hold of the said deceased Lal Muni Rai and beat him. He was shot at by Avinash Chand Rai (A-1) only after he escaped from the clutches of the other accused persons. The other accused persons might not have in their contemplation that if the rioting, intended by them, failed any one of them would shoot at the victim.” 58. The prosecution has proved by its eye witness of the incident that the accused persons five in number shared their common object with each other from the very preparation for commission of the offence upto their fleeing away from the spot of incident together with each other. As such, we have no reason to interfere with the conviction under Sections 147, 148 and 149 of the Indian Penal Code of the appellants in aid to the other relevant Sections like Section 302 and 201 of the Indian Penal Code and in the sentence awarded to them accordingly. 59. For the above, the judgment of conviction and order of sentence under challenge of the appeal does not require any interference. The appeal deserves to be dismissed. 60. Consequently, the appeal against the judgment of conviction and order of sentence in Session Trial No.187 of 1988 (State Vs. Mohan & Ors.) under Sections 147, 148, 149, 302, 201 of the I.P.C., Police Station Sadabad, District Mathura is hereby dismissed. The sole surviving accused appellant is in jail. 61. Certify the copy of the judgment to the court below for necessary action and forwarding to the concerned Jail Superintendent where the accused appellant, Randheer Singh is detained. 62. Lower court record be sent back to the District Judgeship, Mathura, immediately.