JUDGMENT : Anish Kumar Gupta, J. 1. Heard Sri Devendra Kumar Mishra, learned counsel for the appellant and Sri Amit Sinha, learned AGA for the State. 2. The instant criminal appeal has been filed by the appellant-Khemi being aggrieved by the judgment and order dated 15.02.1986 passed by the Vth Additional Sessions Judge, Mathura in S.T. No. 302 of 1985 (State vs. Phooli and others) under Section 302/149 IPC, P.S. Nauhjhil, District Mathura, whereby the appellant has been convicted for the offence under Section 302 IPC and has been awarded sentence of life imprisonment. 3. The prosecution story, in brief, is that the P.W. 1, Teeka Ram lodged a report at 02:45 A.M. on 02.04.1984 alleging that in the night intervening 1/2.4.1984, his brother deceased Ram Swarup was sleeping on a cot in front of his house. The informant Teeka Ram was also sleeping in front of his house, which was adjoining to the house of the deceased Ram Swarup at a distance of 5 to 6 hands from the deceased. The daughters Veeri and Champa and Kasturi wife of deceased were sleeping inside the house and at nearby place, Kishori son of Doji and Prahlad son of Teeka and Handal son of Doji were also sleeping. As usual the lantern, which was lit was kept on the wall of the house of the deceased Ram Swarup. At around 12:30 in the night, five persons came there and due to the noise of their coming, the informant woke up and saw that the aforesaid five persons were standing around the cot of his deceased brother. He got up, shouted and ran towards the house. In the meantime the accused/ appellant Khemi had fired from the gun, which hit on the neck of his brother. Hearing the noise, Kishori son of Doji, Prahlad son of Teeka, Veera and Champa daughters of informant and the wife of the deceased and Handal son of Doji along with other persons of the village reached there. The informant has identified that the accused-appellant was having the gun in his hand, the other accused Dharmpal and Phooli sons of Mohan were having country made pistols in their hands and the accused Rajendra S/o Sukhi and Raghuveer S/o Nripati were having ballams in their hands and after killing the deceased, all the accused persons ran away. The informant has identified that the accused-appellant was having the gun in his hand, the other accused Dharmpal and Phooli sons of Mohan were having country made pistols in their hands and the accused Rajendra S/o Sukhi and Raghuveer S/o Nripati were having ballams in their hands and after killing the deceased, all the accused persons ran away. The informant had overheard the accused saying that since stating that the deceased had deposed against them, therefore, revenge had been taken. 4. After receipt of information, the police personnel reached on the spot and conducted the inquest at 6:30 A.M. and the dead body of the deceased was sent for postmortem. The postmortem was conducted by Dr. M.K. Srivastava, who found the following ante-mortem injuries on the body of the deceased : (i) Fire arm wound of entry 2 c.m. x 1-5 cm x muscle deep on the Lt. Side neck just below the angle of mandible 6 c.m. below the Lt. ear scorching present on the Lt. cheek, Lt. ear and Lt. side neck; (ii) Fire arm wound of exit 3 c.m. x 2 c.m. x bone deep on the Rt. side angle of the mandible 2.5 c.m. below the Rt. ear; communicated of the mandible. Injury communicated with injury no.1. 5. As per opinion of the doctor, the death of the deceased was caused due to shock and haemorrhage on account of ante-mortem injuries sustained by the deceased. 6. P.W. 3 S.I. Banwari Lal investigated the case till 05.04.1984 and thereafter, the investigation was conducted by S.I. K.P. Singh and S.I. V.K. Sirohi. During investigation, S.I. Banwari Lal collected the blood stained and plain soil from the place of occurrence and also the blood stained cot and the seizure memos were prepared. He also seized the lantern, which was alleged to be lit at the time of occurrence at the house of Ram Swarup. After submission of the charge sheet, the case was committed to the Court of Sessions Judge and thereupon the learned trial court framed charges against all the accused persons namely Khemi, Phooli, Doji, Prahlad and Rajendra under Sections 148 and 302/149 IPC. On framing of the charges against the accused persons, they pleaded “not guilty” and claimed trial. 7. During the trial, six witnesses were examined on behalf of the prosecution to prove the prosecution story. On framing of the charges against the accused persons, they pleaded “not guilty” and claimed trial. 7. During the trial, six witnesses were examined on behalf of the prosecution to prove the prosecution story. Thereupon the statements of the accused persons were recorded under Section 313 Cr.P.C. Thereafter the D.W.1 Hemant, D.W. 2 Dulichand were examined on behalf of the accused persons. After conclusion of the trial, the learned Additional Sessions Judge, Mathura vide judgment and order dated 15.02.1986 convicted the accused appellant herein for the offence under Section 302 IPC and all other accused persons namely, Phooli, Dharmraj, Rajendra and Doji were acquitted from the charges under Sections 302/149 IPC. All the accused persons were also acquitted under Section 148 IPC. After conviction of the appellant herein, he was awarded the sentence of life imprisonment under Section 302 IPC. 8. Aggrieved by the aforesaid judgment and order dated 15.02.1986, the instant appeal has been filed by the appellant. 9. Learned counsel for the appellant submits that in the instant case, the lantern has been recovered and seized by the Investigating Officer vide seizure memo dated 02.04.1984. As per the seizure memo, the lantern was containing oil at the time of seizure. Learned counsel for the appellant further submits that as per the P.W.1 Teeka, the lantern was lit in the evening at 7:00 P.M. and the same lit for entire night. Therefore, it was not possible that the said lantern could be found filled with oil. He further submits that the evidence with regard to the seizure of lantern and placement of the same at the place of incident is a fabricated evidence to cover up the prosecution story and to show that there was a source of light at the time of incident. Learned counsel for the appellant further submits that there are various discrepancies with regard to the location of the lantern. 10. P.W.1 in his chief-examination has stated that at the time of incident, the lantern was lit on the door of the deceased. In his cross-examination, he has stated that the lantern was kept on a niche, which was two and a half feet from the ground. The P.W. 2 also stated that the lantern was lit on the door of the deceased. In his cross-examination, he has stated that the lantern was kept on a niche, which was two and a half feet from the ground. The P.W. 2 also stated that the lantern was lit on the door of the deceased. The Investigating Officer has stated in his deposition that the lantern was kept at the wall, which was three and a half hands in height. From the perusal of the seizure memo of lantern, it appears that the lantern contained oil at the time of its seizure, however it is not stated as to whether it was fully filled with oil. Therefore, the submission made by learned counsel for the appellant that since it was filled with oil, that will show that it was implanted purposefully is not sustainable as the quantity of oil has neither been mentioned in the seizure memo nor it has been reflected from the cross-examination of the concerned Investigating Officer. 11. So far as the location of the lantern is concerned, all the witnesses have categorically stated that the lantern was lit near the place of incident and was kept on some height. The narration in the statements of witnesses namely P.W.1 and P.W.2 that the lantern was lit on the door of Ram Swaroop does not mean that the lantern must be kept exactly in between the door but everybody has categorically stated that the said lantern was placed on the niche of the wall at a height of two and a half feet or three and a half feet. Therefore, so far as the presence of lantern is concerned, there was sufficient evidence available on record and the minor discrepancies with regard to the exact height of the wall where the lantern was kept, has no relevance and no prudent man could have measured the exact height of the lantern from the ground. It can only be stated in approximate terms. Therefore, such discrepancies are minor in nature which are not sufficient to demolish the case of the prosecution, with regard to the presence of lantern, near the place of incident. 12. Learned counsel for the appellant has also submitted that there are discrepancies with regard to the reaching of the Investigating Officer on the spot along with the informant. He has also stated that the Investigating Officer came a little later after the informant came back. 12. Learned counsel for the appellant has also submitted that there are discrepancies with regard to the reaching of the Investigating Officer on the spot along with the informant. He has also stated that the Investigating Officer came a little later after the informant came back. From the record, it appears in the instant case that the incident had taken place at 12:30 A.M. in the night intervening 1/2. 4.1984. The report of the incident was lodged at 2:45 A.M. on 02.04.1984 i.e. within 2 hours and 15 minutes from the time of the incident. Also from the perusal of inquest report, it appears that the inquest had started at 6:30 A.M. on 02.04.1984. From the depositions of the P.W.1 and P.W.2, it is crystal clear that the Investigating Officer has reached the place of incident a little later after the incident was reported to the police station and, therefore, the discrepancy in the statement of the P.W. 1 and P.W. 2 with regard to reaching of the Investigating Officer on the spot immediately or a little later, is not of any importance whatsoever. It would definitely not damage the case of prosecution against the appellant herein. 13. Learned counsel for the appellant further submits that the motive for committing the murder of the deceased against the appellant has also not been proved beyond doubt. Since it is a case of eye witness account and P.W. 1 and 2 had categorically stated that they had seen the appellant assaulting the deceased, therefore, the motive takes a back seat. However, P.W.1 and P.W.2 have categorically stated that the applicant had committed murder of the deceased due to the fact that the deceased had deposed against the father of the appellant and they had also very categorically stated when they had left the place of incident that they had taken revenge as the deceased had deposed against the father of the appellant. 14. Therefore, we may reject the submission of the learned counsel for the appellant out right on the ground that there were eye witnesses of the said incident and they have specifically and very clearly narrated the incident in their testimony. Therefore when there are injured or unimpeachable eye witness accounts of an incident, motive becomes irrelevant. 14. Therefore, we may reject the submission of the learned counsel for the appellant out right on the ground that there were eye witnesses of the said incident and they have specifically and very clearly narrated the incident in their testimony. Therefore when there are injured or unimpeachable eye witness accounts of an incident, motive becomes irrelevant. It is a well settled legal position that in a case where there is an eye witness account, motive takes a back seat and is not of any consequence where the deposition of the eye witnesses is found trustworthy. 15. In the case of Shardul Singh Vs. State of Haryana (2002) 8 SCC 372 , it has been held that :- "motive', which is not always capable of precise proof, if proved, may lead additional support to strengthen the probability of the commission of the offence by the person accused but the absence of motive does not ipso facto warrant an acquittal." 16. Similarly, in the case of Ravindra Kumar Vs. State of Punjab, (2001) 7 SCC 690 , the Apex Court has held that- "It is generally an impossible task for the prosecution to prove what precisely would have impelled the murderers to kill a particular person. All that prosecution in many cases could point to is the possible mental element which could have been the cause for the murder. It is therefore not possible to change the tide on account of the inability of the prosecution to prove the motive aspect to the hilt. 17. Similarly in the case of State of U.P. Vs. Baburam (2000) 4 SCC 515 it has been held that- "It is not possible to accept the view that motive may not be very much material in cases depending on direct evidence whereas motive is material only when the case depends upon circumstantial evidence. There is no legal warrant for making such a hiatus in criminal cases as for the motive for committing the crime. Motive is a relevant factor in all criminal cases whether based on the testimony of eyewitnesses or circumstantial evidence. There is no legal warrant for making such a hiatus in criminal cases as for the motive for committing the crime. Motive is a relevant factor in all criminal cases whether based on the testimony of eyewitnesses or circumstantial evidence. The question in this regard is whether the prosecution must fail because it failed to prove the motive or even whether inability to prove motive would be weaken the prosecution to any would be well and good for it, particularly in a case depending on circumstantial evidence, for such motive could then be counted as one of the circumstances. However, it is generally in a difficult area for any prosecution to bring on record what was in the mind of the respondent. Even if the investigating officer would have succeeded in knowing it through interrogations that cannot be put in evidence by them due to the ban imposed by law. When the prosecution succeeded in showing the possibility of some ire for the accused towards the victim, the inability to further put on record the manner in which such ire would have swelled up in the mind of offender to such a degree as to impel him to commit the murder cannot be construed as a fatal weakness of the prosecution." 18. Similarly, in the case Thaman Kumar Vs. State of Union Territory of Chandigarh, (2003) 6 SCC 380 , it has been held that- "There is no such principle or rule of law that where the prosecution fails to prove the motive for commission of the crime, it must necessarily result in acquittal of the accused. Where the ocular evidence is found to be trustworthy and reliable and finds corroboration from the medical evidence, a finding of guilt can safely be recorded even if the motive for the commission of the crime has not been proved. Hence in the facts and circumstances of the case, the absence of any evidence on the point of motive cannot have any such impact so as to discard the other reliable evidence available on record which unerringly establishes the guilt of the accused. 19. Similarly, in the case of Yunis alias Kariya Vs. State of M.P. (2003) 1 SCC 425 , it has been held that- "Failure to prove motive for crime in our view is of no consequence. The role of the accused persons in the crime stands clearly established. 19. Similarly, in the case of Yunis alias Kariya Vs. State of M.P. (2003) 1 SCC 425 , it has been held that- "Failure to prove motive for crime in our view is of no consequence. The role of the accused persons in the crime stands clearly established. The ocular evidence is very clear and convincing in this case. The illegal acts of the accused persons have resulted in the death of a young boy of 18 years. It is settled law that establishment of motive is not a sine qua non for proving the prosecution case." 20. In (1973) 3 SCC 219 (Shivaji Genu Mohite Vs. The State of Mahrashtra) the Supreme Court in paragraph 12 has held as under : "12. As stated earlier, the fact that the prosecution in a given case has been able to discover a sufficient motive or not cannot weigh against the testimony of any eye -witness. Evidence as to motive would, no doubt, go a long way in cases wholly dependent on circumstantial evidence. Such evidence would form one of the links in the chain of circumstantial evidence in such a case. But that would not be so in cases where there are eye-witnesses of credibility, though even in such case if a motive is properly proved such proof would strengthen the prosecution case and fortify the court in its ultimate conclusion. But that does not mean that if a motive is not established the evidence of any eye-witness is rendered untrustworthy." 21. In (2017) 11 SCC 120 (Rajagopal Vs. Muthupandi alias Thavakkalai and Others) the Supreme Court in paragraph 14 has held as under : "14. Equally, it is well established that motive does not have to be established where there is direct evidence. Given the brutal assault made on PW-1 by criminals, the fact that witnesses have turned hostile can also cut both ways, as is well known in criminal jurisprudence." 22. In any view of the matter on the perusal of the evidence on record we find that in fact motive was there and the deceased was killed for the reason that he had deposed against the accused in an earlier murder case. Nothing could be pointed out by the appellant whereby the reliability of P.W.1 and P.W.2 could be shaken. 23. Nothing could be pointed out by the appellant whereby the reliability of P.W.1 and P.W.2 could be shaken. 23. Learned counsel for the appellant has further raised the question with regard to the aiming of the firearm to the deceased as the accused persons are stated to be surrounding at the left side of the cot. He further submitted that whether the gunshot was fired upon the deceased in the standing position or while the deceased was lying on the cot, has not been explained by the prosecution. Relying upon the statement of Dr. M.K. Srivastava who conducted the postmortem, learned counsel for the appellant submits that the doctor has not opined in any definite term that the said firearm injury could be caused only by a rifle and in the position in which the deceased was lying on the cot. 24. From a perusal of the deposition of Dr. M.K. Srivastava, it can be seen that it has been very categorically stated by the doctor that the injuries on the deceased were possible to have been caused by alone bullet and the Doctor has categorically stated that this injury could have been caused as per the direction of the barrel. The P.W.1 has also stated that the one leg of the deceased was on the cot and the other was on the ground. Therefore, it appears that the deceased had tried to rise from the bed after he had woken up and at that time the Firearm injury was caused from the left side of the deceased on his neck from a close distance and the injuries are corroborating the statements made by P.W.1 and P.W. 2. Therefore, the injury had been caused as per the manner described by the P.W.1 and it was a single firearm injury as has been stated by the doctor. 25. Thus from the evidence brought on record by the prosecution we find that the prosecution has succeeded in proving the case against the appellant and there is no reason to disbelieve the prosecution witnesses and therefore, we do not find any illegality in the findings recorded by the trial court, which has rightly convicted and sentenced the appellant, as aforesaid. 26. For the reasons aforesaid, we do not find any illegality or infirmity in the impugned judgment of the trial court. 26. For the reasons aforesaid, we do not find any illegality or infirmity in the impugned judgment of the trial court. The conviction and sentence of the appellant awarded by the trial court is upheld. The criminal appeal lacks merit and is accordingly dismissed. 27.The appellant Kheemi is on bail. C.J.M. Mathura is directed to take him into custody in the aforesaid case and send him to jail to serve out the sentence as was awarded by the trial court and is being affirmed by us. 28. Office is directed to send a copy of this order to the court concerned within a week for compliance. The compliance report shall be sent by the court concerned to this court within a further period of fifteen days.