Phekka and Others vs State

Surendra Vikram Singh Rathore, J.—1. Mr. Amit Chaudhary, learned counsel for the appellants and Ms. Madhulika Yadav, learned Additional Government Advocate were heard at length.

Under Challenge in the instant criminal appeal is the judgment and order dated 28.05.1982 passed by learned Sessions Judge, Unnao, in Sessions Trial No. 695 of 1981, arising out of Case Crime No. 177 of 1980, Police Station Hasanganj, District Unnao whereby all the three appellants were convicted for the offence under Section 302 read with Section 34 IPC and were sentenced with imprisonment for life.

During pendency of the instant appeal, appellant No. 1 Phekka and appellant No. 2 Sanehi expired. Hence, the appeal, so far as it relates to appellants Nos. 1 and 2, was abated vide our order dated 06.11.2015. At present only appellant No. 3 Putai is before us.

Appellant Phekka and appellant Tulsi were real brothers and appellant Putai was their cousin who was aged about 50 years at the time of incident.

In brief, the case of the prosecution was that Nanhakku, Sohan and Rajai Pal were real brothers. Sohan and Nanhakku lived together and Rajai Pal was living separately. About 8-9 months prior to this incident Smt. Ram Sri married daughter of accused Phekka had eloped with Sohan and thereafter they could not be traced out. On account of this incident of elopement the accused persons were nursing grudge against the brothers of Sohan and this is the background of the incident of this case which has provided motive for the accused persons to commit the murder of Nanhakku.

The incident of this case is alleged to have taken place on 22.08.1980. Nanhakku and Rajai Pal had gone to their field to collect paddy saplings and to bring some fodder for the animals. Ram Asrey (Bhanja) of Nanhakku who was resident of village Bahadurpur had come to Faridipur to take back his mother who was staying there for sometime. On his arrival to Faridipur and after getting the information at the house that Rajai Pal and Nanhakku had gone to their field he also went to the field to meet them. After completing their work in the field all the three proceeded from their field towards their house. At that time, Nanhakku was carrying the pile of Makahar and Rajai Pal was carrying load of green grass for the catties. While they were on the way to their house and it was about sunset then all the three appellants appeared there. Out of the three accused persons Phekka and Sanehi were carrying shot guns and Putai was carrying Banka, Phekka challenged Nanhakku and fired from his gun which hit on the back of Nanhakku due to which he fell down. When Rajai Pal and Ram Kishore raised alarm accused Sanehi is said to have fired a shot from his gun to scare them thereafter Phekka and Sanehi dragged Nanhakku and placed his head on the mend and hold him thereafter accused Putai inflicted Banka blows to severe the head from the neck. However, the head remained attached with the rest of the body only with the skin and accused persons fled in south direction. This incident is said to have been witnessed by one Tar Babu resident of village Faridipur and Sri Kishen of Rafi Garhi, apart from the two persons who were accompanying the deceased. After the incident, several persons of the village assembled there. Since it became dark therefore, no one proceeded to the police station to lodge the FIR in the night and they remained near the dead body of Nanhakku. In the following morning Rajai Pal proceeded to the Police Station Hasanganj and on his dictation the FIR was registered on 23.08.1980 at 7.40 a.m.

After registration of the case S.I. Ram Asrey who took up the investigation came alongwith other police personnel at the place of occurrence and prepared the inquest report and thereafter sent the body for postmortem. Blood stained and plain earth were recovered from the place of occurrence and its memo was prepared. Blood stained vest and black dhaaga of the deceased were collected and its memo was prepared. The load of Makahar was also taken into custody and its memo was prepared and the same was given in the spurdagi of the mother of the deceased. Place of incident was inspected and its site plan was prepared. The dead body of the deceased Nanhakku was sent for postmortem which was conducted on 24.08.1980 at 3:00 p.m. As per the postmortem report the age of the deceased was about 28 years. Rigor mortis was present in the lower extremities. The skin had peeled off at several places. Foul smell and gases were present and the death was reported to be about two days old. Following ante-mortem injuries were reported by the doctor in the postmortem:-

(i) Incised wound 5 1/2" x 3" x 4 1/2" on front of base of neck. Only skin was attached at the posterior aspect of the neck. All the soft structures at the level of third vertebrae, gullet, wind pipe, oseophagus, nerves of great vessels on both sides and muscles and subcutaneous tissues and skin were cut transversely. Blood clots were present in the wound.

(ii) Firearm wound 1" x 1/2" x cavity deep on lower angle of shoulder blade. Direction was slightly oblique from downwards to upwards. No blackening was present.

(iii) Incised wound 1 1/2" x 1/2" x bone deep on the right side eye brow.

(iv) Incised wound 1" x 1/2" x scalp deep on right side forehead, 1 1/2" above injury No. 3.

In the internal examination, all the vessels of the neck were found to be cut at the level of third cervical vertebrae was cut. The oseophagus was cut. Stomach and small intestines were empty. Faecal matter was present in the large intestine.

In the opinion of the doctor the death was caused due to shock and haemorrhage as a result of ante-mortem injuries.

After completing the investigation the charge-sheet was filed against all the three named accused persons.

Defence of accused was of total denial and that they have been falsely implicated due to old litigation. It has also been suggested to the witnesses that the incident had taken place in the night which was not witnessed by anybody. The dead body was found lying in the morning and thereafter this FIR in the following morning was lodged. Documents have been filed to show inter-se dispute and litigation between accused Phekka and Sanehi on one hand and accused Putai on the other hand and on its basis it has been submitted that it is impossible in this background for them to join hands in this crime.

In order to prove its case the prosecution has examined PW-1 Rajai Pal, the complainant and brother of the deceased who has supported the case of the prosecution, PW-2 Sri Kishen, PW-3 Ram Kishore (Bhanja of the complainant) as eye witnesses of this incident. These witnesses have furnished the reasons for their presence at the place of occurrence and have supported the case of the prosecution, PW-4 Dr. R.N. Sinha, who has conducted the postmortem on the body of the deceased, PW-5 S.I. Ram Asrey Singh the Investigating Officer of this case.

No oral evidence in defence was adduced on behalf of the appellants. However, certain documents on the point of old litigation to show that inter-se enmity was going on between appellants, have been filed.

After appreciating the evidence on record, the trial court has convicted the appellants as above. Hence the instant appeal.

Submission of the learned counsel for the appellants was that the FIR of this case was lodged with a considerable delay. Only related witness PW-3 has been examined and PW-2 was a chance witness, therefore, the evidence of these two witnesses was not reliable. It has also been argued that the defence theory was probable that the dead body of the deceased was found lying in the morning during search and thereafter the FIR was lodged. Learned trial court has not considered all these aspects in correct perspective which has rendered its judgment unsustainable under law.

Learned Additional Government Advocate has submitted that the incident has taken place at the time of sunset and conduct of the complainant not to go to the police station because of the fear of the accused persons cannot be said to be unnatural because accused persons were nursing grudge against him also, as he happens to be the brother of Sohan Lal. So the delay in the FIR stands explained and the prosecution witnesses have fully supported the case of the prosecution which stands fully corroborated by the medical evidence. Learned trial court has evaluated the prosecution evidence in correct perspective and has rightly convicted the appellants and this appeal has no merits.

First we would like to consider the medical evidence which is in the form of postmortem report and the evidence of PW-4 Dr. R.N. Sinha. The deceased had sustained three incised wounds and one fire arm wound on the lower angle of shoulder. Oseophagus and all the major vessels of the neck were found cut because of injury No. 1 which was incised wound on the front of base of neck and only skin remained attached with the neck. So there is no dispute to the conclusion that death of Nanhakku was homicidal death. He was fired at and Banka blows were given to him which caused his death.

Now the prosecution evidence has to be considered which is in the form of evidence of three eye witnesses. The FIR of this case was lodged with a considerable delay as the incident of this case is alleged to have taken place on 22.08.1980 slightly before sunset while the FIR of this case was lodged on 23.08.1980 at 7:40 a.m. The distance of village Faridipur from the police station, as per the chik FIR, was 5 kms. The inquest proceedings started on the same day i.e. 23.08.1980 at 10:35 a.m. The distance of the head quarter was about 40 kilometers as per challan lash (Exhibit Ka-4). The dead body was received at District Hospital on 24.08.1980 at 10:25 a.m. and the postmortem was conducted on the same day at 3:00 p.m. The explanation of the delay in the FIR was furnished by the complainant in his oral FIR and it was mentioned that because of the fear he could not come to lodge the FIR. The complainant of this case happens to be an illiterate person who has lodged the FIR and has put his thumb impression on the FIR and was not even able to put his signature. Learned counsel for the appellants has placed reliance on the pronouncement of Hon''ble Apex Court in the case of Marudanal Augusti V. State of Kerala reported in , (1980) 4 SCC 425. On the strength of this case law it has been argued that once the origin of the FIR is found to be suspicious then the entire prosecution case must be thrown out. But when we go through the abovementioned judgment, then we found that in the facts of that case mere delay in sending the special report was not the ground to discard the case of the prosecution. Apart from that there were intrinsic circumstances which created serious doubt on the prosecution case which have been mentioned by the Hon''ble Apex Court in its judgment. Criminal jurisprudence has undergone radical change in the recent past. Nowadays the principle that has emerged is that case of the prosecution has to be decided on the basis of substantive evidence which is in the form of eye witness account or the other substantive evidence on which the prosecution places reliance to prove its case. Simply because the FIR has been delayed and because of some latches on the part of the investigating agency such as delay in sending the special report or cutting/over writing in preparation of the documents during investigation, the case of the prosecution cannot be thrown out. The reasoning behind this change is that if these latches on the part of the investigating agency are given priority over the substantive evidence of the witnesses then result of every criminal trial would depend on the conduct of the Investigating Officer and not on the evidence of the witnesses who come with their woeful tale before the Court and this cannot be said to be the intention of the law because in that case a mischievous Investigating Officer may deliberately leave some lacuna in the documents prepared during investigation and the court will fall into prey by giving priority to the deliberate conduct of such mischievous Investigating Officer by discarding substantive evidence of the witnesses. So simply because the FIR has been lodged with delay, only on this basis the entire case of the prosecution cannot be thrown out but definitely a duty is cast upon the Court to scrutinize the case of the prosecution with some extra care and caution.

On this point reference may be made to the pronouncement of Hon''ble Apex Court in the case of Jai Prakash Singh Vs. State of Bihar and Anr. reported in , (2012) 4 SCC 379 of which para 12 is important which reads as under:

"12. The FIR in a criminal case is a vital and valuable piece of evidence though may not be substantive piece of evidence. The object of insisting upon prompt lodging of the FIR in respect of the commission of an offence is to obtain early information regarding the circumstances in which the crime was committed, the names of the actual culprits and the part played by them as well as the names of the eyewitnesses present at the scene of occurrence. If there is a delay in lodging the FIR, it loses the advantage of spontaneity, clanger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of large number of consultations/deliberations. Undoubtedly, the promptness in lodging the FIR is an assurance regarding truth of the informant''s version. A promptly lodged FIR reflects the first hand account of what has actually happened, and who was responsible for the offence in question. (Vide Thulia Kali v. State of T.N., State of Punjab v. Surja Ram, Girish Yadav v. State of M.P. And Takdir Samsuddin Sheikh v. State of Gujarat.)."

On this point the Hon''ble Apex Court has considered the effect of delay in the F.I.R. and has held in the case of Kanhaiya Lal and Others Vs. State of Rajasthan reported in , 2013 (5) SCC 655 in para 12 as under:-

It is settled in law that mere delay in lodging the First Information Report cannot be regarded by itself as fatal to the case of the prosecution. However, it is obligatory on the part of the court to take notice of the delay and examine, in the backdrop of the case, whether any acceptable explanation has been offered, by the prosecution and if such an explanation has been offered whether the same deserves acceptance being found to be satisfactory. In this regard, we may refer with profit a passage from State of H.P. v. Gian Chand reported in [, JT 2001 (5) SC 169], wherein a three-Judge Bench of this Court has expressed thus:-"Delay in lodging the FIR cannot be used as a ritualistic formula for doubting the prosecution case and discarding the same solely on the ground of delay in lodging the first information report. Delay has the effect of Putaing the court on its guard to search if any explanation has been offered for the delay, and if offered, whether it is satisfactory or not. If the prosecution fails to satisfactorily explain the delay and there is a possibility of embellishment in the prosecution version on account of such delay, the delay would be fatal to the prosecution. However, if the delay is explained to the satisfaction of the court, the delay cannot by itself be a ground for disbelieving and discarding the entire prosecution case."

In Ramdas and others v. State of Maharashtra reported in [, 2007 (2) SCC 170, this Court has observed that mere delay in lodging the first information report is not necessarily fatal to the case of the prosecution. However, the fact that the report was lodged belatedly is a relevant fact of which the court must take notice. This fact has to be considered in the light of other facts and circumstances of the case, and, in a given case, the court may be satisfied that the delay in lodging the report has been sufficiently explained. In the light of the totality of the evidence, the court has to consider whether the delay in lodging the report adversely affects the case of the prosecution.

(underlined by us)

In the facts of the instant case the appellants Phekka and Sanehi (since dead) are alleged to be armed with guns with which they are alleged to have fired on the deceased and the sole surviving appellant Putai was carrying banka and fire shot by the other accused persons have hit Nanhakku (deceased) on his back due to which he fell down. Thereafter, he was dragged by the accused persons after firing a shot in the air to scare the witnesses when the co-accused persons namely Phekka and Sanehi dragged Nanhakku and placed his head on mend then present appellant Putai gave blows of banka to severe his head from the neck. As per the postmortem report the cause of death was the banka blows given on the neck of the deceased. The case of the prosecution stands fully corroborated by the medical evidence as one fire arm wounds of entry was found on the back of shoulder blade and three incised wounds were also found on the neck and face. Therefore, the actual person who has caused death of the deceased Nanhakku was the appellant Putai. Though the other appellants have also shared a common intention and have played active role in the commission of the offence but so far as the present appellant Putai is concerned, he has played very important and active role in the murder of the deceased. In the facts of the instant case, the prosecution has proposed to prove its case by direct evidence of Rajai Pal, Sri Krishna and Ram Kishore. The testimony of Rajai Pal is challenged on the ground that his presence on the scene of occurrence was not probable. Likewise, the testimony of Ram Kishore has also been challenged. The evidence of Sri Kishan has also been challenged on the same ground as he is resident of different village situated at a distance of about 5 furlong away from the place of incident. So the evidence of these three eye witnesses have been challenged on the ground that they were chance witnesses. Before appreciating their evidence we would like to discuss the legal position on the point of chance witnesses and related witnesses.

Law is settled on the point that even if a witness is a chance witness or a related witness, even then his evidence cannot be discarded solely on the ground that he was a chance or a related witness. In the case of Nagappan Vs. State (by Inspector of Police, Tamil Nadu) reported in , (2014) 3 SCC (Cri) 660 Hon''ble the Apex Court in paragraph No. 10 has observed as under:-

"10. As regards the first contention about the admissibility of the evidence of PW 1 and PW 3 being closely related to each other and the deceased, first of all, there is no bar in considering the evidence of relatives. It is true that in the case on hand, other witnesses turned hostile and have not supported the case of the prosecution. The prosecution heavily relied on the evidence of PW 1, PW 3 and PW 10. The trial court and the High Court, in view of their relationship, closely analysed their statements and ultimately found that their evidence is clear, cogent and without considerable contradiction as claimed by their counsel. This Court, in a series of decisions, has held that where the evidence of "interested witnesses" is consistent and duly corroborated by medical evidence, it is not possible to discard the same merely on the ground that they were interested witnesses. In other words, relationship is not a factor to affect the credibility of a witness. (Vide Dalip Singh v. State of Punjab , AIR 1953 SC 364 Guli Chand v. State of Rajasthan , (1974) 3 SCC 698, Vadivelu Thevar v. State of Madras , AIR 1957 SC 614, Masalti V. State of U.P. , AIR 1965 SC 202, State of Punjab v. Jagir Singh , (1974) 3 SCC 277, Lehna v. State of Haryana , (2002) 3 SCC 76, Sucha Singh V. State of Punjab , (2003) 7 SCC 643, Israr v. State of U.P. , (2005) 9 SCC 616, S. Sudershan Reddy v. State of A.P. , (2006) 10 SCC 163, Abdul Rashid Abdul Rahiman Patel v. State of Maharashtra , (2007) 9 SCC 1, Woman v. State of Maharashtra , (2011) 7 SCC 295, State of Haryana v. Shakuntla , (2012) 5 SCC 171, Raju v. State of T.N. , (2012) 12 SCC 701, Subal Ghorai v. State of W.B. , (2013) 4 SCC 607."

(emphasis added)

On the point of chance witness reference may be made to the pronouncement of Hon''ble Apex Court in the case of Vikram Singh and others V. State of Punjab reported in , (2010) 3 SCC 56 wherein Hon''ble Apex Court has cited paragraph 3 of its earlier pronouncement in the case of Rana Partap and Others V. State of Haryana reported in , 1983 (3) SCC 327 which reads as under:-

"There were three eye witnesses. One was the brother of the deceased and the other two were a milk vendor of a neighbouring village, who was carrying milk to the dairy and a vegetable and fruit hawker, who was pushing his laden cart along the road. The learned Sessions Judge and the learned Counsel described both the independent witnesses as chance witnesses implying thereby that their evidence was suspicious and their presence at the scene doubtful. We do not understand the expression ''chance witnesses''. Murders are not committed with previous notice to witnesses; soliciting their presence. If murder is committed in a dwelling house, the inmates of the house are natural witnesses. If murder is committed in a brothel, prostitutes and paramours are natural witnesses. If murder is committed in a street, only passers by will be witnesses. Their evidence cannot be brushed aside or viewed with suspicion on the ground that that they are mere chance witnesses''. The expression ''chance witnesses'' is borrowed from countries where every man''s home is considered his castle and every one must have an explanation for his presence elsewhere or in another man''s castle. It is a most unsuitable expression in a country whose people are less formal and more casual. To discard the evidence of street hawkers and street vendors on the ground that they are ''chance witnesses'' even where murder is committed in a street is to abandon good sense and take too shallow a view of the evidence."

(emphasis added)

Reference may also be made to the pronouncement of Hon''ble Apex Court in the case of Thangaiya V. State of Tamil Nadu reported in , (2005) 9 SCC 650 and the Hon''ble Apex Court has observed in para 8 which is reproduced as under:-

"Coming to the plea of the accused that PW-3 was ''chance witness'' who has not explained how he happened to be at the alleged place of occurrence, it has to be noted that the said witness was an independent witness. There was not even a suggestion to the witness that he had any animosity towards the accused. In a murder trial by describing the independent witnesses as ''chance witnesses'' it cannot be implied thereby that their evidence is suspicious and their presence at the scene doubtful. Murders are not committed with previous notice to witnesses; soliciting their presence. If murder is committed in a dwelling house, the inmates of the house are natural witnesses. If murder is committed in a street, only passers by will be witnesses. Their evidence cannot be brushed aside or viewed with suspicion on the ground that they are mere ''chance witnesses''. The expression ''chance witness'' is borrowed from countries where every man''s home is considered his castle and everyone must have an explanation for his presence elsewhere or in another man''s castle. It is quite unsuitable an expression in a country where people are less formal and more casual, at any rate in the matter explaining their presence."

(Emphasis added)

Keeping in view the aforementioned legal position the evidence of the witnesses has to be considered. The complainant has accompanied the deceased to the field and this conduct of the complainant cannot be said to be abnormal or unnatural, rather it was a natural conduct keeping in view the village background. Both of them had gone to the field for agricultural work to bring paddy saplings and also green fodder for the animals. So presence of two persons was necessary to complete this work. PW-2 Sri Kishen has stated that he had gone to Faridipur to arrange labourers for transplanting paddy in his field while he was returning after booking labour then this incident took place which he witnessed. The incident of this case had taken place in the year 1980 and in those days all the villages were not linked with proper roads. So the villagers used the mend of the fields as a way to go to another villages. The another witness namely Ram Kishore has also stated that he had come to visit his maternal uncle and when he got the information that they have gone to the fields then he also went there. Thus both the witnesses have furnished a reliable and reasonable explanation of their presence at the scene of occurrence. May be that some independent witnesses must have seen the incident but simply because none of them could dare to come-forward to support the case of the prosecution, the same cannot be a ground to discard the otherwise reliable evidence of the witnesses who have come-forward in support of the case of the prosecution. Experience remind us that independent person avoid to become a witness of a crime. We will not have to travel a long way to seek reasons for such apathy of the public. One major reason is that they simply want to avoid the enmity with the criminals as there is no mechanism for the protection of the witnesses from such criminals. This apathy of the public is a great hurdle in the administration of the criminal justice but it is a ground reality and on this ground alone the evidence of other witnesses cannot be discarded.

Reference may be made on this point to the pronouncement of Hon''ble Apex Court in the case of Shiv Ram vs. State of U.P. , 1998 SCC Pg. 149 has considered this aspect and was of the view that nowadays it is a common tendency that no outsider would like to get involve in a criminal case much less in the crime of present magnitude. Therefore it is quite natural that no independent witness will come forward to assist the prosecution. It is well settled that the evidence of witnesses cannot be discredited only on the ground that they are close relatives of the deceased persons but what is required in such situation is that the Court must scrutinize the evidence of such witnesses with utmost care and caution.

In another case Appa vs. State of Gujarat, AIR 1988 SC Pg. 698 Hon''ble Apex Court observed that ''Experience reminds us that civilized people are generally insensitive when crime is committed even in their presence. They withdraw from both, victim and vigilant. They keep themselves away from the Court. They take crime as a civil dispute. This kind of apathy of general public is indeed unfortunate but it is everywhere whether in village life or town and city. One cannot ignore this handicap. Evidence of witnesses has to be appreciated keeping in view such ground realities. Therefore, the Court instead of doubting the prosecution case where no independent witness has been examined must consider the broad spectrum of the prosecution version and then search for the nugget of truth with due regard to probability, if any suggested by the accused.

Before proceedings further in the matter this court considers it necessary to consider the point, as how the evidence should be viewed. This point has been considered by the Hon''ble Apex Court in the case of Bhag Singh and Ors. Vs. State of Punjab, 1988 SC Criminal Rules Pg. 101. Hon''ble Apex Court observed as under:-

"It is a general handicap attached to all eye witnesses if they fail to speak with precision their evidence would be assailed vague and evasive and on the contrary if they speak to all events very well and correctly their evidence becomes vulnerable to be attacked as tutored. Both approaches are dogmatic and fraught with lack of pragmatism. The testimony of a witness should be viewed from broad angles. It should not be weighed in golden scales, but with cogent standards. In a particular case an eye witness may be able to narrate the incident with all details without mistake if the occurrence had made an imprint on the canvass of his mind in the sequence in which it occurred. He may be a person whose capacity for absorption and retention of events is stronger than another person. It should be remembered that what he witnessed was not something that happens usually but a very exceptional one so far as he is concerned. If he reproduces it in the same sequence as is registered in his mind the testimony can not be dubbed as artificial on that score alone."

In the instant case, the murder of Nanhakku has been committed in a very brutal manner. So the persons who have witnessed the result of enmity with the accused persons who was not having even direct enmity with the accused persons, it was very natural for them to stay away from being a witness of this incident and to invite enmity of such persons who have committed such brutal murder in broad day light within their view.

It has also been argued that the load of grass which was being carried out was not found on the place of occurrence. This point has been considered by the learned trial court in its judgment and learned trial court has observed that the load of grass would have become useless for next day and the catties have to be provided grass on the same day, therefore, if the same has been taken away from the place of occurrence by the rustic villagers then it will not adversely affect the case of the prosecution. The evidence of the witnesses has also been criticized on the ground that no dragging marks were found on the body of the deceased while according to the case of the prosecution the other two accused persons had dragged the deceased from the place where he had fallen and brought him to the mend of the field where the banka blows were inflicted by the present appellant. Perusal of the site plan and the evidence of the witnesses shows that body of the deceased Nanhakku was palled for a very little distance to enable the accused persons to put his head on the mend and to enable them to severe his head by giving blows of banka. So in such a short distance of dragging it was not possible to sustain dragging marks. Apart from it, the marks of dragging also depends on the quality of the land on which the dragging was made. If the same was soft soil or irrigated field then the chances of coming up of dragging marks reduces to minimum. As stated earlier, it also stands on the distance during which the body was dragged.

It has also been argued that according to the evidence of the witnesses the dead body was first brought to the Police Station Hasanganj and thereafter it was taken to Unnao. This point has been dealt with by the learned trial court in para 23 of the impugned judgment and we also conquer with the view and the reasoning given by the learned trial court and we would like to add that the incident of this case had taken place in the year 1980. During those days there was a huge scarcity of proper transport and we cannot ignore the ground realities while appreciating the evidence. So to repeat the reasoning given by the learned trial court would unnecessarily lengthen this judgment without serving any fruitful purpose.

The point of inter-se enmity between the accused Phekka and Sanehi on one side and the present appellant Putai on the other side has also been considered by the learned trial court. It has been argued that it was not possible for them to join hands in the commission of this crime. In support of this submission some certified copies pertaining to revenue litigation have been filed. A civil litigation or a revenue litigation is not of such a serious nature which creates a bad blood between the parties. The experience remind us that even during the pendency of such litigation the parties come to the courts together and after attending the court they go back to their village together because such nature of dispute is only regarding the determination of their legal rights and does not create any enmity of such nature which can be taken as a ground to hold that it was not possible for them to join hands in the commission of the instant offence. This point has again been considered by the learned trial court in paragraphs Nos. 24 and 25 of the judgment and we also endorse the same. All the appellants were having the common motive to commit this offence as all the three accused persons were closely related. So this strong motive was actually the binding force which brought all the three together forgetting the revenue litigation.

It has also been argued that no evidence on the point of motive could be produced on behalf of the prosecution. The instant case is based on direct evidence and in cases when the prosecution comes with direct evidence of the offence the motive part loses its value.

Hon''ble the Apex Court in its several decisions that in case of direct evidence, the motive looses all its significance. Reference on this point may be made to the pronouncement of Hon''ble the Apex Court in the case of Habib Vs. State of Uttar Pradesh reported in , 2013 (12) SCC 568, wherein Hon''ble the Apex Court has observed that if there is direct and trustworthy evidence of witnesses as to the commission of offence, the motive part looses its significance. Ocular testimony of witnesses cannot be discarded only by reason on absence of motive if otherwise evidence is worthy of credence. Similar view has been expressed in the case of Subodh Nath and another Vs. State of Tripura reported in , 2013 (4) SCC 122 wherein Hon''ble the Apex Court has observed that motive becomes relevant as an additional circumstance in a case where prosecution seeks to prove the guilt by circumstantial evidence only. But if there is direct evidence against the accused having committed offence motive becomes irrelevant. Similar view has been expressed by Hon''ble the Apex Court in the case of Darbara Singh Vs. State of Punjab reported in , 2012 (10) SCC 476. However, in the instant case PW-1 has furnished the background of this offence. Motive always remains embedded in the heart of the accused so it is only the guess work of the complainant to say as to what persuaded other side to commit the offence.

From perusal of the entire evidence and the version of the FIR it becomes abundantly clear that the delay in the FIR was properly explained. The entire evidence was narrated in the FIR and the witnesses have fully supported the case of the prosecution. Their evidence falls within the category of wholly reliable and the same stands fortified by the medical evidence. The arguments advanced on behalf of the appellant Putai have no substance.

In view of the above, this appeal has no merits deserves to be dismissed and is hereby dismissed. The appellant Putai is on bail. His bail is cancelled. He shall be taken into custody forthwith to serve out his sentence.

Office is directed to communicate this order forthwith to the court concerned and to send back the lower court record to ensure compliance.