IMPORTANT POINT
If the genesis of the motive of the occurrence was not proved the ocular testimony of the witnesses as to the occurrence could not be discarded only by reason of the absence of motive.

JUDGMENT

Faizan Uddin, J.-In sessions trial No. 395/1976 the appellant Hari Shanker was charged and tried under Section 302, IPC alongwith the respondent Shiam Behari who was charged and tried under Sections 302/34, IPC and both were accordingly found guilty and sentenced to undergo life imprisonment by the Session Judge, Budaun. The appellant Hari Shanker went up in appeal being Criminal Appeal No.2417/1977 and the respondent Shiam Behari also filed separate appeal being Criminal Appeal No. 2082/1977 against their respective conviction and sentence. The High Court of Allahabad by a common judgment dated March 27, 1987 gave the benefit of doubt to respondent Shiam Behari and, therefore, allowed his appeal and acquitted him of the offence he was charged with. However, the appeal of the appellant Hari Shanker was dismissed by the High Court against which he has filed Criminal Appeal No. 30/1988. Subhash Chand the son of the deceased Parshadi Lal has filed Criminal Appeal No. 29/1988 against the aforesaid order of acquittal of respondent Shiam Behari recorded by the High Court.

2. Briefly stated the prosecution case was that Smt. Sushila Devi, the wife of deceased Parshadi Lal had leased her land to the respondent Shiam Behari on January 12, 1972 for purposes of manufacture of bricks. Smt. Sushila had issued notice to the respondent Shiam Behari on 6.3.1976 through her Advocate demanding the arrears of rent amounting to Rs. 8000/-, which was served on Shiam Behari on March 26, 1976. On July 23, 1976 one Rajesh Kumar, brother of son-in-law of Ved Prakash, PW 1, resident of the same locality in Budaun had died but the deceased Parshadi Lal could not join the funeral for want of information. The deceased Parshadi Lal, therefore, went to the house of Sita Ram, the father of Rajesh Kumar in Mohalla Chaudhary Sarai alongwith his friend Chandra Pal Varshney, PW 4 for condolence. It is said that at about 1.00 PM the respondent Shiam Behari and the appellant Hari Shanker also reached there at the house of Sita Ram where the respondent Shiam Behari raised Bhatta dispute with deceased Parshadi Lal and protested against the notice served on him. According to the prosecution during the heated exchange deceased Parshadi Lal is said to have told Shiam Behari that he would not permit him the manufacture of bricks unless the arrears of rent were paid. The respondent Shiam Behari went away saying that he shall see how he did not permit the brick klin to work. Further prosecution case was that on the same day at about 2.00 PM when Chandra Pal, PW 3 of Brahampur, Budaun arrived at the house of Sita Ram the deceased Parshadi Lal accompained by Chandra Pal Varshney, PW 4 got up to go back home. Parshadi Lal kicked his Motor Cycle to start but it could not start. He and Chandra Pal Varshney then pushed the Motor Cycle with a view to start it. It is said that in the mean while the appellant Hari Shanker with a single barrel gun and the respondent Shiam Behari came running from behind. Shiam Behari caught hold the Motor Cycle from behind and commanded the appellant Hari Shanker to fire at Parshadi Lal and kill him. At this the appellant Hari Shanker fired a gun shot on the back of Parshadi Lal who fell on the ground and the appellant Hari Shanker and respondent Shiam Behari immediately vanished from the place of occurrence and while going away Hari Shanker threw down the spent cartridge and loaded the gun again. The incident is said to have been seen by Ved Parkash, PW 1, Chandra Pal, PW 3 and Chandra Pal Varshney, PW 4 who were present at the time and place of occurrence. Ved Prakesh, PW 1 took injured Parshadi Lal to Budaun Hospital where he died soon thereafter.

3. Ved Prakesh went to Kotwali, Budaun where he lodged a report Ext. Ka-1 same day at about 3.40 PM on the basis of which FIR Ext. Ka-4 was recorded by Head Constable Bhim Singh, PW 5. ASI Abdul Majid Khan, PW 6 prepared Panchnama of the dead body Ext. Ka-12 in the hospital. Dr