CRIMINAL APPEAL No.386 OF 1988 Against the Judgment dated 10th June, 1988 passed by 2nd Additional Sessions Judge, Gopalganj, in Sessions Trial No. 87 of 1987/18 of 1987. Ram Surat Mahto @ Ram Surat Nonia, son of Dilip Mahto, resident of Saraya Naran, P.S. – Barauli, District – Gopalganj. ------------(Appellant) Versus The State of Bihar ----------(Respondents) ----------- For the Appellant : Sri Ashutosh Jha, Adv. Sri Narendar Pandey, Adv. Sri Bijoykant Mishra, Adv. For the State : Sri Shashi Bala Verma, APP. P R E S E N T THE HON'BLE SHRI JUSTICE DHARNIDHAR JHA THE HON'BLE SHRI JUSTICE AKHILESH CHANDRA ---------- Dharnidhar Jha & Akhilesh Chandra, JJ. The solitary appellant was tried by the learned Second Additional Sessions Judge, Gopalganj, for a charge under Section 302 of the Penal Code, and was ultimately found guilty of committing that offence as may appear from the impugned judgment dated 10th June, 1988, rendered in Sessions Trial No. 87/1987/18/1987. While passing sentence 2 on the same day, the learned judge directed the appellant to suffer rigorous imprisonment of life. The appellant appeals against the above order of conviction and sentence. 2. The prosecution case emanates from the very statement of the deceased which was recorded on the 2nd of October, 1986 in State hospital, Barauli at about 6.30 p.m. by P.W. 5 Sub-Inspector, Amarnath Tiwary. The deceased stated that on the previous day, i.e., 01.10.1986, there had been a quarrel between the lady of the families of one Narsingh Noniya and Ram Surat Noniya, i.e., the present appellant. The deceased had intervened into it and had forbade the ladies not to quarrel between themselves as the matter related to their children and was not good for them. 3. It was alleged, on 02.10.1986 at about 2 p.m., the ladies of the above families again started quarreling between them and again the deceased forbade them not to do it upon which this appellant Ram Surat Mahto @ Ram Surat Nonia 3 pulled out a Chhuri (knife) from the pocket of his full pant and dealt one blow on his neck and other on the right side of the neck. The appellant dealt another blow which hit the deceased on his cheek as a result of which he became seriously injured and was brought to the hospital by his villagers who arrived there on hulla, for treatment where he was being treated. 4. As may appear from the evidence of P.W. 5, S.I. Amar Nath Tiwary, the deceased died in Gopalganj Hospital, where he had been referred to for better treatment from Barauli Hospital on 03.10.1986. 5. On the basis of Exhibit – 2, the fardbeyan of the deceased the First Information Report of the case was drawn up by P.W. 5 and he himself took up the investigation. He inspected the place of occurrence and found it the vacant field of one Kishun Dev Mahto, which was situated south of a brick house at a distance of about 12 steps from the place of occurrence. Another field with standing paddy crops was also 4 found to the west of the field which was situated by the side of a village pathway which was running from village Neuri to Futaniganj Bazar. P.W. 5 found blood stains at the place of occurrence. He took charge of blood stained earth and prepared seizure memo (Ext. 4). On having learnt about the death of the deceased in Gopalganj Hospital, he came to Gopalganj Police Station and learnt that the inquest report had been prepared by Assistant Sub-Inspector of that Police Station and that post mortem examination had also been performed on the dead body. Accordingly, he collected the injury report as also the post mortem examination report in respect of the deceased. He recorded the statement of witnesses and after completing the investigation submitted charge sheet by sending the appellant up for his trial. 6. As may appear from the trend of cross examination of the witnesses, the appellant set up the defence of false implication on account of the dispute for partition of 5 properties with the deceased who as per the appellant was not agreeable to partition the property or to share the food grains, etc. with the appellant who was undisputedly the full brother of the deceased. 7. In support of the charges the prosecution examined as many as 10 witnesses out of whom P.W. 1, Sobha Devi, P.W. 2, Sohila Kumari, P.W.3, Mandodari Devi, P.W. 6, Sekh Bhola, P.W. 9, Lalmati Devi and P.W.10, Ram Kailash Mahto, were witnesses who claimed having seen the occurrence. P.W. 7 and 8 Shankar Mahto and Kishundeo Mahto respectively were declared hostile. P.W.4, is Dr. B.K. Bhatt, who held the post mortem examination on the dead body of the deceased and prepared the post mortem examination report (Ext. 1). 8. The learned Trial Court after considering the case of the prosecution treated the fardbeyan (Ext.2) of the deceased as dying declaration. But, he did not record the 6 conviction of the appellant on that solitary evidence, rather appears considering the evidence of other witness, like, P.Ws. 1, 2, 3, 6, 9 & 10 to hold that it was the appellant who had caused the death of the deceased in the manner as alleged by the prosecution and as such held the appellant guilty of committing the offence. 9. Sri Ashutosh Jha, learned counsel for the appellant has taken us through the evidence of the witnesses and has submitted that there was contradiction between the fardbeyan and the evidence of the witnesses as to where the occurrence had really taken place. It was contended in this behalf that the fardbeyan states that the occurrence had taken place at the Darwaja of the deceased but the witnesses examined by the prosecution state that the deceased was chased from his Darwaja down to the field of Kishundeo Mahto, where he was stabbed twice. It was contended that the blood which was found at the place of occurrence was not sent to 7 Forensic Science Laboratory for chemical analysis so that the court could be sure about it that it was human blood. The evidence of witnesses indicated that there was good relationship between the appellant and the deceased, they had never quarreled between them and further the appellant was a well behaved person as such it could be simply unimaginable that the appellant would be assaulting the deceased who was his full brother. It was, lastly, contended that the intent and knowledge of the appellant in committing the offence could be gathered from the use of the weapon which was a Chhuri, as per Sri Jha, was a very small weapon which could hardly impart any motive to the assailant. It was lastly submitted by referring to a decision of the Supreme Court in State of U.P. Versus Hari Prasad reported in AIR 1974 SC 1740 that the absence of motive makes it a point to enquire as to why the appellant would be killing his own brother and in absence of an allegation in that behalf makes the prosecution case suspect. Sir Jha, 8 lastly, submitted that the appellant appears committing the act in spur of a moment without premeditation and his conviction was recorded as back as on 10.06.1988, and as such the court could take a lenient view and thereby convert the conviction from under Section 302 to Section 304 of the Penal Code and reduce the sentence accordingly. 10. Sushri Shashi Bala Verma, learned counsel appearing for the State submitted that even if, the court keeps apart the evidence of fardbeyan treating it as a dying declaration, there was sufficient material on record to justify the conviction recorded by the learned trial judge by holding that the appellant had committed the act for which he was found guilty. She submitted that the witnesses were consistent while unfolding the prosecution narration which was supported by the medical evidence. Sushri Verma, further submitted that evidence of witnesses indicated that the appellant was practicing as a quack in Futaniganj Market and even if not 9 being trained in medical science, he is supposed to have known the implications of his act and, as such, his conviction under section 302 of the Indian Penal Code appears justified. Sushri Verma, further contended in the above connection that being a reasonable person who was supposed to know some details of human physiology, he could be assumed to intend to kill the deceased and this is further exhibited by the fact that in order to killing the deceased, the appellant was not only assaulting him by giving two blows but was chasing him down to the field from his Darwaja to accomplish his act. It, as such contended the learned Additional Public Prosecutor, was not a blind murder, it was a murder which was intended and committed with full knowledge and as such there could not be any question of reduction of sentence after converting the conviction from Section 302 to any other provision of the Penal Code. 11. We want first to dispose of the contention of Sri Jha, on absence of allegation regarding the motive for 10 committing the offence. Sri Jha has placed before us the decision of the Supreme Court in the State of U.P. Versus Hari Prasad reported in AIR 1974 SC 1740 and has referred to us that particular part of paragraph 2 of the report which contains the observation specifically on non-proof of the fact constituting motive if the same has been alleged to have impelled the accused to commit the offence. The observations of the Supreme Court runs as follows: “This is not to say that even if the witnesses are truthful, the prosecution must fail for the reason that the motive of the crime is difficult to find. For the matter of that, it is never incumbent on the prosecution to prove the motive for the crime. And often times, a motive is indicated to heighten the probability that the offence was committed by the person who was impelled by that motive. But, if the crime is alleged to have been committed for a particular motive, it is relevant to inquire whether the pattern of the crime fits in with the alleged motive.” 11 12. As may appear from the very observation extracted above, if the witnesses are found trustworthy then in that case the absence of allegation about the motive for committing the offence may not be of any importance. But, what appears of importance is that in case any particular motive is alleged to be the reason on account of which the accused person, to borrow the word from the above decision, was ‘impelled’ to commit the offence, then it could be relevant to enquire about its non proof. Thus, it is not always necessary to look for motive as to why the offence was committed. That appears more necessary in a case when the evidence rests upon eye witness account coming from such class of witnesses. 13. We could point out that there could be many class of cases. There might be some particular motive alleged by prosecution in one class of cases and in the other we could find that there was no such motive alleged rather some initial 12 facts have been alleged indicating as to how the occurrence had generated. This is the reason that in some of such class of cases as appears classified by us in the second category, we could find some initial story as to what was the background under which the offence was committed. What is required in such class of cases is to find out that there was some support or full support about the genesis of the occurrence. If, we could get sufficient facts to our satisfaction indicating as to how the occurrence had generated then, we could hardly bother about the absence of any motive for committing the offence. 14. Here, in the present case, the deceased stated in his fardbeyan that there had been some quarrel between the ladies of two families on account of some quarrel between the children of their families. That quarrel had taken place one day prior to the occurrence and the deceased had intervened to pacify them by advising the ladies not to indulge in such matters as the same was not good. It further appears that on 13 the very day of the occurrence at about 2 p.m., some quarrel cropped up again. The deceased again asked the ladies not to quarrel between them and at this point of time, the appellant is said to have given two repeated blows with Chhura to the deceased. 15. The above background facts constitute the genesis of the occurrence, in our opinion, and this was the background under which the occurrence appears taking place. We have evidence on the above fact coming from P.W.1 Sobha Devi, i.e., daughter-in-law of the deceased in her paragraph 7, cross-examination on which fact was done by the prosecution in paragraph 15 of P.W.1. The same fact appears stated in some details by P.W.2 Sohila Kumari, who happens to be the daughter of deceased in paragraph 1 of her evidence and we find that P.W.2 was not cross-examined on the fact by the defence. P.W.3, the wife of the deceased, namely, Mandadori Devi has spoken on the quarrel that had taken place at about 2 14 p.m. on the day of the occurrence, as may appear from paragraph 6 of her evidence in cross-examination. P.W.3 has given the full details of the earlier quarrel which appears in paragraph 7, 8 and 9 of her cross-examination. 16. Thus, we find from the evidence of above witnesses in the above noted paragraphs that they have given quite sufficient and satisfactory evidence as to how the occurrence had generated or in other words, what was the background in which the deceased was assaulted. We find the genesis of the occurrence properly established. The prosecution appears to have discharged its onus establishing the fact of the initial quarrel between the ladies and the reason for which the deceased was assaulted. 17. In the light of the above discussion of the evidence, we find that the contention that there is no motive alleged by the prosecution nor the same was established appears to us not fitting into the context of the case and 15 appears a bit irrelevant. As a matter of fact, the occurrence was not committed for a particular motive rather it had its own genesis as pointed out by us, which has been established by reliable evidence coming from witnesses. 18. We find the witnesses reliable because there is no material placed on record that any of the witnesses like P.Ws. 1, 2, 3, 9 and 10 could be having any grudge against the appellant so as to coming forward on that account to depose falsely against him. P.Ws. 1, 2 and 3 are non else than the daughter-in-law, daughter and wife respectively of the deceased having admitted in their own evidence that the appellant was the full brother of the deceased. They do not appear having any ill-will against the appellant. They have stated very honestly that the appellant was bearing very good and unblemished character. He had never indulged in any offence and that he was pursuing one of his callings of practicing medicine, of course as a quack, in Futaniganj Market. 16 We do not find any motive in those witnesses for which they could be implicating the appellant falsely instead of the real assailant. During the course of cross-examination also they have given clear account of the incident and do not appear wavering on any important fact. 19. As regards, the contention of the learned counsel that there was a contradiction about the place of occurrence between the fardbeyan and the evidence of witnesses, we may, first, point out that the fardbeyan was given by the deceased who was admitted in Barauli Hospital for treatment of his injuries. So as to gathering as to what could be the state of his mind, we may refer to the evidence of P.W. 4, Dr. B.K. Bhatt, who had held post mortem examination on the dead body of the deceased Suraj Mahto. Dr. Bhatt had found the following injuries on the dead body of the deceased: - (i) Incised wound 2”x2/3”x bone deep, vertical on the angle of right ramus of 17 mandible, (ii) Sharp penetrating wound 1”x1”x2” (deep) on upper part of right side of Neck. 20. On dissection, P.W. 4 found the soft tissues cut and the carotid vessel punctured. There was blood and blood clots present under injury no. 2. The death was on account of shock and hemorrhage, as a result of injury no. 2, which was grievous and fatal in nature and which was caused by sharp penetrating weapon, like, a Chhura. 21. We want to point out that carotid vessel is one of the most important arteries which runs from heart and takes blood to some important organs of the body. After being cut or penetrated the blood from the body of the deceased must have flowed incessantly and it could be said with some amount of certainty, that it could have caused extreme shock to the deceased. The deceased was making his statement in the form 18 of fardbeyan in such a state of shock. His mental faculties were sufficient to allow making some narration. But, when he was bearing some grievous and fatal injuries then he is not supposed to give the minutes details in his fardbeyan, as to how he was chased down from his Darwaja to the field and assaulted. We could simply repeat the observations of the court that fardbeyan or the First Information Report could not be the encyclopedia of his information. It is supposed to contain sufficient informations as to how and by whom and at which place and for any particular reason the occurrence had taken place. These primary criteria appear fulfilled by the Ext.2, the fardbeyan. As regards, the details of the occurrence, it is expected to come from the evidence of the witnesses who had seen the occurrence, else, what is the need of examining witnesses in a criminal trial, if we are not required to have details of an occurrence full from them. 22. As regards, the witnesses they have equivocally 19 pointed out to the court that when the deceased had intervened to pacify the quarrel between the ladies on some matters which were between the children, the appellant pulled out a Chhura or Chhuri, as the case may be, from his pant-pocket, chased the deceased up to the field of Kishundeo Mahto, where he was given two blows which were found causing injuries as per evidence of P.W. 4. There is no variance in the evidence of any other witneses like P.Ws. 1, 2, 3, 9 and 10. P.W.6, Sekh Bhola, who came subsequently from Futaniganj Bazar on hearing about the commission of the offence, has stated that he found the deceased lying injured and he and others put him on a rickshaw to be taken to Barauli Hospital. The contention that there was contradiction in the fardbeyan and the evidence of witnesses appears not acceptable in the light of the state of the health of the deceased in which he was making the statement. 23. It was contended by Sri Jha, in absence of any particular motive for the appellant to commit the offence and in 20 the background of good relationship between him and the deceased, it does not come to reason as to why the appellant would give Chhura blow to the deceased. We want to point out that it is very difficult to read the mind of an accused, it could be the accused who could know the reason as to why he had indulged in an offence or an act. 24. We want to point out that society has become complex on account of ourselves turning out to be complex characters. It is very difficult in the present day society to define or set down the conduct of any person. It could be the person who allegedly committed any act to say as to why and for what reason he had indulged into a particular act. The other factor which could be often found in our day to day experience is that all persons are not equal behaviorally making it extremely difficult to assess him as a person when it comes to enquire into as why he would commit an act as devastating as murder of a person. Human behaviour and his acts are two complex to be 21 explained, understood or anticipated. 25. The deceased’s wife was indulging in some quarrel, may be with the intervention of the deceased had not been liked by the appellant and he conducted himself in a manner as to kill the deceased. 26. This requires us to consider the plea of the learned counsel for the appellant to us to convert the conviction of the appellant from Section 302 of the Indian Penal Code to any other Section of the Penal Code. That plea was resisted by the learned Additional Public Prosecutor. As we have noted in some early part of the judgment, the conversion of the conviction was pleaded on the ground that the appellant was having sound good relationship with his brother and there was no immediate motive for him to commit the offence. 27. It was also contended that the appellant has remained in custody for some years and, lastly, that it was a mere Chhuri (a small knife), which was used by him for 22 committing the offence. The above contention was resisted by the learned Public Prosecutor by submitting that it is up to us as to how, we express our perception by using a particular term to express about a thing. One may use a ‘Chhuri’ but the other person may describe the same weapon as ‘Chhura’ or something bigger like that. It was contended that the evidence of the witnesses, was that the appellant was practicing medicine in Futaniganj Market, and as such he could be presumed to be a reasonable person who could be knowing quite well as to what could be the result of his act when he had struck the blow on the neck, which could be damaged and what could ultimately be the consequences of those blows. It was, as such, contended that the very site, which was chosen by the appellant to give blows with as dangerous a weapon as Chhura to the injured, it could be presumed that the appellant was intending to commit the murder and he was knowing the implications of his acts. 23 28. Some of the witnesses like P.W.2 in paragraph 16, P.W.3 in paragraph 10 and 11, have stated that the appellant was practicing medicine in Futaniganj Market. On the day of the occurrence also, he had gone to Futaniganj in that connection and had come back for his meals at about 2 p.m. and the occurrence had taken place. The appellant having practiced medicine must be presumed to know as to what could be physiology of a human being. At the same time, he must also be knowing the dangerousness of a Chhura or a knife and the implications of giving blow by such a weapon on the neck of the man which was not a solitary act. The blows were repeated. It was not an act which was given all of a sudden. The evidence indicates that he chased the deceased from his Darwaja up to the field of Kishundeo Mahto and thereafter given two blows repeatedly. These acts taken together indicates that it was a completely intended act of the appellant and he intended to inflict such injuries which, in all probabilities must cause death. 24 The doctor found the injuries not only grievous but fatal. The injuries by themselves