NATHUNI YADAV AND ORSversusSTATE OF BIHAR AND ANR

                     NA1HUNI YADAV AND ORS                                       A
                                      v.
                       STATE OF BIHAR AND ANR

                           DECEMBER 20, 1996

              [DR. AS. ANAND AND K.T. THOMAS, JJ.)                               B

      Criminal Law :

      Penal Code, 1860 : Section 300.

      Murder-Appreciation of evidence-Moonless night-{dentification of C
assailants-Assault committed on roofless terrace-Assailants not strangers
to inmates of tragedy bound house-Neighbours rnshed to scene of incident
and deposed that victims me11tioned names of accused as assailants who
shot at victims-Held, eye wit11esses well acquai11ted with physiognomy of
each of the assailants-It could not be assumed that it would not have been D
possible for victims to see the assaila11ts or that there was possibility for •
making a wrong identification of killers-Evidence Act, 1872, S.9.

      Evidence Act, 1872: Section 157.

      Shoot out in neighbouring house-lnmates reached scene of incident          E
and stated that victims mentioned names of accused as assailants-Held,
such an evidence might not be substantive evidence but had utility at trial as
it would fall under Section 157-What was important was that interval
between incident and utterance of statement must not be such as to afford
occasion for reflection or even contemplation.                                   F
       Section 9-Motive-Held, motive for a criminal act need not necessarily
be proportionately grave to do grave crimes-lt was quite possible that
emotion impelled to commit crime would remain undiscoverable-Sometime
motive established might appear to be a weak one-That by itself not suffi-
cient to lead to any inference adverse to prosecution-Penal Code, 1860,          G
Section 300.

      Words and Phrases :

      ''.At or about the time'L- Meaning of-{n the context of Sectio/i 157 of
the Evide11ce Act, 1872.                                                      H
                                     905
    906                  SUPREME COURT REPORTS(1996) SUPP.10 S.C.R.

A        The appellants were acquitted of an offence under Section 302 of the
    Indian Penal Code, 1860 by the Sessions Court. However, the High Court
    had reversed the acquittal and convicted and sentenced the appellants to
    undergo imprisonment for life. Hence this appeal.

          According to the prosecution, the victim, his wife and other members
B of his family were sleeping on the open terrace of his residential building
    on a moonless night. It was then that the appellants-accused lurked into
    the house and reached the terrace. The victim woke up and saw the
    appellants armed with guns standing close by. The appellants opened fire
    at the victim thereby injuring him and shot at his wife who fell dead.
C   Hearing the sound of hubbub their neighbour woke up and asked from his
    terrace as to what was happening. Then the appellants fired at the neigh·
    boor who fell dead. Many neighbours rushed to the scene of incident and
    stated that the victim and other members of his family mentioned the
    names of the appellants as the assailants who shot at them.

D         In the appeal before this Court, on behalf of the accused persons it
    was contended that there was no possibility at all for the witnesses to
    identify the appellants as it was a moonless night; and that the appellants
    had no motive to commit the murder.

          Dismissing the appeal, this Court
E
        HELD : 1.1.. The proximity at which the assailants would have
  confronted with the injured, the possibility of some light reaching there
  from the glove of stars, and the fact that the murder was committed on a
  roofless terrace are germane factors to be borne in mind while judging
F whether the victims could have had enough visibility to correctly identify
  the assailants. Over and above those factors, it must be borne in mind the
  further fact that the assailants were no strangers to the inmates of the
  tragedy bound house, the eye witnesses being well acquainted with the
  physiognomy of each one of the killers. It cannot be assumed that it would
  not have been possible for the victims to see the assailants or that there
G was possibility for making a wrong identification of them. Even the as·
  sailants had enough light to identify the victims whom they ta~etted
  without any mistake from among·those who were sleeping on the terrace.
  If the light then available, though meagre, was enough for the assailants
  why should it be assumed that same light was not enough for the injured
H who would certainly have pointedly focussed their eyes on the faces of the
                      NATHUNI YADAV v. STATE                            ')()7

intruders standing in front of them. What is sauce for the goose is sauce       A
for the gender. [910-E-H]

      1.2. The evidence of the neighbours is to the effect that when they
heard sound of gun shots they rushed to the spot within a few minutes and
saw the injured persons in bleeding condition. Those witnesses further B
deposed that the victims mentioned the names of the appellants as the
assailants who shot them. The above evidence may not become substantive
evidence as res gestae. Nevertheless, such evidence has a utility in the trial
as it would fall within the ambit of Section 157 of the Evidence Act, 1872.
The words "at or about the time" in Section 157 of the Evidence Act are the
crucial words to judge the time when the statement was made. Whether C
the statement was made at or about the time of the incident can be decided
on the facts of each case. No hard and fast rule can be laid down for it.
However, those words "at or about the time" in Section 157 must receive
a pragmatic and liberal construction. The principle is that the time inter-
val between the incident and the utterance of the statement should not be D
such as to afford occasion for reflection or even contemplation. If the time
interval was so short as between the two that the mind of the witness who
made the statement was well connected with the incident without anythin1,,
more seeping into, such statement has a credence, and hence can be used,
though not as substantive evidence on the principle enumerated in Section
157 of the Evidence Act. [911-B-C; E; G-H; 912-A-B]                            E

      Rameshwar v. State of Rajastluin, AIR (1952) SC 54, relied on.

      2.1. Motive for doing a criminal act is generally a difficult area for
prosecution. One cannot normally see into the mind of another. Motive is the    F
emotion which impells a man to do a particular act. Such impelling cause
need not necessarily be proportionally grave to do grave crimes. Many mur-
ders have been committed without any known or prominent motive. It is
quite possible that the impelling factor remain undiscovered. [913-B-C]

      2.2. Though, it is a sound proposition that every criminal act is done G
with a motive, it is unsound to suggest that no such criminal act can be
presumed unless motive is proved. After all motive is a psychological
phenomenon. Mere fact that prosecution failed to translate that mental
disposition of the accused into evidence does not mean that no such mental
condition existed in the mind of the assailant. (913-D-E]                    H
    908                   SUPREME COURT REPORTS[1996] SUPP. 10 S.C.R.

A         2.3 In some cases, it may not be difficult to establish motive through
    direct evidence, while in some other cases inferences from circumstances
    may help in discerning there mental propensity of the person concerned.
    There may also be cases in which it is not possible to discern the mental
    transaction of the accused which would have impelled him to act. No proof
B   can be expected in all cases as to how the mind of the accused worked, in
    a particular situation. Sometimes, it may appear that the motive estab-
    lished is a weak one. That by itself is insufficient to lead to any inference
    adverse to the prosecution. The mere fact that motive alleged by the
    prosecution is not strong enough for others to develop such a degree or
    grudge would not mean that the assailants had no serious reasons to
C   commit the murder. [913-F·G; A]

          Atley v. State of U.P., AIR (1955) SC 807, relied on.

          Reg v. Palmer, Shorthand Report p. 308. OCC May 1856, referred to.

D        CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.
    194of1989.

         From the Judgment and Order dated 26.11.86 of the Patna High
    Court in Crl. R. No. 184 of 1982 and Govt. A. No. 3 of 1982.

E         M.P. Verma, Ranbir Yadav and P. Gaur for the Appellants.

          B.B. Singh for the Respondents.

          The Judgment of the Court was delivered by
F         THOMAS, J. For Bhagelu Singh Yadav, his own residence became
    most devastatingly unsafe when he and his wife were gunned down by
    armed assailants during a summer night in the month of June, 1980. His
    wife Sona Devi fell down dead on the spot though Bhagelu Singh escaped
    death as the pellets did not injure his vital organs. But the irony of fate of
G   his neighbour Ram Janam Rai was horrendous as he too was shot dead
    just because he woke up hearing the sound of commotion from his neigh-
    bourhood. Balroop Yadav (first cousin of Bhagelu Singh Yadav). His two
    sons (Nathuni Yadav and Chela Yadav) and his son-in-law (Chandrika
    Yadav) were charge-sheeted by the police on the aforesaid incident before
H   the Sessions Court. After trial learned Sessions Judge acquitted all of them.
                    NATHUNIYADAVv.STATE(THOMAS,J.]

    But a Division Bench of the Patna High Court has reversed the acquittal        A
    and convicted them of murder and sentenced them to undergo imprison-
    ment for life. This appeal, is filed under Section 2A of the Supreme Court
    (Enlargement of Criminal Appellate Jurisdiction) Act, 1970 and Section
    379 of the Code of Criminal Procedure, 1973.
                                                                                   B
          During the pendency of this appeal, Balroop Yadav passed away on
    17.2.1990. Consequently, the appeal against him stood abated. We heard
    Shri M.P. Verma, senior advocate who argued the appeal for the remaining
    appellants and Shri B.B. Singh, advocate for the State of Bihar.

          Balroop Singh's father (Charvidhar) and Bhagelu Singh's father           C
    (Lagatu) were direct brothers, decease Bhagelu Singh had married twice
    and Sona Devi was his second wife. (His first wife and a daughter born in
    the first wedlock had died long before this incident.) Sheela Kumari
    (PW-6) is the daughter of Bhagelu Singh and Sona Devi. They were
    residing together in his house in Diliyan villiage (Rohtak District, Bihar).   D
    Appellants were also residing in the same village.
(



          Bad blood existed between Bhagelu Singh Yadav and Balroop Yadav
    on account of some family feud. This ghastly incident took place around
    midnight on 11.6.1980. On that fateful night, Bhagelu Singh and other          E
    members of his family were sleeping on the open terrace of his residential
    building. Sona Devi's brother Saryu Singh (PW-4) was also sleeping on the
    same terrace. It was during then that the assailants iurked into the house
    and reached the terrace. As the dog barked, Bhagelu Singh Yadav woke
    up and saw the assailants armed with guns standing closeby.
                                                                                   F
           Appellant Chandrika opened fire at Bhagelu Singh while appellant
    Nathuni Yadav shot Sona Devi with another gun. Hearing the sound of
    nacouth their neighbour Ram Janam Rai woke up and asked from his
    terrace as to what was happening. Then Balroop Singh Yadav turned the
    mouth of his gun towards that neighbour and pulled the trigger. Ram            G
    J anam Rai slumped down and breathed his last then and there. During the
    shoot out Saryu Singh (PW-4) sensed that the assailants might be prowling          , ..
    for the little daughter Sheela Kumari also and so he took courage and lifted
    her up and slipped away from the scene. Assailants then fled from the
    scene.                                                                         H
    910                   SUPREME COURT REPORTS(l996] SUPP.10 S.C.R.

A          Many nighbourers rushed to the place. Bhagelu Singh Yadav was
    taken to the Government hospital Sasaram where he was treated for the
    injuries sustained.

          We have no doubt that, on the evidence in this case. Bhagelu Singh
B   and his wife were shot at on the ill fated night at the terrace of their
    residential building nor have we any doubt that their neighbour Ram Janam
    Rai was shot dead as he woke up in the night and expressed his inquisi-
    tiveness as to what was happening in the neighbourhood. We may point
    out that learned counsel _for the appellant did not dispute the above points
    before us. The contention which learned counsel stressed was that appel-
C   lants were not the assailants who intruded into the house of Bhagelu Singh
    Yadav.

          According to the learned counsel, there was no possibility at all for
    the witnesses to identity the assailants as it was a moonless night and there
D   was no lamp burning in the vicinity and hence it would have been pitch
    dark when the incident happened.

         We have considered the said contention from all its angles. Ever
  assuming that there was no moonlight then, we have to gauge the situation
E carefully. The proximity at which the assailants would have confronted with
  the injured, the possibility of some light reaching there from the glove of
  stars, and the fact that the murder was committed on a roofless terrace are
  germane factors to be born in mind while judging whether the victims could
  have had enough visibility to correctly identify the assailants. Over and
  above those factors, we must bear in mind the further fact that assailants
F were no strangers to the inmates of the tragedy bound house, the eye
  witnesses being well acquainted with the physiognomy of each one of the
  killers. We are, therefore, not persuaded to assume that it would not have
  been possible for the victims to see the assailants or that there was
  possibility for making a wrong identification of them. We are keeping in
G mind the fact that even the assailants had enough light to identity the
  victims whom they targetted without any mistake from among those who
  were sleeping on the terrace. If the light then available, though. meagre,
  was enough for the assailants why should we think that same light was not
  enough for the injured who would certainly have pointedly focussed their
H eyes on the faces of the intruders standing in front of them. What is sauce
                  NATHUNI YADAVv. STATE [TIIOMAS,J.]                      911

  for the goose is sauce for the gander.                                         A

         Apart from the evidence of PW-4 (Saryu Singh PW-6 (Sheela
  Kumari) and PW-10 (Bhagelu Singh) identifying the appellants as their
  assailants, there are certain other materials ensuring confidence in our
  mind that PWlO would have correctly identified his assailants as appellants.   B

        PW2 (Muni Yadav) and PW7 (Ram Janam Rai) were very close
 neighbours of Bhagelu Singh Yadav. The evidence of those two witnesses
 is to the effect that when they heard sound of gun shots they rushed to the
 spot within a few minutes and saw the injured persons in bleeding condi-
 tion. Those witnesses deposed further that Bhagelu Singh (PWlO) and C
 Saryu Singh (PW4) mentioned names of these appellants as the assailants
 who shot them. PW8 is the son of the Ram Janam Rai. He too deposed
 similarly that Bhagelu Singh mentioned the names of these appellants when
 the witness reached the spot soon after seeing ~s father lying dead with
 gunshot injury inflicted by somebody from the house of Bhagelu Singh.       D

         The above evidence of PW2, PW7 and PW8 may not become sub-
  stantive evidence as res gestae. Nevertheless. Such evidence has a utility in
  the trial as it would fall within the ambit of section 157 of the evidence Act.
  Any former statement made by a witness at or about the time when the E
  incident took place becomes usable as of corroborative value under Section
  157 of the evidence Act. Though such statements are not part of the main
  transaction, they have a probative value (or corroborative purposes if such
  statements have been made without delay. If delay was involved in making
  such statement. Its utility would be restricted to confronting the maker for F
  contradicting him. Such a statement would have no corroborative value. If
  there was no appreciable delay the statement made by the witness can be
  used for corroborating his own testimony as provided in Section 157 of the
  Evidence Act.

        The words "at or about the time" in Section 157 of the evidence Act G
  are the crucial words to judge the time when the statement was made.
  Whether the statement was made at or about the time of the incident can
~ be decided on the facts of each case. No hard and fast rule can be laid
  down for it. However, those words "at or about the time" in Section 157
  must receive a pragmatic and liberal construction. The principle is that the H
    912                    SUPREME COURT REPORTS(1996] SUPP.10 S.C.R.

A time interval between the incident and the utterance of the statement
    should not be such as to afford occasion for reflection or even contempla-
    tion. If the time interval was so short as between the two that the mind of
    the witness who made the statement was well connected with the incident
    without anything more seeping into, such statement has a credence, and
B   hence can be used, though not as substantive evidence, as corroborating
    evidence, on the principle adumberated in Section 157 of the Evidence Act.

           Vivian Bose J. has observed in Ramesh war v. State of Rajasthan, AlR
    (1952) SC 54 that "there can be no hard and fast rule about" at or about
    condition in section 157. The main test is whether the statement was made
C   as early as can reasonably be expected in the circumstances of the case and
    before there was opportunity for listening and concoction". We respectfully
    follow the aforesaid observation.
            \
            There is nothing on recor,d to doubt the genuiness of the testimony
D of PW2 (Muni Yadav). PW7 (Ram Janam Rai) and PW8 (Ramadhar
    Singh) that they heard from Bhagelu Singh Yadav (PWlO) that appellants
    were the assailants. We hold that the said statements of Bhagelu Singh
    Yadav (PWlO)' and Saryu Singh (PW4) corroborate their evidence in this
    case.
E
        Learned counsel advanced an argument, very vehemently, based on
  perpetrate the motive attributed to the appellants for committing this
  dastardly murder. According to the counsel, if appellants were the murders
                                                                                  •
  they should have had insatiable thirst for the blood of Sona Devi, but
F prosecution suggested only a pusile or fragile motive for them to perpetrate
  the brutal murder of an unarmed sleeping woman. What PWlO Bhagelu
  Singh Yadav suggested as motive for the crime is this : He had given his
  child Sheela Kumari in marriage to somebody else. As he had no other
  male progeny first appellant Balroop Yadav had an eye on his landed
  property. But Bhagelu Singh Yadav had gifted it away to his wife Sona Devi
G - This embittered the appellants and driven them to murder Sona Devi, is
  the case of the prosecution. Learned Sessions Judge treated it a:> a very
  weak motive for this gory murder. Learned counsel for the appellant rightly
  contended that by murdering Sona Devi appellants could not succeed in
  securing the property which was gifted away by Bhagelu Singh. Does it
H mean that appellants would have had no motive at all for gunning down
                 NATHUNIYADAVv.STATE[THOMAS,J.]                           913
                                                                                     !
 Bhagelu Singh Yadav and his wife? The mere fact that motive alleged by          A
 the prosecution is not strong enough for others to develop such a degree
 of grudge would not mean that the assailants had no serious reasons to do
 this.

         Motive for doing a criminal act is generally a difficult area for B
. prosecution. One cannot normally see into the mind of another. Motive is
  the emotion which impells a man to do a particular act. Such impelling
  cause need not necessarily be proportionally grave to do grave crimes.
  Many a murders have been committed without any known or prominent
  motive. It is quite possible that the aforesaid impelling factor would remain
  undiscoverable. Lord Chief Justice Champbell struck a note of caution in C
  Reg v. Palmer (Shorthand Report at page 308 SCC May 1850; thus: "But
  if there be any motive which can be assigned, I am bound to tell you that
  the adequacy of that motive is of little importance. We know, from ex-
  perience of criminal courts that atrocious crimes of this sort have been
  committed from very slight motives; not merely from malice and revenge, D
  but to gain a small pecuniary advantage, and to drive off for a time pressing
  difficulties". Though, it is a sound proposition that every criminal act is
  done with a motive, it is unsound to suggest that no such criminal act can
  be presumed unless motive is proved. After all motive is a psychological
  phenomenon. Mere fact that prosecution failed to translate that mental
  disposition of the accused into evidence does not mean that no such mental E
  condition existed in the mind of the assailant. lnAtley v. State of U.P., AIR
  ( 1955) SC 807 it was held "that is true, and where there is clear proof of
  motive for the crime, that lends additional support to the finding of the
  court that the accused was guilty but absence of clear proof of motive does
  not necessarily lead to the contrary conclusion." In some cases, it may not F
  be difficult to establish motive through direct evidence. While in some
  other cases inferences from circumstances may help in discerning the
  mental propensity of the person concerned. There may also be cases in
  which it is not possible to disinter the mental transaction of the accused
  which would have impelled him to act. No proof can be expected in all
  cases as to now the mind of the accused worked in a particular situation. G
  Sometimes, it may appear that the motive established is a weak one. That
  by itself is insufficient to lead to any inference adverse to the prosecution.

       After considering the various arguments addressed by learned coun-
 sel and after scrutinising the evidence in this case. We reach the conclusion   H
    914                   SUPREME C()URT REPORTS(1996] SUPP. 10 S.C.R.
A that the High Court has rightly interfered with the order of acquittal passed
    by the trial Judge. The conviction and sentence passed on he appellants
    are well merited and warrant no interference. The appeal is accordingly
    dismissed. The bail bonds executed by the appellants would stand can-
    celled. The Chief Judicial magistrate, Rohtas Sasaram is directed to take
B   immediate steps to put the appellants back in jail for undergoing the
    sentence.

    v.s.s.                                                  Appeal dismissed.