Patna High Court
Samtul Dhobi And Anr. vs State Of Bihar on 30 March, 1993
Equivalent citations: 1993(2)BLJR1041
JUDGMENT Syed Haider Shoukat Abidi, J.
1. Appellant, Samtul Dhobi has been convicted under Section 302 of the Indian Penal Code (for short 'the IPC') and has been awarded sentence of death while appellant, Sufchal Dhobi has also been convicted under Section 302, IPC and sentenced to undergo rigorous imprisonment for life. Both the appellants have also been convicted under Section 307 and 307/34 IPC but no sentence has been awarded. Hence, these Death Reference 3 of 1992 Criminal Appeal No. 230 of 1992 by both the appellants.
2. A First Information Report (Ext. 4) was lodged by the informant Ramzan Mian on 2-5-1991 at 7.30 a. m. at Majhaulia Police Station in which it has been said by the informant (PW 9) that in the night of 2-5-1991 at about 8 p. m. while his daughter (Ambud Nisa, PW 11) aged about 14 years, was sleeping with his wife Sakina Khatoon aged about 45 years on the floor by spreading a mat infront of the door of his house and while his daughter-in-law (Saimul Nisa, PW 8) wife of Maozoor Alam was feeding milk to her child in side the house, appellant, Samtul Dhobi armed with garasi and appellant Sukhal Dhobi armed with goji, both residents of village Chaniam Bandh, came to his darwaza where his wife Sakina Khatoon and daughter Ambud Nisa were sleeping on the mat and having seen Sakina Khatoon sleeping, Samtul Dhobi assaulted her on her neck and temple with garasi with the result that blood started oozing out profusely and neck and temple were chopped off. His wife began flottering and thereafter, she died instantaneously. On seeing this when his daughter Ambud Nisa cried, appellant Sukhal Dhobi assaulted her also with the bent of gartsi on her neck with the result that her neck got swollen. When his daughter-in-law, Saimul Nisa came out of the house and saw Samtul Dhobi chopping the neck of his wife with garasi, she began to cry. After the call of nature, he, rushed to his darwaza on the hulla and saw that Samtul Dhobi armed with blood stained garasi and Sukhal Dhobi with goji, were fleeing away from his darwaza and when he wanted to catch them, then Samtul pushed him with the result he fell down and began to cry. Then at that very time, Tulsi Man to, PW 1 Pramulla (PW 2) Sattar Mian, PW 6 and many others came to the place of occurrence who saw both the accused running away after killing his wife. The reason for the murder was that there was quarrel with regard to an orchard. The dead body of his wife, Sakina Khatoon was lying at his darwaza.
3. After registration of the first information report, the investigation pf the case was taken up by the officer-in-charge of Majhaulia Police Station, S. I. Uma Nath Sahay (PW 12) who reached the spot at 8.30 a. m, The place of occurrence of this case is the east facing land of the informant Ratnzan Mian and the Sehan land which is about JO feet long east west and about 20 feet north-south. He found the dead body to the east of the datwaza of the house at a distance of 1 1/2 yards upon a mat. Her neck and cheek were chopped. He prepared the inquest report and sent the dead body for post morten examination to M. J. K. Hospital, Bettiah where he recorded the statement of the informant and other witnesses, namely, Ambud Nisa and other. He found four injuries on the person of Ambud Nisa for which injury report (Ext. 7) was prepared and she was sent to the State Dispensary, Majhaulia for medical examination. He has also prepared seizure list of the blood stained mat and earth. He had also recorded the statement of Tulsi Mahto, Pramulla PWs 1 and 2. After completing investigation, he submitted charge-sheet against the appellants.
4. The accused in defence, denied the prosecution case and alleged that they have been falsely implicated in this case. Four witnesses in defence have been examined. Rahman Mian, Lakshmi Mahto, Ratan Mahto and Raghunath Mahto have been examined, DW 1 Rahman Mian has said that he reached after the occurrence and nobody gave out the names of the accused persons. DW 2 has said that when he reached the spot, Ramzao Mian or his daughter-in-law were not there and nobody give out the names of the accused persons. DW 3 has said that when he reached there, wife of Ramzm was lying dead and so, his daughter was also lying unconscious Ramzan and his daughter-in-law were in side the house and nobody at the spot said that the accused persons committed the offence. Ramzan came after two hours. DW 4 has also said that he reached the spot on hearing hulla and found the wife of the informant lying dead and daughter lying injured and unconscious.
5. The prosecution, in support of its case, has examined 12 witnesses. Tulsi Mahto and Parmulla Mian (PWs. 1 and 2) have turned hostile. PW 3 Dr. Gajendra Narain Yadav of M. J. K. Hospital, Bettiah has conducted the post mortem examination on 3-5-1991 at 5.15 p. m and submitted his report (Ext. 1) PW 4 and 5, Harendra Prasad and Shanfcar Sahi have deposed about their putting L. T. I.'s on the inquest report (Ext. 2) PW 6 Sattar Mian is said to have come on the spot after hearing the alarm. PW 7 Dr. Victar Sowator the Medical Officer, State Dispensary, Majhaulia has examined Ambud Nisa on 3-5-1991 at 3.20 p.m. and given injury report, (Ext. J) PW 8, Saimul Nisa, wife of Manzoor and daughter-in-law of the informant has deposed about the occurrence. PW 8, 9 is Ramjan Mian the informant himself. PW 10 Tilak Singh, a Tayeed, has proved the signature of the S. I. Uma Natb Sahay. (PW 12) on the first information reports PW 11 Ambud Nisa, daughter of the informant, is an eye witness and also injured, PW 12 Omanath Sahay has investigated the case and submitted the charge sheet against the appellants.
6. The learned trial court, after considering the entire material on the record, has convicted and sentenced the appellants as said above.
7. The learned Counsel for the appellants has urged that about the place of occurrence there is variation in the statement of PW 8 and the Investigating Officer (PW 12). It was also contended that the deceased had his daughter were sleeping in a deep slumber and so, Ambud Nisa, though Van injured wit' ness, could not see the occurrence. Similarly, Saimul Nisa who was feeding the child outside, also could not see the occurrence. It was further said that the informant could not be on the spot as he a had gone to ease. There is delay of 12 hours in lodging the first information report though, the police station was at a distance of 6 Kms. from the place of occurrence. The prosecution has also withheld the witnesses examined by the Investigating Officer. Even the evidence of prosecution witnesses is at variance about the occurrence. la the last, it was submitted that the sentence given to appellant No. 1. Samtul Dhobi was not a rare case for giving death sentence, and the appellant No. 2, Sukhal Dhobi could not be convicted under Section 302, I.P.C. as he is not said to have given any injury to the deceased or her daughter. To appreciate these contentions of the learned Counsel foe the appellants, the evidence will have to be scrutinised with care and caution.
8. Ramzan Mian, PW 9, husband of the deceased, Sakina Khatoon, father of Ambud Nisa, PW 7 and father-in-law of Saimul Nisa (PW 8) is the informant. He has said that his wife has been killed on Thursday at about 7 O'clook and at that time, he had gone to attend the call of nature. He heard alarm whereupon he rushed running. While he was coming, he saw Samtul Dhobi armed with garasi and Sukhal Dhobi with lathi running away. He made an attempt to apprehend them but Samtul pushed him and he fell down and both the accused ran away towards South. He came to his darwaztj where his daughter and daughter-in-law (PWs 7 and 8) said that both Samtul and Sukhal have chopped off his wife Sakina Khatooa's neck, whom he saw lying with injuries on her right side of the head and blood was oozing and the mat had got wet. She was restless (ill his arrival but died as soon as he reached there. His daughter Ambud was sleeping by the side of his wife and she said that after hitting her, accused Samtul gave his daughter garasi blow causing injury to her. Salira Dhobi, brother of Sukhal and Samtul had died on Wednesday, a day earlier than the occurrence on account of snake bite and the accused are said to be under the impression that it was on account of witch craft of Sakina Kbatoon that Saliro had died. He (witness) had a dispute with the appellants for a Sheesham tree. He wont to the police station with the Choukidar in the morning on Friday where his statement was recorded upon which he put his L.T.I. The police sent his daughter Ambil Nisa to Majhaulia Hospital for treatment as he had gone to the police station with his daughter. The police sent the dead body of Sakina Khatoon for post mortem examination to Bettiah on Friday. In cross-examination, he has said that Chokar is his brother whose house is near his house and Chirkut Dhobi's house was coatintiguous south of his house and ha has also family mambers but Chokar and Chirkut did not come after the occurrence One Chaadnka's child had died by anake bite but he had not made any allegation against his wife. But allegation against his wife, being a witch was made a year earlier to the occurrence by the Dhobies but his wife Sakina was never ghoraoed or tortured. On the night of the occurrence, the Barat had come to the place of Salim, the pattidar of Sattar (PW 6). The house of the accused are nearby. He had gone to the place of Salim to see the barat which had not come though it came one hour after the occurrence. Many people had come near the house of Saline He remembered the names of only Tulisi and ParmuUah Mian among the persons who had come there and did not remember names of other as he was weeping. He had gone to the field to the east of his house at a distance of about one Katha. He had heard alarm raised by his daughter-in-law asking the people to come as accused Samtal and Sukhal were fleeing away after chopping his wife and so, he ran after answering the call of nature in perplexed condition. The accused were found running away at the place beyond his Sehan when he say them, at a distance of about 8-10 steps east. They jumped into the field of one Sheo Kumar Sahi which is about 1-1/4 eabits from his Sehan. He (witness) did not jump into that field as Chokar bad sown brinjal in it. The field bad developed marks, as a result of fall an4 nose else except the witness had chased. The blood had fallen up to his Sahan for 5-b steps. But the marks toad disappeared on account, of the people who had come in the night. He had found three injuries on the person of his wife, i.e., on the portion above the ear and adjoining portion of her head and there was only one injury on the neck of his daughter which appeared to have been caused by garasa. His daughter was senseless when he reached there and she regained consciousness at about 2 a.m. in the night. He had gone to the police station before the sunrise and his statement was not taken and after the statement was taken, the police reached the spot at about 10 a.m. The choukldar, who had come after the occurrence and to whom, he said about the occurrence, was not examined. No panchayat was held in respect of the occurrence. It was not a fact that the Shissham tree belongs to the accused.
9. PW 8, Saimul Nisa, wife of Monzoor, daughter-in-law of the informant, has said that her mother-in-law had been killed about a year ago on Thursday at about 8 p.m. while she with her Nanad Ambud Nisa, was sleeping on a mat at the darwaza of Sehan and she was feeding milk to her child by sitting at a distance of 2 cubits. Samtul and Social came at the place where her mother-in-law was sleeping, Accused Satntul with farasa and Sukhal with lathi came and Samtul assaulted her mother-in-law with the garasi on the head and joint of the neck towards right side and when her Nanaci Ambud Nisa cried out, Samtul assaulted her also with garasi on her facte towards left side. On being injured, her mother-in-law died in the state of restlessness and she began to raise alarm whereupon, her father-in-law Ramzan Mian came and so, also other witnesses. Salira Mian was the brother of Sukhal Mian who was bitten by snake a day before the occurrence and so, Sukhal and Samtul who are brothers-inter, used to say that her mother-in-law was a witch and she had got him beaten by snake and thus, she has been killed. In cross-examination, she has said that the son and daughter of Chandrika, the cousin of the village Chaukidar were dead by snake bite. The daughter's son of Chokar had not died of snake bite. The people of entire village used to call her mother-in-law as a witch Chandrika never tortured her mother-in-law nor she know if any body had tortured her as she was not there. There is only one room in the house with one omra (Verandah) which is on the east with a machan made of bamboo etc. and the house is surrounded by tats from all side. The occurrence had taken place after 7-8 p.m. When she was feeding her child by sitting too the floor of Amar and her mother-in-law and sister-in-law were sleeping in front of her only at a distance of 2 cubits, it was dark night. She remained at the place of occurrence and did not go away when the accused were running and she came to the Sahan through Omar leaving her child there. There was no outsider till the accused were there. People came running on her alarm but by then, the accused had ran away through the baronial field of Chokar. She continued to raise alarm. When the accused fled away, her father-in-law Sattar, Tulsi Mahto and Parmuliah (PWs, 9, 6, 1 and 2) came besides others including Lakshman Mahto, DW 2. Faudar, Raghunath (DW 4) and Rahman Mian (PW 1 > who enquired from her and she said to her father-in-law about the entire occurrence. She began to weep and cry. Samtul gave garasi blow when she was standing east-west of her mother-in-law who was not aware. The three plates injuries given by him were on the neck, head and portion of above the year. Clothes were cut, her sister-in-law got up and she cried and so she was assaulted. One injury was given by grease's blade and other was by handle portion causing one span long injury to her. The handle portion of the garasi hit her back and the injury was a swollen. Once sue was at the asara and not in the room of gate. It was not a fact that she had said to the police that she came out of her door and saw her mother-in-law withering with pain and with profused pain died instantaneously.
10. P.W. 11, Ambud Nisa, daughter of the informant and also the injured eye-witnesses has said that it was a Thursday night and light had been burning in the house and was so much light there that one could see each other. She was sleeping on a mat near her mother Sakina Khatoon. Her father had gone out for easing when both the accused Samtul and Sukhal reached the place where she and her mother were sleeping and she and her mother were awakened. Samtul was armed with garasi and Sukhal was with lathi. Samtul assaulted at the portion of temple region of her mother with garasi. She threw away the chadar from which she had wrapped herself and raised alarm that Sukhal and Samtul were assaulting her mother whereupon Samtul hit her (witness) with garasi on the left portion of her ear. Her mother died instantaneously on the spot as a result of assault. The motive for the murder was that Samtul's brother, Salira had died of snake bite and appellants were saying that on account of witch craft, she got him bitten by the snake. In cross-examination, she has said that her house is towards west in the big village with many affluent persons and she saw none else except her father and brother's wife reaching on hulla. She had become unconscious a few moments after assault and regained consciouness at 12 in the same night and found her brother's wife in the house and she had no talk with any body. Her east facing house had got a room and verandah towards east and there is a cattle shed (2, 3 cubit X 3 cubit) to the east of the Osara, The rest of the cattle shed is the duar (sehan). She and her mother were sleeping between the house and cattle shed. Towards west of her house, are many houses of the persons whose names she could not give. She admitted to at Chokar is her uncle. She has said that her mother had not wrapped herself with chadar but had spread only her sari and the neck was open. Her father had gone outside the house moments prior to the arrival of the accused and had gone to such a distance from where be was visible. He returned running and was alone. While he was coming the accused were returning. Her father met the accused at the place towards east of the cattle shed. None had come from the village at that time. She had become unconscious when her father reached and she said nothing to him. She was assaulted when she had thrown the chadar and then she saw her mother wrigging. She was assaulted twice with the iron portion and wooden portion of the garasi. The police had taken her statement and it is not correct that she had said to the police that she was assaulted by Samtul Dhobi with the wooden portion of the garasi.
10. Besides these three witnesses, are the other witnesses who are said to have reached the spot out of when P.W.I and P.W. 2 Tulsi Mahto and Parmullah Mian have been declared hostile P.W. 1 has said that he did not know anything about the occurrence and that the police had not reached his statement. In cross-examination by the Public Proseutor, he has said that he had not stated before the police that Samtul was armed with garasi and Sukhal was armed with lathi when they were running away from the place of the occurrence and also that he saw Sakiaa Khatoon in injured condition and that the blood was coming down from her cheek and neck. In cross-examination by the defence, he has said that the house of Samtul is at a distance of 5/6 bighas from the house of Ramzan and the house of Sukhal is at a distance of 6/7 bighas. P.W. 2 has also said that he does not know anything about the occurrence. He, in cross-examination, has said that the police had not recorded his statement and it is not correct that he had stated before the Police that he went to the place of occurrence on hulla and saw Samtul Ohobi armed with garasi and Sukhal Dhobi with lathi and that Sakina Khatoon was lying dead on a mat. It is also not correct that he is concealing the truth in collusion with the accused persons. In cross-examination by the defence, he has said that the house of Ramzan is at a distance of about one Katha from his house.
11. P.W. 6 Sattar Mian has said that on Thursday about 7.30 to 7.45 p m. he was at his darwaza where he heard hulla being raised by Ramzan and so, he went to his darwaza and that some body had cut the neck of Ramzan's wife Sakina and Ramzan said that it was Saintul Dhobi who has killed his wife while she was sleeping and that Sukhal Dhobi was also with him and he (witness) saw injuries on the person of Ambud Nisa, daughter of Ramzan. In cross-examination, he has said that the marriage of his niece was to be performed on the day of the occurrence, Barat had not come at that time, but the guests had come. Ramzan Mian prepares meat on the occasions of marriage and festivals in his caste and on the day of the occurrence, he had prepared meat at his place for the Barat but returned before the occurrence as he had to answer the call of nature and also tether the cattle in the cattle shed. He has also said that mosque is adjacent to his house and he had offered Namaz (Prayer) of Isha in the night much after the occurrence and Ramzaa had not offered his namaz of Isha on that day. The house of Ramazan is at a distance of about 2 or 3 fiighas south from his house. People of the village go to the Pokhra for answering the call of nature etc. The guest had not gone to the place of occurrence on hulla. Chokar, Rahman, Tulsi Mahto, Karmullah Mian and Ors. had gone there. He had reached house of Ramzan after Chokar and Rahman had reached. Ramzan's daughter and daughter-in-law were sitting near the dead body and had no talk with them. He returned from the darwaja of Ramzan after staying there for about 20 minutes and did not meet Ramzan after the occurrence but on the next day, when he was asked to burry the dead body. He denied the suggestion that he is a man of Ramzan. He is Ansari by caste and Ramzan is a Dhobi.
12. P.W. 7, Dr. Victor Sowator, Medical Officer, State Dispensary of Majhaulia Hospital has said that on 3-5-1991 at about 3.20 p.m. he examined P.W. 11 Ambud Nisa who had long abrasion 6"x 11/8" including a sharp cut injury nearby in the middle below and anterior to the ear lobule 1"xl 1/5". The wound injury extended from the middle of the cheek to lateral side of the neck on the left side, and associated with this injury was a tender swelling 1" in diameter below and behind the ear lobule on the same side. The injury was simple and caused by hard and sharp cutting instrument like garasi or sword within 24 hours from the examination. His report is Ext. 3, la cross-examination, he has said that he had examined the injured at the report of the police. The abrasion was caused in the present case by sharp edge on account of the superficial tough of weapon with the body. The middle posterior of the weapon had gone deep and had caused the cut injury. He did not find any blood clots on the injury.
13. PVV 3, Dr. Gajendra Narain Yadav, Civil Assistant Surgeon, M.J.K. Hospital, Bettiah is said to have conducted the post mortem examination on 3-5-1991 at 5.15 p.m. and submitted his report (Ext. 1). He had found the following antemortem injuries:
(i) One incised wound on the right side of the head 41/2"x cranial cavity deep.
(ii) One incised wound on the back of right ear crossing injury No. (1) of the dimension 1.x 1/2" X cranial cavity deep.
(iii): One incised wound 41/2"X1"X Vertebral column deep on the right side of the head.
On dissection of injuries Nos. (i) and (ii) partietal and temporal bones were found cut and brain matter was also found cut. On dissection of injury No. (iii), mandibular was found cut at its right angle and the 3rd cervical vertebra was also found partially cut. In his opinion, the death was due to the above-mentioned injuries causing haemorrhage and shock and was caused by some heavy sharp cutting weapon such as Garasi used for fodder cutting the injuries individually were sufficient in the ordinary course of nature to cause death and the time elapsed since death and holding of post mortem examination was 36 hours. The post mortem report is Ext. 1. In cross examination, he has said that he did not himself dissect the dead body but one of his assistant had assisted him and in which, head, neck, chest and abdomen were the parts of the dead body which were dissected as the dead body was not in a high condition of decomposition. The injuries were possible by any heavy sharp cutting weapon. He did not think that a broken piece of glass will cause the injuries similar to those described by him on fall b cause bones were also found cut and in fall from a height, the same sharp cutting weapon injuries may be caused but in the present case there were multiple incised wound which do not suggest such eventuality.
14. PW 12, Umanath Sahay, the Investigating Officer of this case, has said that Ramzan Mian accompanied by Chirkut Hara, the Mahal Choukidar, came to the police station, Majhaulia where Brajnandan Singh, had recorded the statement and first information report was registered. After that, he reached the village Chanyan Bandh at about 8.30 0' clock and inspected the place of occurrence being the east facing land of the informant Ramzan Mian and the Sehan land which is about 30 feet long east and about 20 feet north south, opposite to the title house. To the east of the darwaza of the house, he found at a distance of 11/2 yards a mat spread on the Sedan-land and on which he found a dead body portion of which from head to neck stained with blood and also neck and cheek chopped off. The blood had fallen on the mat and on the ground close by. Near the dead body, Ambud Nisa and Saimul Nisa were beating their breast and were weeping. He also said that to the north of the place of occurrence is the house of Md. Habibia, Sheonath Mahto and Bhubneshwar Mahto and to the south is the north facing house of Chirkut Mian and contiguous south to the house of Ramzan Mian is the house of Chokar Mian and in the east, is the field belonging to Sheo Kumar Sahi and female apartment of the informant Ramzan Mian in the west and to the west thereof is the house of Lochan Mahto. He prepared the inquest report in presence of Shankar Shahi and Surendra Prasad. Thereafter, he bent the dead body for post mortem examination to M.J.K. Hos spital, Bettiah. He also prepared the seizure list of mat and blood-stained earth before the witnesses Arum Kumar Shahi and Shahid Mian. He recorded the statements of the informant, Ambud Nisa, and Saimul Nisa and also of the other witnesses, He also found injuries on the person of Ambud Nisa for which he prepared injury report and sent her for medical examination to the State Dispensary, Majhaulia. He had also recorded the statement of Tulsi Mahto and Karmullah who had said that they had seen the accused with garasi and lathi running away and the victim lying dead and blood fallen from her cheek and neck. In cross-examination, he has said that he had not prepared the map. He had recorded the statement of Ambud Nisa, Saimul Nisa and also the other villagers, namely, Bachan Mahto, Bothan Mahto, Gulli Hazra, Bishwanath Mahto, He did not give their names as witnesses in the charge sheet. Though, he had also seized the blood but the same was not sent any where for examination. He did not seize any-thing except the mat from the spot. He recorded the statement of Saimul who had said that she, having heard the sound, came out through the door of the room and saw that her mother-in-law Sakina Khatoon was in a pool of blood and was lying dead instantaneously. He did not record the statement of the choukidar, Chirk ut Hazra. After completing investigation, he submitted the Charge-sheet.
15. The defence has also examined four witnesses, namely, DW 1 Rahman Mian DW 2 Laksmi Mahto, DW 3 Ratan Mahto and DW 4 Raghunath Mahto. DW 1 Rahman Mian has said that at about 8 p.m. on the Thursday night, after taking meal, he was going to ask for the lime when he heard groaning sound at the darwaza of Ramzan, so he went there and did not find any one. Ramzan and his son were not there. He found the wife of the informant Ramzan Mian killed and injuries on the person of the informant's daughter who was unconscious. He, after giving her water when she regained consciousness, and on being asked she told that she had not seen any body cutting the neck. Ramzan's daughter-in-law had said that she was cooking food inside. He cried out and asked to come out with a dibia whereupon she came with a dibia. Ramzan and Sattar reached there, after about 2 hours. Ramzan Mian Laxmi Mahto, Ratan, Mahto, Bechan Mahto and many other persons had assembled there and nobody had grain out the names of the accused persons. In cross-examination, he has said that he did not hear any hulta and he was the person who raised hulla that Sakina was chopped of. His statement had been taken for the first time and he has come to depose in the court after consulting to get Samtul released and to extend help to him. DW 2 Lakshmi Mahto has said that his house is beyond two house west of the house Ramzan and at about 8 p.m. in the evening of the occurrence, on the alarm of Ramzan, he went to the darwaza of Ramzan and saw Ramzan's wife Sakina killed and daughter injured and unconscious. Ramzan ind his daughter-in-law were not there. The daughter-in-law was in the Angan and nobody was naming the accused persons, Ramzan reached there lateron and many people of the village assembled. In cross-examination, he has said that he had not received any summon from the court and had been brought by the wife of a Samtul. He has said that 30-40 persons had assembled there when he reached there. Ramzan's wife was on a mat at the darwaza of Ramzan. The darwaza and Angans (court yard) are contiguous to each other. It was known on the second day that Samtul and Sukhal were accused in the case. It was not a fact that he came to give evidence as a token of help to the accused. DW 3 has said that his house is contiguous west to the house of Ramzan. He has further said that on the day of the occurrence, he was at his darwjza and after hearing the hulla raised by Ramzan, he wsnt there and saw Sakina Khatoon lying dead and his daughter lying unconscious. Ramzan's daughter-in-law was in side the house but Ramzan was not there. Nobody said that place that accused had killed Sakina' and Ramzan came there after two hours. In cross-examination, he has said that Sukhal Dhobi's wife had brought him for giving evidence and he had come without summons of the court. He himself used to ask her to inform him to give evidence wherever required. He had said to the S. I. of Police also the same thing which he said but the S. I. of Police chided him. He came to know about the complicity of the accused, Samtul and Sukhal in the case after 3-4 days of the occurrence. When the police cams the next morning, he said so DW 4 Raghunath Mahto, living at a distance of 5 Katbas south from the bouse of Ramzin, has said that on the Thursday night at 8 p.m. when he was taking meal, Rahman 'had raised hulla. When he went to the place he saw Ramzan's wife lying killed and daughter conconscious and Ramzan's wife was cooking food but Ramzan was not there. Nobody named the accused persons as the offenders. In cross-examination, he has said that he had come to court without notice of the court to help "Samtul. He did not know as to in how many cases, he had helped Samtul. He had come at his own expense to help him. There were houses of (30-40) persons in between his house of Ramzan Mian. There were 30-40 persons at the darwaza of Ramzan Mian. He reached there but he could not give out their name of Samtul and Sukhal figured as offenders in the case the next morning. Ramzan's daughter-in-law was cooking food-in-side the house and the dead body of the wife of Ramzan was lying on a mat which was outside the darwaza and she was in pool of blood. The daughter of Ramzan had got injuries on her cheek and neck, Ramzan's daughter-in-law was in the court-yard at a distance of 4-5 cubic feet from the mat on which the dead body was lying. The chachra (gate) made of bamboo in the house of Ramzan was open. It was not correct that he had given a wrong statement to help the accused.
16. This is the entire evidence which has to be sifted, scrutinised and considered carefully specially in this case where death sentence has been given. The evidence consists of Ambud Nisa, and injured eye-witnesses and also Samimul Nisa, the daughter-in-law, who was present on the spot and then Ramzan Mian, who saw the assailants running away and on reaching his house. It was given out to him by his daughter-in-law about the occurrence and the complicity of the accused persons. Immediate disclosure is to Sattar Mian, PW 6 two witnesses, Tulsi Mahto and Karmullah have been turned hostile. Ambud Nisa is the injured witness. In the case of Ramaswami Ayyenger and Ors. v. State of Tamil Nadu , it has been observed at page 2033 (Para 7) "Since he was injured in the same occurrence undoubted his ocular version of the incident is of great value to the prosecution." In the case of Store of U. P. v. Moti Ram , their Lordships observed at Page 1717 (Para 32), "The very fact that those two witnesses had sustained certain gun shot wounds probablises the presence of these two witnesses at the sceie. Therefore their evidence might command acceptance, provided the evidence inspire confidence in the mind of the court and the said evidence is free from any infirmity." In the case of Malkiat Singh and Ors. v. State of Punjab, Judgment Today , it has been said by the said Supreme Court: "Nothing worthwhile was brought out in the cross-examination to disbelive his testimony. He had no axe to grind against any of the accused. No motive to make false implication of the accused was even suggested. He cannot be expected to allow his own assailants to go unpunished and would implicate innocent persons. Moreover the medical evidence of PW 2 fully corroborated the evidence of PW 4. in the light of these observations, while appreciating the evidence of Ambud Nisa, we find that she is an injured which is made not only by the oral evidence on the record but also by the medical evidence. She is the daughter and roost natural witness and her presence on the spot has been proved. She has said that with her mother, she was also given injuries. She with her mother was sleeping on the mat bat they were awaken. Then the appellants came armed with garasi and lathi. Samtul assauled her mother with garasi and when she threw off her chadar and raised alarm, then Samtul assaulted her also with garasi at the left portion near her ear. She has also said that she saw none but only her brother's wife and also her father who reached there on hearing hula and then she because unconscious after a few moments of assault to her. She has also said that the accused persons were returning at the time when her father was coming and her father met them at the east of the cattle shed, she became unconscious when her father came near her and she could not say anything to him. When she regained conscious at about 12 o'clock, she found her sister-in-law at the residence. Her statement about complicity of the accused, Samtul as the person assaulting her and her mother also is well made out.
17. The next eye witness is Saimul Nisa, P.W. 8. She claims to be feeding her child by sitting where her mother-in-law and Nandan Ambud were also sleeping on a mat on the darwaza of Sehan. She was sitting only at a distance of two cubic feet from the mat. She has categorically said about the assault given by Samtul with garasi and also said about Sukhal being armed with lathi. She speaks about the assault not only to her mother-in-law but to sister-in-law also on the left side. On alarm, immediately her father-in-law came and so also the witnesses. She has said that she was feeding her child by setting on the Osaka and in front of her, her mother-in-lowland sister-in-law were lying down on the mat. She Speaks about P. Ws. 1, 2 and 4 and one Fouzdar to whom she had given out about the entire occurrence. Her presence on the spot has been made out by the evidence of all the witnesses including the defence witnesses though the defence witnesses say that she was cooking food. If she was cooking food, then there was no question of Ambud Nisa and her mother lying for sleeping. That is why Ambud Nisa has said that she was feeding her child in the Osara. She has given out the details about the occurrence, assault and the injurie caused to the victims at the earliest by way of immediate disclosure to her father-in-law and other witnesses. It has observed by the Supreme Court in the case of Zahoor and Ors. v. State of U. P. "Unless the witnesses were present and witnessed the occurrence they could have not imagined and mentioned the same in the earliest report" If this witness had not been present on the spot and had not seen the occurrence, she could have not given out about the injuries which are in line with the post mortem report and there is nothing to show that her version came out after looking to the post mortem report and the injury report. The learned Counsel for the appellants, in support of his contention that she had not seen the occurrence, has referred to various paragraphs of her statement, namely, para No. 1 wherein she has said that her mother-in-law was sleeping on a mat at the darwaza of the sehan, it para 8 she has said that she was sitting in the Osara, in para (3 she has said that she was sitting in the Osara, and not in the room containing door, and that it was not a fact that she had said to the police that having heard the hulla she came out of the room containing the door and saw that her mother-in-law was withering with profouse bleeding and died immediately but the Investigating Officer (P.W. 12) has said that she had so. As to contention, when this witness, Saimul Nisa has clearly said that she was sitting and feeding her child at a distance of 2 cubic feet from the mat on which the victims were assaulted and the Inv stigating Officer has said that the mat was spread at the Sehan being only 1/2 yards there cannot be any doubt that she was not able to see the occurrence. The evidence of a witness should be read as whole and a sentence here or there is slated and detached from the context should not be picked up to make out a case of contradiction. The evidence as a whole and the totality of the case and circumstances should be the basis for appreciation of the evidence. Minor deficiencies on trivial matters are found to be in the evidence of natural and truthful witness but if the deficiencies and discrepancies are going to the root of the matter, then they may have adverse effect upon the evidence, otherwise if the general tenor of the evidence show that there is truth in me version and other circumstances of the case and material on the record support and corroborate the version given by the witness, then such evidence should be relied on. The Supreme Court has been laying done guidelines for the appreciation of evidence. In the case of Indir Singh and Anr. v. State (Delhi Administration) , it has been observed by the Supreme. Court at page 1092 (Page 2) as follows:
Credibility of testimony, oral circumstantial, depends considerably on a judicial evaluation of the totality, not isolated scrutiny. While it is necessary that proof beyond reasonable doubt should be adduced in all criminal cases, it is not necessary that it should be adduced in all criminal cases, it is not necessary that it should be perfect. If a case is proved too perfectly, it U argued that it is artificial. If a case has some flaws, inevitable because human beings are prone to err, it is argued that it is too imperfect. One wonders whether in the meticulous hypersensitivity to eliminate a rare innocent from being punished, may guilty men must be callously allowed to escape. Proof beyond reasonable doubt is a guideline not a fetish and guilty may cannot get away with it because truth suffers some infirmity when projected through human processes. Judicial quest for perfect proof often accounts for police presentation of fool proof concoction. Why fake up ? Because the court ask for manufacture to make truth look true ? No. we must be realistic.
Further, in the case of State of U. P. v. M. K. Anthony , the Supreme Court has been pleased to observe as follows:
While appreciating the evidence of a witness, the approach must be whether the evidence of the witness read as a whole appears to have a ring of truth. Once that impression is formed, it is undoubtedly necessary for the Court to scrutinise the evidence more particularly keeping in view the deficiencies, draw backs and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence given by the witness and whether the earlier evaluation of the evidence is shaken as to render it unworthy of belief. Minor discrepancies on trivial matters not toching the core of the case, hyper-technical approach by taking sentences torn out of context here or there from the evidence attaching importance to some technical error committed by the investigating officer not going to the root of the matter would not ordinarily permit rejection of the evidence as a whole. If the court before whom the witness gives evidence had the opportunity to form the opinion about the general tenor of evidence given by the witness, the appellate court which had not this benefit will have to attach due weight to the appreciation of evidence by the trial Court and unless there reasons weighty and formidable it would not be proper to reject the evidence on the ground of minor vat inactions or infirmities in the matter of trivial details. Eves honest and truthful witnesses may differ in some details unrelated to the main incident because power of observation, retention and reproduction differ with individuals. Cross-examination is an unequal duel between arestic and refind lawyer.
18. Beside these two eye witnesses, is the evidence of PW 9, the informant himself who claims to have reached the place of occurrence on hearing the alarm and saw Samtul with garasi and Sukhal with lathi fleeing away and When he attempted to catch hold of them, Samtul pushed him aside and made good their escape. When he reached his darwaza he was told that Samtul and Sukhal had chopped off his wife and he found his wife lying dead and daughter Ambud with injuries. So, the immediate disclosure by the daughter and the daughter-in-law to this witness is there and also this witness saw the appellants running away with the weapons and pushing him aside. It was but natural for PW 9 to enquire from PW 7 and 8 and so was natural for them to give out to PW 9 about the occurrence which both of them have done. The purpose of an immediate disclosure without loss of time is to get an unadulterated, untutored, unembellished version, so that the true and spontaneous account of the matter may be there for the correct and truthful appreciation of the occurrence. The learned Counsel for the appellant has urged that Ramzan has said that he was told both by his daughter and daughter-in-law about the occurrence, while the daughter Ambud Nisa does not say so. As to this contention, Ambud Nisa has said that she had not said anything to her father and Ramzan, her father has said that she also told him. But the daughter has also said that she was not in sense when her father came. She might not have given out all the details about the occurrence to her father but the saying about this assault in a hurried manner by the daughter is possible before becoming conscious when the daughter-in-law also saying so. That is why, this witness (Ramzan) has said that his daughter and daughter-in-law told him about the occurrence. It is possible that she might have said later on to her father after getting consciousness in the night. For this single minor so-called discrepancy, the evidence of PW 9 does not suffer from any infirmity whets other evidence was that the details of the occurrence had come to the knowledge of the informant through the daughter and daughter-in-law and his version is also supported by the medical evidence. His evidence is not against the general tenor of the evidence given by the witnesses and so, his evidence cannot be said to be unworthy of belief for this minor discrepancy not touching to the core of the case. His evidence has been found to be truthful on material facts and there cannot be too sophisticated or too hyper-technical approach to this aspect specially when Ramzan has got this information from his daughter-in-law who also says that she told all to her father-in-law, so the statement of the daughter alone is not the source of information to the informant and the daughter also says that she had seen her father coming and thereafter, she became unconscious. In the case of Krishna Pillai Sree Kumar and Anr. v. State of Kerala A.I.R. 1981 SC 1257, it his been observed at page 1219 (para it) as follows "it is no doubt true that the prosecution evidence does not suffer from inconsistencies here and discrepancies there but that is a shortcoming from which no criminal case is free. The main thing to be seen is whether those inconsistencies, etc. ' go to the root of the matter or pertain to insignificant aspects there if. In the former case, the defence may be justified in seeking advantage of the incongruities obtaining in the evidence. In the latter, however, no such benefit may be available to it. That is a salutary method of appreciation of evidence in criminal cases". In the case of Bharwada Bhoginbhai Hlrjibhai v. State of Gujarat , the Supreme Court has observed at page 755 (p. 5) overmuch importance cannot be attached to minor discrepancies. In paragraph 6 of the aforesaid case, the Supreme Court has further observed. Discrepancies which do not go to the root of the matter and shake the basic version of the witnesses, therefore cannot be annexed with undue importance. More so when the all important' 'probabilities factor' echoes in favour of the version narrated by the witnesses". In the case of Appabhai and Anr. v. State of Gujarat , it has been observed at para 13 as follows:
The Court while appreciating the evidence must not attach undue importance to minor discrepancies. The discrepancies which do not shake the basic version of the prosecution case may be discarded. The discrepancies which are due to normal error of perception or observation should not be given importance. The errors due to lapse of memory a may be given due allowance. The Court by calling into aid its vast experience of men and matters in different cases must evaluate the entire material on reeord by excluding the exaggerated version given by any witness. When a doubt arises in respect of certain facts alleged by such witness, the proper course is to ignore that fact only unless it goes into the root of the matter so as to demolish the entire prosecution story. The witnessss nowadays go on adding embelishments to their version perhaps for the fear of their testimony being rejected by the Court. The courts, however, should not disbelieve the evidence of such witnesses altogether if they are otherwise trustworthy.
19. Though PWs 1 and 2, who are said to have reached the spot, turned hostile but their evidence about the occurrence is very much there, These two witnesses have said that they do not know anything about the occurrence. Both these persons are said to have come on the spot, by the informant, as they are neighbours' and inspite of that if they say that they know nothing about the occurrence, then the reasons are obvious as they are neighbours to the appellants as well as to the prosecution witnesses and in spite of seeing the occurrence, if they do not depose, it may be for the reasons best known to them. The following observation of the Supreme Court, in the case of Appabhai and Anr. v. State of Gujarat A.I.R. 1988 SC 6yb : 1988, Cr LJ 848 (supra), in para 11 may be reasons for these two witnesses to keep away from both sides and say that they do not know about the occurrence although they have reached the spot.
Experience reminds us that civilized people are generally insensitive when a crime is committed even in their presence. They withdraw both from the victim and the vigilantes. They keep themselves away from the Court unless it is inevitable. They think that crime like civil dispute is between two individuals or parties and they should not involve themselves. This kind of apathy of the general public is indeed unfortunate, but it is there everywhere whether in village life, towns or cities. One cannot ignore this handicap with which the investigating agency has to discharge its duties, the courts therefore, instead of doubting the prosecution case for want of independent witness 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.
The prosecution cannot be held to withhold the witnesses who reached immediately after the occurrence. However, the evidence of PW 6 Sitter who reached immediately after the occurrence besides PWs 1 and 2, is quite clear that among the people, like, Chokar Karmullah and Ors. had arrived there. When he nod gone to the darwaza of Ramzan on hulla and Ramzan had given out that it was Samtul Dhobi who had chopped his wife with garasi He had seen the dead body of Sabina with injuries and also found injuries on the person of Ambud Nisa> daughter of Ramzan. There is immediate disclosure by Ramzan to this witness who reached the spot. He is not found to be inimically deposing against the accused and nothing has come out to show that he has got any motive to falsely implicate the appellants in such an offence Even suggestion of enmity is not there. He is not even the caste-man of Rarazan who is dhobi by caste and this witness is by caste, Ansari. It was a natural phenomenon, that on the alarm people rushed to' the spot and the victims of the offence gave out about the occurrence to the visitors who reached there for the sake of sympathy and any help as human beings. At that time, there was no question of any distortion embroidery or manipulation because there is no time for them to manipulate and when there is immediate and instantaneous disclosure by the persons seeking the occurrence, then the evidence should be accepted, The immediate disclosure by Saimul Nisa to Ramzan and then disclosure by both of them to persons who came after the occurrence specially this PW 6 Sattar is the same as the statement of the injured eye-witness daughter Ambud Nisa. Further, the ocular version finds corroboration from the medical evidence of the doctor. The post mortem report with statement of the doctor give out the same injuries as said by the witnesses. Similar is the position about injuries of Ambud Nisa. Whom the same doctor had examined on 3-5-1991 at 3.20 p.m. and in his report, Ext. 3, whatever injuries have been given out by the doctor, are in line with the evidence of the injured herself and the other witnesses. The objective finding of the Investigating Officer also land support to the ocular and medical evidence. Thus, the entire evidence, on scrutiny and careful consideration, gives out that it was Samtul Phobic who had caused injuries to Sakina Khatoon who died on accident the same and that, he also gave injuries to Ambud Nisa, at the time and place as said by the prosecution witnesses and that the injured witness herself and also the daughter-in-law have seen the occurrence and thereafter, they disclosed the matter to Ramzan Mian, PW 9, who had been rushing back home after easing hurriedly and in the wail, he saw accused persons running away and the appellant Samtul pushed him a side and that the further immediate disclosure is to PW 6, Sattar, who have no motive to falsely implicate the appellants.
20. Learned Counsel for the appellants has urged that the motive imputed to the appellants for the offence is not made out. PWs. 8, 9 and 11 have said that on account of snake bite Salim Mian was died and so, the appellants thought it to be on account of the witch craft on the victim. So, the motive is said to be the accused persons whatever people were saying in general against her, has been given out by the witnesses. The motive is of secondary importance when the evidence of the witnesses is direct and gives out a case against the accused. Motive is always for the accused and in case motive is not proved, it will not have any effect. Id the case of Faqira v. State of U. P. , it has been observed at page 916, (Para 4). The fact that the apparent motive was too flimsy is no reply to the unshaken testimony of creditable and natural eye-witnesses who had no motive whatsoever to implicate the appellant falsely. Further, in the case of Molu and Ors. v. State of Haryana , the Supreme Court has observed at page 2505 (Para 11). If, however, the evidence of the eye-witnesses is creditworthy and is believed by the Court which has placed implicit reliance on them, the question whether there is any motive or not becomes 'wholly irrelevant. Further, in the case of State of Haryana v. Sher Singh and Ors. , it has been observed : "'The prosecution is not bound to prove motive of any offence in a criminal case, inasmuch as motive is known only to the perpetrator of the crime and may not be known to others. If the motive is proved by prosecution, the Court has to consider it and see whether is adequate/' In the case of Mulakh Raj etc. v. Sattsh Kumar and Ors. ; it has been observed : "The failure to prove motive is not fatal as a matter of law. Proof of motive is never an indispensable for conviction. When facts are clear it is immaterial that no motive has been proved, Therfore, absence of proof of motive does not break the link in the chain of circumstances connecting the accused with the crime, nor militates against the prosecution case. In the case of Krishna Pillai Sree Kumar and Anr. v. The State of Kerala , it has been observed at page 1238 (Para 3). In any case, it is not sine quo non for the success of the prosecution that the motive must be proved. So long as the other evidence remains convincing and is not open to reasonale doubt, a conviction may well be based on it." It has also been said in the case of State of U. P. v. Hari Prmad and Ors. : "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 incumbent on the prosecution to prove the motive for the crime. Often times, a motive is indicated to heightened 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. If the motive here, was directed against Kanahaiya Bux Singh and his sister Chandrawati and his brother Kisan Pal, would have been allowed escape unsoathed when they were within the easy reach of the accused and how strange action that Bhagwan Bux, Ram Dulari and Raja Munni, who escape, as if through a passing, household scramble. The accused, according to the prosecution, pooled their strength to murder afore Kannaiya Bux Singh and to murder through mistake a friend that Vishwanath Panda and for no apparent reason, and innocent servant Ram Gopal.
Further, in the case of State of Punjab v. Pritam Singh and Ors. , where evidence of the witness was interested and inimical and that there was enmity between the parties and there was sufficient motive to falsely implicate the accused and equally there was a motive for the accused to kill in order to wreak vengeance, the Supreme Court, at page 290 (Para 4) has held "When the motive were thus equally balanced, the court had to look to surrounding circumstances in order to find oat the truth."
In the case of Chandra Mohan Tiwari and Anr. v. State of Madhya Pradesh where there was over-whelming evidence both oral and documentary in clearly establishing a strong motive for the appellants accused to put an end to the life of the deceased Sarju who was examined before the Magistrate saying that she was kidnapped by both the appellants, wrongfully confined and subjected to sexual intercourse and both the appellants were on bail in the case of kidnapping and rape during the period of occurrence of the night intervening between 20/21 of August 1992, when the learned Counsel for the appellants submitted that P.W. 5 and 6 had sufficient motive to implicate both the appellants in this heinous crime of murder as both the appellants had spoiled had future career of their daughter Saroj, their Lordships, dealing with the aspect of the matter have observed at page 89 (para 26)" As stated by Fazal Ali, J, in State of Puniab v. Pritam Singh , "when the motive was equally balanced, the Court had to look to surrounding circumstances in order to find out the truth." Further, in paragraph 27 of this case, their Lordships have also said that this is not a case solely based on circumstantial evidence, but on the other hand there are two eye-witnesses to the occurrence, namely P. Ws. 5 and 6, "unevasively and unerrignly show that these two appellants had strong motive to snap the life thread of the victim so that she could not give evidence on the next day in the case of kidnapping and rape."
In the instant case, nothing has come out to show that the prosecution witnesses has got enmity to falsely implicate the appellants in such a heinous crime. Further from the evidence of the witnesses, it is made out that Salim, the brother of the appellant, Samiul, had been died because of the snake bite and it was given out in the village that it was on account of witch craft of the deceased, so, the appellants went to the place of the occurrence for doing away with the life of the deceased and accordingly, Sakina Khatoon was the first victim of attack and when her daughter Ambud Nisa raised alarm, she was also assaulted. So, it cannot be said that the motive was not there. The motive may be flimsy, supertitious or unreasonable but the appellants were under the misconception that she was responsible for the death of Salim and so, motive has been well proved by the prosecution.
21. Learned Counsel for the appellants, has urged that the conviction of appellant No. 2. Sukhal Dhobi, under Section 302/34 of the I.P.C. is not made out as he had done nothing and there is nothing to show that he had shared the common intention. As to this contention the evidence of the witnesses throughout is that the appellant, Sukhal Dhobi is the brother of Samtul Dhobi and Salim had died of snake bite and the appellants have got superstitious believe that on account of witch craft of the deceased, Salim had died, So both the appellants came together and Samtul was armed with garasl while Sukhal with goji (lathi) to the house of the deceased, Saimun Nisa has said that the house of Samtul is on the Pokhra at a distance of little than a bigha and the house of Sukhal is far from the house of Samtul and is nearby her house. So, the houses of the appellants were not adjacent to the house of Ramzan and broth of them could not be found at the spot in the ordinary course. The very presence of these two appellants in the night hours at the place of the occurrence, is not a natural conduct and that too with arms and under the circumstances of the death of Salim. This is also the evidence throughout that Samtul Dhobi assaulted Sakina Khatoon and then Ambud Nisa and when both of them were running together, the informant was pushed aside by Samtul Dhobi. No part of assault or use of goji has been given out to appellant, Sukhal Dhobi. But his coming together with goji, remaining throughout at the place of occurrence and then, running away together, it is well made out from the evidence. Section 34 IPC can be applied only when there is criminal act dope by several persons in furtherance of common intention. So, the physical presence and participation in the commission of the offence preceded by a preliminary planning among the accused, is also essential and any act done in furtherance of the common intention will make liable under Section 34, IPC although the common object is not by itself, an offence, common intention is to be gathered from the facts and circumstances as it is subjective. In the case of Yogindra Ahir and Ors. v. The State of Bihar A.I.R. 1971 SC 1835 it has been said at page 1535 (para 7) Section 34 can only be applied when a criminal act is done by several persons in furtherance of the common intention of all, No overt acts had been proved or established on the part of the appellant which showed that they shared the intention of the person or persons who inflicted the injury on the head of the deceased which led to his death. They cannot, therefore, possibly be held guity of an offence under Section 304 Part II read with Section 34 of the Indian Penal Code."
In the case of Gupteshwar Nath Ojha and Anr. v. State of Bihar , the Supreme Court at page 1651 (para 10), has observed as follows:
So far as Bishwanath Ojha is concerned, Section 34 IPC could be used against him to make him liable for an offences under Section 304 Part II read with Section 34 only if his participation was established. It is clear that so far as participation is concerned there is a clear finding that he did not participate in the incident. They only act alleged against him was that he by shouting directed the other accused persons to beat the deceased and other prosecution witnesses. And it is for this positive act that he was independently charged with the aid of Section 114 IPC. This charge has been held to be proved as he has been acquitted from this charge by the High Court and in view of this the only conclusion could be that he did not either shout or direct the other accused persons to attack the deceased or other prosecution witnesses. In absence of any overt act or even a shout or an oral statement he could not be convicted even with the aid of Section 34.
In the case of Hare Krishna Singh and Ors. v. State of Bihar , the Supreme Court has, at page 871 (para 28), observed as follows:
Common intention under Section 34 IPC is not by itself an offence. But, it creates a joint and constructive liability for the crime committed in furtherance of such common intention. As no overt (act whatsoever has been attributed to the appellants, Ram Kumar Upadhyay and Sheo Narain Sbarma, it is difficult to hold, in the fact and circumstances of the case, that they had shared the common intention with Hare Krishna Singh and Paras Singh of Dhobaha. When these two appellants were very much known to the eye witnesses, non-mention of their names in the evidence as to their participation in firing upon the deceased, throws great doubt as to their sharing of the common intention.
In the case of Rambilash Singh and Ors. v. State of Bihar A.I.R. 1949 SC 1593, the Supreme Court, at page 1595 (para 7), has observed as follows;
Even accepting the prosecution case in full and holding that the appellants were present at the scene at the time of occurrence, the materials on record would not warrant a finding that the individual act of Dinesh Singh had been perpetrated in furtherance of the common intention of all the accused assembled there or in prosecution of a common object formed by all of them. It is true that in order to convict persons vicariously under Section 34 or Section 149/34 I.P.C. it is not necessary to prove that each and everyone of them had indulged in overt acts. Even so, there must be material to show that the overt act or acts of one or more of the accused was or were done in furtherance of the common intention of all the accused or in prosecution of the common object of the members of the unlawful assembly.
In the case of Ramlal Singh and Ors. v. State of Haryana 1992 Cr LJ 1, the Supreme Court has observed at page 3 (para 5): "But in the present case, there is absolutely no evidence that except appellant No. 2, none of the other appellants assaulted the deceased nor any of these three appellants exhorted the second appellant to attach the deceased. The evidence let in by the prosecution and the circumstances attending the case, does not unfold any prior concert or meeting of minds of the appellants in sharing the common intention of the second appellant, the perpetrator of the murderous assault on the victim."
21-A. But the Supreme Court, in the case of Ramaswami Ayyer v. State of Tamil Nadu has observed i Section 34 is to be read along with the preceding Section 33 which makes it clear that the "Act" spoken of in Section 34 includes a series of acts as a single act. It follows that the words 'when a criminal act is done by several persons' in Section 34, may be construed to mean 'when criminal acts are done by several persons'. The act committed by different confederates in the criminal action may be different but all must in one wav or the other participate and engage in the criminal enterprise, for instance one may only stand guard to prevent any person coming to the relief of the victim or to otherwise facilitate the execution of the common design. Such a person also commits and 'act' as such as his co-participants actually committing the planned crime. In the case of an offence involving physical violence, however, it is essential for the application of Section 34 that the person who instigates or aids the commission of the crime must be physically present at the actual commission of the crime for the purpose of facilitating or promoting the offence, the commission of which is the aim of the joint criminal venture. Such presence of those who in one way or the other facilitate the execution of the common, design, is itself tantamount to actual participation in the criminal facts. The essence of Section 34 is simultaneous consensus of the minds of persons participating in the criminal action to bring about a particular result. Such consensus can be developed at the spot and thereby intended by all of them. In the case before us, A-2 obviously, was acting in concert with A-3 and A-4 in causing the murder of the deceased, when he prevented PW 1 from going to the relief of the deceased. Section 34 was therefore, fully attracted and under the circumstances A-2 was equally responsible for the murder of the deceased.
In the case of Dkarm Pal and Ors. v. Stale of Horyana, unreportcd judgment 1979 (SC) 9, it has been held:
There is no law to our knowledge which lays down that a person accompanying the principal culprit shares his intention in respect of every act which the latter might eventually commit. The existence or otherwise of the common intention depends upon the facts and circumstances of each case. The intention of the principal offender and his companions to deal with any person who might intervenee to stop the quarrel must be apparent from the conduct of the persons accompanying the principal culprit or some other clear and cogent incriminating piece of evidence. In the absence of such material, the companion or companions cannot justifiably be held guilty for every offence committed by the principal offender. The common intention to commit an offence graver than the one originally designed may develop during the execution of the original plan e.g. during the progress of an attack on the person who is intended to be beaten but the evidence in that behalf should be clear and cogent for suspicion, however strong, cannot take place of the proof which is essential to bring home the offence to the accused.
In the case of Rana Pratap and Ors. v. State of Haryana , the Supreme Court observed at page 684:
But the circumstance that the three accused came together, and that two of them held the deceased while the third one stabbed him clearly indicates that they shared some common intention. The question is whether the common intention was to do away with the deceased ? The evidence is not very clear whether Rana Pratap and Sat Pal continued to hold the deceased even after Manmohan started stabbing him. Neither Rana Partap nor Sat Pal is alleged to have said anything to indicate that they wanted the deceased to be done away with. Manmohan himself did not say that he was going to finish the deceased. He only said that h-. wanted to teach him a lesson. In the circumstances, we are unable to hold that the only inference possible is that Rana Partap and Sat Pal shared the common intention with Manmohan to kill the deceased. No doubt they held the deceased and this facilitated the stabbing by Manmohan. But there is nothing whatever to indicate that they knew that Manmohan would cause fatal injuries to the deceased, though they must have anticipated that he would cause grievous injuries. It is one of those borderline cases where one may with equal justification infer that the common intention was to commit murder or to cause grievous injury. But the benefit of any such doubt must go to the accused. In the circumstances we conclude but not without hesitation, that the common intention of the accused has not been established, beyond reasonable doubt to be to cause the death of the deceased. But it certainly was to cause grievous injuries to the deceased. The conviction of Rana Partap and Sat Pal under Section 302 read with Section 34 and the sentence of life imprisonment are therefore set aside and instead they are convicted under Section 326 read with Section 34 and sentenced to suffer rigorous imprisonment for a period of five years each. So far as Manmohan is concerned, the three stab injuries inflicted by him are sufficient to cause death. His conviction and sentence are confirmed.
In the case of Dajya Moshya Bhil and Ors. v. State of Maharashtra , where appellants 2 and 3 had accompanied appellant No. 1 not armed and empty handed and there was no evidence of prior meeting of minds yet, the court has said at page 1719 (para U):
Therefore, in the circumstances of this case, the minimum common intention that can be attributed to appellants 2 and 3 is one of causing grievous hurt with a sharp cutting weapon like a dharya. Thus appellants 2 and, 3 are shown to have committed an offence under Section 326 read with Section 34 of the Penal Code and they should be convicted accordingly.
In the case of Gurdeep Singh v. Jaswant Singh and Ors. , their Lordships observe J at page 988 (para 4):
As regards other two accused despite, we do not find any good reason to interfere with the finding of the High Court that these appellants did not share the common intention of appellant No. 1. They had no doubt come armed with weapons but none of them caused any injury on any vital part of the deceased. The finding of the High Court that the common intention of the appellant was to chastise and not to kill him, appears to be well founded.
In the case of Malkiat Singh and Ors. v. State of Punjab 1992 East Cr. C 98 (SC), the Supreme Court has said at page 108 (para 14):
When A-1 and A-3 left the shop in anger, it is clear that they left the shop in huff smarting from humiliation at the hands of the contractor from outside the State and their staff. To avenge the humiliation headed upon them, they animated to finish the prosecution party. Obviously they chose past raid night to be sure that all would be asleep and no evidence of their crime would be available. Thus they have strong motive to kill the deceased and to make murderous attack on PW 4. Moreover gandasa was recovered pursuant to A-3, statement under Section 27 of Evidence Act leading to its discovery and it contained human blood though blood groap could not be detected due to disintegration. The two incised injuries each on the persons of DW 3 and D-4 as corroborated by medical evidence clearly established the participation of A-3 in attacking the deceased. He accompanied A-1 at dead of night to the liquor shop and killed O-1 to D-4 and attempted to kill PW 4. Thus he shared with A-1 the common intention to kill the deceased D-1 to D-4 and attempt to kill PW 4.
In the instant case, both brothers, Samtul Dhobi and Sukhal Dhobi, armed with garasi and goji came to the house of the deceased in the night hours at 8 p.m. They were aminated by the revenge as they are said to be under the superstitious belief that on account of witch-craft of Sakina Khatoon, their brother had died of snake bite. Though the circumstances are that Samtul was armed with a garasi and that there was feeling of revenge and further Samtul assaulted the deceased and also her daughter and also pushed aside the informant also while they were running, but the appellant Sukhal did not use the goji nor uttered any word or madi any gesture for killing the victim, but as Sukhal, being the brother of Samtul and also of Salim, accompanied Samtul to the place of occurrence in the night hours and there, only Samtul did all the acts. The killing was therefore the individual act of Samtul. Though there is no direct evidence of sharing the common intention of killing, yet Sukhal can be said in these circumstances, to be sharing the common intention to cause at least grievous hurt by garasi which was used in killing and injuring the two women. Therefore, he is found liable to be convicted under Section 326 read with Section 34 IPC and also a sentence of seven years R. 1. Therefore, this conviction of appellant, Sukhal Dhobi under Section 302/34 IPC and rigorous imprisonment for life and further conviction under Section 307 and 307/34 IPC are not made out and so, he is found guilty for the offence under Section 326/34 IPC. In these circumstances he is convicted under Section 326 read with Section 34 IPC and sentenced to rigorous imprisonment for seven years.
22. As regards the death sentence of appellant, Samtul Dhobi, learned Counsel for the appellant has urged that in the circumstances of the case, the appellant, Samtul Dhobi was liable to be given the extreme penalty of death and he has referred to the decision in Bechan Singh's case A.I.R. 180 SC 898. As to this contention, no doubt death is not a normal penalty for murder but when the murder is gruesome, ghastly, revolting to human conscience causing social imbalance or danger to tae society at large or even danger to the security of the State on the sit uations of the like, then for these special reasons, death sentence in the only appropriate and legal sentence. In the case of Asharfi Lai and son v. State of U. P. , the Supreme Court has been pleased to observe at page 1722 (para 3) : "Failure to impose a death sentence in grave cases, where it is a crime against the society, particularly in cases of murders committed with extreme brutality, will bring to naught the sentence of death provided under Section 302 of the Penal Code. It is t tie duty of the court to impose a proper punishment depending upon the degree of" criminality and desirability to impose such punishment. The only punishment which the appellant deserves for having committed the reprehensible and gruesome murders of the innocent girls to wreak their personal vengeance over the dispute they had with regard to the property with their mother Smt. Bulakan in nothing but death. As a measure of social necessity and also as a means of detering other potential offenders, the sentence of death on the two appellants Ashar filial and Babu Lal is confirmed." Before awarding a death sentence, circumstances of the case are to be looked into and special reasons should be found out. There are many considerations like, minority or the old age of the offender, drunkenness, self-preservation or preservation of some other near one or exceeding the limits of self-defence, suddenness of the occurrence and without premeditation, unsoundess and imbalance of the mind of the offender, goaded, misguided, motivated or instigated offence, socio-economic compulsion, provocation sex ill-health and sex of the delinquent helpless state of the accused himself, suspected or actual in fidelity of the life partner or imbalanced sex or deprivation of the home life or sex life or even the deprivation from the family, assets and properties, categorization of the special reasons is neither easy nor appropriate and so it is for the Judge to consider the circumstances of the each case and find out whether special reason exists for the extreme penalty of death or not. The theory of retribution is not being accepted. There is a trend for reformation and deterence and social justice. The protogonist of the penalogical reform have also gone to the extant that if there is delay in the disposal of the case for a considerable period of time, then life sentence should be preferred as said in the case of State U. P. v. Lalla Singh , where the Supreme Court, for an occurrence of 18-6-1971, said that more than six years have elapsed, so death sentence should be reduced to life sentence. In the case of Chandran alias Surendran and Anr. v. State of Kerala A.I.R. 1991 Supp (1) SCC-39, the Supreme Court has said, "As the appellants are awarded extreme penalty of law only on the above two pieces of the evidence, we have to scrutinise the evidence in a very careful, cautious and meticulous way and see whether this evidence can be accepted and acted upon to mulet these appellants with this distardly crime. a The fact that these two murders which are cruel and revolting, have been perpetuated in a very shocking nature, should not be allowed in any way to influence the mind of the court while examining the alleged involvement of the appellants. It is worthwhile to recall an observation of this Court in Datar Singh v. State of Punjab 1975 SCC (Cri) 530 articulating that (SCC p. 575 para 3) "Courts of justice cannot be swayed by sentemems of prejudice against a person accused of reprehensible crime." In the case of Smt. Shashi Nayar v. Union of India , where in the court was requested 1o reconsider the decision in Bachan Singh case, it has been said at p. 396 (paras 5 and 6):
(5) Having regard, however, to the conditions in India, to the variety of the social upbringing of its inhabitants, to the disparity in the morality and education in the counrty, to the vastness of its area, to the diversity of its population and to the paramount need for maintaining law and order in the country at the present juncture India cannot risk the experiment of abolition of capital punishment."
(6) The death penalty has a deterrent effect and it does serve a social purpose. Further, a judicial notice can be taken of the fact that the law and order situation in the country has not only improved since 1967 but has deteriorated over the years and is fast worsening today. The present is, therefore, the most in opportune time to reconsider the law on the subject. Hence, the request for referring the matter to a larger Beneh is rejected.
23. In Bachan Singh case, their Lordships have given out the various guideline. It has also been said at page 944 (para 206).
None the less, it cannot be over-emphasised that the scope and concept of mitigating factors in the area of death penalty must receive a liberal expansive construction by the courts in accord with the sentencing policy writ large in Section 354 (3) Judges should never be blood thirsty. Hanging of murderers has never been too good for them.
In the case of Machhi Singh and Ors. v. State of Punjab , their lordships relying upon the observations made in Bachan Singh (supra; have observed at page 966 (paras 33, 34 and 35) as follows:
(33) In this back-ground the guidelines indicated in Bachan Singh's case (supra) will have to be called out and applied to the facts of each individual case where the question of imposing of deaths senesce arises. The following propositions emerge from Bachan Singh's case:
(i) The extreme penalty of death need not be inflated except in gravest cases of extreme culpability.
(ii) Before opting for the death penalty the circumstance of the "offender" also require to be taken into consideration along with the circumstances of the "crime."
(iii) Life imprisonment is the rule and death sentence is an exception. In other words death sentence must be imposed only when life imprisonment appears to be an altogether inadequate punishment having regard to the relevant circumstances of the crime, and provided any only provided, the option to impose sentence of imprisonment for life cannot be conscientiously exercised having regard to the nature and circumstances of the crime and all the relevant circumstances.
(iv) A blance sheet of aggravating and mitigating circumstances has to be drawn up and in doing so the mitigating circumstances has to be accorded full weightage and a just balance has to be struck between the aggravating and the mitigating circumstances before the option is execised.
(34) In order to apply these guidelines inter alia the following questions may be asked and answered:
(a) Is there something uncommon about the crime which renders sentence of imprisonment for life inadequate and calls for a death sentence ?
(b) Are the circumstances of the crime such that there is no alternative but to impose death sentence even after according maximum Wight age to the mitigating circumstances which speak in favour of the offender?
(35) If upon taking an overall global view of all the circumstances in the light of the aforesaid propositions and taking into account the answers to the questions posed here in above, the circumstances of the case are such that death sentence is warranted, the Court would proceed to do so.
24. In the light of the above observations and guidelines by the appex court in the instant case, it appears immediately prior to the occurrence, one Salim, brother of both the appellants had died of snake bite and the appellants, though wrongly and absurdly, had the supersticious belief that the snake bite to Salim was the outcome of the witch craft of deceased Sakina Khatoon who in the village, was earlier known as a lady of this type. The appellants had got no previous enmity with the deceased or his family, it was on account of this supersticious belief that both the appellants got imbalanced and went to the house of Sakina armed with garasi and goji, may be with the intention of teaching her a lesson or assaulting her at the most, as there is no evidence to show that they had preplanned to kill her. The appellant, Samtul armed with garasi and Sukhal with lathi (goji) while going to the spot at least, knew and shared the common intention of causing grievous hurt to the deceased. But it was the individual act of appellant, Samtul who gave three grievous fatal injuries to the deceased and two also to her daughter, Sukhal did not use his goji against the deceased, injured Ambud Nisa or even intent when they were running away. It is appellant, Samtul alone who had pushed him aside, so, appellant Samtul appears to have committed the offence under the influence of extreme mental and emotional disturbance and also superticious belief that he was morally justified in committing the murder of Sakina Khatoon who, he thought, had caused the death of his brother. These are the special reasons foe not awarding the extreme penalty. Rather they appear to be mitigating circumstances in favour of the accused for having a sentence of life and not death sentence. So, the sentence of death awarded to appellant, Samtul, Dhobi by the learned trial Court, is commuted to rigorious imprionment for life.
25. Thus, maintaining the conviction of appellant, Samtul Dhobi under Section 302, IPC, his sentence of death is commuted to rigorious iniprisonment for life and conviction and sentence of appellant, Sukhal Dhobi is alterved firkin Section 302/34, IPC to one under Section 326/34, IPC and sentence of rigorious imprisonment for seven years. With this modification in the conviction and setences of the appellants, this appeal is partly allowed and the Death Reference is not accepted. As both the appellants are in custody, they will serve out their remaining period of sentence.
Lok Nath Prasad, J.
26. I, agree.