MEHTA, J. - (1.) -
(2.) THE Additional Sessions Judge, Sikar, by his judgment, dated May 22, 19b9, convicted the accused Mohanlal, son of Lachhmana Ram Jat, resident of Nabipura, aged about 17 years, under sec 302, I P. C. and sentenced him to imprisonment for life and to pay a fine Rs. 501/-, in default to undergo further rigorous imprisonment for five months. By the same judgment the other accused Harlal has been acquitted of the offence under sec. 302. read with sec. 34, I. P. G. Mohanlal having grievance against that verdict has taken the present appeal. The prosecution story succinctly put, is that on June 11, 1963. at about 1 pm. Prahlad son of Ganpat Jat (deceased a military personnel, aged about 20 years, resident of Nabipura, went to wards the house of Gorkharam. He returned therefrom at about 9. 30 p. m. On his way the accused Mohanlal and Harlal met him. Harlal first caught hold of him. Mohanlal then inflicted two 'gupti' blows to him. Thereafter he fell down. The occurrence took place in the presence of Sheobux s/o Jitram Jat, P. W. 8 and Hanuman s/o Jalu P. W. 9 On hearing this news P. W. 1 Hanum|an s/o Kushalaram, Laxman s/o Magharam and Magharam s/o Maimaram Jat P. W. 4, resident of Nabipura, rushed to the spot. They saw Prahlad lying injured in a pool of blood. Prahlad was asked as to who had assaulted him. He told the villagers present there that he had been violently attacked by Mohanlal with a Gupti' and thereafter Mohanlal had run away towards his house. Prahlad died on his way to the hospital, where he was being shifted by the village people. 4 or 5 days before this mishap both Mohanlal and Prahlad had been playing cards. In the course of that frolic there was some quarrel between them in regard to one Mst. Nanuri. After the incident Mohanlal hid himself in his uncle Todaram's house. The village people encircled the whole locality. The door of the 'khuddi' wherein he had secluded himself, was pushed off by the villagers. Mohanlal, then came out of the 'khuddi'. When he was running away, he was overwhelmed and apprehended by the people, encircling the locality. He was subsequently made over to the S. H. O. , Police station, Fatehpur. First information report of the incident was lodged by P. W. 1 Hanuman s/o Kushalaram, on June 12. 1968, at 3. 30 a. m. The police registered a case and took up investigation. 'gupti' (Ex. 5) was recovered at the house of accused's uncle Todaram on the information and at the instance of the accused : vide information memo Ex P. 8 and the seizure memo Ex. P. 9. According to the Chemical Examiner and the Serologist the 'gupti' was found positive for human blood : see their reports, dated July 13, 1968 and July 16, 1968, respectively Post-mortem examination of the dead body of Prehlad was conducted by Dr. K. C. Biswas, Medical Officer, Mukandgarh Dispensary, on June 12, 1968. Following injuries were found on the person of the deceased : External: - 1. One incised wound 1/8" x 1/2" x 6-1/2" deep transversely on the left lateral side of the abdomen (between 8th and 9th rib ). 2. Incised wound 1/8" x 1/2" deep transversely on the left lateral side of the abdomen 21/8" below wound No. 1. Internal: - 1. Wound 1/8" x 1/2" x 2-1/2" deep left lateral side of the abdomen. 2. Would 1/8" x 1/2" deep just 2-1/2" below injury No. 1. Peritoneum injured at the side of injury No. 1. Incised wound on the stomach. Incised wound in between 8th and 9th ribs containing about 2 Kg. of clotted blood and undigested food material. The injuries, in the judgment of the Medical Officer, were ante-mortem and they could have been caused with 'gupti' Ex. 5; The Doctor is also of the view that injury No. 1 was sufficient in the ordinary course of nature to have caused death. Police prepared site plan Ex. P. 11, `pescription memo Ex. P. 12, inquest report Ex. P. 14, and other requisite documents. After the investigation was concluded, the police submitted a charge-sheet against the accused Mohanlal and Harlal in the court of Sub-Divisional Magistrate. Fatehpur. The learned Magistrate conducted preliminary inquiry and committed both the accused Mohanlal and Harlal to the court of the Additional Sessions Judge, Sikar. Mohanlal was charged by the trial court under sec. 302, I. P. C. and Harlal under sec. 302, read with sec. 34, Penal Code. The accused (repudiated the charges. In support of its case the prosecution examined 19 witnesses. In their statements recorded under sec. 342, Cr. P. C, the accused made total denial of the commission of the crime. Eventually the trial court relying upon dying declaration, extra-judical confession and recovery of the blood-stained weapon of offence convicted and sentenced the accused Mohanlal, as aforesaid. The accused Harlal was, however, acquitted. 3. Learned counsel for the appellant assailed the judgment of the court below on the following grounds : (1) That the trial court went wrong in relying upon the dying declaration of the deceased Prahlad. (2) That the Additional Sessions Judge, Sikar, could not to have held that the extra-judicial confession made by the accused is of his own free choice or will and is worthy of credence. (3) That the lower court fell in error by reposing confidence on the recovery of the blood stained 'gupti'. (4) That the court below while convicting the appellant, has not kept inview that the prosecution has failed to bring home the motive against the accused. 4. As regards the first point, there is no written dying declaration. Prahlad, however, is alleged to have made a dying declaration in the presence of P. W. 1 , Hanuman s/o Kushlaram and P. W. 4 Magharam. Hanuman has made the folia wing statement. "i inquired from Prahlad as to what has happened. He replied in a fable voice that Mohan had struck him with "gupti". He could not say anything else. " P. W. 4 Magharam deposed as under : "hanuman asked Prahlad what happened. Then Prahlad replied that Mohan has given him a "gupti" blow. We put Prahlad on a cot and brought him in Hanuman's Nohra. After some time Prahlad expired. " There is scrupulous or precise uniformity in the dying declaration made in the presence of the above witnesses. Before both the witnesses, Prahlad specified the name of Mohan to be his attacker, He also stated explicitly the weapon of the offence. P. W. 1 Hanuman, no doubt, says that the voice of Prahlad was low, but from this it cannot be implied that no dying declaration in fact was made by the deceased. Dramatist Shakespeare expressed the idea in the matter of weak voice of a dying man long ago He said in Richard, Act II, Scene I : "they say the tongues of dying men Enforce attention like deep harmony: Where words are scarce, they are seldom spent in vain:/for they breath truth that breath their words in pain. " It is but realistic that a man who has been fatally injured would naturally express himself in feeble vocal utterance. 4. As for credibility of dying declaration His Lordship Mahajan J (as he then was) observed in Ramnath vs. State of M. P. (l) : "it is settled law that it is not safe to convict an accused person merely on the evidence furnished by a dying declaration without further corroboration. . . . . " The question was considered again by the Supreme Court in Khushal Rao vs. State of Bombay (2) and it was pointed out that the above observation in Ramnath's case was obiter dicta and stated the law in these words : "that it cannot be laid down as an absolute rule of law that a dying declaration cannot form the sole basis of conviction unless it is corroborated. . . . . . . . . that a dying declaration stands on the same footing as another piece of evidence. " Their Lordships of the Supreme Court in this very case further observed : "the Judicial Committee of the Privy Council had to consider, in the case of Chandrasekera vs. The King (AIR 1937 P. C. 220) the question whether mere signs made by the victim of a murderous attack which had resulted in the cutting of the throat' thus, disabling her from speaking out, could come within the meaning of sec. 32 of the Ceylon Evidence Ordinance, which was analogous to see. 32 (1) of the Indian Evidence Act The Privy Council affirmed the decision of the Supreme Court of Ceylon. . . . . . which would suggest that a dying peclaration, if found reliable by a jury, may by itself, sustain a conviction. But once, the court has come to the conclusion that the dying declaration was the truthful version as to the circumstances of the death and the assailants of the victim, there is no question of further corroboration. If on the other hand, the court, after examining the dying declaration in all its aspects, and testing its veracity, has come to the conclusion that it is not reliable by itself and that it suffers from an infirmity, then, without corroboration it cannot form the basis of a conviction. " In Phinson on Evidence 8th Edition, P. 313, the author has discussed the question and made the following comment which is pertinent to this case : "otherwise an uncorroborated declaration may be sufficient to warrant conviction (R. V, Fitzpatrick, 1919) 46 Ir. L. T. 173 (M)". The same view was re-affirmed by their Lordships of the Supreme Court in Pompiah vs. State of Mysore (3 ). The relevant passage in the judgment runs in the terms following : "a dying declaration is relevant and material evidence in the prosecution of the asailants and a truthful and reliable dying declaration may form the sole basis of conviction, even though it is not corroborated. " This opinion has again been reiterated to be correct by the Supreme Court in P. B. Patil vs. The State of Maharashtra, in Criminal Appeal No 96 of 1967, decided on May 2, 1969. Here the accusation against the appellant Mohanlal was complete, and there is nothing to show that Prahlad was to say anything more or that he had anything more to add. In so far as the dying declaration goes, it is a complete statement and makes a very clear accusation against the appellant. It is true that there is the prosecution evidence that Harlal also caught hold of Prahlad, but as Harlal did not actually inflict any injury to Prahlad, it is perceivable that the dying man did not implicate him by naming him as his assailant. No corroboration is necessary in the present case as the dying declaration is complete in itself in its accusation and there is nothing to show that the maker of the dying declaration has anything further to add. In this case, however, there is other additional evidence to incriminate the accused and that evidence would be discussed at a later stage. We may now take up the next point raised on behalf of the appellant. As for the extra judicial confession, the prosecution has examined 3 witnesses, Manna Ram, P. W. 6, Ganapatram, P. W. 15, and Pooranmal. P. W. 16. Relying upon these witnesses, the trial court reported confidence upon such a confession. Mannaram, P. W. 6, says : "we encircled Mohan and caught him. In this process Mohan received several lathi blows. Sarpanch asked Mohan why he killed Prahlad. Mohan replied that Prahlad was defaming him in connection with Nanuri. " Ganpatram, P. W. 15 states : "at About 12 a. m. I and Poorna asked the accused why he had murdered Prahlad. The accused told us that Prahlad had levelled accusation against me as regards Nanuri. So I have killed him and Harlal caught hold of him. " The witness in the cross-examination pointed out that 4 to 5 blows were struck by the villagers to Mohan. Similarly Pooranmal P. W. 16, testifies that the Sarpanch tied the hands of Mohan with a rope and took him to the village "guwar". He further states : "i and the Sarpanch asked accused Mohan who had murdered Prahlad. Mohan told that he gave the "gupti" blow and Harlal caught Prahlad. " From the above evidence it is manifest that the extra judicial confession was extorted by threat from the accused Mohanlal specially by the Sarpanch, Gram Panchayat Nabipura, P. W. 15, Ganpatram, who was engaged in the arrest of the accused and reporting the matter to the police officer and who, therefore, would be termed as at person in authority. A too restrictive a meaning should not be placed on the words 'person in authority' occurring in sec. 24, Evidence Act (see for instance R. vs. Ganesh (4 ). The accused Mohanlal was encircled by a large number of villagers. He was also beaten by them after he came out of the "khuddi" of his uncle Todaram in their real to apprehend him. The accused oppressed by the calamity of the situation might have been induced by the motive of hopes and fear to make a confession. Whether or not the confession is voluntary is dependant upon the facts of each case. Here the confession was made as a result of harassment caused by a 'person in authority' and, therefore, such a statement must be regarded as involuntary. In that view of the matter, we associate ourselves with the argument of learned counsel for the appellant that the extra-judicial confession is not free and voluntary and that the trial court went wrong in basing conviction thereupon. We may now deal with the recovery of "gupti" Ex. 5. The trial court has held that the recovery is valid and trustworthy and we are, without reservation or qualification, in perfect agreement with this view. The accused gave information to the Station House Officer, Fatehpur, Ramvijai Singh, P. W. 18, that he has concealed the "gupti" in his uncle Todaram's house under the wall below its thatched roof: vide Ex. P. 8. The information memo is proved by Ramvijai Singh, P. W. 18, Ganpatram, P. W. 15, and Pooranmal P. W. 16. In pursuance of that information the accused led the police to Todarara's residence and got the weapon of the occur-rence recovered : vide Ex. P. 9. The seizure memo is proved by S. H. O. Ramvijai Singh, P. W. 11, Ganpatram, P. W. 15, and Pooranmal P. W. 16. The 'gupti' has been identified by Richpal Singh, P. W. 5, Sheobux, P. W. 8 Hanuman, P. W. 9, Ganpatram, P. W. 15 and Pooranmal, P. W. 16 Ganpatram, has further said that he had seen the "gupti" and its handle with Mohan even before the incident. The "gupti" was sent to the Chemical Examiner and the Serologist Their examination reports prove that it was stained with human blood : vide their reports referred to above. From the statements of Manaram, P. W. 6, Ganpatram, P. W. 15, and Pooranmal, P. W. 16, it is further clear that the accused, soonafter the occurrence, concealed himself in the house of his uncle Todaram. The "gupti" was found there. Learned counsel submits that the "gupti" should not have been recovered at the house of some third person Counsel forgets the fact that immediately after the occurrence Mohanlal rushed to Todaram*s residence to seek shelter or refuge. It was but natural that the weapon of the offence should have been found there. Learned counsel has again argued that the handle of the "gupti" should have been found intact with the main weapon. It is in the evidence of Ramvijai Singh, P. W. 18, that the accused had told him that he wanted to run away. His aunt tried to snatch the "gupti" and in this process the handle of the "gupti" remained with his aunt Mst. Patasi. On this information he went to his uncle's house and demanded the handle, which was produced. This article was recovered in the presence of the witnesses Ganpatram and Kaluram: vide memo Ex. P. 3. Ganpatram, P. W. 15, has stated that Ex. P. 3 bears his signatures at portion marked C to D and that Mst Pattsi w/o Todaram produced the wooden handle. The recovery of the handle of the "gupti" is, therefore, not at all shrouded in mystery. We are in agreement with the court below that the recovery of the "gupti" Ex. 5 and its handle Ex. 4 is trust-worthy. As a matter of fact the recovery of the blood stained "gupti" and its handle on the information and at the instance of the accused is a circumstance which connects the appellant with the crime The confession made by the accused in this connection under sec. 27, Evidence Act, lends further assurance to the evidence regarding recovery. We do not agree with counsel for the appellant that the trial court went wrong in assessing the evidence on its merits and that it indulged in speculation and drew unjustified conclusion. In our opinion, the trial court was right in holding that the recovery of the above two articles is a circumstance which raises the presumption in respect of the participation of the prisoner in the murder. In this connection, a reference is made to R. K. Jadav vs. State of Gujarat (5); where in it was held that the recovery of the blood stained articles would be presumptive evidence against the prisoner both in a charge of robbery and in a charge of murder. We may now switch over to the question of motive Motive is not material in a criminal case, when there is direct evidence of the act of the accused and the act itself is sufficient to disclose the intention of the actor. "it is sometimes," Professor Wigmore points out "popularly supposed that in order to establish a charge of a crime, the prosecution must show a possible motive. But this motion is without foundation" (See sec. 118, Vol. 1 Third Edition, Treatise on Evidence by Prof. Wigmore ). Assuming for the sake of argument that every criminal act must have some motive, i. e. , a prior conscious impelling emotion, it is always possible that this necessary emotion may be discoverable and, therefore, failure to discover motive does not signify the non existence of the crime and is not fatal to the prosecution story. It is only a factor to be reckoned with other circumstances. In support of this proposition reliance is placed on the observations of their Lordships of the Supreme Court in Atley vs. State of U. P. (6 ). The following pertinent passage may usefully be reproduced below : "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 the absence of clear proof of motive does not necessarily lead to the contrary conclusion. The absence of clear proof of motive does not necessarily lead to the contrary conclusion. The absence of proof of motive has this effect only that the other evidence bearing on the guilt of the accused has to be very closely examined. " Like remarks have been made by their Lordships of the Supreme Court in Gurcharan Singh vs. State of Punjab (7 ). In this case P. W. 3 Bhuraram has stated : "two days before the occurrence, I was playing cards with Mohan accused present in the dock. Then Prahlad came Mohan's father is my brother in relation. Prahlad also joined us in playing cards. During the play there was a quarrel between Prahlad and Mohan. I intervened and separated them. " Mannaram P. W. 6, has deposed : "sarpanch asked Mohan why he killed Prahlad. Mohan replied that Prahlad was defaming him in connection with Nanuri. " Ganpatram, P. W. 15, has said that Mohan told him : "prahlad has levelled accusation against me as regards Nanuri, so I have killed him. " The above evidence gives impression that as Prahlad reprimanded the accused Mohanlal in regard to Mst. Nanuri, the accused wanted to exact|vengeance on the deceased for the wrong done to him. This evidence is, no doubt, not sufficient to establish unambiguous or distinct motive for the perpetration of the crime. However, absence of positive proof regarding motive is not crucial in the whole context of the facts of this case. It is not an indispensable link in the chain of circumstantial evidence. We may now deal with the eye witness account given by Sheobux P. W. 8, Hanuman s/o Jaluram, P. W. 9, and Gorkharam, P. W. 10. We may first take up the evidence of Gorkharam. As the name of Gorkharam does not appear in the first information report filed by Hanuman, son of Kushalaram Jat, who collected information from the eye witnesses of the occurrence, it would not be safe to place reliance on the testimony of this witness and, therefore,we do not propose to base our finding on this evidence.
(3.) SHEOBUX, P. W. 8, has deposed that when he reached near Gopalji's house, he saw Mohan striking "gupti" blow to Prahlad below his ribs. After sometime Mohan gave another "gupti" blow to Prahlad. Mohan ran away towards his house, with the "gupti". In the cross-examination the witness admits that he did not chase Mohan and Harlal. The witness was confronted with his statement, recorded by the committing court, Ex D. 2, at portion marked A to B, wherein he had stated that Mohan had given one "gupti" blow to Prahlad, when he was at some distance and that blow had fallen on his left rib. The other blow had been inflicted when he had reached near him. There is no significant contradiction in the above statement vis a vis the statement made before the trial court. He was further confronted with his police statement Ex. D. 4, at portion marked A to B, wherein he had said that Gorkharam had come and he caught hold of the hand of the accused and held his "gupti" and even then he had stabbed Prahlad with a "gupti". Here also there is no contradiction worth the name. The trial court disbelieved the testimony of this witness on the ground that he did nothing after the occurrence and that this is an unnatural conduct and that there are some material inconsistencies in his statement. We have carefully looked into the statement of SHEOBUX and we find therein no substantial contradictions. SHEOBUX has categorically stated that at site of the occurrence, as a result thereof 5 to 10 persons arrived at the place, where Prahlad was lying. In this context, it cannot be said that SHEOBUX remained reticent after the occurrence. He could not have taken more effective step than to raise pandemonium inviting the people to intervene in the matter. The grounds on which the evidence of SHEOBUX has been condemned are assumptive, having no real existence. Similarly Hanuman, son of Jaluram, P. W. 9, saw the accused Mohan stabbing Prahlad with a "gupti". He raised an uproar. We have carefully looked into the cross-examination of this witness. The contradictions pointed out by learned counsel for the appellant are trifling. In the police statement Ex. D. 5, at portion marked A to B, he has stated that when he came to "chauraya", Harlal had caught hold of the mouth of Prahlad Similarly in the committing court of the Sub-Divisional Magistrate, Fatehpur, the witness had stated, at portion marked A to B in Ex. D 6, that Harlal had caught hold of the hands of Prahlad by standing behind him and Prahlad's hands were lifted. Learned counsel for the appellant submits that as this witness implicates Harlal, who has been acquitted, his evidence should be rejected as untrust-worthy against Mohan as well. In this connection, it may be pointed out that merely because one or the other accused have been acquitted, though the evidence against both, so far as the direct testimony went, was the same, it does not necessarily follow that the other accused must likewise be acquitted : vide Gurcharan Singh vs. State of Punjab (supra ). Here the lower court has distinguished the case of the accused Harlal, who has been acquitted, mainly on the ground that his name does not appear in the first information report and in addition to that the evidence of the witnesses as against the convicted accused Mohanlal is consistent and is not materially shaken by the cross-examination. There is no reason not to convict the accused Mohanlal on the basis of the aforesaid eye-witness' account. Be that as it may, we are no more concerned with the case against Harlal, who has been acquitted by the trial Judge and against whom the State has not preferred to come in appeal. But so far as the appellant Mohanlal is concerned, the evidence of the eye-witnesses referred to above is consistent, clear and reliable and the learned trial Judge was not entitled to reject their evidence. The eye witness account is another very strong piece of evidence on which the conviction of the accused Mohanlal could have been founded by the court below. In the case in hand there is another important circumstantial evidence which merits consideration. It is in the evidence of Mannaram, P. W. 6, that after the occurrence, the villagers searched for Mohan. He had hidden himself in the "khuddi" of his uncle Todaram's house. The "khuddi" was bolted from inside. The shutters of the "khuddi" were pushed and they were flung apart. Thereafter Mohan came out of the "khuddi" and took to his heals. To the same effect is the statement of Ganpatram, P. W. 15. The witness has further stated that he had told 4 or 5 persons of the village to keep an eye on Mohan. Later on, Mohan ran away from the "khuddi". Likewise Pooranmal. P. W. 16, has deposed that 4 or 5 villagers had gone to Todaram's house. His "khuddi" was found bolted from inside. Mohan ultimately came out of the "khuddi" and jumped into the Panna's "bara". The villagers followed Mohan in Panna's "bara" and apprehended him The witnesses have not been deranged or shattered in the cross examination on this point. Per se absconding, indubitably, does not form the basis of conviction, but it is a useful piece of evidence if there is other evidence to link the accused with the crime. A person charged with an offence might eventually become nervous and under the impulse of the moment might consider it desirable that he should abscond rather than face the trial. In this connection, a reference is made to illustration (c) to sec. 9 of the Evidence Act. The illustration runs in the terms following : "a is accused of a crime. The fact that, soon after the commission of the crime, A absconded from his house, is relevant under sec. 8, as conduct subsequent to and affected by facts in issue. " Fact tending to explain the fact of absconding is relevant under sec. 9 of the Evidence Act The accused has not explained why he wanted to flee from the den in which he had secluded himself. His concealment and subsequent disappearance in the "khuddi" after the commission of the alleged crime is a circumstance which, in the absence of plausible explanation, does constitute a useful piece of corroborative evidence. For the aforesaid reasons even if we exclude extra-judicial confession, offence of murder is fully established against the appellant. His appeal, therefore, fails and is hereby dismissed, subject to this modification that the amount of fine imposed on the accused need not be recovered from him. If it has already been realised, it should be refunded to him forthwith. . ;