IMPORTANT POINT
Merely because the motive established is a weak one, that by itself is insufficient to lead to any inference adverse to the prosecution.

Headnote:(i) Supreme Court (Enlargement of Criminal Appellate Jurisdiction) Act, 1970-Criminal Procedure Code, 1973-Section 379-Appeal against conviction-Murder-Family feud-Victims and appellants being close relations-B and his wife were shot at terrace of their residential building-Their neighbour was shot dead as he woke up hearing sounds-Victims having enough visibility to correctly identify assailants-Assailants were not strangers-Eye witnesses being well acquainted with physiognomy of each one of the killers-Assailants had enough light to identify victims-PW 4, PW 6 and PW 10 identifying appellants as their assailants-PW 2 and PW 7, close neighbours of victims stated that when they heard sound of gun shots they rushed to the spot and saw injured persons in bleeding condition -Those witnesses deposed that PW 10 and PW 4 mentioned names of these appellants as assailants-Absence of proof of motive-Not fatal-Convictions recorded warrant no interference. (Paras 9, 10, 11 and 18)
       (ii) Evidence Act, 1872-Section 157-Words at or about the time in Section 157-Pragmatic and liberal construction-Testimony of PW 2, PW 7 and PW 8 that they heard from victims that appellants were assailants-It would fall within ambit of Section 157.
       Held : The above evidence of PW 2, PW 7, and PW 8 may not become substantive evidence as res gestae. Nevertheless, such evidence has a utility in the trial as it would fall within the ambit of Section 157 of the evidence Act. Any former statement made by a witness at or about the time when the incident took place becomes usable as of corroborative value under Section 157 of the Evidence Act. Though such statements are not part of the main transaction, they have a probative value for corroborative purposes if such statements have been made without delay. If delay was involved in making such statement. Its utility would be restricted to confronting the maker for contradicting him. Such a statement would have no corroborative value. If there was no appreciable delay the statement made by the witness can be used for corroborating his own testimony as provided in Section 167 of the Evidence Act. (Para 12)
       Further held : The words "at or about the time" in Section 157 of the Evidence Act are the crucial words to judge the time when the statement was made. Whether the statement was made at or about the time of the incident can be decided on the facts of each case. No hard and fast rule can be laid down for it. However, those words "at or about the time in Section 157 must receive a pragmatic and liberal construction. The principle is that the time interval between the incident and the utterance of the statement should not be such as to afford occasion for reflection or even contemplation. If the time interval was so short as between the two that the mind of the witness who made the statement was well connected with the incident without anything more seeping into, such statement has a credence. And hence can be used, though not as substantive evidence, as corroborating evidence, on the principle adumberated in Section 157 of the Evidence Act. (Para 13)
       (iii) Evidence-Motive-Proof of-Absence of clear proof of motive-Whether fatal. (Paras 16 & 17)

JUDGMENT

Thomas, J.-For Bhagelu Singh Yadav, his own residence became most devastatingly unsafe when he and his wife were gunned down by armed assailants during a summer night in the month of June, 1980. His wife Sona Devi fell down dead on the spot though Bhagelu Singh escaped death as the pellets did not injure his vital organs. But the irony of fate of his neighbour Ram Janam Ram was horrendous as he too was shot dead just because he woke up hearing the sound of commotion from his neighbourhood. Balroop Yadav (first cousin of Bhagelu Singh Yadav), his two sons (Nathuni Yadav and Chela Yadav) and his son-in-law (Chandrika Yadav) were charge-sheeted by the police on the aforesaid incident before the Sessions Court. After trial learned Sessions Judge acquitted all of them. But a Division Bench of the Patna High Court has reversed the acquittal and convicted them of murder and sentenced them to undergo imprisonment for life. This appeal is filed under Section 2(a) the Supreme Court (Enlargement of Criminal Appellate Jurisdiction) Act, 1970 and Section 379 of the Code of Criminal Procedure, 1973.

2. During the pendency of this appeal, Balroop Yadav passed away on 17.2.1990. Consequently, the appeal against him stood abated. We heard Shri M.P. Verma, senior advocate who argued the appeal for the remaining appellants and Shri B.B. Singh, advocate for the State of Bihar.

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

4. Bad blood existed between Bhagelu Singh Yadav and Balroop Yadav on account of some family feud. This ghastly incident took place around midnight on 11.6.1980. On that fateful night, Bhagelu Singh and other members of his family were sleeping on the open terrace of his residential building. Sona Devi s brother Saryu Singh (PW-4) was also sleeping on the same terrace. It was during then that the assailants lurked into the house and reached the terrace. As the dog barked, Bhagelu Singh Yadav woke up and saw the assailants armed with guns standing closeby.

5. Appellant Chandrika opened fire at Bhagelu Singh while appellant Nathuni Yadav shot Sona Devi with another gun. Hearing the sound of hubbub their neighbour Ram Janam Rai woke up and asked from his terrace as to what was happening. Then Balroop Singh Yadav turned the mouth of his gun towards that neighbour and pulled the trigger. Ram Janam Rai slumped down and breathed his last then and there. During the shoot out Saryu Singh (PW-4) sensed that the assailants might be prowling for the little daughter Sheela Kumari also and so he took courage and lifted her up and slipped away from the scene. Assailants then fled from the scene.

6. Many neighbourers rushed to the place. Bhagelu Singh Yadav was taken to the Government Hospital Sasaram where he was treated for the injuries sustained.

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

8. According to the learned counsel, there was no possibility at all for the witnesses to identify the assailants as it was a moonless night and there was no lamp burning in the vicinity and hence it

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1996 Supreme(SC) 2225

IMPORTANT POINT Merely because the motive established is a weak one, that by itself is insufficient to lead to any inference adverse to the prosecution.

Cases Referred (2)

IMPORTANT POINT
Merely because the motive established is a weak one, that by itself is insufficient to lead to any inference adverse to the prosecution.