STATE OF UTTAR PRADESH v. SARJU PRASAD — 1996 DIGILAW 76 (ALL)

I. S. MATHUR, J. ( 1 ) THIS is a State Appeal against the judgment and order dated 11-11-1978 passed by Sri O. P. Srivastava, the then Sessions Judge Faizabad acquitting the respondents Sarju Prasad and Ram Sahai for offences under Sections 302 IPC and 302/109 IPC respectively. ( 2 ) THE family members of the deceased Km. Guddi, aged about three years and the accused lived in village Ganga - Vishnupur, which is a hamlet of Bhawanipur. The hamlet comprises nine houses only. Out of these nine houses six belong to the family of the accused, one to the family of the deceased, one to Ram Achaivara and the remaining house to Ramvaran. There was enmity between family members of the accused and the deceased in connection with the allotment of some land and a well, to the accused in consolidation proceedings. In addition it is alleged that there was some altercation in regard to putting up of a Chappar. ( 3 ) ACCORDING to the prosecution on 24-8-77 at about 10 a. m. the accused Sarju Prasad strangulated Km. Guddi and the co-accused Ram Sahai, who is the father of Sarju Prasad, was standing nearby and was exhorting Sarju Prasad to kill the child, a few paces from the house of the deceased. This incident was seen by Smt. Vimla Devi while returning from the Jungle. On hearing her shouts the witnesses Thakur Prasad and Ram Abhilakh also came there and saw the occurrence. They challenged (chased) the accused who ran away. Thakur Prasad scribed the first information report (Ex. Ka. 2) and submitted it in the police station at 11-30 a. m. on the same day. A case under Section 302 IPC was registered and investigation was taken up by PW-6 Laxmi Kant Pandey. He conducted inquest on the body of Km. Guddi and sent the body for post mortem examination. He also prepared site-plan Ex Ka. 9. On post-mortem examination conducted on 25-8-77 at 11-30 a. m. Dr. M. A. R. Siddiqi found the following injuries on the person of the deceased :1 - Contusion 1 c. m. x 1 c. m. on left ear lobule with abrasion with dry crusted blood. 2 - Contused abrasion at attachment of right ear 1 c. m. x 1 c. m. 3 - Contusion 8 c. m. x 4 c. m. on right arm upper 1/3rd on shoulder front. 2 - Contused abrasion at attachment of right ear 1 c. m. x 1 c. m. 3 - Contusion 8 c. m. x 4 c. m. on right arm upper 1/3rd on shoulder front. 4 - Echymosis 12 c. m. x 8 c. m. on front of chest right side and left side up to nipple and front of neck. ( 4 ) ON internal examination the Doctor found walls, ribs and cartilages of thorax echymosed in upper half with right second rib fractured anteriorily. He also found hyoid bone fractured and frothy secretion present in bronchi. The tongue was cyanosed in between the teeth. Bloody fluid was coming out from the nostrils and mouth and feacal matter from anus. Rigor-mortis was found absent. ( 5 ) THE investigation was taken up by the Station Officer S. P. N. Tripathi (PW-7) on 25-8-77. He arrested the accused and after completing investigation submitted charge-sheet Ex Ka. 10. ( 6 ) THE accused denied the prosecution allegations and stated that they have been falsely implicated due to enmity on account of allotment of certain land and well. ( 7 ) THE prosecution examined seven witnesses, including the three eye-witnesses, in support of the prosecution version. After the assessment of the evidence the learned Sessions Judge came to the conclusion that the prosecution has failed to prove the charge against the accused beyond reasonable doubt and, accordingly, he acquitted them. Aggrieved by the judgment and order the State has come up in appeal before this Court. ( 8 ) WE have heard the learned counsel for the State as also the learned counsel for the accused respondents. ( 9 ) BEFORE we enter into the discussion of the merits of the case we consider it necessary to notice the legal principles to be followed for consideration of appeal against acquittal. We consider this to benecessary in view of the submissions made by the learned counsel for the respondents that different principle and standards have to be adopted in considering appeal against acquittal. In Solanki Chirnanbhai Ukabhai v. State of Gujarat, 1983 SCC (Cri) 379 : ( AIR 1983 SC 484 ) Honble Supreme Court has noted the following legal position. We consider this to benecessary in view of the submissions made by the learned counsel for the respondents that different principle and standards have to be adopted in considering appeal against acquittal. In Solanki Chirnanbhai Ukabhai v. State of Gujarat, 1983 SCC (Cri) 379 : ( AIR 1983 SC 484 ) Honble Supreme Court has noted the following legal position. (Para 9 of AIR)"appellate Court while dealing with an appeal against the order of acquittal has full power to review at large the evidence on which the order of acquittal is founded and to reach a conclusion that upon such evidence the order of acquittal should be reversed. However, in exercising that power the appellate Court should give proper weight and consideration to the following matters : (1) the views of the Trial Judge as to the credibility of the witnesses, (2) the presumption of innocence in favour of the accused a presumption certainly not weakened by the fact that he has been acquitted at the trial, (3) the right of the accused to the benefit of any doubt and (4) the slowness of the appellate Court in disturbing a finding of fact arrived at by a Judge who had the advantage of seeing the witnesses, which finding would not certainly be disturbed if two reasonable conclusions can be reached on the basis of the evidence on record. . . . . . " In Ram Kumar v. State of Haryana 1995 SCC (Cri) 355 : ( AIR 1995 SC 280 ) the Supreme Court observed : (para 15 of AIR)"in this connection it may be pointed out that the powers of the High Court in an appeal from order of acquittal to reassess the evidence and reach its own conclusions under Sections 378 and 379 (sic 386) Crpc are as extensive as in any appeal against the order of conviction. But as a rule of prudence, it is desirable that the High Court should give proper weight and consideration to the view of the trial Court with regard to the credibility of the witness, the presumption of innocence in favour of the accused, the right of accused to the benefit of any doubt and the slowness of appellate Court in justifying a finding of fact arrived at by a judge who had the advantage of seeing the witness. No doubt it is settled law that if the main grounds on which the Court below has based its order acquitting the accused, are reasonable and plausible and the same cannot entirely and effectively be dislodged or demolished, the High Court should not disturb the order of acquittal. " ( 10 ) IN Chand Khan v. State of U. P. 1995 SCC (Cri) 915 : ( AIR 1995 SC 2140 ) the Honble Supreme Court has held that High Court will be justified in interfering with an order of acquittal if the finding of the trial Court is based on surmises and conjectures or where finding has been based by the trial Court on minor immaterial contradictions and discrepancies. ( 11 ) THEREFORE, the correct legal position is that, in considering an appeal against acquittal, the powers of the High Court to re-assess the evidence and reach its own conclusions are as extensive as in an appeal against the order of conviction. However, as a rule of prudence, it is desirable that the High Court should give proper weight and consideration to the view of the trial Court with regard to the credibility of the witnesses, presumption of innocence in favour of the accused, the right of the accused to the benefit of any doubt and slowness of the appellate Court in disturbing a finding of fact arrived at by a Judge who had the advantage of seeing the witnesses. The High Court will be quite justified in disturbing the finding of acquittal recorded by the trial Court if it is found that the finding is based on presumption, surmises and conjectures or reliance has been placed on immaterial contradictions and discrepancies. ( 12 ) ON consideration of this case on merit in the light of the principles, noticed above, we feel that the finding of acquittal recorded by the learned Sessions Judge in respect of the main accused Sarju Prasad cannot be sustained. A child of three years has been murdered in broad-day-light and at a place in front of the house of the family members of the deceased. A perusal of the evidence indicates that the defence did not challenge either the time of the death of the place of the incident. A child of three years has been murdered in broad-day-light and at a place in front of the house of the family members of the deceased. A perusal of the evidence indicates that the defence did not challenge either the time of the death of the place of the incident. In his argument before this Court also, the learned counsel for the respondents did not advance any argument against the prosecution version in respect of the place or the time of the occurrence. According to PW-2 Dr. M. A. R. Siddiqi death could have been caused on 24-8-77 at 10 a. m. In the cross- examination the only suggestion made to this witness in regard to the time of death is in regard to the time taken in the passing off of rigor-mortis. The Doctor has stated that rigor mortis could completely pass off within 24 to 36 hours. In his reexamination on this point this witness has agreed with the opinion recorded in Modis Medical Jurisprudence, 19th Edn. , at page 1213 that in northern India the duration of passing of the rigor mortis is 24 to 36 hours. No suggestion has been made to this witness to the effect that the death could have taken place at some other time nor such a suggestion has been made to any other witness. Accordingly, it is obvious that the death of Km. Guddi took place at about 10 a. m. on. 24-8-1977. ( 13 ) IT can also be not disputed that Km. Guddi hasbeen murdered. According to the post mortem report and the statement of PW-2 Dr. Siddiqi, the cause of death is due to asphyxia as a result of strangulation. ( 14 ) THE question is as to whether this murder has been committed by the accused Sarju Prasad as alleged by the prosecution. The prosecution examined three eye-witnesses to prove its case PW-1 Vimla Devi. PW-3 Thakur Prasad and PW-4 Ram Abhilakh have made consistent statements to the effect that they saw the accused Sarju Prasad strangulating the deceased with both the hands and also striking on her chest. We have gone through the statements of all the three witnesses carefully. We do not find any material contradictions or inconsistencies in their statements. PW-3 Thakur Prasad and PW-4 Ram Abhilakh have made consistent statements to the effect that they saw the accused Sarju Prasad strangulating the deceased with both the hands and also striking on her chest. We have gone through the statements of all the three witnesses carefully. We do not find any material contradictions or inconsistencies in their statements. ( 15 ) THE learned Sessions Judge, however rejected the testimony of all the three witnesses on the ground that their statements were contradictory to medical evidence, they were chance witnesses and that they were related to the deceased. ( 16 ) WE are unable to subscribe to the view of the learned Sessions Judge that the medical evidence contradicted the testimony of eye-witnesses. As indicated above, according to the post mortem report and the statement of the Doctor the death resulted due to strangulation. The Doctor has stated that the injuries found on the person of the deceased could have been caused in the manner suggested by the prosecution. He has found the hyoid bone fractured. He has also found the face swollen and cyanosed and bloody fluid coming out of nostrils and mouth. It will be clear from Modis Medical Jurisprudence and Toxicology, 19th Edn. , that these are the symptoms of strangulation. It is noted at page 152 that "the hyoid bone is not as a rule fractured by any other means than by strangulation, although the larynx and trachea may, in rare cases, be fractured by a fall. " It is further mentioned at page 149 that in a case of strangulation, "if the wind pipe is not completely closed, the face becomes cyanosed, bleeding occurs from the mouth, nostrils and ears, the hands are clenched and conclusions precede death. " ( 17 ) THE learned Sessions Judge has, however, drawn different inferences from the data given in the post-mortem report. We have gone through these reasons and, in our opinion, they are wholly misplaced. Reasons given by him for taking the view that the medical evidence does not support the case of the prosecution are follows :"dr. " ( 17 ) THE learned Sessions Judge has, however, drawn different inferences from the data given in the post-mortem report. We have gone through these reasons and, in our opinion, they are wholly misplaced. Reasons given by him for taking the view that the medical evidence does not support the case of the prosecution are follows :"dr. Siddiqi has on the other hand stated that if any person presses neck with both of his hands and at the same time he also assaults her on her chest with his leg, then there is less possibility of inflicting injury No. 4 which is echymosis 12 c. m. x 8 c. m. on front of chest right side and left side of the nipple and front of neck. He has also stated that if the said person is bending down and is pressing the neck with both of his hands and is also assaulting the deceased with his leg simultaneously then he cannot cause injuries 1, 2 and 3 in the ordinary course. . . . . . . ""secondly, Dr. Siddiqi has opined that the death of Km. Guddi was caused due to asphyxia caused by strangulation and in his evidence he has stated in para 5 about the difference between strangulation and throttling. He has said that throttling is caused by pressing the neck with hands, while pressure is necessary in the case of strangulation whether the pressure is caused by hands or by rope etc. He has stated further that if the neck of a child is pressed with both hands. , then generally the marks of fingers, thumb and palm would be visible on the neck and since these marks were not found by him in the present case was caused by throttling. Also there was no ligature mark on injury No. 4 in the present case. In this way the above doctor has excluded the possibility of the death of Km. Guddi having been caused by throttling i. e. . . . by pressing her neck with both hands as has been stated above by the three eye-witnesses. Also there was no ligature mark on injury No. 4 in the present case. In this way the above doctor has excluded the possibility of the death of Km. Guddi having been caused by throttling i. e. . . . by pressing her neck with both hands as has been stated above by the three eye-witnesses. ""finger and thumb marks are generally found on the neck if it is pressed with both hands and in a case where sufficient pressure is used to the extent that hyoid bone is fractured, the larynx, wind pipe and even vessels in the front and sides of the neck may be found bruised or lacerated and fingers and nail impressions are common. In the present case also hyoid bone was found fractured showing that sufficient pressure was used while pressing the neck resulting in the said fracture and so if the neck was pressed with both hand marks of fingers, thumb and palm should have been there on either side of the neck in the ordinary natural course and even larynx, wind-pipe and vessels in the front and sides of the neck would have been found bruised or lacerated. This fact will exclude the possibility of her neck having been pressed with both hands and the manner stated above by the witnesses. . . . . . . . . . " ( 18 ) WE have considered these reasons carefully and, in our opinion, they are based on conjecture and surmises and not on the correct reading of the evidence and the texts on medical jurisprudence and Toxicology. In regard to the injury No. 4, which is echymosis 12 c. m. x 8 c. m. on the chest, the Doctor has stated in his examination-in-chief that this injury could result from strangulation and pressure of the leg and knee, injuries 2 and 3 could be caused by afell, injury No. 1 could result from the pressure of a blunt object. To a Court question he has answered that if the deceased was lying down and struck by legs injuries 1, 2 and 3 could result. He has further stated that injury No. 4 could be caused by pressure of hands and since she was a child it could be caused from the pressure of legs also. To a Court question he has answered that if the deceased was lying down and struck by legs injuries 1, 2 and 3 could result. He has further stated that injury No. 4 could be caused by pressure of hands and since she was a child it could be caused from the pressure of legs also. The Doctor has, no doubt, stated that if a man is bending and pressing neck with both the hands then in that position injuries Nos. 1, 2 and 3 could not "normally be caused". This statement assumes that the assault on the chest was made simultaneously with the pressure on the neck by the hands which is by no means elicited in the cross-examination of the eye-witnesses. ( 19 ) ACCORDING to the earlier statement of the Doctor, injuries 2 and 3 could be caused by a fall and are not necessarily the result of assault. In this connection, it may also be observed that the Doctor has not ruled out these injuries being caused in the manner suggested by the prosecution, completely and has only stated that, in normal course, that may not be possible. Therefore, on the facts on record no adverse inference could be drawn on the basis of this statement of Dr. Siddiqi. ( 20 ) IN regard to the second reason we are at a loss to appreciate the uncalled for emphasis on the difference between strangulation and throttling nor we are able to appreciate the inference drawn from the statement of the Doctor regarding the difference between strangulation and throttling. Strangulation is a generic term and throttling is one of its specie. As observed in Modis Medical Jurisprudence and Toxicology, 21st Edn. (page 195), Taylors Principle and Practice of Medical Jurisprudence 11th Edn. (page 490) and Lyods Medical Jurisprudence for India (Page 358), strangulation means a violent form of death, which results in constricting the neck by means of ligature or by any other means and strangulation is called throttling when the constriction is produced by the pressure of the fingers or palm upon the throat. ( 21 ) WE have indicated above, with reference to the observations in Modis Medical Jurisprudence and Toxicology, that the present one is a typical case of strangulation. ( 21 ) WE have indicated above, with reference to the observations in Modis Medical Jurisprudence and Toxicology, that the present one is a typical case of strangulation. No contrary inference could be drawn from the data given in Taylors Principle and Practice of Medical Jurisprudence for India, as is sought to be drawn by the learned Additional Sessions Judge. In Taylors Medical Jurisprudence, symptoms of strangulation are described as follows :-"the face may be livid, blotchy and swollen, the eyes wide open, prominent and suffused, the pupils dilated, the tongue swollen, dark coloured and protruded" (page 491 ). "in the act of strangulation by the hands much greater degree of violence is commonly employed than is necessary to cause death, fingernail impressions are common and if much force is used locally in producing construction, the larynx, wind pipe, the muscles, even vessels in the front sides of the neck may be found to be bruised or lacerated. The hyoid is sometimes fractured. " (Page 493 ). "evidence of violent compression or constriction of the neck during life is obtained from the presence of ecchymosis and swelling and lividity of haemorrage above the level of the constriction and swelling and lividity of face. " (page 495 ). In Lyods Medical Jurisprudence for India, the author has noticed that if both hands are employed as is very often the case, several marks will be seen on each side of the throat. " ( 22 ) IT will appear from the aforesaid Text Books on Medical Jurisprudence that in strangulation with hands (throttling), the face is cyanosed, livid and swollen, the eyes are open and suffused, the pupils dilated, the tongue swollen, dark coloured and protruded, bleeding occurs from the mouth, nostrils and ears, ecchymosis may result and fingernail marks may be found. If both the hands are used several marks may be seen on each side of throat. Hyoid bone may be fractured. Hyoid bone is not fractured by any means other than strangulation. ( 23 ) IN the present case, as noticed above, face of the deceased was swollen and cyanosed, eyes were bulging and tongue cyanosed and bitten. Bloody fluid was coming out from nostrils and mouth. Ecchymosis was present and above all hyoid bones was fractured. Hyoid bone is not fractured by any means other than strangulation. ( 23 ) IN the present case, as noticed above, face of the deceased was swollen and cyanosed, eyes were bulging and tongue cyanosed and bitten. Bloody fluid was coming out from nostrils and mouth. Ecchymosis was present and above all hyoid bones was fractured. This data clearly and unmistakenly leads to the inference that the death was caused by strangulation, it could lead to no other conclusion. ( 24 ) IT is difficult to subscribe to the view of the learned Sessions Judge that the absence of finger or thumb mark should lead to the conclusion that the neck of the deceased was not pressed with both the hands in the manner stated by the prosecution witnesses. In Modis Medical Jurisprudence and Toxicology 19th Edn. at page 150 it has been noticed that "if the throat is compressed between two hands, one being applied to the front and the other to the back, bruises and abrasions may be found on the front of the neck as well as on its back. " It is further observed at the same page that the finger marks look like soft red bruises if examined soon after death, butthey look brown dry and parchment like some times after death. The Doctor has found abrasion with dried crusted blood on left ear lobule and contused abrasion at attachment of right ear. In the inquest, report (Ex. ka. 5) swelling on the neck and bruise near the right ear have been noticed. ( 25 ) THERE is force in the submission of the learned counsel for the State that, in the case of a child, it is possible to press the neck with both hands without the thumb coming in contact with the skin and the pressure that may be required to cause the injury or the fracture of hyoid bone may not be as heavy as may be necessary in the case of an adult. The deceased is a child of three years. Her neck must have been comparatively much thinner than the neck of an adult. If the neck is pressed with the part of the hands between the thumb and the first finger, the thumb-impression may not result. The deceased is a child of three years. Her neck must have been comparatively much thinner than the neck of an adult. If the neck is pressed with the part of the hands between the thumb and the first finger, the thumb-impression may not result. ( 26 ) THEREFORE, considering the entire data and the evidence on the record we are clearly of the opinion that the finding of the learned Sessions Judge in regard to the alleged inconsistency between the ocular and the medical evidence is based on conjecture and surmises and not on any sound basis. ( 27 ) IN this connection it may also be observed that unless the medical evidence is totally inconsistent with the oral evidence the ocular testimony has to be accepted if that testimony is otherwise trustworthy (see Bachchan v. State of U. P. , 1990 All Cri C 142 ). In our opinion the medical evidence cannot in any case be said to be totally inconsistent with the ocular testimony which, in our opinion, is quite trustworthy. We are unable to accept the submission of the learned counsel for the respondent that the ocular testimony must be rejected on the ground that the witnesses are related and were inimical to the deceased. It is true that the witnesses are related to the deceased and the family members of the deceased. It is also true that there was some dispute between family members of the deceased and the accused. However, in our opinion, law is quite well settled that the testimony of such witnesses cannot be equated to the testimony of tainted witnesses and cannot be rejected merely on that ground. In Sarwan Singh v. State of Punjab, (1976) 4 SCC 369 at page 376 : ( AIR 1976 SC 2304 at p. 2310), Honble Supreme Court has observed :"moreover, it is not the law that the evidence of an interested witness should be equated with that of a tainted witness or that of approver so as to require corroboration as a matter of necessity. The evidence of an interested witness does not suffer from any infirmity as such, but the Courts require as a rule of prudence, not as a rule of law, that evidence of such witnesses should be scrutinised with a little care. The evidence of an interested witness does not suffer from any infirmity as such, but the Courts require as a rule of prudence, not as a rule of law, that evidence of such witnesses should be scrutinised with a little care. Once that approach is made and the Court is satisfied that the evidence of the interested witnesses has a ring of truth, such evidence could be relied upon even without corroboration. "in State of U. P. v. Manohar Lal, AIR 1981 SC 2073 the Supreme Court has observed (para 2) :"this Court has laid down in several cases that while the evidence of interested eye-witnesses may be approached with a little caution but it cannot be discarded only on the ground of being of a partisan nature. The High Court should have appraised the testimony of the witnesses on its intrinsic merits to determine its credibility. " In State of Punjab v. Wassan Singh, 1981 Cri LJ 410 : AIR 1981 SC 697 , the Supreme Court has observed (para 27) :"it is true that both these witnesses are related to the deceased and, as such, are interested witnesses, but their antecedents or mere interestedness was not a valid ground to reject their evidence. Persons with such antecedents are not necessarily untruthful witnesses. Mere relationship with the deceased was not a good ground for discarding their testimony when, as we have already held, their presence at the scene of occurrence was probable. All that was necessary was to scrutinise their evidence with more than ordinary care and circumspection with reference to the part and role assigned to each of the accused. "thus the correct legal position is that the testimony of a relative witness or the witnesses who are otherwise interested, cannot be equated with the testimony of tainted witnesses. All that is required by way of prudence and not as a requirement of law, is that the testimony of such witnesses must be examined with a little more care and caution. If on such scrutiny it is found that there is nugget of truth in their statements, there would be no illegality or impropriety in accepting their testimony. All that is required by way of prudence and not as a requirement of law, is that the testimony of such witnesses must be examined with a little more care and caution. If on such scrutiny it is found that there is nugget of truth in their statements, there would be no illegality or impropriety in accepting their testimony. So far as relative witnesses are concerned, unless there are strong grounds to disbelieve their testimony, they are normally more natural and reliable witnesses as they would not like to spare the real assailants and involve innocent persons just because of enmity. (See Gopal Singh v. State of U. P. , 1978 SCC (Cri) 398 : ( AIR 1979 SC 1822 ).) ( 28 ) WE are also unable to accept the submission of the learned counsel for the respondents that, if the prosecution does not produce independent witnesses adverse inference be drawn. We have to be alive to the factual situation that there are factions in thevillages and the persons other than relatives do not normally come forth to give their evidence. As such, no adverse inference need he drawn merely on this account. (See Ram Autar Rai v. State of U. P. , 1985 SCC (Cri) 156 : (1985 All LJ 241 ). In this connection we may also take notice of the fact that in these times common man has generally become oblivious to the needs of the society and his duties as a responsible member thereof. He does not wish to get himself involved in such cases voluntarily for fear of reprisals or being dragged to the police station or the 0courts. In Appa Bhai v. State of Gujarat, 1988 Cri LJ 848 : ( AIR 1988 SC 696 ), Honble Supreme Court has observed :"experience reminds us that civilised people are generally insensitive when crime is committed even in their presence. They withdraw both from the victim and vigilance. 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 must not involve themselves. The kind of apathy of general public is, indeed, unfortunate but it is everywhere, whether in village life, towns or cities. They withdraw both from the victim and vigilance. 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 must not involve themselves. The kind of apathy of general public is, indeed, unfortunate but it is everywhere, whether in village life, towns or cities. One cannot ignore the handicap with which the investigating agency has to discharge its duties, The Court, therefore, instead of doubting the prosecution case for want of independent witnesses 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. " In the present case, admittedly, the hamlet, in which the families of the accused and the deceased were living, comprises only nine houses, out of which six belong to the family of the accused, one to the family of the deceased and the remaining two to other persons. Admittedly there were disputes between the family members of the accused and the deceased. In such a situation, it is not possible for an independent witness to come-forward even if such witnesses were present at the spot. Factually speaking there is no evidence on record to indicate that any other person was present or was likely to be present at the place of the occurrence. No reason has been suggested on behalf of the respondents as to why the relatives of the deceased will like to involve the respondent and spare the real assailants. As has been indicated above the murder took place in broad-day-light and there could have been no possibility of mistaken identity. ( 29 ) WE are also unable to accept the submission of the learned counsel for the respondents that the witnesses examined by the prosecution were chance witnesses and their testimony be rejected on that ground. A chance witness is one who is not expected to be at the place of the incident at the time of the incident. In the present case the defence has failed to show that the witnesses examined could be considered to be chance witnesses. The place of the incident is in the vicinity of the house of the witnesses. A chance witness is one who is not expected to be at the place of the incident at the time of the incident. In the present case the defence has failed to show that the witnesses examined could be considered to be chance witnesses. The place of the incident is in the vicinity of the house of the witnesses. PW-1 Smt. Vimla Devi has stated that she was coming back to her house from the forest side at the relevant time and when she was about 15 paces from the place of occurrence she saw the accused Sarju Prasad pressing the neck of the deceased. In answer to a question put to her by the defence she stated that usually the village women go to answer the call of nature in the early hours but she had to go to the jungle that day due to dysentry. In this connection it is important to note that her house is just in front of the place of the occurrence and it was quite easy for the prosecution to have shown her presence inside or infront of her house if they really wanted to manufacture a false case. Therefore, if she has stated that she was coming from the Jungle after answering the call of nature, the explanation would appear to be reliable. Accordingly, she cannot be considered to be a chance witness. ( 30 ) PW-3 Thakur Prasad is the father of the girl. He has stated that at the relevant time he was feeding cattle inside the cattle-shed. This cattle shed is quite near the place of the occurrence. It is stated by him that on hearing the shouts of PW-1 Vimla Devi he rushed towards the place of incident and saw the occurrence. It was submitted by the learned counsel for the respondents that usually men folk go out in the open fields in the morning itself and this witness could not have been present in the cattle shed at 10 a. m. This submission just be rejected for the reason that no question has been put to this witness as to why he did not go to the field or whether normally he used to go out in the fields in the morning. It is possible that, if such question had been asked, the witness would have given a plausible explanation. It is possible that, if such question had been asked, the witness would have given a plausible explanation. It is settled law that no circumstance can be read against the credibility of a witness unless that circumstance is put to that witness and his explanation obtained. (State v. Anil Singh, 1988 All Cri R 621 : AIR 1988 SC 1998 ). For the same reason the third eye-witness PW-4 Ram Abhilakh cannot be said to be a chance witness. He has stated that he had gone out to graze his cattle at 8-9 in the morning in the jungle which was about 15-20 paces from his hut and that he was coming back at about 10 a. m. when he heard the shouts of Vimla Devi and saw the occurrence. The learned counsel for the respondent submitted that when this witness went out to graze cattle in the morning he could not have returned atabout 10 a. m. However, no question was put to this witness to elicit his explanation as to why he was coming back at that time. It is possible that if this question was asked he might have given plausible explanation. In the absence of such an opportunity for explanation the statement made by the witness cannot be doubted and he cannot be considered to be a chance witness. ( 31 ) AS already indicated above all the three eyewitnesses are close relatives of the deceased. The defence has failed to point out any reason why such close relatives will involve the accused falsely and leave out the real assailant. As pointed out above the murder took place in the broad-day-light in front of the house of the witnesses and there could have been no question of mistaken identity. If it was really true that same one else murdered the deceased, there was absolutely no reason why these witnesses would have not involved that person. ( 32 ) WE have indicated above that the statements of all these three witnesses are quite consistent in the material details and their testimony cannot be said to inconsistent with the medical evidence. If it was really true that same one else murdered the deceased, there was absolutely no reason why these witnesses would have not involved that person. ( 32 ) WE have indicated above that the statements of all these three witnesses are quite consistent in the material details and their testimony cannot be said to inconsistent with the medical evidence. The whole incident must have passed of in a short time and from the little distance the occurrence was witnessed by the witnesses, it may not have been possible for them to say as to how exactly the two hands of the accused Sarju were placed on the neck. PW-2 Dr. M. A. R. Siddiqi has stated that the death of the deceased resulted from strangulation. As already indicated the medical testimony cannot be said to be inconsistent with the ocular testimony. In fact, in our opinion, the medical testimony corroborates the ocular testimony in material details. ( 33 ) THE learned counsel for the respondents strenuously urged that though there was enmity between the family members of the deceased and the accused there was no immediate motive for the accused to commit this murder. Relying upon the State of U. P. v. Hari Prasad, 1974 Cri LJ 1274 : ( AIR 1974 SC 1740 ), it was contended by him that where motive is alleged, it is relevant to enquire whether the pattern of the crime fits in with the alleged motive. The submission of the learned counsel was that though there was enmity between the two families there was no immediate reason for the accused to commit the murder of the deceased. It is difficult to accept this submission. It may be true that no immediate motive has been proved by the prosecution. However, it is a settled law that their ocular testimony is found to be convincing and reliable and it is proved that the incident took place in the manner alleged by the prosecution, absence or insufficiency of motive is immaterial. (See Chand Khan v. State of U. P. , 1995 SCC (Cri) 915 : ( AIR 1995 SC 2140 ). However, it is a settled law that their ocular testimony is found to be convincing and reliable and it is proved that the incident took place in the manner alleged by the prosecution, absence or insufficiency of motive is immaterial. (See Chand Khan v. State of U. P. , 1995 SCC (Cri) 915 : ( AIR 1995 SC 2140 ). In Bishan Dass v. State of Punjab, 1975 SCC (Cri) 145 : ( AIR 1975 SC 573 ), the Supreme Court observed that the motives alleged by themselves were not serious enough for the commission of grave crime but who knows the psychic sensitiveness of individuals ? It is further observed by the Supreme Court that the complicity of the accused has to be decided by the pressure of probabilities and direct evidence to the extent of proof beyond reasonable doubt merely on the presence or absence of motive. The decision relied upon by the learned counsel for the respondent, State of U. P. v. Hari Prasad, 1974 Cri LJ 1274 : (AIR 1974 SC 1240), cannot be said to be of any help to the respondents in the circumstances of the present case. Admittedly, there was enmity between the family members of the accused and the deceased. It may be that that enmity may have not been by itself sufficient for causing the murder of three year old child but it is quite probable that some immediate provocation might have been given by the child and, impelled by the long standing enmity, the accused got infuriated and killed the child. What exactly transpired we do not know but we can very well visualise that the child may have given some immediate provocation. In our opinion, pattern of the crime cannot be said to be inconsistent with the motive alleged. ( 34 ) CONSIDERING the ocular testimony and the medical evidence we have no doubt that the learned Sessions Judge committed an error in recording the finding that the prosecution failed to prove the case beyond reasonable doubts. We have no manner of doubt that the statements of the prosecution witnesses are trustworthy and there are no grounds for disbelieving the same. The prosecution has proved the case against the accused Sarju Prasad beyond reasonable doubt and the finding of acquittal recorded in his favour cannot be sustained. ( 35 ) HOWEVER, so far as the other accused, viz. The prosecution has proved the case against the accused Sarju Prasad beyond reasonable doubt and the finding of acquittal recorded in his favour cannot be sustained. ( 35 ) HOWEVER, so far as the other accused, viz. , Ram Sahai, father of Sarju Prasad, is concerned, the prosecution does not appear to have proved their case against him beyond reasonable doubt. It would appear that Ram Sahai has been charged with the offence under Section 302, IPC with the aid of Section 109 IPC. Section 109, IPC reads as follows :"whoever abets any offence shall, if the act abetted is committed in consequence of the abetment and no express provision is made by this Code for the punishment of such abetment, be punished with the punishment provided for the offence. " ( 36 ) IT would appear from the perusal of this Section that the offence with the aid of Section 109 will be made out only if it is established that the person concerned abetted the commission of the main offence within the meaning of Section 107, IPC. Section 107, IPC provides :"107. A person abets the doing of a thing, who First-Instigates any person to do that thing; or Secondly. Engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing; or Thirdly.- Intentionally aids, by any act or illegal omission, the doing of that thing. " ( 37 ) IT will appear from the combined reading of Sections 107 and 109 IPC that offence with the aid of Section 109 IPC will be made out if it is shown that the person concerned instigated the main accused to commit the offence or he engaged with him in any conspiracy for doing that thing or he intentionally aided by any act or illegal omission in doing the thing. ( 38 ) IN the present case there is no evidence at all indicating any conspiracy between the two accused. The evidence does not disclose that the offence was committed by Sarju Prasad at the instigation of Ram Sahai. The statement disclose that Sarju Prasad was strangulating the deceased and the accused Ram Sahai was simultaneously saying that the girl be killed. The evidence does not disclose that the offence was committed by Sarju Prasad at the instigation of Ram Sahai. The statement disclose that Sarju Prasad was strangulating the deceased and the accused Ram Sahai was simultaneously saying that the girl be killed. He is not alleged to have committed any overt act nor the murder would appear to have been committed in furtherance of such exhortation. So far as the third condition, mentioned in Sections 109, IPC, namely, intentionally aiding the commission of offence is concerned, it has been pointed out above with reference to explanation 2 to Section 107 that a person will be said to aid the commission of the offence of "either prior to or at the time of the commission of an act, does some thing in order to facilitate the commission of that Act. " In the present case even if we believe that Ram Sahai was saying what has been alleged it will not fall in the category of intentionally aiding in the commission of the offence. It also appears to be doubtful that these witnesses would have heard the alleged exhortation of Ram Sahai. PW-1 Smt. Vimla Devi was at a distance of 15 paces when she saw the occurrence and the other prosecution witnesses arrived at the scene of occurrence after hearing the shouts of Vimla Devi. It also appears to be doubtful that Ram Sahai would have continuously been uttering the words, attributed to him, so as to be heard by each of the prosecution witnesses. ( 39 ) CONSIDERING the entire facts and circumstances in relation to the accused Ram Sahai we are of the opinion that he is entitled to benefit of doubt and his acquittal by the Sessions Judge must be upheld. ( 40 ) THE appeal is accordingly partly allowed. The judgement and order, in so far as it relates to the acquittal of Sarju Prasad, is set aside. He is convicted under Section 302, IPC and sentenced to imprisonment for life and to fine amounting to Rs. 1000. 00 (Rupees One thousand ). In default of payment of fine he shall undergo rigorous imprisonment for three months. The judgement and order, in so far as it relates to acquittal of Ram Sahai, is confirmed. The accused Sarju Prasad is on bail. His bail bonds are cancelled. 1000. 00 (Rupees One thousand ). In default of payment of fine he shall undergo rigorous imprisonment for three months. The judgement and order, in so far as it relates to acquittal of Ram Sahai, is confirmed. The accused Sarju Prasad is on bail. His bail bonds are cancelled. He shall surrender and shall be taken into custody to undergo the imprisonment herein awarded. Appeal partly allowed. .