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2014 DIGILAW 1453 (ALL)

Malkhan v. State of U. P.

2014-05-05

HARSH KUMAR, V.K.SHUKLA

body2014
JUDGMENT V.K. Shukla & Harsh Kumar,JJ.: - Present criminal appeal is directed against the judgment and order dated 27.01.1987 passed by Sri Pratap Singh, Vith Additional Session Judge, Etah in Session Trial No. 104 of 1986 State Versus Malikhan and another, convicting and sentencing the appellants under Section 302 I.P.C. read with section 34 I.P.C. to life imprisonment. 2. The prosecution story as has been unfolded in the first information report is to the effect that on 3.11.1985 at about 6.30 a.m. at the field of deceased, Rameshwar situated in the area of village Nagla Gada, hamlet of Borra Kalan, in furtherance of common intention, the accused persons committed murder by intentionally and knowingly causing the death of deceased, Rameshwar. Informant Virendra Singh, Rameshwar deceased and Ehbaran Singh after taking bullocks and plough had gone to plough the field and the moment they reached the field then at the said point of time appellants, Malikhan son of Tota Ram Yadav and Bhura son of Tota Ram Yadav were sitting on maind of the field armed with Gandasa in their hands and the moment they met the deceased they abused and then exhorted and attacked Rameshwar with Gandasa and at the said point of time when informant Virendra Singh and Ehbaran Singh tried to resist the same, then country made pistol was taken out by Malkhan and was aimed, at them and due to fear informant and Ehbaran Singh retreated back and Rameshwar on account of gandasa injuries fell down and both of them had fled away from the spot. It was precisely mentioned that the motive for committing such offence has been dispute inter-se children about 10 days back. First information report of the said incident was lodged by Virendra Singh son of Mihi Lal and same was registered at 9.10 A.M. by Head Moharrir Surendra Singh. After the said first information report has been lodged at the police station Awagrah, Etah at a distance of 11 kms from the place of occurrence, Babu Ram Mishra Sub Inspector began with the investigation of the case. After the said first information report has been lodged at the police station Awagrah, Etah at a distance of 11 kms from the place of occurrence, Babu Ram Mishra Sub Inspector began with the investigation of the case. On the said date he collected copy of first information report recorded statement of informant, and Head Moharrir Surendra Singh, and proceeded to the spot, where on reaching after appointing panches, got prepared inquest report of death of Rameshwar and other relevant papers were also got prepared such as Chalan lash, Photo lash, letter to R.I. and letter to Chief Medical Officer for conducting the autopsy on the dead body of the deceased. Dead body in question was sealed and was handed over to the constable Marotti Lal and Sukhvir Singh to be taken for autopsy at mortuary of Etah and he also collected blood stained earth and simple earth from the spot and kept the same in two separate containers. He has proceeded to record statement of inquest witnesses and statement of witnesses who were instrumental in getting memos prepared. On the same day he also recorded statement of Ehbaran Singh and Pratap Singh and also prepared site plan of the place of occurrence on the pointing out of informant Virendra Singh. Autopsy of the deceased was conducted by Dr. A.K. Agarwal, Pathologist, District Hospital, Etah on 4.11.1985. Thereafter after concluding the investigation eventually Sri A.K. Rawat submitted charge sheet. 3. After charge sheet has been submitted, as offence in question was triable exclusively by the court of Session, committal proceedings took place and same was send to Session Judge and Session Judge on the basis of material available on record, proceeded to frame charge under Section 302 /34 I.P.C. against the accusedppellants and accused appellant in their turn denied their participation in the crime in question and claimed to be tried. 4. Before the trial court P.W.-1 Virendra Singh, P.W.-II Ehbaran Singh appeared as witnesses of the fact to testify that they have witnessed the incident and P.W.-III Dr. 4. Before the trial court P.W.-1 Virendra Singh, P.W.-II Ehbaran Singh appeared as witnesses of the fact to testify that they have witnessed the incident and P.W.-III Dr. A.K. Agarwal who conducted autopsy of the deceased also appeared and similarly P.W.-IV Head Constable Surendra Singh, who prepared chick F.I.R. and copy of G.D. about registration of the case on the basis of written report prepared, appeared to substantiate said part of the story and P.W.-V Babu Ram Mishra who investigated the case appeared to testify how investigation was carried out resulting in charge sheet finally by Sri. A.K. Rawat and thereafter, statement under Section 313 Cr. P.C. was got recorded of the accused persons. In the said statement so recorded Bhura while answering question No. 19 proceeded to mention that he would not furnish evidence in defence whereas Malkhan in answer to question No. 19 proceeded to mention that he would give evidence and thereafter documentary evidence has been filed and arguments were heard and based on the material available on record conviction has been recorded. Said order of conviction/sentence has impelled the appellants to be before this Court 5. Sri Dharmendra Singhal, Advocate appearing with Sri Anoop Ghose, Advocate, learned counsel for the appellants submitted (i) in the present case both the prosecution witnesses are highly interested and partisan witnesses being relatives of the deceased, as claimed by themselves and their presence on the spot is highly doubtful and same is fully fortified from their abnormal conduct and the major inconsistencies/contradictions in their statement made before the Court and no blood having been found either on their body or clothes. (ii) Medical evidence in the present case is not at all in consonance with the ocular evidence and time of occurrence as has been suggested would shift as in small intestine, undigested food has been found and same clearly reflects that incident in question has not taken place at the point of time as it has been alleged and in the manner it has been alleged. (iii) Motive attributed to the accusedppellants is insignificant and too trivial to implell appellants to commit murder, as such accordingly all on this score appeal deserves to be allowed. 6. (iii) Motive attributed to the accusedppellants is insignificant and too trivial to implell appellants to commit murder, as such accordingly all on this score appeal deserves to be allowed. 6. Countering the said submission Sri Vimlenddu Tripathi, learned A.G.A. and Sri Ravi Prakash Singh, Advocate representing complainant on the other hand contended that presence of witnesses on the spot cannot be doubted by any means and here whatever has transpired on the spot, same has been honestly narrated in the witness box by the witnesses and here apparent motive is there to commit crime in question and merely because there is semi digested food present in small intestine same would not discredit the prosecution case and there are other attending circumstances that fixes date, time and place of occurrence and once prosecution story is inspiring confidence based on the truthful statement of P.W. I and P.W.-II then in the facts of the case appeal deserves to be dismissed. 7. In order to appreciate respective argument that has been so advanced on behalf of the appellants, this Court at the very out set proceeds to note that the evidence that has come on record in the shape of eye witnesses account is that of P.W.-1 Virendra Singh who has proceeded to describe the deceased Rameshwer as his uncle and P.W.-2 Ehbaran Singh is admittedly son of deceased. Can being relative and near and dear one of the deceased be a criteria to discard their testimony is an issue to be adverted to. Such an issues have been raised on numerous occasions, and Apex Court has settled parameters on the said score. 8. The testimony of an eye-witness merely because he happens to be a relative of the deceased cannot be discarded as close relatives would be the last one to screen out the real culprit and implicate innocent person, as per the Apex Court in the case of Dilip Singh vs. State of Punjab AIR 1953 SC 364 and this aspect of the mater has further been clarified by the Apex Court in the case of Dharnidhar v. State of Uttar Pradesh [ (2010) 7 SCC 759 ) as follows: "12. There is no hard-and-fast rule that family members can never be true witnesses to the occurrence and that they will always depose falsely before the court. It will always depend upon the facts and circumstances of a given case. There is no hard-and-fast rule that family members can never be true witnesses to the occurrence and that they will always depose falsely before the court. It will always depend upon the facts and circumstances of a given case. In Jayabalan v. UT of Pondicherry (2010) 1 SCC 199 , this Court had occasion to consider whether the evidence of interested witnesses can be relied upon. The Court took the view that a pedantic approach cannot be applied while dealing with the evidence of an interested witness. Such evidence cannot be ignored or thrown out solely because it comes from a person closely related to the victim. The Court held as under: (SCC p. 213, paras 23-24) 23. We are of the considered view that in cases where the court is called upon to deal with the evidence of the interested witnesses, the approach of the court, while appreciating the evidence of such witnesses must not be pedantic. The court must be cautious in appreciating and accepting the evidence given by the interested witnesses but the court must not be suspicious of such evidence. The primary endeavour of the court must be to look for consistency. The evidence of a witness cannot be ignored or thrown out solely because it comes from the mouth of a person who is closely related to the victim. 13. Similar view was taken by this Court in Ram Bharosey v. State of U.P. AIR 1954 SC 704 , where the Court stated the dictum of law that a close relative of the deceased does not, per se, become an interested witness. An interested witness is one who is interested in securing the conviction of a person out of vengeance or enmity or due to disputes and deposes before the court only with that intention and not to further the cause of justice. The law relating to appreciation of evidence of an interested witness is well settled, according to which, the version of an interested witness cannot be thrown overboard, but has to be examined carefully before accepting the same." 9. Apex Court in the case of Thoti Manohar vs. State of A.P. 2012 (7) SCC has stated as follows: "39. No evidence can ever be perfect for man is not perfect and man lives in an imperfect world. Apex Court in the case of Thoti Manohar vs. State of A.P. 2012 (7) SCC has stated as follows: "39. No evidence can ever be perfect for man is not perfect and man lives in an imperfect world. Thus, the duty of the court is to see with the vision of prudence and acceptability of the deposition regard being had to the substratum of the prosecution story. In this context, we may reproduce a passage from the decision of this Court in State of Punjab v. Jagir Singh, wherein H.R. Khanna, J., speaking for the Court, observed thus: "23. A criminal trial is not like a fairy tale wherein one is free to give flight to one's imagination and phantasy. It concerns itself with the question as to whether the accused arraigned at the trial is guilty of the crime with which he is charged. Crime is an event in real life and is the product of interplay of different human emotions. In arriving at the conclusion about the guilt of the accused charged with the commission of a crime, the court has to judge the evidence by a yardstick of probabilities, its intrinsic worth and the animus of witnesses. Every case in the final analysis would have to depend upon its own facts. Although the benefit of every reasonable doubt should be given to the accused, the courts should not at the same time reject evidence which is ex facie trustworthy on grounds which are fanciful or in the nature of conjectures." 40. In view of our aforesaid analysis, we are unable to accept the submission of the learned counsel for the appellant that the evidence of the eyewitnesses should be rejected solely on the ground that they are close relatives and interested witnesses." 10. Law on the subject is thus, clear that in reference to appreciation of evidence of witnesses who are near and dear one of victims, version of such witnesses cannot be thrown out rightly but the same has to be examined carefully before accepting the same. The testimony of an eye-witness if found truthful, cannot be discarded merely because the eye-witnesses are relatives of the deceased. The testimony of an eye-witness if found truthful, cannot be discarded merely because the eye-witnesses are relatives of the deceased. Where the witness is wholly unreliable, the Court may discard the statement of such witness, but where a witness is wholly reliable or neither wholly reliable nor wholly unreliable (if his statement is fully corroborated and supported by other ocular and documentary evidence), the Court may base its judgment on the statement of said witness. Of course, in the latter category of witnesses, the court has to be more cautious and see if the statement of witnesses is corroborated by other attending circumstances. Such a view has been taken by the Apex Court in the case of Kuria v. State of Rajasthan (2012) 10 SCC 433 11. Here P.W.-I Virendra Singh has proceeded to mention that on 3.11.1985 at about 6.30 in the morning his uncle Rameshwar alongwith him I.e. PW-I Virendra Singh and his son Ehbaran Singh reached at his field with plough and bullocks to plough the field, and at the said point of time accused-appellant met them with gandasa in their hand sitting at the maind of the field. They abused and exhorted and then rushed towards the deceased and struck gandasa blow on his neck and he after receiving injuries had fallen on the ground and succumbed and at the said point of time when P.W.-I and Ehbaran tried to resist them, then Malkhan took out the country made pistol and pointed out towards them and after committing the murder accused-appellant escaped away from the spot and then Virendra Singh informant returned back alongwith bullock and plough at the house where he informed the story to other member of the family and thereafter he lodged the first information report at the concern police station. 12. 12. The criticism of the testimony of P.W.-I has been made on the ground that deceased Rameshwar was not at all his uncle and knowingly in order to mislead he has tried to mention that Rameshwar was his uncle and accordingly alongwith Rameshwar he had gone there whereas fact of the matter is that he was not at all there on the spot and his conduct is also abnormal as he has not at all tried to save the deceased at the point of time when he was attacked and coupled with this no blood stain was found on his dress and in view of this his testimony should be discredited and discarded. 13. P.W.-I Virendra Singh has come with specific case that he accompanied Rameshwar alongwith Ehbaran Singh at the point of time when incident in question has been executed, by precisely mentioning that the moment they reached at the field in question at the said point of time, the accused persons were sitting on the maind of the field that was to be ploughed, and the moment they reached the field, assault was committed by gandasa, and attempt was made by them to resist the same, but at the said moment Malkhan took out country made pistol and aimed at them, and in-spite of the fact that they were armed with Phawra and lathi, same was not utilized, as in front of fire arm it was of no avail. Both the appellants gave repeated blows in standing position as well as when Rameshwar had fallen down. 14. Virendra Singh has precisely proceeded to mention that since his childhood as far as he is concerned, he has been staying with the family of Rameshwar, and to the contrary much emphasis has been laid on the fact that Rameshwar is not at all his uncle. P.W.-1 has not been able to substantiate this fact, that deceased Rameshwar was his blood relation, but this much fact has been substantiated by him that he has close ties with the deceased as he has clearly come up with the case that after the death of his father, he has been looked after by deceased Rameshwar. P.W.-1 has not been able to substantiate this fact, that deceased Rameshwar was his blood relation, but this much fact has been substantiated by him that he has close ties with the deceased as he has clearly come up with the case that after the death of his father, he has been looked after by deceased Rameshwar. Virendra Singh has precisely mentioned that he does not possess any plough or bullocks and on the fateful day he has gone with Rameshwar to plough the field in question and he has also proceeded to mention that as far as ploughing the field in question is concerned same was to be done by Rameshwar and he and Ehbaran were required to maintain maind and after ploughing process was over then palta was to be used. Once such is the factual situation that Virendra Singh has given cogent reason for his presence on the spot and has also given reason of his relationship with the deceased family that on account of the fact that his father has died, he has been brought by the family of Rameshwar and once Rameshwar was accompanying two young men to the field, who would have helped him there, then to say that testimony of Virendra Singh cannot be accepted in the facts of case has necessarily to be repelled. 15. As far as testimony of Virendra Singh is concerned, same has also been sought to be criticised on the premises that no attempt was made by him to save the deceased. Virendra Singh has clearly proceeded to mention that he has resisted and Malikhan at the point of time took out the country made pistol and pointed out towards them and they remained at some distance from the accused. Once such an explanation has been furnished by Virendra Singh, then such conduct cannot be said to be abnormal. 16. In the case of Kuriya vs. State of Rajasthan 2012(10) SCC 445, Apex Court wherein son was following the father from behind and the moment accused persons, who were in large number started assaulting his father, ran away from the site, to call other persons instead of saving his father, due to fear of his life, the said conduct has been held to be normal conduct, and the case in hand also falls in the same category. There is no fixed formula provided for, as to how a horror stricken witness of a dastardly crime is to react, but one thing is certain that witness to a serious crime may not react in normal manner, and may react differently. 17. Apex Court in the case of Appabhai vs. State of Gujrat AIR 1988 SC 686 has proceeded to mention, that even a man of process may become pusillanimous by witnessing a serious crime. Apex Court in the case of Rana Pratap vs. State of Haryana (1983) SCC 372 has taken the view that evidence of a witness of dastardly crime cannot be rejected merely on the ground, that they have behaved or reacted in unusual manner. Apex Court observed as follows: "Every person who witnesses a murder reacts in his own way. Some are stunned, become speechless and stand rooted to the spot. Same become hysteric and start wailing. Some start shouting for help, Others run away to keep themselves as far as removed from the spot as possible. Yet others rush to the rescue of the victim, even going to the extent of counter-attacking the assailants. Every one reacts in his own special way. There is no set rule of natural reaction. To discrd the evidence of a witness on the ground that he did not react in any particular manner is to appreciate evidence in a wholly unrealiable and unimaginative way." Once there is no set of rule of natural reaction, and here the only son of PW1 Jaswant Singh, namely Ravinder has been badly injured, on account of injuries caused, and both Ravinder and Brijendra were not in their senses, and blood was oozing out from their body, and he had touched his son, and had called for buggi, and after buggi arrived, injured were put on buggi, then merely because it has been mentioned by PW2 Surendra Pal Singh that PW1 Jaswant Singh has not touched his son and had seen from a distance is of no consequence as PW1 Jaswant Singh has submitted that he has touched his son which is quite natural, and this sentence has been stated by him, after stating that he had send PW2 Surendra Pal Singh to bring buggi. PW3 Sheoraj Singh has accepted that PW1 Jaswant Singh had touched his son. PW3 Sheoraj Singh has accepted that PW1 Jaswant Singh had touched his son. Criticism has also been made that there was no blood on his hand and cloth same also discredits his testimony. PW1 Jaswant Singh has precisely mentioned that he and others had put the injured in the buggi and there was no blood on his hand and dress and he does not recollect as to if there were any blood stains on the hands or dresses of others who had helped in putting injured in buggi. 18. Sequence of events narrated by Virendra Singh substantiates the factum that he alongwith deceased and his son Ehbaran Singh had gone on the spot for the purpose of ploughing the field and when they reached on the spot, two persons were present on the spot namely both the appellants and they immediately opened assault by causing Gandasa injuries and resistance put by P.W.-I and Ehbaran Singh had been countered by Malikhan by pointing country made pistol. Once such is the factual situation, and graphic picture has been given by P.W.-I then presence of P.W.-I cannot be doubted on the spot merely because he happens to be near and dear one of the deceased, and equally it cannot be said that there has been any abnormality in the conduct. 19. P.W.-II Ehbaran Singh is son of deceased Rameshwar and he also accompanied Rameshwar alongwith P.W.-I. His statement is also in consonance with the statement of fact that has been mentioned by the P.W.-I that the moment they reached near the field, at the said point of time, both the accused-appellants struck Gandasa blows on his neck and on account of the same Rameshwar succumbed to the injuries on the spot. 20. Statement of P.W.-II Ehbaran Singh has also been sought to be discredited by pointing out, that he in his statement, in the cross examination has mentioned that alongwith Virendra Singh P.W.-I, about 15-20 persons have come from the village, when Virendra Singh once again returned on the spot, after lodging of First Information Report and the said villagers asked him that who killed, and due to fear he did not disclose the name of assailants. Once person who have reached the spot, after occurrence has taken place have posed a question, that who killed and P.W.-II has chosen to maintain silence, as mentioned by him due to fear or due to shock as his father has been killed in most brutal fashion, and his body has been lying on the spot, and its general tendency to express sympathy by hearing the eye witness account from the incumbent again and again, and in such a situation once silence has been maintained by him and the moment Investigating Officer has reached the spot, names were disclosed by him to Investigating Officer that was in line with the narration of facts mentioned in the First Information Report already lodged, then the evidence of P.W.-II cannot be discredited on this score. 21. Story that has been narrated by P.W.-I and P.W.-II cannot be discredited in the fact of present case, as here both the witnesses have given reason of their presence on the spot alongwith deceased and it is difficult to believe and conceive that once there are young person in the family, then the elder person of the family would go alone to plough the field. In the present case once Rameshwar has chosen P.W.-I and PW-II who are younger member of the family to accompany him to the field then their presence on the spot cannot be dubbed as unnatural, rather their presence on the spot has to be accepted as natural and their conduct has also to be accepted as natural one, once they have clearly proceeded to mention how gandasa injuries have been caused by accused appellants and when they started raising voice at the said point of time how Malkhan took out country made pistol and pointed out towards them, then in the facts of present case, merely because they have not sacrificed themselves. Story given by the P.W.-I and P.W.-II has been consistent qua arrival of three persons including deceased on the field in question and qua the factum that both the accused appellants struck gandasa injury and eventually killed Rameshwar. Story given by the P.W.-I and P.W.-II has been consistent qua arrival of three persons including deceased on the field in question and qua the factum that both the accused appellants struck gandasa injury and eventually killed Rameshwar. In view of this once such is the factual situation, the presence of P.W.-I and P.W.-II cannot be doubted by any means and the way and manner in which they have given graphic picture of incident it can also not be doubted as the injuries caused on the body of the deceased, have been caused by gandasa and same was sufficient in itself to cause death and result in death. 22. Here much criticism has also been made on account of the fact that no blood stains were found on the body/clothes of eye witnesses. 23. Apex Court in the case of Balbir Singh Vs. State of Punjab 1994 (Suppl.) (2) SCC 26, wherein presence of witness at the crime scene has been found to be natural, and their testimony has been sought to be impeached on the premises that once witnesses were attending bleeding deceased, there should have been blood stains on their clothes and absence of blood stains on their clothes clearly reflects that they were not present. Apex Court ruled that it can not be definitely said that their clothes should necessary have got blood stained and same is clearly dependent upon how they have handled the injured deceased. Here qua the way and manner, how PW1 Virendra Singh and P.W.-II Ehbaran Singh handled the bleeding injured, qua the same no questions have been put nor any suggestions have been given on the said score. In view of this, once testimony of eye-witness is sought to be discredited on this score, that though he was attending bleeding deceased there are no blood stains on the clothes, then specific questions ought to have been put to the said witness as to how he handled the bleeding deceased, that there are no blood stains on his dress. In the present case P.W.-I Virendra Singh has claimed that he has not touched the body and no question has been put to P.W.-II, Ehbaran Singh, as to how PW2 Ehbaran Singh handled the bleeding deceased, that there are no blood stains on his hand and dress, whereas he mentioned in his statement then he wept and clinged his father. In the present case P.W.-I Virendra Singh has claimed that he has not touched the body and no question has been put to P.W.-II, Ehbaran Singh, as to how PW2 Ehbaran Singh handled the bleeding deceased, that there are no blood stains on his hand and dress, whereas he mentioned in his statement then he wept and clinged his father. Once on said score, prosecution witnesses have not at all been confronted then on this score testimony of PW1 Virendra Singh Singh and P.W.-II Ehbaran Singh cannot be doubted for, no blood stains on their dress or person. 24. Much emphasis has been laid on the fact that prosecution story would fall on the ground as there is no motive whatsoever in the present case, and the motive alleged is too trivial to motivate appellants to commit such a crime, as prosecution has come up with the case that before incident in question has been given effect to about 10 days back there has been a dispute inter-se children and since then they were on enmical terms. 25. This Court at this juncture takes note of judgment in the case of State of Himanchal Pradesh Vs. Jeet Singh 1999(4) SCC 370 wherein Apex Court has proceeded to mention that no doubt it is sound principal to remember that every criminal act was done with a motive but its corollary is not that no criminal offence would have been committed, if the prosecution has failed to prove the precise motive of the accused to commit it. When the prosecution succeeded in showing the possibility of some ire for the accused towards the victim, the inability to further put on record the manner in which such ire swelled in the mind of the offender to such a degree to impel him to commit the offence cannot be construed to be a fatal weakness of the prosecution. It is an impossibility for the prosecution to unravel the full dimension of mental disposition of an offender to wards the person whom he offended. Relevant para nos. 33 is being extracted below: - “33. No doubt it is a sound principle to remember that every criminal act was done with a motive but its corollary is not that no criminal offence would have been committed if prosecution has failed to prove the precise motive of the accused to commit it. Relevant para nos. 33 is being extracted below: - “33. No doubt it is a sound principle to remember that every criminal act was done with a motive but its corollary is not that no criminal offence would have been committed if prosecution has failed to prove the precise motive of the accused to commit it. When the prosecution succeeded in showing the possibility of some ire for the accused towards the victim the inability to further put on record the manner in which such ire would have swelled up in the mind of the offender to such a degree as to impel him to commit the offence cannot be construed as a fatal weakness of the prosecution. It is almost an impossibility for the prosecution to unravel the full dimension of the mental disposition of an offender towards the person whom he offended. In this context we may extract the observations made by a two Judge Bench of this Court (Dr. A.S. Anand, J as the learned Chief Justice then was and Thomas, J) in Nathuni Yadav vs. State of Bihar (1978 9 SCC 238): "17. Motive for doing a criminal act is generally a difficult area for prosecution. One cannot normally see into the mind of another. Motive is the emotion which impels a man to do a particular act. Such impelling cause need not necessarily be proportionally grave to do grave crimes. Many a murders have been committed without any known or prominent motive.It is quite possible that the aforesaid impelling factor would remain undiscoverable. Lord Chief Justice Champbell struck a note of caution in R.V. Parlmer (Shourthand Report at p.308 CCC May 1856) thus: But it there be any motive which can be assigned, I am bound to tell you that the adequacy of that motive is of little importance. We know, from experience of criminal courts that atrocious crimes of this sort have been committed from very slight motives; not merely from malice and revenge, but to gain a small pecuniary advantage, and to drive off for a time pressing difficulties.' Though, it is a sound proposition that every criminal act is done with a motive, it is unsound to suggest that no such criminal act can be presumed unless motive is proved. After all, motive is a psychological phenomenon. After all, motive is a psychological phenomenon. Mere fact that prosecution failed to translate that mental disposition of the accused into evidence does not mean that no such mental condition existed in the mind of the assailant." 26. Time and again it has been mentioned that absence of motive does not weaken the prosecution case, though existence of the same may strengthen the same. Absence of motive is of no consequence and same pales into insignificance when direct evidence establishes the crime as often motive is locked in the heart of offender. Motive looses its significance in case of direct evidence being there in crime, has been held by Apex Court in the case of Lokesh Shiv Kumar Vs. State of Karnatka 2012(3) SCC 196 . 27. On these parameter facts of present case are being adverted to and this Court notes that at the very out set precise mention has been made that about 10 days before inter-se children of Malikhan there has been a family dispute and since then the accused-appellant were nourishing grudge against the deceased and his family member. The appellants have not proceeded to deny any such family dispute on account of children. Para 15 of PW-I at page 14 of paper book rather have suggested PW.-I that the dispute was only with Malkhan and have admitted the previous dispute. Once such is the factual situation that it has been claimed that there has been dispute inter-se children, and same prompted the accused-appellants to commit crime in question, and here prosecution has been showing the ire of the accused towards the victim, and such ire swelled on account of not asking them to participate in family function to impel him to commit the offence cannot be construed to be a fatal weakness of the prosecution. 28. Once there has been a case of ire complaint of and in what way and manner such ire has swelled in the mind of accused-appellant after they have not been invited in family function to commit such a crime cannot be subject matter of further enquiry. Once offence has been substantiated by the credible eye witnesses account in the shape of P.W.-I and P.W.-II, and motive has clearly been narrated by them, then to say that there is no motive or insufficient motive to discredit the prosecution story cannot be accepted in the fact of the present case. Once offence has been substantiated by the credible eye witnesses account in the shape of P.W.-I and P.W.-II, and motive has clearly been narrated by them, then to say that there is no motive or insufficient motive to discredit the prosecution story cannot be accepted in the fact of the present case. Even otherwise correctness of conviction cannot be tested on the touch stone of lack of sufficient motive, if the evidence available on record establishes beyond reasonable doubt, that accused have committed the crime, then as held by Apex Court in the case of Om Prakash Versus State of Uttar Pradesh 2003(1) SCC 648 , prosecution story on said score, cannot be discarded. 29. Much emphasis has been laid in the present case on the fact that here in the small intestine of the deceased undigested food has been found whereas precise case of P.W.-1 has been that they have taken meal at 6.00 p.m. and once such specific statement of fact has been mentioned by P.W.-1 then presence of semi digested food clearly discredits the prosecution case and fact of the matter is that time of occurrence is altogether different and deceased in-fact has been killed on the same day at some earlier point of time in the night and unnecessarily false implication has been made. 30. To deal with said aspect of the matter, this Court proceeds to take note of the fact that the Doctor who has conducted post-mortem has clearly mentioned that post-mortem examination has been conducted at Etah on 4.11.1985 at 2.00 P.M. and in respect of small intestine, he has proceeded to mention that semi digested food is present there and in respect of large intestine qua its content has proceeded to mention that there is feacal matter and gases. Doctor has further proceeded to mention that duration of death is one and half day and cause of death is due to shock and haemorrhage and due to ante mortem injuries. Injuries as has been noted by doctor is as follows: - (1) Clean cut incised wound size 16 cm. X 8 cm. X bone deep started from from right cheek with mandible through nose and left eye. (2) incised wound through and through from anterior surface of neck upto vertabral columnnd small portion of skin attached posteriorly surface. (3) incised wound 8 cm x 5 cm. X 8 cm. X bone deep started from from right cheek with mandible through nose and left eye. (2) incised wound through and through from anterior surface of neck upto vertabral columnnd small portion of skin attached posteriorly surface. (3) incised wound 8 cm x 5 cm. X bone deep on the occipital region of skull. (4) Abrasion 5 cm. X 3 cm. On the left side of abdomen 3 cm. left lateral to umbilicus. 31. On internal examination Doctor has found nasal bone fractured, survical bone fractured, tracheamembrane and vessels of the neck cut through and through, oesophgus cut through and through, and same are clearly reflective of gandasa injuries. Feacal matter and gases have been present in large intestine and semi digested food has been present in small intestine. At the time of autopsy, the duration of death has been reported to be about one and a half day. As per the doctor the death could have occurred on 3.11.1985 at about 6.30 a.m. due to shock and haemorrhage as a result of ante-mortem injuries and the ante-mortem injuries nos. 1,2, and 3 were possible by sharp edged weapon, like Gandasa etc. Once such is the report submitted by the Doctor fixing the time of death and same is in line with ocular evidence that has been accepted to be credible, can only on the ground that semi digested food has been found in the small intestine of the deceased, the prosecution story is liable to be thrown away. 32. Answer to this question is to be found from catena of decision of Apex Court. 33. Apex Court in the case of Shivappa Vs. State of Karnatka 2008(II) SCC 337 wherein entire prosecution case was sought to be falsified on the basis of semi undigested food has proceeded to mention that medical evidence is not be treated as sacrosanct and there are large number of factor that are responsible for drawing an inference with regard to digestion of food. It may be difficult, if not impossible to state exactly the time which would be taken for purpose of digestion. Relevant para nos. 16 and 18 of the said judgment are being extracted below: - “16. It may be difficult, if not impossible to state exactly the time which would be taken for purpose of digestion. Relevant para nos. 16 and 18 of the said judgment are being extracted below: - “16. The High Court, however, opined that in view of the evidence of the doctor that the death occurred within 24 hours of the time of the post-mortem, the variation between the medical evidence and the testimony of the eye witnesses is not such which would lead to a conclusion that the prosecution case was not correct. We agree with the said view. 18. Indisputably, a large number of factors are responsible for drawing an inference with regard to digestion of food. It may be difficult if not impossible to state exactly the time which would be taken for the purpose of digestion. Reliance, however, has been placed on Shambhoo Missir & Anr. v. State of Bihar [ (1990) 4 SCC 17 ] wherein this Court keeping in view the fact situation obtaining in that case held : "4. The substance of the prosecution case is that the deceased Rajendra died as a result of the assault in question at about 3 p.m. on the very day of the incident. However, on the basis of the medical evidence, the defence has succeeded in establishing that he had died soon after he left his house at 8 a.m. Dr Shambhoo Sharan (PW 13) who performed the post-mortem examination of the dead body, has stated both in his report as well as in his deposition, that there was 8 ounces of undigested food in the stomach of the deceased. If as alleged by the prosecution the death had occurred at 3 p.m., no such undigested food would have been found in the stomach at that hour when the food was taken by the deceased before 8 a.m. If this is so, then the whole case of the prosecution must crumble. For this will establish beyond doubt that Rajendra had died very soon after 8 a.m. and none of the so called eye-witnesses had seen the assault on Rajendra. The said fact will also demolish the entire version of the three dying declarations made by the deceased to various prosecution witnesses at three different places. The non-explanation by the prosecution of the undigested food therefore casts serious adverse reflections on the entire investigation in the present case. The said fact will also demolish the entire version of the three dying declarations made by the deceased to various prosecution witnesses at three different places. The non-explanation by the prosecution of the undigested food therefore casts serious adverse reflections on the entire investigation in the present case. Unfortunately, the High Court has failed to deal with this very important aspect of the evidence on record which has been highlighted by the trial court. It also strengthens the defence version that the accused have been involved in the present case by the obliging witnesses and unfair investigation. " 34. View to the similar effect has been taken in the case of Basudeo Yadav Vs. Surendra Yadav 2008(15) SCC 124 and thereafter in the case of Jitendra Kumar Vs. State of Haryana 2012(6) SCC 204 , as to whether prosecution case is to be falsified only on the ground that there were semi undigested food found in the stomach of deceased. Relevant para nos.50, 56, 58, 61 are being quoted below: - “38. The entire basis for this submission is the statement of PW3, Dr. L.L. Bundela, who stated that the stomach of the deceased contained some semi-digested food. It is worthwhile to note that the statement of this very witness that the death of Indra could have taken place between 1.00 to1.30 a.m. remained unchallenged. Furthermore, it cannot be stated as a rule of universal application that after a lapse of two to three hours stomach of every individual, without exception, would become empty. It would depend upon a number of other factors like the caloric content and character of the solid food. Further, addition of fats, triglycerides and carbohydrates such as glucose, fructose and xylose to a solid meal can delay its emptying from the stomach, presumably because of their effect on the initial lag phase of digestion of solids. Furthermore, the presence of liquids in the stomach prolongs this initial lag phase of solid emptying. In fact, ingestion of a liquid bolus 90 minutes after a solid meal can induce a second lag phase of solid emptying from the stomach. Foods high in fat content are handled duly by the stomach and their emptying pattern should be considered separately from those of other liquids and solids. Many foods are solid or semi-solid prior to their ingestion. Foods high in fat content are handled duly by the stomach and their emptying pattern should be considered separately from those of other liquids and solids. Many foods are solid or semi-solid prior to their ingestion. However, after they are consumed and warmed to the body temperature in the stomach. 42. Judging the time of death from the contents of the stomach, may not always be the determinative test. It will require due corroboration from other evidence. If the prosecution is able to prove its case beyond reasonable doubt and cumulatively, the evidence of the prosecution, including the time of death, is proved beyond reasonable doubt and the same points towards the guilt of the accused, then it may not be appropriate for the Court to wholly reject the case of the prosecution and to determine the time of death with reference to the stomach contents of the deceased. 44. Such an approach would even otherwise be justifiable as in some cases the evidence may not be sufficient to establish as to what the last meal was and what article of food, if any, was taken by the deceased. So also, the ''sluggish chronometric sense of the countryside community of India is notorious' and even urban folk make mistakes about time, when there is no particular reason to observe and remember a minor event like taking of a morning meal. In such circumstances where semi-digested food was found in the stomach, the contention, that it must be inferred from it that the occurrence must have taken place after the deceased had taken his evening meal may not be accepted. 47. In view of the above medical references, the view expressed in Modi's book (supra) and the principles stated in the judgments of this Court, it can safely be predicated that determination of the time of death solely with reference to the stomach contents is not a very certain and determinative factor. It is one of the relevant considerations. The medical evidence has to be examined in light of the entire evidence produced by the parties. It is certainly a relevant factor and can be used as a significant tool by the Court for coming to the conclusion as to the time of death of the deceased but other factors and circumstances cannot be ignored. The medical evidence has to be examined in light of the entire evidence produced by the parties. It is certainly a relevant factor and can be used as a significant tool by the Court for coming to the conclusion as to the time of death of the deceased but other factors and circumstances cannot be ignored. The Court should examine the collective or cumulative effect of the prosecution evidence along with the medical evidence to arrive at the correct conclusion. 35. Apex Court in the case of Mookkiah and another Vs. State Represented by Insepctor of Police, Tamil Nadu (2013) 2 SCC 89 in reference of presence of semi-digested food and un-digested food in the small intestine has proceeded to mention that time of death cannot be presumed from particle of food alone. Relevant para nos. 25,26,27,28 are being extracted below: - “25. As rightly pointed out by the State counsel, the cut injuries observed by the doctor tally with the narration given by PW-1 in Exh.P-1 as well as in his evidence and the evidence of PW-5. The doctor also opined that the death of the deceased might have occurred 28-30 hours prior to the post mortem. It is not in dispute that the doctor commenced the post mortem on 13.05.1992 at 10.30 hours and as per the prosecution case, the death of the deceased occurred at 05.30 a.m. on 12.05.1992. A perusal of these details clearly show that the opinion given by the doctor tallies with the prosecution version that the death might have occurred 28-30 hours prior to the post mortem. 26. The trial Court, taking note of the evidence of PW-2 that there were around 300 grams semi digested food particles (rice) in the stomach of the deceased, disbelieved the time of occurrence as projected by the prosecution. It is true that PW-2, while deposing before the Court, answered in the cross-examination that the death might have occurred 34 hours prior to her performing the post mortem and the partly undigested rice would show that rice might have been consumed by the deceased 2-3 hours before his death. However, the Investigation Officer (PW-11), during the cross-examination, highlighted that during the course of his investigation, he ascertained from the father of the deceased that the deceased consumed food at 11.00 p.m. during the said intervening night. 27. However, the Investigation Officer (PW-11), during the cross-examination, highlighted that during the course of his investigation, he ascertained from the father of the deceased that the deceased consumed food at 11.00 p.m. during the said intervening night. 27. As rightly observed by the High court, since the parties are hailing from a remote village, the villagers might take food even at odd hours after finishing certain work in their fields and it cannot be precisely predict based on the undigested food particles alone. The High Court has adverted to Modi's Medical Jurisprudence and Toxicology, 22nd Edition and after noting all the relevant details has rightly concluded that the observation of the doctor relating to the injuries and her general opinion at the time of death which occurred 28-30 hours tally with the narration of eye- witnesses and concluded that in such a case mere inference of the doctor with reference to undigested food particles could not threw the prosecution case. We fully agree with the discussion and the ultimate conclusion on this aspect by the High Court. 28. The evidence of PWs 1 and 5 coupled with the version in Exh.P-1 would state that the occurrence took place at 5.30 a.m. while the deceased was passing stool, as such, the timings mentioned by the doctor, occurrence and other witnesses tally with the narration. Accordingly, we reject the contention raised by the counsel for the appellants with reference to existence of undigested particles on the post mortem by PW-2. 36. On the parameters, as has been laid down, it is to be seen as to whether as has been asserted from the side of appellants the time of death would accordingly shift and semi digested food found in small intestine would fully falsify the case of prosecution or not?. 37. In the present case, prosecution has come up with the specific case that incident has taken place at 6.30 a.m. in the morning, and even as per Doctor's opinion, post-mortem was conducted at 2.00 a.m. in the afternoon, time of death has been described by him at about one and half day. In the statement that has been made by Doctor before the Court he has clearly mentioned that death could be caused on 3.11.1985 at 6.30 a.m. in the morning. In the statement that has been made by Doctor before the Court he has clearly mentioned that death could be caused on 3.11.1985 at 6.30 a.m. in the morning. Once such is the situation stated by Doctor concerned and as per eye witnesses account the incident has taken place at 6.30 a.m. in the morning then merely because Doctor at one place has mentioned that deceased must have taken meal maximum 4-6 hours death before would not at all otherwise dilute the specific case of prosecution qua the way and manner in which incident has been effectuated and the date time and place of incident. 38. Once such is the factual situation, that Doctor has proceeded to accept the prosecution story by clearly mentioning that death in question is possible at 6.30 a.m. on 3.11.1985 and ocular evidence is also on the same score i.e. Rameshwar has been killed at 6.30 a.m. in the morning, then it may be true that in the small intestine there has been semi digested food and in the large intestine there has been feacal matter and gases and undigested food material present and death in question admittedly has been on account of ante-mortem injuries then inevitable conclusion is that, defence in the present case has failed to give any dent to the specific prosecution case. 39. In the present case testimony has also been sought to be impeached on the premises that after incident has occurred, Investigating Officer has gone on the spot, but no Phawara or Palta was found and this also discredits the case of prosecution. In the present case merely because Investigating Officer on the spot has proceeded not to find any Phawara or palta, same would not discredit the case of prosecution as credible eye witness account is there and at no point of time from the side of defence any suggestion was given or any question was put to P.W.-I and P.W.-II that in investigation phawara and palta has not been found, on the spot and said situation discredits their testimony. In view of such factual situation, any short coming in the investigation would not cause dent in the prosecution case. In view of such factual situation, any short coming in the investigation would not cause dent in the prosecution case. In his statement P.W.-I Virendra Singh, clearly proceeded to mention that he came back to the house after incident occurred alongwith plough and bullocks and the Investigating Officer moist surprisingly in his statement has mentioned that he found on the spot plough and bullocks, but he has not shown them in the spot inspection report. This contradiction in itself shows the casual way and manner investigation has been carried out. Deficiencies in investigation by way of omissions or lapses on the part of investigating agency cannot in itself justify rejection of prosecution case when otherwise prosecution evidence is authentic, credible and cogent. Submission advanced accordingly on such a score is also of no avail. 40. Once such is the factual situation that testimony of P.W.-I and P.W.-II has been consistent and graphic picture has been given by them that nails the accused-appellants and said eye witnesses account is duly corroborated by medical evidence, then to say that appeal deserves to be allowed cannot be accepted in the facts of the case. 41. Consequently, present criminal appeal is dismissed. Conviction recorded by the trial Court is affirmed. Appellants are on bail, they shall be taken back into custody to serve out remaining sentences.