JUDGMENT
Mohd. Yamin, J.
1. Accused appellants have preferred this appeal against the judgment of learned Sessions Judge, Dungarpur dated 30-4-83 whereby he convicted appellant Roopa under Section 302, IPC and sentenced to undergo life imprisonment and Hawji under Section 325, IPC and sentenced him to undergo four year’s rigorous imprisonment.
2. In short, on 2-11-1982 at about 5 p.m. Hanja was working in his field named Dari Ropada in village Kanela (Vikas Nagar). Roopa an Hawji came there and quarreled with him. Both the appellant fell down Hanja and thereafter Roopa throttled the neck of deceased while Hawji sat on his chest and gave in beatings by fists. It was P. W. 2 Savita, the daughter of deceased, who was grazing her cattle nearby and when Hanja cried “MAAR DALA – MAR DALA,” she came running at the spot. Some P.W. 1 was also present on the nala where he had come with his bullocks to make them drink water. The accused appellants after seeing Soma and Savita ran away towards their houses. Amrit P.W. 4 also saw the accused appellants running. The motive behind this murder was that Hawji had a quarrel with father of Huka because both of them had purchased a water pump in partnership and deceased Hanja used to tell Hawji not to quarrel. Therefore, the accused appellants were under the impression that he favoured Huka’s father. Report Ex. P/l was lodged at police station Dhambolaat 10p.m. This police station is about 25 kms. away from the place of occurrence. The police went there on 3-11-1982 and made a site inspection as well as prepared Panchnama of the dead body. The postmortem of the dead body of Hanja was performed. Its report is Ex. P/4. During the investigation it came to the notice of the Investigating Officer that when accused appellants were going back, Punja P.W. 8 and Nanji P.W. 10 met them near Nawa Talab. They enquired as to why the accused appellants killed Hanja? The accused appellants were not happy and threw stones towards them. During this scuffle Hawji and Roopa, appellants, suffered some injuries. They were examined by P.W. 6 Dr. Biharilal Berva. After investigation charge-sheet was submitted before the Chief Judicial Magistrate, Dungarpur who committed the case to the learned Sessions Judge. Learned Sessions Judge framed charge under Section 302, I.P.C. against Roopa and under Sections 302/34 and 323, I.P.C. against Hawji. Both of them denied their indictment and claimed trial. Thereupon prosecution examined its witnesses. Accused appellants were also examined under Section 313, Cr.P.C. wherein their defence was that they did not kill Hanja but the dead body of Hanja was placed in the house of Roopa by the prosecution witnesses and when they were going to report the matter to the police, Punja and Nanji met them, out of them Punja threw a stone towards Hawji and bite on the finger of Roopa. Thereafter Nanji and Punja went away and Roopa and Hawji appellants went back. They did not examine any witness in defence. The learned Sessions Judge heard both the parties and convicted the accused-appellants as stated above.
3. We have heard the learned counsel for the appellants and the learned Public Prosecutor.
4. Learned counsel for the appellants ‘ contended that Savita and other witnesses are not credible, deceased suffered from tuberculosis, accused-appellants have been falsely implicated as there are material contradictions in the statements of witnesses, there is contradiction in medical evidence and evidence of eye-witnesses, there was delay in lodging FIR and motive has ‘ not been proved. So according to him, accused-appellants deserve acquittal. Learned PP has controverter these submissions.
5. First we have to see whether the death of Hanja was homicidal. P.W. 7 Dr. B. M. Upadhyaya performed the post-mortem of deceased-Hanja and prepared post-mortem report Ex. P/4 which is proved by him. It was suggested to him that Hanja suffered from tuberculosis and died because he suffered an attack of cough resulting into breakage of his ribs. The post-mortem report does mention about tuberculosis in both the lungs of the deceased but Dr. Upadhyaya has refuted that a patient of tuberculosis would not have such an acute cough by which he may break his ribs. The learned Sessions Judge also did not accept this defence story. We concur with him. The cause of death of Hanja, according to the opinion of Dr. B. M. Upadhyaya, P.W. 7, was cerebral anoxia due to pressure exerted over carotid vessels, super added by shock and hemorrhage. According to him the deceased died not due to throttling but due to pressure on carotid arteries resulting into non-supply of blood to brain. The death was definitely homicidal and the argument of the learned counsel that Hanja died due to severe attack of cough resulting into breakage of ribs, is not tenable. Even if the deceased suffered from tuberculosis and had a severe cough attack, the carotid arteries could not have broken due to this attack. We conclude that the death was homicidal. Now the question arises as to who committed the murder of Hanja?
6. Learned counsel for the appellants submitted that P.W. 2 Savita is the daughter of the deceased and, therefore, she is an interested witness. But this argument is not tenable in view of the fact that she was an eye-witness. Hon’ble Apex Court has differentiated between a related witness and an interested witness in AIR 1981 SC 1390 : 1981 Cri LJ 1012, State of Rajasthan v. Kalki, according to which a witness may be called interested only when he or she derives some benefit from the result of a litigation in decree in a civil case or in seeing an accused person punished. A witness who is a natural one and is the only possible eye-witness in the circumstances of a case cannot be said to be interested witness. Facts of Kalki’s case (supra) are that the widow of deceased was the only person present in the hut with the deceased at the time of occurrence and the only person who saw the occurrence. She had no interest in protecting the real culprit and falsely implicating the accused. Here P.W. 2 Savita has no interest in falsely implicating the accused-appellants. We find from the evidence on record that she was present and was the eyewitness of the occurrence. She would be interested in getting the real culprit punished as she is daughter of deceased. Another attack on the witness is that she was a child witness and, therefore, should not be believed. The law about a child witness is that evidence of a child witness should be accepted with great caution P.W. 2 Savita is aged 12 years. She is quite intelligent. She is not of that tender age where fancies may be taken by a child as truth, or may be tutored to implicate appellants. Corroboration is not a rule of a practice and hence no corroboration is required if the testimony of the child inspires confidence and there is unlikelihood of tutoring and its demeanour was found to be straightforward by the trial Judge. In AIR 1979 SC 1347 : 1979 Cri LJ 1031 Tehal Singh v. State of Punjab, a boy of 13 years though coming from rural area but having mature understanding was found to be credible.
7. We have read the statement of Savita P.W. 2 time and again. She has stated that her father was working in the field and she heard his voice. He was crying “O MAAR DALA” then she saw that accused-appellants were quarrelling with her father. Out of them Roopa was throttling the neck of his father while Hawji was sitting on his chest and was giving beatings with fists. She then made hue and cry and it were Soma and Huka who came. At that time both the accused appellants ran away. They went towards the side of nala. Her mother had also come. But before her, Soma and Huka had arrived. She has further stated that Soma, Huka and Khema took her father to the house of Roopa where Soma poured water in the mouth of her father but he could not drink. She was cross-examined at length but she has maintained that she was very near to the place at the time of occurrence and was grazing cattle. Site plan Ex. P/6 was prepared by Investigating Officer P.W. 11 Raj Singh. It mentions the place at No. 2 where Savita was grazing the cattle. This place is on the higher terrain than the place No. 1 where the occurrence took place. The places are very near to each other and since Savita was at a higher terrain, she could have very well seen the accused appellants committing the crime. We find that she is a reliable witness. P.W. 1 Soma has stated that he had gone to the nala to make his cattle drink water. He has further stated that when Savila made hue and cry, he went running to the place of occurrence. He stated that the accused-appellants ran away after seeing him. He saw them while they were going. According to him, Huka came following him. Soma is the witness who reported the matter to the police vide Ex. P/l. He was subjected to a very lengthy cross-examination. Learned counsel has submitted that the witness has contradicted Savita. But we do not find so. Savita is the only eye-witness while this witness had come after Savita had made hue’ and cry. When he came, he found that accused appellants were running. He saw the accused appellants running from the distance of about 50 paces and could have very well identified them.
8. Huka P.W. 3 has stated that on hearing noise made by Savita he went at the site as he was grazing his cattle in the jungle nearby the place of occurrence. The occurrence took place in the field of Hanja named as “Ropada” and by the time he reached, the accused-appellants were running towards eastern side. He is the real brother of Hanja. He has stated that the place where he was grazing his cattle was at a distance of about 100 yards from the place of occurrence. Learned Sessions Judge has believed his presence and the presence of P.W. 1 Soma, relying their statements as well as the fact that the accused-appellants had accepted presence of these witnesses in their statements under Section 313, Cr.P.C. To us, they are the witnesses on whom the learned Sessions Judge correctly placed reliance. We do not find any material contradictions in statements of these two witnesses and Savita,
9. Amrit P.W. 4, who is the wife of deceased, went at the place of occurrence when Savita made hue and cry. When she reached she found that her husband was lying on the ground and by that time the accused-appellants had run away. According to her, Savita told her that it were appellants who quarrelled with her father. So from her statement it appears that by the time she had reached, the accused-appellants had went away and Savita told her their names.
10. Learned counsel for the appellants submitted that P.W. 1 Soma has stated that he saw the neck of Hanja suspended while Huka P.W. 3 has stated that Roopa was seen throttling the neck of Hanja. But according to P.W. 7 Dr. B. M. Upadhyaya the death of Hanja occurred due to pressure on carotid vessels. According to counsel, in view of this contradiction accused-appellants should get the benefit of doubt. But we do not agree with him for the simple reason that the witnesses belonged to interior village area and are not supposed to know the difference between suspension and squeezing. The carotid vessels are found on both the sides of the neck and they were pressed. Therefore, Hanja died; Ordinarily it can be called as throttling or squeezing of neck. We find that there is no contradiction in the medical evidence and the statements of these witnesses.
11. Other circumstances against the accused-appellants is that when Punja was going to police station, the accused appellants met him. It was Nanji who asked the appellants as to where they were going after killing his brother. Then Roopji threw a piece of stone towards Nanji which struck Hawji. Then according to him the accused-appellants gave him beatings and said that since he was going to give evidence against him, he would also be killed. Then Punja P.W. 8 apologized and saved himself. He is corroborated by P.W. 10 Nanji. It was P.W. 6 Dr. Biharilal Berva who examined Hanja and Roopji on 5-11-1982 and found injuries on their persons. It means that the accused-appellants were desperate and were ready to kill anybody who wanted to depose the truth against them. The learned Sessions Judge has believed this story because the dead body of Hanja was kept at the house of Roopa and he was going to report to the police but was intercepted in the midway by the accused-appellants. It was Punja who injured Hawji by a stone and when Punja tried to save, his finger was bitten. The story was believed by trial Court and we concur.
12. The argument of the learned counsel that there was delay in lodging the FIR, does not hold water in the facts and circumstances of this case particularly when the police station is about 25 kms away from the place of occurrence. The occurrence took place at 5 p.m. and the report was lodged on the same day on 10 p.m. It were the accused-appellants who threatened the witnesses in the way and quarrelled with them. There is no delay in lodging the report.
13. So far as motive is concerned, the well settled law is that the motive is material only in such cases when there are no eye-witness. In this case motive was not material. Even if it was so, we find from the record that Soma has stated that Hawji, Halu or Huka had purchased a water pump in partnership. They used to quarrel and Hanja-deceased used to settle their differences. P.W. 8 Punja, who is the son of Huka, has stated that the water pump was purchased after taking loan from a Bank and when the instalments were being recovered by the Bank, Roopa told him that he would not pay any amount and that he did not want to water his fields with the aid of this water pump. Then the matter was referred to panchas and it was settled that Punja would keep the water pump and would also pay the instalments. At that time Hanja had pointed out that it was Roopa who was on the wrong side and then panchas had taken Roopa and Hawji to task. Therefore, the accused-appellants were against the deceased. According to P.W. 10 Nanji, Huka, Punja and Roopa used to quarrel while Hanja-deceased used to ask them not to do so and the accused-appellants used to say that deceased was taking side of Huka and Punja. Therefore, they were against him. In small villages such petty affairs do create bad blood. Therefore, we can say that the prosecution has also proved motive.
14. In view of above discussion, we do not find any ground of interference in the judgment of the learned Sessions Judge. Consequently, the appeal is without force and is hereby dismissed. Accused-appellants are on bail. Their bail bonds are cancelled. The learned Sessions Judge will take them in custody to serve out the remaining part of sentence.