Satya Prakash Pathak, J.
1. This appeal has been directed against the judgment and order dated 29th June 2000 passed by learned District & Sessions Judge, Jodhpur in Sessions Case No. 44/1998, by which the appellants have been convicted under Section 302 read with Section 34, IPC and sentenced to life imprisonment with fine of Rs. 1,000/-, in default of payment of fine to further undergo three months rigorous imprisonment.
2. Briefly stated, the facts are that Poona Ram (P.W. 1) submitted a written report Ex. P/1 on 18-2-1998 at 9.30 p.m. in the police station, Khedapa with the averments that on 16-2-1998 in village Mornavada a scuffle took place between Mala Ram and Bagha Ram, in which Bagha Ram sustained more injuries on his person but no report was lodged of the incident on that day in the police station. It is further averred in the report that on the previous night Mala Ram had gone to the residence of Uda Ram and told him that Anda Ram had gone to the Dhani of Dhanna Ram and both of them along with Kumbha Ram will go to the police station, therefore, he should go there to get the matter settled by compromise between them. In the morning of 18-2-1998, he (Poona Ram) along with Uda Ram (since deceased, hereinafter referred to as ‘the deceased’) proceeded on foot towards the Dhani of Kumbha Ram which was near village Dhannari and at about 9.30 a.m. they reached at the tubewell of Kumbha Ram. Mota Ram, who is the son of Kumbha Ram, met them there and informed them about Kumbha Ram at that time being in the old Dhani (the place to reside). After having a cup of tea there, they started from there. At that time, Uda Ram was following him at a distance of about five steps and when they were near the Dhani of Kumbha Ram at a distance of about 200 steps, he heard the cry of Uda Ram “Mare re”. On hearing the cry, he turned back and saw that accused persons Anda Ram and Dhanna Ram were inflicting lathi blows on the person of Uda Ram. He objected to it and asked them not to beat Uda Ram, whereupon accused persons threatened him that in case he tried to come near them, he would also be killed. He then quickly rushed towards the Dhani of Kumbha Ram and narrated the entire incident to him. As he was frightened, he stayed at the Dhani of Kumbha Ram, and Kumbha Ram went at the spot where he found blood oozing out from the mouth of Uda Ram, who had succumbed to the injuries inflicted on him. Uda Ram was found completely naked and his dhoti was lying in a field where Raida crop was standing. Kumbha Ram then told him (P.W. 1 Poona Ram) to bring his family members there, on which he showed his inability to do so due to fear. Thereafter, Mota Ram was asked to go and he brought with him Ghewar Ram, who is the son of the deceased, and also Nana Ram and other relatives of the deceased. A jeep was arranged, in which he along with Kumbha Ram reached at the police station and submitted written report of the incident before Moti Singh, SHO, Police Station Khedapa. On this report Ex. P/1 Case No. 17 under Section 302/34, IPC was registered on 18-2-1998, a formal FIR was chalked out and the investigation commenced.
3. During the course of investigation, Ex. P/2 Fard Surat Hall Lash and Ex. P/4 Site Plan with inspection note were prepared by the SHO in presence of Bhabhoot Ram and Chuna Ram. On 18-2-1998, Panchnama of dead body in presence of Bhabhoot Ram, Bhoora Ram, Mohan Ram, Poona Ram and Kumbha Ram was prepared, which is Ex. P/3. The Panchas were of the opinion that Uda Ram had died due to the injuries found on his person. Postmortem on the dead body was conducted on 19-2-1998 at 11-25 a.m. in Mahatma Gandhi Hospital, Jodhpur by P.W. 14 Dr. N. S. Kothari. The postmortem Report is Ex. P/35. The clothes of the deceased, which were presented by Shri Poona Ram and taken by the police, were stained with blood. The clothes were seized and sealed through memo Ex. P/5 in presence of Bhabhoot Ram and Kumbha Ram. The dead body, after post-mortem, was handed over to the brother of the deceased Poona Ram in presence of Kumbha Ram, and Bhabhoot Ram through Ex. P/6. Anda Ram and Dhanna Ram were arrested on 21-2-1998 and arrest memos Exs. P/9 and P/10 were prepared. Accused Anda Ram at his own gave information in the police custody on 21-2-1998 at 11.30 a.m. to the effect that the lathi, by which Uda Ram was beaten, was kept in the kitchen of his Dhani and he was willing to get the same recovered. This information under Section 27 of the Indian Evidence Act was recorded in Ex. P/14 and in pursuance of the information accused got recovered the lathi, which was seized and sealed through memo Ex. P/7. Accused Dhanna Ram, in police custody, gave information about the lathi on 21 -2-1998, which was recorded in Ex. P/15, and as per his information in presence of Koja Ram, he got recovered the lathi. The memo prepared in this regard is Ex. P/16. The two stones found on the spot stained with blood on 18-2-1998 were seized and sealed through memo Ex. P/8. Site plans of the places, from where accused Anda Ram and Dhanna Ram got recovered lathis, were prepared as Exs. P/17 and P/18 respectively. The seized articles stained with blood were sent through forwarding letter Ex. P/31 of the S. P. Office, Jodhpur to FSL, Jaipur. The receipt for the deposit of the articles of the case is Ex. P/32 and FSL report is Ex. P/19.
4. After usual investigation, police submitted challan against accused-appellants in the Court of Magistrate from where the case was committed to the Court of Session.
5. On 10-7-1998, the Sessions Judge, Jodhpur framed charges against the accused-appellants for the offence under Section 302/34, IPC. The charges were read over to the accused persons and explained to them. They denied the charges and claimed trial. During the course of trial, prosecution got examined as many as 16 witnesses and exhibited several documents. Thereafter, statements of accused-appellants under Section 313 Cr. P.C. were recorded. In the statements, it has been stated by the accused-appellants that they have been falsely implicated and further that deceased Uda Ram was having illicit relations with the wife of Mota Ram, therefore, Mota Ram and Kumbha Ram have murdered Uda Ram but no evidence was led in defence by the accused-appellants.
6. After conclusion of the trial, the learned Sessions Judge, Jodhpur through impugned judgment and order dated 29-6-2000 convicted and sentenced the accused-appellants as indicated hereinabove.
7. Aggrieved by the said judgment and order dated 29-6-2000, passed by the learned Sessions Judge, Jodhpur, accused-appellants have preferred this appeal.
8. We have heard learned counsel for both the sides and perused the material available on record.
9. Before proceeding further, medical evidence of this case has to be seen first.
10. P.W. 14 Dr. N.S. Kothari, Professor & Head of Forensic Medicines, Mahatma Gandhi Hospital, Jodhpur in his statement recorded on 7-10-1999 has stated that on 19-2-1998 while discharging functions as Professor of Forensic Medicines in the M. G. Hospital, Jodhpur, on the requisition of Police Station, Khedapa, he conducted postmortem on the dead body of Uda Ram s/o Natha Ram Jat, aged 54 years, resident of Mornavada, Police Station Khedapa at 11 : 25 a.m. in the morning. The estimated time of death according to him was 24 hours before his conducting the postmortem. On post-mortem examination, he found the following ante-mortem injuries on the dead body of the deceased.
1. Abrasion 2.0 cm x 1.0 cm on forehead just left to mid-line.
2. Abrasion 1.0 cm x 1,0 cm just above the right eye brow.
3. Abrasion 1.5 cm x 1.0 cm just near left ear on the left side of face.
4. Swelling on left parieto-temporal region of the scalp with bruise with swelling on left ear pinna.
5. Abrasion 2.0 cm x 0.5 cm on lower 1 /3 right forearm dorsal medially.
6. Abrasion 1.0 cm x 0.5 cm on right wrist dorsally.
7. Multiple abrasions in area of 20.0 cm x 12.0 cm on the right hip and upper 1/3 right thigh laterally.
8. Abrasion 7.0 cm x 1.0 cm on right knee medially.
9. Abrasion 2.0 cm x 1.0 cm on left knee medially.
10. Abrasion 8.0 cm x 3.0 cm on upper 1 /3 of left thigh anterior laterally.
11. Abrasion 5.0 cm x 2.0 cm on upper 2/3 left thigh posterior laterally.
12. Abrasion 4.0 cm x 1.0 cm on middle 1/3 left thigh laterally.
13. Abrasion 3.5 cm x 1.0 cm on upper part of left gluteal region.
14. Multiple Abrasions in the area of 16.0 cm x 13.0 cm on the left gluteal region.
15. Abrasion 8.0 cm x 1.0 cm on mid lumber region.
16. Abrasion 10.0 cm x 9.0 cm on back of left shoulder.
17. Bruise 9.0 cm x 2.0 cm on upper 1/3 of left arm laterally.
18. Bruise with abrasion 8.0 cm x 8.0 cm on left shoulder laterally.
19. Bruise 4.0 cm x 2.5 cm on left scapular region.
20. Bruise with abrasion 12.0 cm x 4.0 cm on left arm medially.
21. Bruise 7.0 cm x 4.0 cm on left arm posterior laterally.
22. Abrasion 2.0 cm x 1.0 cm on left hand 4th and 5th metacarpal region.
23. Bruise 3.0 cm x 2.0 cm on left lower abdomen.
11. On opening the scalp, the doctor found haematoma on the left parieto temporal region of the scalp and below it in the left side found fracture of left parieto temporal bone with subdural haematoma and more marks on the left half hemisphere of brain. He also found on opening of chest the fracture of 3, 4, 5 and 6th ribs on the right side anterior laterally with muscular haematoma and fracture of 2, 3, 4, 5 & 6th ribs on the left side anterior laterally with perforation of left lung at two places each of 1 cm x 1 cm x 1 cm which resulted due to fracture of 2 & 3rd rib. He also found blood inside the plural cavity about 600 ml.
12. The witness has stated that he prepared postmortem Report Ex. P/35 which contains his signatures at place ‘A’ to ‘B’. The cause of death was the head and other multiple injuries sustained by the deceased. The opinion has been recorded at place ‘C to ‘D’ in the postmortem report. Thus from the statement of P.W. 14 Dr. N. S. Kothari, it is very much clear that the deceased died because of the head injury and multiple injuries found on the person of the deceased and therefore the death of the deceased was not natural one and it was a homicidal one.
13. In the present case, there are two eye-witnesses; namely, P.W. 1 Poona Ram and P.W. 3 Kumbha Ram, whose evidence is decisive. P.W. 1 Poona Ram, who is brother of deceased Uda Ram, in this statement in the Court has stated that on 15-2-1998, there was quarrel between Bagha Ram and Mala Ram and Bagha Ram had beaten Mala Ram. In the evening of 17-2-1998, Mala Ram had come to him (P.W. 1) and told that Anda Ram accused was intending to go to the Police Station for making a report, therefore, the witness was requested to get the matter compromised and for that purpose the witness should meet P.W. 3 Kumbha Ram (Kumbhaji). He along with Uda Ram left his house at about 6/6.30 a.m. in the morning of 18-2-1998 and proceeded on foot to meet Kumbha Ram (P.W. 3) at his Dhani. The witness has further stated that when they reached at the tube-well of Kumbha Ram, it was found that Kumbha Ram was not there and his son Mota Ram was there. It was intimated by Mota Ram son of Kumbha Ram that Kumbha Ram was available at his old Dhani. After taking a cup of tea both of them proceeded towards Dhani of Kumbhaji. At that time, Uda Ram was following the witness at a distance of 5 to 6 steps. The witness has stated that when Kumbha Ram’s Dhani was about 200 steps away from them, at that time Uda Ram cried “Mare Re, Mare Re”. On hearing this, the witness turned back and saw that the accused persons Dhana Ram and Anda Ram, who were hidden in the Raida crops, were inflicting lathi blows on the person of Uda Ram. He further stated that even after his objection the accused did not stop inflicting lathi blows on the person of Uda Ram. The witness stated that he called for the help of Kumbhaji. Kumbhaji came there and he also saw the accused inflicting lathi blows. They killed Uda Ram and thereafter ran away to the side of their Dhani. The witness has further stated that report of the incident was lodged by him on the same day and at that time P.W. 3 Kumbha Ram was also with him. In the cross-examination, he has stated that the accused persons inflicted lathi blows, while they were proceeding towards Dhani of Kumbha Ram, which, at the time of incident, was 200 steps away from them.
14. P.W. 3 Kumbha Ram, in his statement has stated that he knew the accused persons and deceased from before. The witness has stated that in the morning of 16 -2-1998 Bagha Ram and his brother Dhanna Ram came to meet him and told that Mala Ram had beaten Bagha Ram, therefore, the witness should accompany them up to the Police Station for lodging a report. The witness has stated that he advised them to settle the matter by compromise and since on 16-2-1998 some election was there, as such they were asked to go back with the advise that they should settle the matter between themselves, else he will get the matter settled afterwards. The witness has further stated that in the morning of 18-2-1998 at about 8.00 a.m. accused Anda Ram and Dhanna Ram both of them came to meet him. They told him that compromise could not take place between them, therefore, the witness should accompany them up to the Police Station. The witness has further stated that he asked them to go to their village and to inform the respectable persons of the village so that in their presence he will get the matter settled by compromise and in case it is not settled, then, the matter will be reported at the Police Station. After 10-15 minutes of departure of them, on hearing hue and cry “Mare Re, Mare Re”, he saw that Poona Ram was making hue and cry. He immediately rushed at the spot, where he saw accused Anda Ram and Dhanna Ram inflicting lathi blows on the person of Uda Ram. The accused were also inflicting injuries on the person of Uda Ram by pelting stones. The witness has stated that he saw that Uda Ram was given beatings on all parts of the body. The witness further stated that he asked the accused persons not to beat Uda Ram but the accused did not stop inflicting lathi blows to Uda Ram. The witness has further stated that when he reached near to them, the accused persons ran away along with lathis leaving Uda Ram dead on the ground naked and blood coming out from his mouth and nose. The witness has further stated that Poona Ram was also standing at a little distance from him. He was asked to bring his relatives but Poona Ram stated that he would not leave his brother. The witness has further stated that Mota Ram son of witness then brought with him the relatives of the deceased and son of deceased Ghewar Ram. The witness has stated further that he accompanied Poona Ram up to the Police Station where Exhibit-P/l First Information Report was lodged of the incident. In the cross-examination, he denied the suggestion put to him that he and his son Mota Ram inflicted lathi blows on the person of the deceased.
15. P.W. 6 Mota Ram, who is son of P.W. 3 Kumbha Ram, has stated that a little before the incident took place, the deceased along with P.W. 1 Poona Ram came to his Dhani at about 9.00 a.m. in the morning and asked about P.W. 3 Kumbha Ram and the witness intimated them that Kumbha Ram was at his old Dhani. This witness has also stated that after taking a cup of tea, P.W. 1 Poona Ram and the deceased left the place and proceeded towards the old Dhani of Kumbha Ram through “Pagdandi” (a narrow way). The witness has further stated that he heard human cry after 15 minutes of the departure of Uda Ram and Poona Ram from his tube-well. On hearing human cry, he reached at the spot and found that Uda Ram was lying dead on the ground and his father Kumbha Ram and Poona Ram were standing there. He saw the deceased lying on the ground having multiple injuries on his person. The witness further stated that when he asked his father Kumbha Ram and Poona Ram about the injuries inflicted on the person of deceased, his father Kumbha Ram and Poona Ram told that the accused persons Dhanna Ram and Anda Ram were responsible for the injuries on the person of the deceased. The witness further stated that thereafter on the instructions of his father he proceeded towards village Mornavada and from there he brought with him deceased’s son Ghevar Ram and other relatives.
16. The contention of the learned counsel for the accused that in fact the deceased was having illicit relation with the wife of Mota Ram therefore Kumbha Ram and his son had beaten the deceased and had inflicted lathi blows on the person of Uda Ram as a result of which Uda Ram died and they have falsely been implicated in the matter. It has also been contended that on the day of incident Kumbha Ram and Mota Ram had seen Uda Ram with the wife of Mota Ram, as such both of them took Uda Ram to their fields and there he was done to death by them. It was further contended that at that time Uda Ram was alone and after his death Poona Ram was called and he was told that the accused persons have killed his brother.
17. The learned counsel in support of his contentions has placed reliance on the decisions rendered in the cases of Daljeet Singh v. State of Punjab, 1999 SCC (Cri) 39 : (1999 Cri LJ 454), Deva v. State of Rajasthan, 1999 SCC (Cri) 41 : (1999 Cri LJ 265), Bhola Singh v. State of Punjab, 1999 SCC (Cri) 135 : (1999 Cri LJ 1132) and Dharam Singh v. State of Punjab, 1993 SCC (Cri) 1059 : (1993 Cri LJ 150).
18. Before we appreciate the evidence, we should first see as to what principles have been laid down in relation to appreciation of evidence by the Hon’ble Supreme Court.
19. In the case of Daljeet Singh (1999 Cri LJ 454) (supra), the Hon’ble Supreme Court found that the evidence of eye-witnesses who were in relation of the accused was full of contradictions and therefore came to the conclusion that it was doubtful that they had even seen the occurrence as stated by them.
20. In the case of Deva (1999 Cri LJ 265) (supra), the witnesses stated that the accused and the deceased were grappling with each other and the deceased alone had a stick but none of them stated that the accused gave knife blows to the deceased, in those circumstances, the Hon’ble Supreme Court while appreciating the evidence not believed the statement of the deceased’s wife that the deceased told her that the accused inflicted knife injuries on him.
21. In the case of Bhola Singh (1999 Cri LJ 1132) (supra), the Hon’ble Supreme Court looking to difference in the medical evidence and the evidence of the witnesses observed that it is highly improbable and unlikely that the accused armed with sharp-edged weapons like a gandasa and ghop had used only the blunt side and not the sharp side of the said weapons, and that it is highly unthinkable that the two eye-witnesses could have seen the incident as had taken place. In those circumstances, the Hon’ble Supreme Court held the presence of eye-witnesses at the time of incident doubtful.
22. In the case of Dharam Singh (1993 Cri LJ 150) (supra), wherein there was enmity between the deceased and one of the three eye-witnesses, on the one hand and the accused on the other, the other two eyewitnesses being the injured brother and the son of the deceased, the Hon’ble Supreme Court observed that the evidence of relative eye-witnesses should be examined with great care and caution and if contradictions found in their evidence are material in nature, then their credibility becomes doubtful.
23. After carefully examining the authorities cited by the learned counsel appearing for the accused-appellants regarding appreciation of evidence, in substance, the principles laid by the Hon’ble Apex Court are to the effect that the Courts should take proper care while examining the evidence of eyewitnesses and particularly the relative witnesses and if while appreciating the evidence it is found that the evidence adduced is full of contractions, the variance in evidence is of material nature and the evidence is not trustworthy, it should be discarded.
24. The contentions of the learned counsel are not sustainable for the reason that P.W. 6 Mota Ram has denied the suggestions made to him in the cross-examination that his wife was having illicit relations with Uda Ram the deceased. P.W. 3 Kumbha Ram has also denied the suggestions made in this behalf. P.W. 2 Bhura Ram, who is a witness of village Dhannari Khurd has also denied about the suggestion of illicit relation of the deceased with the wife of P.W. 6 Mota Ram.
25. The witnesses P.W. 1 Poona Ram, P.W. 3 Kumbha Ram and P.W. 6 Mota Ram have also denied the suggestion that they have given beatings to the deceased by lathis and on account of that Uda Ram died. Other evidence in this behalf is of P.W. 7 Ghevar Ram. Ghevar Ram is son of deceased Uda Ram. This witness has also stated that his father had no illicit relations with the wife of P.W. 6 Mota Ram. Except the above evidence, there is no material on record to even remotely suggest that there were illicit relations of the deceased with the wife of P.W. 6 Mota Ram.
26. It shall also be worthwhile to mention here that the age of the deceased was more than 54 years whereas the age of P.W. 6 Mota Ram is about 24 years. Thus, the difference of age gap between the wife of Mota Ram and the deceased was more than 30 years. All the above discussed facts taken together, only on the basis of suggestions put to the witnesses, in the absence of any material, it cannot be presumed that deceased had illicit relations with the daughter-in-law of P.W. 3 Kumbha Ram.
27. There is also a reason to reject the contention of the learned counsel for the accused- appellants that it has nowhere been alleged that there was any enmity of P.W. 3 Kumbha Ram with the deceased or his family members. If there was no enmity with the accused persons of P.W. 3 Kumbha Ram and his son then there appears to be no reason for PW3 Kumbha Ram to have falsely implicated the accused persons in the present matter. On the contrary, it appears that the relations between the accused and P.W. 3 Kumbha Ram were of cordial nature because in the statement of P.W. 3 Kumbha Ram it has come that in relation to the quarrel which took place between Bagha Ram and Mala Ram on 16th February 1998, Dhanna Ram and Bagha Ram had requested P.W. 3 Kumbha Ram to accompany them up to the police station. P.W. 3 Kumbha Ram has stated that he advised the accused persons to first try for the compromise and in case compromise talks fail then matter will be reported to the police. The above statement has not been challenged in the cross-examination by the accused persons. If that is so, then there appears to be no reason why P.W. 3 Kumbha Ram will involve the accused persons for the murder of deceased Uda Ram.
28. In view of above discussion, the contention raised by the learned counsel for the appellant is hereby rejected in the absence of any material, it cannot be presumed that deceased Uda Ram was given beatings by P.W. 3 Kumbha Ram & Mota Ram and consequently he died.
29. The another contention of the learned counsel that nothing was found in the stomach of deceased at the time of postmortem therefore it cannot be presumed to be correct that deceased along with Poona Ram on the day of incident had met P.W. 6 Mota Ram at his tubewell in the morning and all of them had tea together.
30. A perusal of the post-mortem report Ex. P. 35 nowhere makes a mention that the stomach was empty. It is to be seen that if there was nothing in the stomach then at least a question was required to be put to P.W. 14 Dr. N. S. Kothari in this regard. In absence of any question put in cross-examination to the witness, it cannot be presumed that the stomach was empty. The learned counsel in support of his submission placed reliance on a decision of the Supreme Court reported in 1976 SCC (Cr.) 483 : (1976 Cri LJ 1521) Subhash v. State of U. P.
31. In the above case, the doctor concerned categorically stated that the stomach of the deceased was empty whereas in the present case, P.W. 14 Dr. N. S. Kothari has not stated that the stomach was totally empty. In view of the fact that P.W. 14 Dr. N. S. Kothari was not put any question in this regard and further P.W. 14 has not said so that the stomach was empty, as such, we are not inclined to accept the contention of the learned counsel that the evidence of P.W. 6 Mota Ram should not be believed that deceased and Poona Ram just before the incident came to the tube well of P.W. 3 Kumbha Ram, where they met P.W. 6 Mota Ram, took tea together and Mota Ram intimated P.W. Poona Ram and the deceased about the whereabouts of P.W. 3 Kumbha Ram, who at that time was at his old Dhani.
32. It has also been contended by the learned counsel for the appellants that no evidence has been brought on record to show that Poona Ram and Uda Ram used to frequently visit the Dhani of P.W. 3 Kumbha Ram prior to the incident. According to the learned counsel, the evidence which has come on record is that deceased and Poona Ram never visited the Dhani of P.W. 3 Kumbha Ram prior to the incident, therefore, on the basis of evidence it cannot be presumed that the accused persons had the knowledge that Poona Ram and deceased would come to the Dhani of P.W. 3 Kumbha Ram and hence they cannot be connected with the present incident in any manner. It has also been contended that dhoti of the deceased was found away from the way where the deceased and Poona Ram were passing through. Learned counsel contends that the dhoti of the accused found at some other place away from the place where the dead body of the deceased was found, therefore the incident in fact has not happened in the manner suggested by the prosecution but has happened as suggested by the defence that in fact on account of illicit relations of the deceased with the wife of Mota Ram, P.W. 3 Kumbha Ram and Mota Ram have murdered Uda Ram and thereafter his dhoti was removed from his person which was thrown by them in the field of Chuna Ram where the Raida crop was standing.
33. We have considered the above submissions made before us. In the statement of P.W. 1 Poona Ram it has not come that Uda Ram was visiting frequently the Dhani of P.W. 3 Kumbha Ram. In the cross-examination of Poona Ram (P.W. 1) it has come that he has not seen Uda Ram ever visiting P.W. 3 Kumbha Ram’s Dhani. The contentions raised above if examined in the light of evidence of P.W. 1 Poona Ram, P.W. 3 Kumba Ram and P.W. 6 Mota Ram, then one thing which emerges out is that on account of some quarrel which took place on 16-2-1998 the accused party contacted P.W. 3 Kumbha Ram and the deceased party also contacted him therefore in the above circumstances it cannot be said that if the deceased had never visited P.W. 3 Kumbha Ram’s Dhani prior to the incident then it should be a reason to presume that on the day of incident deceased and P.W. 1 Poona Ram did not come to meet P.W. 3 Kumbha Ram, the prosecution version even if otherwise proved by unimpeachable and trustworthy evidence, it should not be relied upon that deceased and Poona Ram met P.W. 6 Mota Ram at his tubewell on the day of incident in the morning and they took tea together. 34. As discussed hereinabove, no question has been put to the above witnesses in the cross-examination regarding the fact that P.W. 1 Poona Ram and Uda Ram (the deceased) on the day of incident came to the tubewell of P.W. 6 Mota Ram and they asked about the whereabouts of P.W. 3 Kumbha Ram and they also had a cup of tea at the tubewell of P.W. 3 Kumbha Ram. The evidence which has come on record clearly suggests that P.W. 3 Kumbha Ram had cordial relations with the accused persons and no enmity was brought on record to suggest that the accused will be involved in the case falsely by P.W. 3 Kumbha Ram leaving the actual culprits in the matter. It shall be proper to mention here that when deceased along with Poona Ram came to the tubewell of P.W. 3 Kumbha Ram and after having a cup of tea left the place and proceeded towards the Dhani of Kumbha Ram, immediately after 10-15 minutes Mota Ram P.W. 6 heard hue and cry and reached at the spot. P.W. 3 Kumbha Rain has stated that on the morning of incident, the accused persons had come to his place to take him with them to lodge a police report in relation to incident, which had taken place on 16-2-1998, and they were advised first to see that the matter is settled by compromise with his efforts and they were asked to go to collect the respectable persons of the village. In the above circumstances, it is more probable that while the accused persons left the place of P.W. 3 Kumbha Ram, the deceased, along with Poona Ram while coming to the Dhani of P.W. 3 Kumbha in the morning after having a cup of tea with P.W. 6 Mota Ram, were seen by the accused persons and they managed to conceal their presence in the Raida crop standing there and when the deceased and P.W. 1 Poona Ram came near to them, they appeared and inflicted several lathi blows on the person of the deceased Uda Ram, as a result of which he died.
35. The statement of P.W. 7 Ghewar Ram is also relevant for the purpose to examine enmity between accused persons and deceased Uda Ram. A certified copy of the judgment and decree Exs. P/11 and P/12 has been placed on record which shows that there was dispute in relation to agriculture land between the deceased Uda Ram and father of accused Anda Ram and another accused Dhanna Ram is the cousin of Anda Ram. In view of the agriculture land dispute of partition between the family of accused persons and the deceased, it is quite probable that the accused persons have committed murder of Uda Ram to get rid of him.
36. After a careful scrutiny of the statements of P.W. 1 Poona Ram, P.W. 3 Kumbha Ram and P.W. 6 Mota Ram, and the statement of P.W. 7 Ghewar Ram, it appears that their evidence is trustworthy and reliable. In this case, though the SHO Moti Singh, who has investigated the matter, has died and therefore the prosecution could not produce him as a witness, but P.W. 8 Kishna Ram, Constable, who has prepared the memos and site plans of the case, has proved the same.
37. It shall be relevant to mention here that in the statement of P.W. 1 Poona Ram it has come that accused persons by removing the dhoti of Uda Ram made him naked and the threw the dhoti in the Raida crops near the way. P.W. 3 Kumbha Ram has also stated that accused persons, after giving beatings to the deceased, took dhoti of the deceased with them and threw it in the field of Chuna Ram. If the incident would have taken place where the dhoti was found then definitely blood should have been found there but no blood has been found from the place where the dhoti has been recovered. On the contrary, the blood, has been found where the dead body was lying. Thus, it appears that the accused persons after inflicting lathi blows when found that Uda Ram was dead, they removed dhoti from his person and the same was taken and thrown by them in the field of Chuna Ram.
38. In view of the discussed position of evidence, we do not find any merit in the contentions raised by the learned counsel for the accused-appellants.
39. It has also been contended by the teamed counsel for the accused-appellants that investigation is faulty inasmuch as that when the stones found stained with blood were seized and sealed at the spot then it was the duty of the investigating agency to have made investigation regarding finger prints on them to find out whether they were of the accused persons or some other persons and therefore the evidence of P.W. 1 Poona Ram and P.W. 3 Kumbha Ram is of no significance for connecting the accused with the incident. We do not find any merit in this contention of the learned counsel because firstly, in present case the incident has been witnessed by the eye witnesses and it is not a case of circumstantial evidence, and secondly if no investigation was made to find out as to whose finger prints were there on the stones seized by the police, then it cannot be a ground to discard the testimony of eye-witnesses.
40. It has been contended that in the present case, the evidence of P.W. 1 Poona Ram cannot be said to be reliable for the reason that in the first information report Ex. P/1 it has not been stated that accused persons pelted stones and inflicted injuries by stones on the person of the deceased. It has further been contended that in the statement of P.W. 3 Kumbha Ram it has been stated that Poona Ram (P.W. 1) came running to his Dhani from the spot whereas in the statement under Sec 161, Cr. P.C. he has stated only that Poona Ram came to him running at his Dhani, therefore, there is variance in the statements of P.W. 1 and P.W. 3 and the above differences are material, therefore, their evidence is not required to be considered as trustworthy. It has also been contended that in the present case in the absence of motive and in view of material contradictions, the evidence of the eyewitnesses is not trustworthy, therefore, the conviction recorded by the learned trial Court deserves to be set aside.
41. We have considered the above submissions made by the learned counsel for the appellants. It is correct that in Ex. P/1, written report submitted by P.W. 1 Poona Ram, it has not been specifically mentioned that stones were pelted at the deceased Uda Ram or any injury by stone was inflicted on the person of Uda Ram but it is not a material omission because this in our opinion does not discredit the credibility of the eyewitnesses, particularly when P.W. 1 Poona Ram was not confronted with Ex. P./1. Therefore, the contention is not liable to be accepted. Though it is correct that there are some omissions and contradictions in the statements recorded under Section 161, Cr. P.C. and the statement recorded in the Court but the omissions and contradictions are of minor nature.
42. In the last it has been contended that the present case is one, if at all considered to be proved, which falls under Part II of Section 304 of the IPC because the injuries are only bruises and simple in nature. The learned counsel, in this connection, has placed reliance on the decisions rendered in the cases of Rewa Ram v. Teja, 1998 SCC (Cri) 1350 : (1998 Cri LJ 2558)’and Gurmail Singh v. State of Punjab, .
43. In the case of Rewa (1998 Cri LJ 2558) (supra), the Hon’ble Apex Court while appreciating the evidence found that there was lack of evidence to show who caused the fatal injury to the deceased and in such circumstances of the case held that the High Court rightly convicted the accused persons under Section 326 of the IPC.
44. In the case of Gurmail Singh (1982 Cri LJ 1946} (supra), no animosity between accused and the deceased was found and though the injury was sufficient in the ordi-nary course of nature to cause death, the intention to cause death was missing. In those circumstances, the Hon’ble Court held the accused liable to be convicted under Section 304, Part II of IPC.
45. Keeping in mind the principles laid down by the Hon’ble Apex Court, if we go through the postmortem report Ex. P/35, we find there as many as 23 injuries, which are abrasions, multiple abrasions, bruises and swelling on left parieto-temporal region of the scalp caused by lathi blows. On opening the scalp, the doctor found haematoma on the left parieto temporal region of the scalp and below it in the left side found fracture of left parieto temporal bone with sub-dural haematoma and more marks on the left half hemisphere of brain. He also found on opening of chest the fracture of 3, 4, 5 and 6th ribs on the right side anterior laterally with muscular haematoma and fracture of 2, 3, 4, 5 &, 6th ribs on the left side anterior laterally with perforation of left lung at two places each of 1 cm x 1 cm x 1 cm which resulted due to fracture of 2 & 3rd ribs. He also found blood inside the plural cavity about 600 ml. Taking into consideration the number of injuries and also taking into consideration that the accused persons had the intention to cause death as has been found that when they saw P.W. 1 Poona Ram and the deceased Uda Ram coming from the Dhani of P.W. 3 Kumbha Ram they concealed their presence and hid themselves in the field of Chuna Ram where the Raida crop was standing and when deceased Uda Ram and Poona Ram came near to them, they started inflicting lathi blows one after another and thereby caused multiple injuries due to which the deceased died because most of his ribs were fractured, left lung was punctured and there was fracture on the left parieto-temporal region. According to the opinion of the doctor, the injuries were sufficient in the ordinary course of nature to cause death. Thus, in the facts and circumstances of the present case, we are of the opinion that the present case is not one which falls under Part II of Section 304, IPC but is one where on the basis of evidence and the manner in which the deceased has been done to death, the only inference which can be drawn is that the accused had the intention to kill deceased Uda Ram.
46. In view of above discussed position, the contentions of learned counsel for the accused-appellants are not liable to be accepted.
47. As regards the contention regarding absence of motive is concerned, the evidence of the eye-witnesses which is trustworthy, cannot be disbelieved. It is further to be seen that Exs. P/11 and P/12, the certified copy of the judgment and decree placed on record indicates that there was dispute regarding division of agriculture land between accused persons and the deceased. If that is so, then it cannot be said that motive is missing in the present case. It will not be out of place to mention here that motive is not relevant in criminal cases. In absence of motive, when reliable and unimpeachable evidence of eyewitnesses having been brought on record, only on account of absence of motive their evidence cannot be rejected. We do not find merit in the contention raised by the learned counsel for the accused-appellants regarding motive also.
48. In the present case, the other evidence is regarding recovery of lathis at the information and instance of the accused but in our considered opinion this evidence is not of much significance for the simple reason that blood was not found on them. The prosecution has adduced evidence regarding sending material recovered in the case and the clothes etc. of the deceased to the Forensic Science Laboratory. The link evidence has also been adduced in the case which shows that the recovered articles were kept intact in the Malkhana of the police station concerned and the seals were found intact till it reached the FSL.
49. In the present case, as discussed above, the evidence of P.W. 1 Poona Ram and P.W. 3 Kumbha Ram is decisive for proving the guilt of the accused persons provided the same is found to be reliable and trustworthy. The evidence has been discussed in detail hereinabove and we have found the evidence of the eye-witnesses of the case P.W. 1 Poona Ram and P.W. 3 Kumbha Ram to be trustworthy and reliable and the minor contradictions pointed out are of no significance. The statement of P.W. 6 Mota Ram corroborates the testimony of two eye-witnesses P.W. 1 Poona Ram and P.W. 3 Kumbha Ram. The learned Sessions Judge has considered the evidence in detail and has given the reasons for placing reliance on the testimony of the eye-witnesses. There appears to be no reason to differ from the findings of guilt recorded by the learned trial Court.
50. In view of foregoing discussions, we find no error in the impugned judgment and order passed by the learned trial Court which may require interference by this Court.
51. Accordingly, this appeal is hereby dismissed after confirming the judgment and order dated 29-6-2000 passed by District & Sessions Judge, Jodhpur in Sessions Case No. 33/1998 — State v. Anda.