JUDGMENT
Jagat Singh, J.
1. This appeal has been filed under Section 374(2), Cr. P.C. against the judgment and sentence dated 20-1-1996 passed by Additional Sessions Judge, Nagaur. By the impugned judgment the learned Court below has convicted accused Sher Singh under Section 302, IPC and co-accused Bhanwara Ram alias Bhanwarlal and Pappu Singh under Section 302 read with Section 34, IPC and sentenced all of them imprisonment for life with a fine of Rs. 500/-. All these accused appellants have been convicted under Section 447, IPC also and were sentenced to undergo three months’ rigorous imprisonment with a fine of Rs. 50/- each.
2. Concise facts are that on 4-11-1994 at about 5.30 p.m. Pusaram PW-5 along with his mother PW-8 Gora Devi and wife PW-11 Rukma Devi along with Dhanna Ram were present in their field near about their dhani situated in the outskirts of village Ladia District Nagaur. All the three accused appellants Sher Singh, Bhanwara Ram and Pappu Singh came there armed with lathis and said that enemies were standing, kill them. Thereupon Sher Singh gave a lathi blow near right ear of Dhanna Ram with intention to kill him. Bhanwara Ram gave a lathi blow on the waist of Dhannaram with intention to kill him. Pappu Singh accused armed with a lathi kept standing nearby and threatening that if anybody happens to come nearby he too will not be spared. Dhanna Ram, after being injured, fell unconscious and all the three witnesses mentioned above raised alarm. Thereafter the trio made good their escape. About 20-25 minutes thereafter Satu PW-15 and Ram Singh PW-17 came on the scene of occurrence and injured Dhanna Ram was taken to the dhani of the complainant who died there. Upon it Malar am PW-4 was sent to Bajju and Bikaner to inform and bring Prema Ram PW-6, Ganesha Ram PW-7 and Chuna Ram PW-14, other sons of deceased Dhanna Ram.
3. On 5-11-1994 at 6.00 p.m. a written report Ex. P/1 was lodged before the Station House Officer. Shree Balajee and thereafter usual investigation took place in which PW-19 Ishwar Singh went on the site, prepared memos Ex. P/8 to Ex. P/12. Postmortem of the dead body was conducted by PW-20 Dr. Surajmal Mishra. Accused appellants were also apprehended on 9-11-1994. They gave disclosure statements under Section 27 of the Indian Evidence Act on 12-11 -1994 and lathis were recovered and seized in pursuance thereof.
4. In the trial Court prosecution examined 20 witnesses and exhibited 21 documents. After relying upon the testimony of PW-5 Pusa Ram, PW-8 Gora Devi and PW-11 Rukma Devi as also the postmortem report Ex. P/18 and testimony of PW-20 Dr. Surajmal Mishra learned trial Court convicted and sentenced the accused appellants as stated above.
5. We have perused the impugned judgment as also the evidence ocular and documentary available on the file and have heard at length Mr. Doongar Singh, learned defence counsel as also Shri Panney Singh, learned Public Prosecutor.
6. The first submission of Mr. Doongar Singh, learned defence counsel was that the occurrence took place on 4-11 -1994 at about 5.30 p.m. whereas the first information report Ex. P/l was lodged at 6.00 p.m. on 5-11-1994 and the delay of more than 24 hours has not been explained. The first information report Ex. P. 1 was also got written through PW-1 Kishan Gopal who was a practicing Advocate at Nokha Mandi and, therefore, the possibilities of embellishment, concoction and exaggeration cannot be ruled out. In order to appreciate this contention we have perused the first information report Ex. P/1 as also the statement of PW-5 Pusa Ram.
7. First information report Ex. P/1 itself has explained the delay caused in filing it.; PW-5 Pusaram has also stated that he was an illiterate person and that his brothers Prema Ram, Chuna Ram and Ganesha Ram were literate one and were employed in Bajju and Bikaner, therefore, he thought it proper to Intimate them and upon their arrival the first information report was lodged immediately. Though PW-5 Pusaram as also Prema RamPW-6, ChunaRamPW-14andGanesha Ram PW-7 have also been cross-examined at length on this point but nothing substantial could be elicited out of them affecting adversely the case of the prosecution. Even if the first information report Ex. P/1 was got written through PW-1 Kishan Gopal advocate that by itself will not damage prosecution case because the contents of Ex. P/1 makes it clear that no exaggeration or embellishment seems to have been made in it.
8. PW-1 Kishan Gopal in his cross examination has deposed that Pusaram was not his client who came to his house along with one or two persons. What was stated by Pusaram was got written in Ex. P/l. Not even a bald suggestion was made to PW-1 Kishan Gopal that Ex. P/1 was not the true version of the occurrence or that exaggerations and embellishments were made in it at the instance of this witness. Even PW-5 Pusaram was not cross-examined on this aspect. No suggestion to the above effect was put to him that Ex. P/1 did not contain the true version of the occurrence. PW-5 Pusa Ram has stated in the cross-examination that it was at the instance of Mota Ram and other villagers that he thought it proper to call his literate and employed brothers before lodging the first information report.
9. According to first information report Ex. P/1, Sher Singh gave a lathi blow above right ear of Dhanna Ram and Bhanwara Ram gave a lathi blow on the waist of Dhanna Ram whereas Pappu Singh remained standing nearby armed with a lathi giving threatening to Pusaram and both the lady witnesses i.e. PW-8 Gora Devi and PW-11 Rukma Devi that if any of them will come nearby they too will be dealt with severely. The afore-stated text of Ex. P. 1 makes it cleat that the basic necessary facts were written in it and it does not contain any exaggerated versions nor there were any embellishments in it.
10. The Apex Court in Ramamurti v. State of Haryana AIR 1976 SC 2455 : (1976 Cri LJ 1888), Aprin Joseph v. State of Kerala AIR 1973 SC 1 : (1973 Cri LJ 185) and in a catena of judgments has held that the delay in lodging first information report and the explanation given for delay may not appear very satisfactory but that cannot by itself be a ground for disbelieving the prosecution evidence. Therefore, the first submission is devoid of merit.
11. Another contention of Mr. Doongar Singh, the learned defence counsel, was that the eye witnesses account of PW-5 Pusa Ram, PW-8 Gora Devi and PW-11 Rukma Devi is contrary to the medical evidence deposed by PW-20 Dr. Surajmal Mishra. While eye witnesses alleged only two injuries caused by the two accused appellants Sher Singh and Bhanwara Ram whereas the doctor found six injuries on the dead body as per postmortem report Ex. P/18.
12. We have also given our due consideration to this contention and found that though in the post-mortem report Ex. P/18 as proved by PW-20 Dr. Surajmal Mishra six injuries were found on the body of decesed Dhanna Ram and the remaining three injuries were the out come of injuries Nos. 1 to 6. Injuries Nos. 1 and 2 were on the right side of the head whereas injury No. 3 was a haematoma on the left side of the head. Injuries Nos. 1 and 2 could be caused by a single blow whereas injury No. 3 could be the result of injuries Nos. 1 and 2. Similarly, injuries NosM- to 6 were only the abrasions and caused by blunt weapon. Even assuming that the accused persons have given more than one blows that by itself will not falsify the prosecution version because PW-5 Pusa Ram, PW-8 Gora Devi and PW-11 Rukma Devi may have seen the occurrence from a little distance and may not have been able to count the blows given by the accused persons.
13. PW-5 Pusa Ram in his cross-examination has stated that his father and mother were grazing the cows about 30-35 steps away from the Dhani. At the time of occurrence the cows were to be tied down and being old and aged person father Dhanna Ram deceased as also mother Gora Devi PW-8 were not physically capable to do the same. PW-5 Pusa Ram along with PW-11 Rukma Devi went towards the place of occurrence to tie down the cows and at that time accused persons came from the side of Village armed with lathis and committed the crime. In, such a situation even if in first information report Ext. P/l as also in their statements PW-5 Pusa Ram, PW-8 Gora Devi and PW-11 Rukma Devi have deposed only inflicting one blow each by Sher Singh and Bhanwara Ram that by itself will not render them unreliable if six injuries were found on the deceased person.
14. In Bajwav.State of U.P.,AIR 1973 SC 1204 : (1973 Cri LJ 769), Hon’ble Supreme Court has held that mere fact that in a murder case the evidence of eye-witness is inconsistent with the medical evidence will not by itself render the former unreliable. Similarly, in Mohan Singh v. State of M.P. AIR 1999 SC 883 : (1999 Cri LJ 1334), the Apex Court held that mere variance of the prosecution story with the medical evidence, in all cases, should not lead to the conclusion, inevitably to reject the prosecution story. Efforts should be made to find the truth which is the very object for which Courts are created. The Courts has to disperse the suspicious cloud and dust out the smear clogging the very truth. If in spite of such efforts, suspicion is not dissolved, it remains writ at large, benefit of doubt has to be given to the accused. For this one has to apprehend the totality of the facts and circumstances as spelled out through the evidence et al. Therefore, this contention of the learned counsel also does not stand scrutiny.
15. The third contention of the learned defence counsel was that the testimony of PW-5 Pusaram, PW-8 Gora Devi and PW-11 Rukma Devi is tainted and not reliable being close relative of deceased. We are not convinced with this contention either. Because it is not the law that evidence of relative witnesses should be equated with that of a tainted evidence or that of an approver so as to require corroboration as a matter of necessity. Though the evidence of a relative witness should be scrutinised with care and caution but that by itself will not suffer from any infirmity. Once that approach is made and the Court is satisfied that the evidence of such a witness have a ring of truth the relative witness can be relied upon even without corroboration. In this respect Apex Court pronouncement of Sarwan Singh v. State of Punjab AIR 1976 SC 2304 : (1976 Cri LJ 1757); Dalbir Kaurv. State of Punjab AIR 1977 SC 472 : (1977 Cri LJ 273) and Hukum Singh v. State of Rajasthan (2000) 7 SCC 490 : (2000 AIR SCW 4416), among other can be referred to.
16. Keeping in view the aforestated legal requirements not only the trial Court but we have also scrutinised the testimony of PW-5 Pusaram. PW-8 Gora Devi and PW-11 Rukma Devi with utmost care and caution.All these three witnesses have withstood the test of cross-examination. Though they have been examined at length yet nothing substantial could be elicited affecting their testimonial value adversely.
17. PW-5 Pusaram has deposed before the trial Court in confirmity with first information report Ex.P/1 lodged by him. No portion in his statement given under Section 161, Cr. P. C. was confronted or contradicted by defence counsel. Some immaterial omissions were pointed out which were not germane to the charges framed against the accused persons. The so-called omissions pointed out to PW-5 Pusaram were that from Navratri to Deepawali accused persons and the family of deceased were not in speaking terms. The above fact was also told to the police but somehow it has not been mentioned in Ex. P/1. In our view the aforesaid omission was insignificant and cannot adversely affect the testimonial value of PW-5 Pusaram.
18. PW-18 Gora Devi has not been cross-examined at length though she has implicated all the three accused persons in the crime. She too has not given any statement contradictory to her police statement nor any such portion has been confronted to her.
19. Similarly, PW-11 Rukma Devi has deposed in the trial Court that Pappu Singh accused at the time of occurrence uttered “MAARDO-MAARDO” which fact was not found mentioned in her police statement Ex.D/2. The other omissions referred to in her cross-examination were also not relating to the actual crime committed but with regard to extraneous matters whether Motaram was requested to take the deceased to hospital or not. The only contradictions confronted to this witness is at place ‘A’ to ‘B’ in Ex.D/2 which was that according to police statement this witness stated that they were standing towards east north of their dhani whereas in the trial Court she stated that after tying the animals she along with her husband was coining back when occurrence took place.
20. When in first information report Ex. P/1 the presence of these three witnesses is mentioned that they were standing in the field towards north east side of their dhani then it becomes immaterial whether the witnesses were looking after their cows or doing some sundry farm work. The trial Court has believed the presence of these witnesses on the place of occurrence and rightly so. Therefore, this submission of the learned defence counsel does not find any merit.
21. Another contention of the learned defence counsel was that though the factum of enmity has been mentioned in the first information report Ex.P/1 but no details of the said enmity were either specified in Ex.P/1 or in the statements of PW-5 Pusaram, PW-8 Gora Devi and PW-11 Rukraa Devi nor any document to the above effect has been submitted in the trial Court, Even PW-19 Ishwar Singh, Investigating Officer has not probed with regard to the alleged enmity nor has he deposed anything about the enmity. It seems that the scribe of first information report Ex./PI is Kishan Gopal PW-1 who was a practicing advocate and it was not written about 24 hours after the occurrence, therefore, perhaps the word ‘enemy’ in the first information report may have been falsely incorporated in it else details of enmity must have been mentioned to the Investigating Officer during investigation or in the trial Court. When all the three accused are not of one family and accused Bhanwara Rain was of different caste and they were in the late teens, it does not appeal to reason of their having any enmity with deceased Dhanna Ram aged about 70 years. To err on the safer side we are of the view that enmity between the parties has not been found proved.
22. Even if enmity is not proved that by itself will not diminish the probative value of the prosecution witnesses. Because the crimes often have been committed at the spur of moment and without any motive or premeditation. The presence of accused persons on the place of occurrence on the day and time of committing crime was even admitted by Pappu Singh accused-appellant in his statement under Section 313, Cr.P.C. In reply to last question he admits that on the eve of Deepawali day for “Rama-Shyama” purposes he was coming through the field of deceased Dhannaram and Bhanwara Ram was behind him when Dhannaram deceased abused them, there was scuffle with Dhannaram. In the meanwhile Pusaram PW-5 hurled lathi blow towards accused persons which accidently struck Dhannaram injuring him. PW-5 Pusaram and PW-11 Rukraa Devi have also been put suggestions in their cross-examination to the above effect which were denied by them. Though such suggestion were also made to PW-19 Ishwar Singh, Investigaing Officer, which were denied by him, yet we do no find a ray of truth in it because had it been so PW-5 Pusaram should not have been cross-examined to the effect that the accused persons have not been permitted to eat ‘BORE” fruit or that when accused persons were trespassing through the field of Dhannaram deceased they were abused by latter resulting in the scuffle. The many fold suggestions put in cross-examination of PW-5 Pusaram falsifies the defence version stated by accused Pappu Singh in his statemen under Section 313, Cr.P.C. else there should have been one single suggestion in cross-examination not only to PW-5 Pusaram but also to PW-11 Rukma Devi.
23. Had there been any “pagdandi” from the field of deceased Dhannaram, it should have been shown by Investigating Officer PW-19 Ishwar Singh in site plan maps Ex. P/8 and Ex.P/9 or at least some questions to the above effect may have been put to the Investigating Officer in cross-examination. v Sans it the defence version that the accused persons were going through “pagdandi” cannot be believed. It seems that the accused persons were trespassing through the field of deceased Dhannaram in which bajra. crop was standing and when it was objected to by the deceased he was attacked. Be that as it may not only by the prosecution evidence, ocular and documentary, referred above but by admission of accused Pappu Singh in his statement under Section 313, Cr.P.C. it is proved that the occurrence took place on the date, time and place and manner stated by the prosecution.
24. The last contention of the learned defence counsel was that there being no enmity between the parties and no motive to commit murder of Dhannaram, at the most offence under Section 304, Part-II, IPC may have been committed by Sher Singh and that of 325, IPC may have been committed by accused Bhanwara Ram. Pappu Singh was though with them but has not taken any part in the occurrence.
25. We have given our earnest consideration to this contention also. In the first information report Ex. P/1 itself it has been mentioned that: Sher Singh gave a lathi blow near the right ear of Dhannaram whereas Bhanwara Rain gave a lathi blow on the waist of Dhannaram and Pappu Singh remained standing with a lathi in hand uttering that let anybody corne near and face the consequences. Though Ex.P/1 was scribed through PW-1 Kishan Gopal advocate after 24 hours of the occurrence, it does not contain exaggerations or embellishments. Even in statement Ex. D/l given under Section 161, Cr.P.C. Pusaram has in verbatim repeated his version of Ex.P/1. In the trial Court too PW-5 Pusaram, PW-8 Gora Devi and PW-11 Rukma Devi have also deposed that Slier Singh has given one lathi blow near right ear of Dhannaram whereas Bhanwara Ram gave a lathi blow on the waist of Dhannaram. PW-8 Gora Devi as also PW-11 Rukma Devi have not deposed in the trial Court that Pappu Singh has uttered that if anybody came nearby he will be severely dealt with. Both these witnesses have deposed that all the three accused persons came from the side of village armed with lathis. Therefore, participation of Pappu Singh in the crime has not been proved by the prosecution. His presence at the place of occurrence by itself cannot incriminate him in the crime unless some overt act is attributed and proved against him.
26. The Apex Court in Suresh v. State of U.P. 2001 (3) JT 336 : (2001 Cri LJ 1462) relying upon many other pronouncements of Apex Court has held that Section 34 lays down the rule of joint responsibility for criminal act performed by a plurality of persons and even mere distance from the scene of crime cannot exclude the culpability of the offence. Criminal sharing, overt or covert, by active presence or by distant direction making out a certain measure of jointness in the commission of the act is the essence of Section 34. The “act” mentioned in Section 34 includes a series of acts as a single act. The acts committed by different confederates in the criminal action may be different but all must in one way or the other participate and engage in the criminal enterprise. Even a person not doing any particular act but only standing guard to prevent any prospective aid to the victims may be guilty of common intention. Relying on Ramaswami Ayyangar v. State of Tamil Nadu AIR 1976 SC 2027 : (1976 Cri I.J 1563), the Apex Court was of the view that the presence of those who in one way or the other facilitate the execution of the common design itself tantamount to actual participation in the “criminal act”. The essence of Section 34 is simultaneously consensus of the minds of persons participating in the criminal action to bring about a particular result.
27. In the matter at hand though name of Pappu Singh along with other two co-accused was mentioned in the first information report as also by the prosecution witnesses PW-5 Pusaram, PW-8 Gora Devi and PW-11 Rukma Devi, but nowhere it has been indicated that Pappu Singh participated in the commission of crime. Utterance attributed to Pappu Singh in first information report Ex. P/1 and also in the statement of PW-5 Pusaram that enemies are standing, kill them, has not been supported by PW-8 Gora Devi and PW-11 Rukma Devi. Though in his statement under Section 313, Cr.P.C. Pappu Singh has admitted that he along with Bhanwara Ram was going through the field, when Dhannaram deceased objected and had scuffle with them PW-5 Pusaram came with a lathi and hurled towards accused person which accidently fell on the head of deceased. The above assertions of Pappu Singh at least proves this fact that he too was present along with other accused person on the site when crime was committed. However, unless and until his overt act and covert act as alleged in the first information report were proved he cannot be held liable with the aid of Section 34, I.P.C. The trial Court had not appreciated the matter in right perspective by convicting Pappu Singh who deserves acquittal.
28. So far as Bhanwara Ram accused is concerned, according to first information report Ex.P/1 as also according to PW-5 Pusaram, PW-8 Gora Devi and PW-11 Rukma Devi, he gave a single blow on the waist of Dhannaram which according to PW-20 Dr. Surajmal Mishra was a simple and blunt injury. While proving the post-mortem report Ex. P/18 Dr. Surajmal Mishra deposes that the deceased had injuries Nos. 4, 5 and 6 as bruises on left knee, on back right side and on back over vertebra column. All the three injuries were simple and caused by blunt weapon. Therefore, this accused could have been convicted under Section 323, IPC. Nowhere it has been indicated nor proved that this accused had any conspiracy to kill Dhannaram nor any such pre-plan or conspiracy was made at the place of occurrence itself. Even according to the prosecution story the so-called scuffle and fight erupted on the spur of moment without any pre-plan or premeditation. Therefore, conviction of accused Bhanwara Ram under Section 302/34, IPC by the Court below was also not proper. He could at the most have been convicted under Section 323, IPC.
29. So far as accused Sher Singh is concerned, as stated above the occurrence took place on the spur of moment. When the accused persons were going to the village through the bajra crop of deceased, it was objected by Dhannaram and a scuffle ensued in which at the spur of moment the occurrence took place and Sher Singh gave one lathi blow on the head of Dhannaram which proved fatal.
30. The Apex Court in Masumsha Hasansha Musalman v. State of Maharashtra AIR 2000 SC 1876, held that where only one serious injury was caused by the appellant to the deceased while all other injuries could have been caused during the scuffle, the probability that while injury No. 1 could have been inflicted by the appellant injuries Nos. 2 and 3 could have been caused in the course of scuffle cannot be ruled out. In this view of the matter the accused could have been convicted only for culpable homicide not amounting to murder punishable under Section 304 Part-II, IPC and not under Section 302, IPC.
31. In Camilo Vaz. v. State of Goa AIR 2000 SC 1374 : (2000 Cri LJ 1816), accused persons were armed with dandas, bottles and cycle chains came to complainant party for giving sound beating. No intention on the part of accused to kill anyone could be inferred. Factum of enmity was not mentioned in the first information report. In such circumstances when accused hitting victim a danda blow on vital part of body with force he cannot be convicted under Section 302 but his case would fall in Part-II of Section 304, IPC because he had knowledge that the blow intended by him was likely to cause death.
32. In Bherav. State of Rajasthan (2000) 10 SCC 225, the Apex Court was of the view that where there was absence of intention to cause murder and where there was quarrelling between the accused and the deceased and in anger the accused suddenly brings out a knife giving blow on the chest of deceased resulting in his death, it cannot be said that requisite intention of causing murder was there. Hence, offence would be one under Section 304 Part-II IPC and not under Section 302, IPC.
33. In K. Ramakrlshanan Unnithan v. State of Kerala AIR 1999 SC 1428 : (1999 Cri LJ 2101), a single blow caused by accused was found quite severe resulting into his death. The accused was having no animosity towards the deceased and was involved because of altercations with the son of deceased. Scenario at the time of occurrence was not showing that he had intention of requisite knowledge to cause murder, accused was convicted under Part-II of Section 304, IPC for culpable homicide not amounting to murder rather than murder.
34. Keeping in view the aforestated legal aspects in mind accused Sher Singh has been wrongly convicted under Section 302, IPC. The offence caused by Sher Singh at the most could be under Part-II of Section 304, IPC.
35. For the reasons stated above, we accept this appeal in part, set aside the conviction and sentence awarded by trial court and convict accused Pappu Singh only for offence under Section 447, IPC, accused Bhanwara Ram for offence under Sections 323 and 447, IPC and accused Sher Singh under Sections 304, Part-II and 447, IPC. Accused Sher Singh is in custody since 9-11-1994. He has already undergone more than five years’ sentence. We deem it proper to award him the sentence already undergone. If not required in any other offence, he be released forthwith. Similarly, accused Bhanwara Ram and Pappu Singh have also undergone sentences of more than two years. They are also sentenced for the period they have already undergone. Both these persons are on bail. Their bail bonds stand cancelled. The judgment and order of the trial court stands amended to the above effect.