JUDGMENT
Gopal Krishna Sharma, J.
1. The appellans have preferred this appeal against the judgment dated 14-6-1978, passed by the Sessions Judge, Jaipur District, Jaipur, by which the Sessions Judge found the appellants guilty of the offence and sentenced them as under:
2. Appellants Bhawani Shankar and Radha Kishan were convicted under Sections 302 and 307, IPC and sentenced each appellant to life imprisonment for the offence under Section 302 IPC and 4 years’ rigorous imprisonment and a fine of Rs. 100/-, in default of payment of fine, to further undergo. 1 month’s R.I. for the offence under Section 307, IPC. The accused-appellants Mahaveer Prasad and Bala Sahai were convicted under Sections 302/34, IPC and sentenced each appellant to life imprisonment. They were also found guilty of the offence under Sections 307/34, IPC and sentenced each to 4 years’ R.I. and a fine of Rs. 100/-, in default of payment of fine, to further undergo one month’s R.I.
3. According to the prosecution story Jagdish Prasad PW 1 lodged a written report on 26-2-1977 alleging that on 25-2-1977 at 7 p.m. he came from Bad Nagar to his village Panchudala and there he saw that Mst. Mooli had been murdered and Suresh Chandra s/o Ganpatram was seriously injured. The injured Suresh Chandra narrated to him the incident and told him that Bala Sahai and his sons Mahaveer Prasad, Kashinath and Bhawani Shankar inflicted injuries by knife on both of them. On account of these injuries Mst. Mooli died on spot. It was mentioned in the report that this incident took place at 6.30 p.m. and Suresh has been admitted in the hospital at Kot Putli. On this report the S.H.O., Virat Nagar registered the case under Sections 302/307, IPC and started the investigation. The accused persons were arrested and some recovery of the articles was made at their instance on their information. The injuries of Suresh Chandra were got medically examined by the doctor. The Magistrate recorded the dying-declaration of Surseh Chandra. The site-plan was prepared and the post-mortem on the dead body of Mst. Mooli was conducted which is Ex. P 7. According to the post-mortem report Mst. Mooli had six stab wounds, three bruises and two abrasions on her body. According to doctor the cause of death was asohyxia due to collapse of lungs caused by multiple stab wounds and shock due to multiple injuries to thorax and abdomen. After completing the investigation the Police found that the name of Kashinath has been mentioned in the report Ex. P 1 incorrectly. Actually Radha Kishan was one of the assailant and hence the challan was submitted against the appellants.
4. The learned Sessions Judge framed charges against the appellants who pleaded not guilty and claimed trial. The accused-persons have denied the allegations made in the charge-sheet. Their case is that on account of enmity and litigation pending between Jagdish Prasad and Bala Sahai, they have been falsely implicated in this case. It was also contended by the accused Bala Sahai that there is a dispute with Sita Ram witness about some monetary transaction. The witness Narain Singh is the partner of Mst. Mooli and for that he has given the false evidence. There is also dispute with witness Rameshwar. Thus all the prosecution witnesses are on inimical term and hence they have appeared in evidence against them.
5. The prosecution has examined 18 witnesses to establish the case against the appellants. The learned Sessions Judge after concluding trial found that the prosecution has established its case against the appellants and found them guilty and sentenced them as mentioned above.
6. The learned Counsel for the appellant has argued that the report Ex. P 1 has been lodged by Jagdish, who is not an eye-witness. The injured Suresh Chandra gave him the information about this incident and on the basis of this information the report has been lodged. With regard to this it was argued that from the evidence on record it has been proved that injured Suresh Chandra did not give any information to Jagdish Prasad PW 1. Jagdish Prasad has no basis to lodge this report. The incident took place on 25-2-77 at 6.30 p.m., but the report has been lodged on 26-2-77 at 10. a.m. Thus there is delay in lodging this report. The explanation given by the prosecution regarding delay in lodging the report is not a believable explanation. The explanation for this delay in lodging the report by Jagdish Prasad Sharma is also a false explanation. Therefore, there is suspicion in the correctness of this report.
7. It was also argued on behalf of the appellant that in the report Ex. P 1, Jagdish Prasad has not mentioned the names of the eye-witnesses who had witnessed this incident. Therefore, the eye-witnesses have been made out witnesses and their testimony should be discarded. The learned Public Prosecutor has replied that after submitting the report Ex. P 1, the S.H.O. made an endorsement on the back of the report and in that “Karvahi Police”, he has mentioned that Sita Ram and Mahadev are the eye-witnesses. This fact has been stated by Jagdish Prasad informant. It was also argued that Jagdish Prasad has given explanation for delay in lodging the report and this explanation is sufficient explanation.
8. It was also argued on behalf of the appellants that the alleged eyewitnesses are not independent witnesses, but they are all relative and interested witnesses. The prosecution has not examined any independent or neighbour witness. Hence the statement of these witnesses should not be believed. The learned Public Prosecutor replied that they are not interested witnesses. They have been named in the report Ex. P 1. It was also argued that even the statement of Suresh Chandra, injured PW 2, is sufficient to convict the accused-persons. The solitary statement of Suresh Chandra PW 2 is sufficient to convict the accused-appellants.
9. We have considered the arguments advanced by both the learned Counsel and also minutely gone through the statement of all the prosecution witnesses. In this case Jagdish Prasad PW 1, the informant of report Ex. P 1, Suresh Chandra Sharma PW 2, the injured and son of deceased of Mst. Mooli, Mahadev Prasad PW 3, who is the father of Jagdish Prasad PW 1, Rameshwar PW 9, Narain Singh PW 10 and Sita Ram PW 11 are the most important and material witnesses.
10. Jagdish Prasad PW 1, who lodged the report Ex. P 1 has stated that in the evening at 7 p.m. he came from the school to his house when he saw Mst. Mooli lying dead. Suresh was also lying seriously injured. By the side of the dead-body Mahadev Prasad, Sita Ram, Narain Singh and Rameshwar were sitting. He enquired from them about the incident and they fold him that Bala Prasad and his sons had murdered Mst. Mooli. They gave the names of his sons also. Suresh smeared with blood was lying in an unconscious state. Suresh was taken in the bus to Kotputli by some persons and was admitted in the hospital. He then went to purchase medicine. Narain Singh and Ram Swaroop accompanied him to Kotputli hospital. After arranging for medicines he went to inform the brother of Suresh at Khetri. From Khetri he returned next day in the morning at 6 a.m. and then he went to Thana, Virat Nagar where he submitted the report Ex. P 1. Thus, according to his statement, he was informed about this incident by Mahadev Prasad, Sita Ram, Narain Singh and Rameshwar. He has not stated that Suresh Chandra injured gave him the information about this incident. According to his statement Suresh Chandra was lying unconscious, so there was no question of giving away information by Suresh Chandra. But in the report Ex. P 1, Jagdish has not mentioned that Mahaveer Singh, Sitaram and Rameshwar gave him this information about the incident. According to this report Ex.P 1, Suresh narrated him the story and on the basis of information given by Suresh he lodged this report. This difference in the statement as well as report Ex. P 1, proves that Jagdish Prasad Sharma PW 1 is a false witness. The report Ex. P 1 is not correct report. He has not mentioned in the report that Mahaveer Prasad, Sitaram, Narain and Rameshwar were eye-witneeses. In the ‘Karvahi Police’ it has been mentioned that Jagdish Prasad told the SHO that Sita Ram and Mahadev Prasad are the eye-witnesses. There too he has not named Narain Singh and Rameshwar as eye-witnesses. So in the report itself Jagdish Prasad has not mentioned the names of the eye-witnesses. In the ‘Karvahi Police’ he named only two eye-witnesses and did not name Narain Singh and Rameshwar. Thus Narain Singh & Rameshwar are not witnesses to this incident. They might have been present on the spot when Jagdish Prasad arrived there, but they had not seen the incident. Thus these two witnesses Rameshwar and Narain Singh have been made out witnesses. As alleged by the accused persons that Narain Singh is the partner in the cultivation of deceased Mst. Mooli and there is dispute with Rameshaar about grain, these two witnesses have deposed against them. This contention of the appellants is correct because they are not eye-witnesses. They have not been named in the FIR Ex. P 1, but subsequently the Police prepared these witnesses and they were examined as eye-witnesses. Therefore, the argument that the witnesses Narain Singh and Rameshwar are not eye-witnesses and they have been made out witnesses has substance and no reliance can be placed on the testimony of these witnesses.
11. In the ‘Kharvai Police’ it has been mentioned that Mahadev and Sita Ram were the eye-witnesses. In the statement PW 1 has stated that when he arrived at the spot at 7 p.m. he found that Mahadev Prasad and Sita Ram were sitting by the side of the dead body of Mst. Mooli. This Mahadev Prasad is the father of Jagdish Prasad PW 1. It cannot be believed that Jagdish Prasad would not name his own father Mahadev Prasad and will not mention his name in the body of the report Ex. P 1. It was also stated that Mahadev Prasad and Sitaram informed about this incident which is contradictory fact to what has been written in the report Ex. P 1. Therefore, the witnesses Jagdish Prasad is a liar witness of first grade. He had been made out to establish the case. The reason is that he has inimical term with Bala Sahai. A criminal case was pending between Jagdish Prasad and Bala Sahai. Regarding this case Jagdish Prasad has denied in the statement and has not admitted that any criminal case being pending between him and Bala Sahai. But in his police statement Ex. D 1 he has admitted about this enmity, though he has denied to have given this statement in Police. This shows that Jagdish Prasad is highly unreliable person.
12. We have also gone through the cross-examination of Jagdish Prasad PW 1 and on so many questions he replied that on account of confusion due to nervousness he could not mention those facts in Ex. P 1. The substance is that Jagdish Prasad is most unreliable witness, a made out witness and he has submitted a false report Ex. P 1. What is the actual position in this incident has not been brought on record by the prosecution.
13. The delay in lodging the report has been explained by Jagdish Prasad and this explanation has been considered by us and we find that this is false explanation, most unsatisfactory explanation and the prosecution has failed to prove about this delay in lodging the report. When a delay has not been explained by the prosecution it leaves great suspicion in the correctness of the story of the prosecution. It gives inference that either the story is concocted or the witnesses are unreliable witnesses. We are supported in this aspect by AIR 1976 Supreme Court 2423.
14. Mahadev Prasad, who is alleged to have been an eye-witness, has been disbelieved by the learned Sessions Judge in the judgment. In para 6 of the judgment, the learned Sessions Judge has discussed about the witness Mahadev Prasad and came to this conclusion that this witness is an unreliable witness and no reliance has been placed on his testimony. Apart from this, we have also gone through the statement of Mahaveer Prasad and we agree with the conclusion arrived at by the learned Sessions Judge. In the examination-in-chief, Mahadev Prasad PW 3 has stated that Bala Sahai and Mahaveer were having lathis in their hands while Radha Kishan and Bhawani Shankar were having knives in their hands. Bala Sahai inflicted lathi blows on Mst. Mooli while Radha Kishan and Bhawani Shankar inflicted knife blows to her. Sita Ram arrived there and Suresh s/o Mooli also arrived there. When Suresh asked them as to why they are beating his mother, he was also beaten. So he deposed as if he witnessed the entire incident. In the cross-examination he has stated that he and other witnesses did not try to rescue Mst. Mooli and Suresh. When Jagdish arrived there they informed him about this incident. He was given the details of this incident. But from his cross-examination, it is clear that this witness Mahadev Prasad is a l ar and on account of enmity with the accused-persons he has deposed against them. He has been rightly disbelieved by the learned Sessions Judge.
15. As we have mentioned above that Rameshwar and Narain Singh have not been mentioned as eye-witnesses in the report Ex. P 1, the statements of these two witnesses are liable to be discarded. Even after perusing their testimony we find that there are so many contradictions in the statements and it is sufficient to say that both these witnesses are very unreliable witnesses and should not be relied at all.
16. Sita Ram PW 11 is another eye-witness. He was not named in one body of Ex. P 1, but in the `Karvahi Police’ his name has been mentioned. Sita Ram PW 11 has stated that he was sitting on his “Chabutri”. Mahaveer Prasad came abusing from the side of Bazar. Then Mst. Mooli came. Mahaveer Prasad continued abusing Mst. Mooli. When Mooli opened the door and asked Mahaveer Prasad not to abuse her, Mahaveer inflicted lathi blow on the back of Mst. Mooli. Then Bala Sahai, Bhawani Shankar and Radha Raman arrived there. Radha Raman and Bhawani Shanker had ‘chhura’ in their hands while Bala Sahai had lathi. Radha Raman and Bhawani Shankar started inflicting ‘chhura’ blows to Mst. Mooli. Mahadev Prasad also arrived there who asked them not to beat heat her. Then Bala Sahai caught hold of Mst. Mooli and Bhawani Shankar and Radha Raman inflicted number of ‘chhura’ blows. Then Suresh, Narain Singh and Rameshwar arrived there. Suresh while entering into the house Bhawani Shankar caught him and he and Radha Raman inflicted ‘chhura’ blows to Suresh. Bala Sahai was suggesting to kill both of them. Suresh fell down and accused had left that place. After some time Jagdish Prasad arrived and at that time Mooli had expired and Suresh was lying in a serious condition. Suresh was taken to hospital by Narain Singh and other villagers. This witness is falsified by Jagdish Prased and the report Ex. P 1. In the report Ex. P 1 it has not been mentioned that Jagdish Prasad was given this information by these persons. So after perusing the statement of Sita Ram, we are of the opinion that he is also an unreliable witness and no reliance can be placed on such witness.
17. In the report Ex. P 1 the name of appellant Radha Kishan was not mentioned. In this report the name of Kashi Nath has been mentioned. Jagdish Prasad has explained in his statement that by mistake he had mentioned the name of Kashi Nath in place of Radha Kishan. According to Police, no case is made out against Kashi Nath and ‘challan’ was submitted against Radha Kishan. Radha Kishan and Kashi Nath are very well known to Jagdish Prasad PW 1. It cannot be believed that he will write a wrong name in the report Ex. P 1. Kashi Nath was very well known to him and that is why he has mentioned the name of Kashi Nath. But ultimately they might have come to this conclusion that they could not prove the case against Kashi Nath, so the name of Radha Kishan was shifted and the witnesses have stated that Radha Kishan was one of the assailants. This creates doubt in the correctness of the story about Radha Kishan.
18. PW 2 Suresh who is injured and also son of deceased Mst. Mooli, is a very important witness. On the testimony of this witness the prosecution has relied much. It has been argued by the learned Public Prosecutor that on the solitary statement of Suresh, conviction can be based and to support this contention he has cited Mahaveer v. State of Rajasthan 1987 Cr. LR (Raj) 17 and Inder Singh v. State of Rajasthan 1984 RLW 451.
19. In Mahaveer Singh’s case (supra) it has been observed by the Division Bench of this Court that a solitary witness who is of sterling worth, conviction can be based on his testimony. Similarly in Inder Singh’s case (supra) it has been observed that if the testimony of a sole witness is free from suspicion and above the board, his testimony should be accepted and conviction can be based.
20. The principle laid down in both these cases is not disputed. We also agree with this principle. The point is whether Suresh Chandra PW 2 is a witness of sterling worth. We have mentioned above that the statements of eye-witnesses are unreliable and untrustworthy and they are not to be relied at all. Now the statement of Suresh PW 2 has been scrutinized and it is to be seen whether the solitary testimony of this witness is of sterting worth. Whether he is a reliable witness.
21. Suresh PW 2 has stated that on 25-2-1977 at 6.15 p.m. he was coming to his house and he heard the cry “Bachao Bachao”. Mahadev Prasad and Sita Ram were present at his house. Bhawani Shankar and Radha Kishan were armed with knives and Mahaveer and Bala Sahai were armed with lathies. He further stated that Bhawani Shankar and Radha Kishan were inflicting knife blows to his mother. Mahaveer and Bala Sahai were uttering the words “Maro Maro”. He asked them as to why they are beating. Immediately Narain and Rameshwar also arrived. He has further stated that Bhawani Shankar caught him and Radha Kishan inflicted knife blow on him. He fell down and then Bhawani Shankar inflicted knife blow. He has further stated that he fell down and became unconscious and does not know what had happened after that. So his statement is that he was present when Bhawani Shankar and Radha Kishan inflicted knife blows to his mother. But his statement is contradicted by Mahadev Prasad PW 3. According to Mahadev Prasad, Suresh arrived at the spot after infliction knife blows to Mst. Mooli. The other eye-witnesses Rameshwar, Narain Singh and Sita Ram have, no doubt stated that knife blows were inflicted in presence of Suresh.
22. Suresh has stated that Bhawani Shanker and Radha Kishan were inflicting knife blows to Mst. Mooli. He has not stated that Mahaveer and Bala Sahai were armed with knife and inflicted knife blows also. So in the Court statement he has changed the story. His statement was recorded by the Police and in the statement he has stated that Bhawani Shankar and Radha Kishan inflicted knife blows. His dying declaration was also recorded by the Magistrate on 27-2-1977 which is Ex.D 2. In this statement at portion “A to B” he has stated that four persons were inflicting knife blows to Mst. Mooli and the names of those persons are Bala Sahia, Mahaveer Prasad, Bhawani Shankar and Radha Kishan. So, according to dying-declaration Ex.D 2, all the accused-persons were inflicting knife blows. But in the Court statement he has stated that only Bhawani Shankar and Radha Kishan inflicted knife blows. About Mahaveer and Bala Sahai he has s tated that they were armed with Lathies and were inflicting Lathi blows. So the story has been changed in the Court statement. In the cross-examination he was confronted with the dying-declaration Ex.D 2 and regarding this statement at portion “A to B” he has stated that he has not given this statement. This dying-declaration was recorded by the Magistrate and we see no reason that the Magistrate will record a false statement. The person who has disowned his own statement given before the Magistrate, is an unreliable witness and cannot be relied at all. In this statement Ex.D 2 Suresh has stated at portton “C to D” Bala Sahai, then Mahaveer Prasad, Bhawani Shankar and then Radha Kishan inflicted six knife blows to him. He has denied in the Court statement that he has given this portion “C to D”. In dying-declaration Ex.D 2 at portion “E to F” he has stated that when he was rescued by Narain Singh, Sita Ram and Mahadev he went inside the house. This statement has been denied in the Court. Similarly regarding portion “G to H” where he has stated that Mahaveer Prasad was sitting by his side and Narain Singh and Sita Ram brought him in the bus to Kotputli. He has denied to have given this statement also. So what we feel that Suresh PW 2 has denied his own dying-declaration Ex.D 2. Originally his statement was that all the appellants were armed with knife and he was given knife blows by all of them. Subsequently, he changed the statement that only Bhawani Shankar and Radha Kishan had knife in their hand and inflicted knife blows. Regarding Lathi blows by Bala Sahai and Mahaveer we have perused the medical report of Suresh as well as post-mortem of Mst. Mooli and we found that there is no injury of Lathi on their bodies. Thus the entire story that Bala Sahai and Mahaveer Prasad inflicted Lathi blows to Suresh and Mst. Mooli is a false statement. The injuries which are on their bodies are either bruises or abrasion, They are of such a nature that they could not be caused by Lathi, So the story that Bala Sahai and Mahaveer inflicted Lathi blows is a false and concocted story. We have also mentioned above that Radha Kishan has been falsely implicated and originally his name was not mentioned in FIR Ex.P 1, so he has been also falsely implicated. Thus we find that there is no case against Bala Sahai, Mahaveer and Radha Kishan. Mahaveer and Bala Sahai have been found guilty with the aid of Section 34 IPC. A person can be convicted with the aid of Section 34 IPC when it has been established by the prosecution that the accused-persons had any common intention. From the record of the case, we find that the prosecution has utterly failed to prove that there was any common intention of the accused-persons. Therefore, there is no case of convicting the accused-persons with the aid of Section 34 IPC. The learned Sessions Judge has committed error in applying Section 34 in this case and has erred in convicting Mahaveer Prasad and Bala Sahai under Section 302 and 307 with the aid of Section 34, Indian Penal Code.
23. It is most unfortunate that Mst. Mooli had died on account of injuries inflicted to her. To convict a person for murdering Mst. Mooli, the prosecution has to prove the case against the accused. Bhawani Shankar and Radha Kishan have been convicted for the offence under Section 302, IPC. We have mentioned above that Radha Kishan has been falsely implicated, so no case is made out against Radha Kishan and he has been wrongly convicted for the offence under Section 302 IPC. From the evidence, we have come to this conclusion that the alleged witnesses are most unreliable. The injured who is the son of deceased, PW 2 Suresh is not the eye-witness, so far as infliction of injuries to Mst. Mooli is concerned. Therefore, there is no evidence to this effect that Bhawani Shankar inflicted injuries to Mst. Mooli which resulted in her death. As mentioned above about report Ex.P 1 that there is suspicion in lodging this report because it was lodged with delay. The witnesses are unreliable witnesses, The solitary witness, Suresh PW 2, is not of sterling worth and no conviction can be based on the testimony of this witness alone. He is not an eye-witness to the incident, so far as Mst. Mooli is concerned. As such, we do not agree with the conclusion arrived at by the learned Sessions Judge that the accused-appellants are responsible for the death of Mst. Mooli. The case is not made out beyond reasonable doubt under Section 302 IPC and as such the accused-appellants Bhawani Shankar and Radha Kishan are not found guilty under Section 302, IPC and consequently the appellants Bala Sahai & Mahaveer Prasad are not found guilty of the offence under Section 302 read with Section 34, IPC.
24. Bhawani Shankar and Radha Kishan have been found guilty under Section 307, IPC and appellant Bala Sahai and Mahaveer Prasad have been found guilty under Section 307 with the aid of Section 34, IPC. As we have mentioned above that there is no case made out for having common intention, therefore, the conviction of Bala Sahai and Mahaveer Prasad under Section 307 with the aid of Section 34 is also bad and they are not found guilty of this offence.
25. Regarding Radha Kishan we have mentioned that he has been falsely implicated. So no case is made out against Radha Kishan also under Section 307, IPC.
26. So far as the accused Bhawani Shankar is concerned, the only statement is of Suresh PW 2. The other eye-witnesses have been found unreliable and untrustworthy and, therefore, their testimony is of no value. The solitary statement is of Suresh PW 2. No doubt, Suresh is not of sterling worth and he has been disbelieved, so far as infliction of blows to Mst. Mooli is concerned. But his statement with regard to infliction of knife blows to him has been minutely perused. We find that prosecution has established this fact that Bhawani Shankar inflicted knife blow to Suresh PW 2. Out of the injuries on the body of Suresh, injury number 3 is said to be a dangerous injury. So case is clearly made out against Bhawani Shankar under Section 307, IPC. We, therefore, agree with the conclusion arrived at by the learned Sessions Judge that Bhawani Shankar is guilty of the offence under Section 307, IPC. Regarding sentence, the learned Sessions Judge has awarded 4 years’ rigorous imprisonment and a fine of Rs. 100/-. As informed by the learned Counsel for the appellant Bhawani Shankar that he had been in jail for about 3-1/2 years. It was also brought to our notice that his wife has expired during the period of his detention in jail. He is on bail now. His two small children are in the “Shishu Grah”. Bhawani Shankar himself is a T.B. patient. Bringing all these facts to our notice it was contended by the learned counsel for the appellant Bhawani Shankar that he deserves lenient view.
27. We have considered the aspects about the sentence to Bhawani Shankar for the offence under Section 307, IPC. This incident took place on 25-2-1977 and since then Bhawani Shankar is facing trial of this case. He had been in jail for about 3-1/2 years. He had faced ample mental agony in facing the trial. Looking to these aspects that his wife had expired, he has only two small children and he had already been in jail for about 3-1/2 years, it would be quite unjustified to send him back to jail to undergo the sentence awarded to him by the learned Sessions Judge. Under such circumstance, the sentence already undergone by him would meet the end of justice for the offence under Section 307, IPC.
28. As a result, of our above discussion, the appeal of appellants Bala Sahai, Mahaveer Prasad and Radha Kishan is accepted. Their conviction and sentence awarded by the learned Sessions Judge are set aside and they are acquitted.
29. Bhawani Shankar is also not found guilty of the offence under Section 302, IPC and his conviction and sentence for this offence are set aside and he is aquitted of the offence under Section 302. However, he is found guilty of the offence under Section 307 IPC and for this offence he is sentenced to the imprisonment already undergone by him. All the accused-appellants are on bail. Their bail bonds are cancelled and they need not surrender.