JUDGMENT
Goyal, J.
1. This appeal has been filed against the judgment dated June 30, 1995, passed by learned Sessions Judge, Alwar, in Sessions Case No. 7/1995 whereby both the accused appellants were held guilty under Section 302/34 IPC and were sentenced to imprisonment for life.
2. The relevant facts giving rise to this appeal are in brief that P.W; 4 Prabhu Dayal, brother of the deceased Kailash submitted a written report Ex.P.8, at Police Station Malakhera, district Alwar, on 2.10.1994, at 2.15 p.m. with the averments that at about 10 a.m. his brother Kailash was going to house of Ramji Lal from his Well. On the way in the village Bader Ka Bas, accused appellants Harphool and his son Ramjee-wan armed respectively with Kulhari and Tanchia, assaulted Kailash. Kailash ran away for his life and rushed to the roof of the house of Sohan Lal. Both the assailants followed him there. Accused Ramjeewan inflicted injuries with Tanchia on ear, nose, eyes, while accused Harphool caused injury on head by Kulhari. This occurrence was witnessed by Mangal Ram (PW.7), Babu Lal (PW. 6), Laxman (PW. 5) and Faiju Khan. Both the accused ran away and Kailash died instantaneously.
3. On the basis of this written report (Ex.P.8), formal F.I.R. (Ex.P.22) was registered under Section 302/34 IPC. Site was inspected and Site-Plan (Ex.P.9) was prepared. Dead body of Shri Kailash was subjected to the post mortem examination and Post- Mortem Report is (Ex.P.1). Statements of witnesses were recorded under Section 161 Cr.P.C. The accused appellants were arrested and at their instance ‘Tanchia’ and ‘Kulhari’ were respectively recovered. On conclusion of investigation, challan was submitted in the Court of learned A.C.J.M. No. 2, Alwar, who committed this case to the Court of learned Sessions Judge, Alwar.
4. Both the accused appellants were charged under Section 302/34 IPC. The accused appellants pleaded not guilty and claimed trial. To prove the charge, the prosecution examined as many as 14 witnesses namely PW.1, Dr. Rajendra Juneja, PW.2, Jagpal Singh, PW.3, Mohan Lal, PW.4, Prabhu Dayal, PW.5, Laxman, PW.6 Babu Lal, PW.7 Mangal Ram, PW.8, Kishan Lal PW.9, Hazari Lal, PW. 10 Sajjan Singh, PW.11 Ram Niwas, PW.12 Ramesh, PW.13 Fauzi Ram and PW.14, Gulab Chand. The accused appellants were examined as per the Provisions of Section313-Cr.P.C. They denied the entire prosecution evidence. Accused appellant Harphool stated that he was not in the village rather he was in his agricultural field which is one k.m. away from the village. Both the accused appellants further stated that they have been falsely implicated on account of enmity. No witness was examined on behalf of the accused appellants. Having heard final submissions, learned Sessions Judge convicted and sentenced both the accused appellants vide judgment dated June 30, 1995, as stated above.
5. We have heard learned Senior Counsel Shri S.R. Bajwa and learned Public Prosecutor Shri Rajendra Yadav and have perused the entire evidence. Ex.P.1 dated 2.10.1994, is the Post Mortem Report of the deceased Shri Kailash, which has been proved by PW.l Dr. Rajendra Juneja, who was posted as Medical Officer in Primary Health Centre, Malakhera. He stated that the Post-Mortem on the dead body of Kailaah was conducted by him on 2.10.1994 and he prepared the Post-Mortem Report Ex.P.1 and noted following external and internal injuries :-
External injuries
1. Incised wound (6cm x 1cm) Horizontal placed over Rt. eye brow.
Incised wound (2.5cm x 1 cm) just below the bridge of nose with
fractured nasal bone.
Lacerated wound (2.5cm x 1 cm) above the Rt. Nostril.
Bruise (5cm x 1.5 cm) Horizontal from 2 cm, lateral (contused to diverted backward).
Lacerated wound (2.5cm x 1 cm) over the occiput.
6. Bruise (8cm x 2cm) 6 cm lat. to T10 vertebra Rt. side.
7. Bruise (5cm x 2cm) over back of rt. shoulder.
8. Bruise (2.5 x 2,5 cm) Exterior surface of Rt. elbow joint.
9. Bruise (2cm. x 1cm) Exterior surface of It. elbow joint.
10. Incised wound (4cm x 1cm) 10 cm above the Rt. Mastoid. Process over scalp.
11. Incised wound (6cm x 1cm) 8 cm above the Lt. Mastoid process.
Internal Injuries
(1) Occipital Bone is divided into multiple pieces with all the membrane destroy. Brain exposed from injured side.
(2) Fracture of Lt. side temporal and parietal bone.
(3) Fracture of Rt. Temporal bone.
(4) Fracture of nasal bone from bridge of nose.
6. In the opinion of Dr. Juneja, death occurred due to severe injury to brain caused shock and death. Bleeding from other injured site may cause early death. Duration of death was within 6 hours. All injuries were ante-mortem in nature.
7. Next question for consideration arises is as to who is the author of these injuries? Out of 14 witnesses examined, five witnesses namely PW.4 Prabhu Dayal informant, PW.5 Laxman, PW.6 Babu Lal, PW.7 Mangal Ram and PW.12 Ramesh have been examined as eye-witnesses. PW. 12 Ramesh (not named in FIR Ex.P.8) and PW. 7 Mangal Ram (named in F.I.R.) were declared hostile. PW. 12 Ramesh stated that he did not witness any such occurrence, though his own house is situated near the house of Sohan Lal, where this occurrence took place. PW.7 Mangal Ram stated that at about 10 a.m., he was sitting in his shop and having heard hue and cry, he rushed to the house of Sohan Lal, where he saw the crowd. He went upon the roof and saw Kailash lying dead, but he did not witness any occurrence. He admitted this fact that his shop is near the house of Sohan Lal. PW.4 Prabhu Dayal (brother of the deceased) is the informant. He stated that at about 10 a.m. his brother Kailash was coming from well. On the way in the village, both the accused appellants Harphool and Ramjeewan surrounded him. Harphool and Ramjeewan were respectively armed with kulhari and tanchia. Kailash to save himself, rushed to the roof of the house of Sohan Lal. Both the accused appellants followed him and killed him by causing injuries by tanchia and kulhari upon nose, ears, eyes and head. When he and other witnesses reached near the place of occurrence, both the accused ran away. They brought the dead body of Kailash to Malakhera Hospital and then submitted report Ex.P.8. In cross-examination, he stated that the accused are neighbour. He also admitted that Laxman (PW.5) is uncle and Babu Lal (PW.6) is his cousin brother. PW.5 Laxman and PW.6 Babu Lal stated that they had also witnessed this occurrence. They stated that both the accused appellants inflicted injuries upon Kailash. Harphool inflicted injuries by Kulhari, while Ramjeewan caused injuries with tanchia. Kailash got injuries upon the head, nose eye and ear. These witnesses have also been cross-examined in detail.
8. Learned Sessions Judge, while appreciating the evidence of the prosecution came to this conclusion that PW.5 Laxman’s presence on the spot seems to be doubtful. But relying upon the statements of PW.4 Prabhu Dayal and PW.6 Babu Lal,
he came to the conclusion that both the accused appellants committed the murder of Kailash in furtherance of common intention.
9. Learned Senior Counsel Shri Bajwa raised a number of arguments. He argued that there are so many infirmities and unexplained circumstances in the prosecution evidence, therefore, the presence of PW.4 Prabhu Dayal and PW.6 Babu Lal also at the time of occurrence has become extremely doubtful and the presence of PW.4 Prabhu Dayal has not even been shown in F.I.R. itself. According to learned Senior Counsel Shri Bajwa, PW.4 Prabhu Dayal admitted in cross-examination that the dead body of Kailash was first taken to his ‘gait’ and then to the hospital but no explanation has been given as to why the dead body was shifted from the place of occurrence. It is also argued that according to Prabhu Dayal, the dead body was put upon a ‘gadda’ & that ‘gadda’ and shoes of the deceased were not recovered. It was also argued that blood was found at two places according to the site plan Ex.P.9, but no explanation has come forward as to why the blood was found at two places. It was next argued that no blood was found on the clothes of the witnesses who lifted the dead body, no F.S.L. report has been produced, therefore, the evidence of recovery of weapons has got no meaning. Mr. Bajwa further argued that no motive has been disclosed for committing such a grave offence like murder and, therefore, the prosecution has suppressed the original geneses of this case and there are contradictions in the statements of PW.4 Prabhu Dayal, PW. 5 Laxman and PW.6 Babu Lal and thus their statements are not reliable. On the other hand, learned Public Prosecutor argued that infirmities and unexplained circumstances as pointed out by learned counsel Shri Bajwa are of no significance so as to effect the testimony of PW.4 Prabhu Dayal and PW.6 Babu Lal and it is the accused who have admitted that they were implicated on account of enmity. It was also argued that in case of direct evidence, absence of motive is not fatal to the prosecution case and thus both the accused appellants have been rightly convicted by the trial Court.
10. We have given our thoughtful consideration to the rival contentions. It is true that no motive has been disclosed behind this murder. One suggestion was given to PW.6 Shri Babu Lal at the end of his cross-examination that father of accused Harphool filed a suit for his share in the well against so many persons including father of deceased Kailash. Shri Babu Lal pleaded ignorance regarding this fact. A certified copy of the order Ex.D.3 dated 2.2.1987, passed by Assistant Collector goes to show that this suit was compromised between the parties. As stated earlier, both the accused appellants in their statements under Section 313 Cr.P.C. stated that they were falsely implicated due to previous enmity. In Nathuni Yadav and Ors. v. State of Bihar (1), it has been held that motive for a criminal act is generally a difficult area for prosecution to prove. One can not normally see into the mind of another. Motive is emotion which impells a man to do a particular act. Such impelling cause need not necessarily be proportionately grave to do grave crimes. Many a murders have been committed without any known or prominent motive. As such there is direct evidence in this case, that the absence of motive is not fatal to the prosecution case.
11. The arguments regarding the presence of PW.4 Prabhu Dayal & PW.6 Babu Lal on the spot at the time of occurrence are not acceptable. The other infirmities and circumstances as given out by learned counsel Shri Bajwa are not so material as to impeach the credibility of the eye-witnesses PW.4 Prabhu Dayal and PW.6 Babulal. At the cost of repetition, it is stated that PW.5 Laxman was not relied upon by learned Sessions Judge and rightly so, but reliance on the testimony of PW.4 Prabhu Dayal and PW.6 Babu Lal has rightly been placed by learned Sessions Judge and there is no justification to discard the testimony of these two witnesses. The presence of these two witnesses on the spot is well proved, as the F.I.R. Ex.P.8 was lodged by PW.4 himself and name of PW.6 Babu Lal finds place in Ex.P.8. No doubt it is not specifically mentioned in Ex.P.8 that PW.4 Prabhu Dayal witnessed this occurrence but the way in which the incident is narrated in Ex.P.8, there is no doubt that PW.4 Prabhu Dayal
witnessed this occurrence. It is also undisputed that PW.4 Prabhu Dayal being real brother of the deceased and PW.6 Babu Lal being cousin brother of the deceased are naturally interested witnesses but only on this count, their evidence can not be discarded, though, such evidence should be considered with much caution. In State of Jammu and Kashmir v. Hazara Singh and Anr. (2), Hon. Supreme Court has held that the evidence of the eye-witnesses could not be rejected merely on the ground that their testimony was of an interested and partisan character, nor on the ground that they were not speaking the whole truth.
12. It was next argued that there is material variance between oral and medical
evidence. Learned Senior counsel Shri Bajwa has put much emphasis on this ground
that as per medical evidence, in all eleven external injuries were found on the body
of deceased Kailash. Out of these 11 injuries, four are Incised Wounds, while remaining seven injuries (2 lacerated wounds and 5 bruises) were caused by blunt weapon
and both the accused appellants were armed with sharp edged weapons Kulhari and
tanchia respectively and not a single witness deposed that any blunt weapon was used
or accused appellants Harphool and Ramjiwan used blunt side of Kulhari and Tanchia
and thus the statements of PW.4 Pfabhu Dayal and PW.6 Babu Lal are wholly unreli
able. Reliance has been placed upon Ishwar Singh v. The State of Uttar Pradesh (3).
According to this case the doctor said that the fatal injury “might have been” caused
by a ballam, and doctor admitted that he did not know the difference between a ballam
and a bhalla. It is not disputed that ballam and bhala are weapons of a similar type.
Had the doctor seen the weapons seized from both the accused, it might have been
possible for him to say which of them caused the injury. But the weapons seized were
not shown to the doctor. In view of these facts and circumstances, it was held by
Hon’ble Apex Court that failure to do so may sometimes, cause aberration in the
course of justice.
13. It is true the Kulhari and tanchia were not shown to Dr. Juneja, but PW.l Dr. Juneja has made it clear in cross-examination that incised wounds in Ex.P.1 were possible by sharp weapon and all other injuries termed as bruises and lacerated wounds may be caused by blunt weapons. In view of such evidence, the prosecution evidence can not be simply discarded as a whole on the ground that the weapons recovered were not shown to PW.l Dr. Juneja.
14. The next important argument advanced by Shri Bajwa was that since it has riot been proved as to who was the author of seven injuries caused by blunt weapon including Injury No. 5 which proved fatal according to PW.1 Dr. Juneja, offence under Section 302 IPC is not made out and at the most the accused may be held guilty for offence under Section 324 or 326 IPC. Reliance has been placed upon State of Jammu andKashmir v. Hazara Singh (supra). According to the evidence of eye-witnesses the first shot from the gun was fired by Hazara Singh which caused injuries to the deceased in the abdomen. According to the Medical officer, injuries on the abdomen did not cause the death of the deceased. According to him gun shot injury involving damage to the brain was the cause of death. The injury which caused the death was attributed to Piyara Singh and Piyara Singh was acquitted. In view of these facts, Hon. Supreme Court held that accused appellant Hazara Singh could be safely convicted under Section 326 IPC and not under Section 302 IPC.
15. In Ashok Kumar v. State of Punjab (4), three accused persons were charged for the offence of causing the death of deceased, learned Sessions Judge, convicted and sentenced appellant Ashok Kumar under Section 302 IPC while remaining two accused were convicted under Section 323/(correct Section should be 326) read with 34 IPC. In appeal the High Court maintained the conviction of appellant under Section 302 IPC and while maintaining the conviction of another accused Kewal Krishna, his sentence was reduced from ten years to two years rigorous imprisonment and the third accused was acquitted whose identity could not be established. According to the medical evidence, six injuries were received by the deceased and there was nothing
to show that the fatal injury No.3 was inflicted by Ashok Kumar. Therefore, it was held that it is not possible to say that the prosecution established beyond reasonable doubt that Injury No. 3, which was the fatal injury was caused by the appellant. Therefore, accused appellant Ashok Kumar was held guilty under Section 326 read with Section 34 IPC.
16. In Ram Lal v. Delhi Administration (5), it was held that only two lathi blows had been given on the head and there was no evidence which of those two was given by the accused, the benefit of doubt must go to him. Therefore, the conviction under Section 302 IPC was altered to one under Section 325 read with Section 34 IPC. In Deva v. State of Rajasthan (6), Hon. Supreme Court held that according to Doctor deceased died of seven incised injuries and according to version of eye-witnesses that accused and deceased had grapled and accused had no knife with him rather deceased had stick in his hands, in these facts, it was held that prosecution failed to establish the charge beyond reasonable doubt. In Bhola Singh v. State of Punjab (7), Hon. Supreme Court held that accused were armed with Gandasa and Ghop. As per Post mortem report, injuries were caused with blunt weapon. Two eye- witnesses stated that accused used blunt side of the weapon. It was held that it is highly improbable and unlikely that when accused were armed with sharp weapons like Gandasa and Ghop they used only blunt side and thus the conviction was set aside. In Masumsha Hasanasha Musalman v. State of Maharashtra (8), ten injuries were found on dead body of deceased according to medical evidence and only one injury was serious. The probability that while injury No. 1 could have been inflicted by the appellant, Injury Nos. 2 & 3 could have been caused in the course of the scuffle can not be ruled out. In this view of the matter, the conviction under Section 302 IPC was altered to Section 304, Part II IPC.
17. Learned Public Prosecutor has placed reliance upon Karu Marik v. State of Bihar (9). In this case there was no specific evidence of the doctor as to whether any particular injury or injuries were sufficient to cause death in the ordinary course of nature, even then conviction of the accused appellant under Section 302 IPC was maintained.
18. In view of the above judgments of Hon. Supreme Court, we now revert again to medical and oral evidence led by the prosecution. According to the post-mortem report deceased Kailash received 11 external injuries in all. Out of these, four were incised wounds respectively on right eye-brow, just below the bridge of the nose with fracture of nasal bone, above right mastoid and on left mastoid. Injuries No.3 and 5 are lacerated wounds, and remaining five are bruises on various parts of the body. Injury No. 5 is lacerated wound over the head. On perusal of internal injuries, it is found that occipital bone is divided into multiple pieces with all membrane destroyed and brain was damaged. Left temporal and parietal bone and temporal bone of right side were also fractured. In the opinion of PW.1 Dr. Juneja four incised wounds were possible by sharp edged weapon while remaining seven injuries, lacerated wounds and bruises were possible by blunt edged weapon. It was also opined that the internal injury No. 1 on occipital bone was result of external injury No.5 which is a lacerated wound and this injury caused damage to the brain. In the opinion of Dr. Juneja, Shri Kailash died due to severe injury to brain. Thus internal injury No. 1, which was result of injury No.5 proved fatal and was the direct cause of the death of deceased Kailash. The contention of learned senior counsel Shri Bajwa appears to be correct that the injury No.5 and other Injuries which were caused by blunt weapon according to medical evidence were not caused by these two accused appellants as there is no evidence to show that these two accused appellants were having any blunt weapon. Further, there is no evidence to show that these two accused appellants even used Kulhari and tanchia with blunt side. Therefore, the prosecution completely failed to establish as to who was the author of external injury No.3 to 9 and internal Injury No. 1 which was result of external injury No.5. Therefore, the conviction of accused appellant under Section 302/34 IPC is not justified in view of the material variance between the statements of PW.4 Prabhu Dayal and PW.6 Babu Lal on the one hand and medical evidence on the other hand. Regarding external injuries Nos. 1, 2, 10 & 11, all four incised wounds, it has been proved beyond doubt that these injuries were caused by both the accused appellants
with Kulhari and tanchia and there is no reason to disbelieve the prosecution evidence regarding these four injuries. In the opinion of PW.1 Dr. Juneja internal injuries No. 2 & 3 i.e. fractures of left side temporal and parietal bone as well as right temporal bone may be result of external injuries Nos. 11 & 10 respectively. External injury No .2 is also an incised wound with fracture of nasal bone. Thus the offence under Section 326 read with 34 is proved beyond doubt against both the accused appellants.
19. The accused appellants are in jail for a period of more than six years and five months, that in our opinion would be sufficient punishment to them. We accordingly allow the appeal in part and set-aside the conviction and sentence of the accused appellants under Section 302/34 IPC and convict them under Section 326/34 IPC and sentence them to imprisonment for the period already undergone by them. The accused appellants are in jail. They shall be released forthwith if not required in any other case.