JUDGMENT
Shyam Sunder Byas, J.
1. The appeal is directed against the judgment of the learned Additional Sessions Judge (2), Hanmangarh dated March II, 1981 convicting the accused Jugrajsingh under Section 302, IPC and sentencing him to imprisonment for life and a fine of Rs. 4000/- in default of the payment of fine to further undergo three years’ rigorous imprisonment.
2. In brief, the prosecution case is that the accused had two brothers Gurudeosingh and Kakasingh. The deceased-victim Mst. Tej Kanwar was married to Gurudeosingh and from him she gave birth of to five sons, namely, Gurupalsingh, Nachhatrasingh (PW 7), Bikarsingh (PW 4), Iqbalsingh (PW I) and Darshansingh (PW 5). The death of Gurudeosingh took place nearly eight years before the incident (Nov. 1979). Nearly after four years of his death, Mst. Tej Kanwar became the wife of accused Jugrajsingh and started living with him in his house in village Sunderpura P.S., Sadulsahar, district Sri Ganganagar. The accused is hot headed and tribulant by nature. Kakasingh was killed and the accused was tried on a charge of his murder. Mst. Tej Kanwar was the only eye witness in that case. She stated nothing against the accused with the result that he was acquitted, early 1-1/2 months before the incident, the accused made an assault on PW 5 Darshansingh and inflicted injuries to him. Darshansingh lodged a report against the accused at the Police Station. The accused’s assaulting and belabouring Darshansingh (PW 5) pricked and annoyed Mst. Tej Kanwar. She left the accused’s roof and started living with her sons in their house in the same village Sunderpura. The accused got highly displeased with this action of Mst. Tej Kanwar. At about 2 00 p m. on November, 7, 1979, Mst. Tej Kanwar was alone in the house of her sons. Darshansingh (PW 5) w. s away at Sri Ganganagar while the others were working in the field. Accused Jugrajsingh went where Mst. Tej Kanwar was sitting in the house with a sword in his hand. He inflicted numerous injuries on Mst. Tej Kanwar with his sword. Mst. Tej Kanwar ran hither and thither in the house, but the accused continued to strike blows to her with his sword. Mst. Tej Kanwar fell down and died on the spot. While the accused was striking blows to Mst. Tej Kanwar, PW 2 Gurmitsingh (aged about 8/9 years) and PW 3 Lakhvindrasingh (aged about 6/7 years), who are sons of Nachhatrasingh (PW 7) came there in the house. PW 1 Iqbalsingh also happened to come there when the accused, after inflicting the injuries, was running away from the door of the house. Iqbalsingh sent Gurumitsingh and Lakhvindrasingh to the field to bring his brothers to the house. Both the children went to the field and narrated the incident to PW 4 Bikarsingh and PW 7 Nachhatrasingh. They all came to their house, where Mst. Tej Kanwar was lying dead with multiple wounds on her body. Nachhatrasingh left to go to the police station to lodge the report, but he could not catch the bus. He came back to his house. In the evening, Darshansingh returned from Ganganagar. He was apprised of the incident. Since it had become night, he could not leave the house to go to the police station. Next morning, he went on foot to the police station, Sadulsahar and verbally lodged report Ex. P 2 of the occurrence at about 11.00 a.m. The police registered the case. The usual investigation ensued. The Station House Officer Richpalsingh (PW 8) arrived on the spot. He inspected the site and prepared the inquest of the victim’s dead body. The medico-legal autopsy of the victims dead body was conducted by PW 6 Dr. S.P. Jakhar the then Medical Officer Incharge, Primary Health Centre, Sadulsahar. The post-mortem report was prepared by him is Ex.P 4. The doctor noticed as many as eleven ante-mortem incised wounds of varying dimentions on the victim’s dead body. In the opinion of Dr. Jankhar, the cause of death of Mst. Tej Kanwar was shock and syncope as a result of injuries to the vital organs and haemorrhage. The injuries were stated to be sufficient in the ordinary course of nature to cause death. The doctor was also of the opinion that the incised wounds found on the victims’s dead body were inflicted with a sharp-edged weapon like sword (Article 1). The blood-stained clothes of the victim were seized and sealed. On the completion of investigation the police filed a challan against the accused in the Court of Judicial Magistrate, Hanumangarh who, in his turn, committed the case for trial to the Court of Sessions. The Sessions Judge framed a charge under Section 302, IPC, to which the accused pleaded not guity and claimed to be tried. He denounced the whole prosecution story as a false and fabricated piece of concoction and claimed absolute innocence. According to him, since the sons of Mst. Tej Kanwar were not happy with him as she was living with him as his wife, they have implicated him on a false charge of her murder. In support of its case the prosecution examined ten witnesses and filed some documents. In defence, the accused adduced no evidence. Out of the ten prosecution witnesses, PW 2 Gurumit Singh and PW 3 Lakvinder Singh had claimed to have seen the incident and the accused striking the blows to the deceased-victim with a sword and PW 1 Iqbalsingh claimed to have seen the accused running away from the place of the incident. The learned Sessions Judge accepted the testimony of these witnesses as true and credit worthy. He, therefore, held the charge duly proved against the accused. The accused was consequently convicted and sentenced as mentioned at the very out-set.
3. We have heard Mr. D.R. Purohit learned Counsel for the accused and Miss Sumitra Sankhla the learned Public Prosecutor. We have also gone the through the case file carefully.
4. Mr. Purohit did not challenge the opinion of Dr. Jakhar (PW 6) about the number and nature of the injuries found on the victim’s dead body and the cause of her death. We have also gone through the testimony of Dr. Jakhar and find no reasons to distrust his opinion relating to the cause of death of the deceased-victim Mst. Tej Kanwar. The death of Mst Tej Kanwar was, thus, homicidal.
5. In challenging the conviction, it was contended by Mr. Purohit that the Court below crept into an error in treating PW 1 Iqbalsingh PW 2 Gurmitsingh and PW 3 Lakhvindra Singh as witnesses of truth. It was argued that none of them could be said to be present when the incident took place and their claim to have seen the incident is wholly unfounded and a complete lie. It was argued that PW 2 Gurumitsingh has converted himself into a witness though he never claimed to have seen the incident in his statements recorded under Sections 161 and 164 Cr.PC. The FIR was lodged nearly after 20 hours of the incident. Through out the night, PW 5 Darshan singh was there in the house. Gurumitsingh (PW 2) and Lakhvindra Singh (PW 3) had told him that they had seen the incident and yet the fact of these two witnesses having seen the occurrence was not mentioned in the FIR Ex. P 2. That shows that these two children have been falsely introduced as the eye witnesses. The accused was an old man of 75 years in age and PW 1 Iqbalsingh was a youngman of 18/19 years in age. If Iqbalsingh had seen the accused leaving the house, he could have easily nabbed him then and there. It was further argued that the occurrence took place in the noon and that too in the inhabitated area of the village and yet no person from the locality was examined. The injuries inflicted to the deceased-victim were numerous and extensive. The victim must have raised the cries and alaram when assaulted and belaboured. Had the occurrence taken place as alleged by the eye witness, persons of the locality were exepected to reach the spot. But no person of the locality has come forward to support the prosecution. The two child witnesses have clearly admitted that they were tutored by their relatives and the Investigating Officer as to what they would depose in the Court against the accused. There was no reliable and acceptable evidence to establish the charge against the accused. His conviction is, thus, wholly wrong and unsustainable.
6. Countering these contentions, it was argued by the learned Public Prosecutor that the two child witnesses had seen the occurrence. The lapses in their statements were natural and could be easily committed by the child witnesses. The Sessions Judge has scrutinized the evidence of the eye witnesses carefully and cautiously and held them reliable. We should, therefore, be slow in interfering with his finding. We have given our thoughful cosideration to the rival submissions.
7. Admittedly, the prosecution case rests squarely on the evidence of the three witnesses viz., PW 1 Iqbalsingh, PW 2 Gurumitsingh and PW 3 Lakhvindrasingh. The pertinent question before us is whether the learned Sessions Judge was right in treating them as witnesses of truth and the conviction can be safely based on what they testified. PW 2 Gurumitsingh and PW 3 Lakhvindra Singh claimed to have seen the entire incident and the accused’s landing blows to the deceased-victm. It would be proper to briefly read their statements.
8. PW 2 Gurumit Singh (aged about 8/9 years) deposed that at the relevant time he was reading in 3rd standard. On the day of the incident, he had gone to the school. In the noon he came to his house to take tea. When he reached his house, he saw the accused landing blows with a sword to his grand-mother. His younger brother Lakhvindra Singh (PW 3) was standing nearby and was weeping. After landing blows to the deceasedvictim Mst. Tej Kanwar, the accused dropped his sword there and ran away through the doors of the house. While he was, running away, Iqbalsingh (PW 1) entered the house. Iqbalsingh sent him (witness) and his brother Lakhvindra Singh (PW 3) to go to the field and to inform their parents as to what had taken place. He and Lakhvindra Singh went to the field and apprised their parents and uncles of the incident. In the evening, his uncle Darshan Singh (PW 5) returned from Ganganagar and he was also apprised of the incident. Unfortunately, in his statements Ex. D 3 (recorded under Section 161 Cr. PC) and Ex. D 4 (recorded under Section 164, Cr. PC), he did not state that he had seen the accused landing blows to his grand-mother Mst. Tej Kanwar. In his police statement Ex. D 3 he simply stated that when he reached his house, he saw the accused standing there with a sword in his hand and his grand-mother Mst. Tej Kanwar lying dead. The accused dropped down the sword there and ran away. In Ex. D 4 also he did not state that he had seen the incident and the accused landing blows to the deceased-victim. In Ex. D 4, he stated that when he reached the house, he saw his grand-mother lying dead and the accused running away. The witness was pointedly confronted with the relevant portions in Ex. D 3 and Ex. D 4 and was asked to explain as to how he omitted to state that he had seen the accused landing blows to his grand-mother He admitted that he did not state in Ex. D 3 and Ex. D 4 that he had seen the accused landing blows to Mst. Tej Kanwar. But he could not furnish any explanation as to why he omitted to state in Ex. D 3 and Ex. D 4 that he had seen the accused landing blows to Mst. Tej Kanwar. It is manifest from Ex. D 3 and Ex. D 4 that he had not seen the accused landing blows to Mst. Tej Kanwar with his sword. Later on, during trial, he improved his earlier version given in Ex. D 3 and Ex. D 4 and converted himself to be an ocular witness of the incident. No reliance can be placed on a witness who changes his version one after the other and falsely introduces himself as an ocular witness of the occurrence. Had this witness seen the incident, it was expected from him that he would have disclosed it at the earliest moment when he was interrogated by the police during investigation and later on before the Magistrate who recorded his statement under Section 164, Cr.PC. While evaluating his testimony, it should not be forgotten that he is the real grand-son of the deceased-victim. Though his close relationship with the deceased-victim does not constitute good reason to discard his testimony, but the fact will have to be kept in view while assessing his testimony. He did not allege himself to be an eye witness of the incident before the police and the Magistrate. Naturally, therefore, what he stated during trial against the accused about his seeing the incident amounts to a substantial improvement and such a substantial improvement damages his testimony beyond repair. There is yet another fact to dismiss his claim to have seen the incident. In his cross-examination he admitted that P W 5 Darshan Singh, after returning from Sri Ganganagar, remained in the house through out the night and he told him that he had seen the accused landing blows to Mst. Tej Kanwar. The FIR Ex. P 2 was lodged by Darshan Singh (PW 5). Unfortunately, again in FIR Ex. P 2 it was not stated by Darshan Singh that this witness Gurumit Singh (PW 2) had told him that he had seen the accused landing blows to the deceased-victim. All that has been mentioned in the FIR Ex. P 2 by Darshansingh (PW 5) is that his nephew Gurumit Singh (PW 2) had seen the accused going from the house. That again shows that PW 2 Gurumit Singh had not seen the incident and he has falsely introduced himself during trial to have seen the accused landing blows to Mst. Tej Kanwar with his sword.
9. PW 3 Lakhvindra Singh (aged about 6/7 years) is the real younger brother of PW 2 Gurumit Singh. He deposed that on the day of the incident, he was playing at the house of Mukhtiyar Singh. In the noon he went to his house to take tea. When he reached there, he saw the accused landing blows to his grand-mother Mst. Tej Kanwar. The accused dropped the sword and ran away. At that very moment, Iqbalsingh (PW 1) also came there. His brother Gurumit Singh (PW 2) too arrived at the spot. In his cross-examination he admitted that his grand-mother Mst. Tej Kanwar ran hither and thither a number of times when the accused struck blows to her with his sowrd. When the site was inspected, blood was found only in the Kotha and no trail of blood was found at the place where the victim is alleged to have run a number of times. The witness further stated that Mst. Tej Kanwar, while she was struck blows, also, entered the house of Bikarsingh in a bid to protect herself. The blood of her wounds spilled from the place of incident to the street leading to the house of Bikarsingh. But no trail of blood was found by the Investigating Officer from the place of the incident to the house of Bikarsingh including the street. As stated earlier, PW 5 Darshan Singh remained through out the night in the house and this witness narrated him the whole incident. This fact has been admitted by PW 3 Lakhvindra Singh. But, unfortunately, again in the FIR Ex. P 2 lodged by Darshan Singh (PW 5) he has no where mentioned that the incident was seen by this witness Lakhvindra Singh (PW 3). He has simply stated therein that Lakhvindra Singh had seen the accused running away from the place of the incident.
10. There are some other solid reasons also to dismiss the claim of this witness to have seen the incident. He was a child of 6/7 years in age when the incident took place. In his cross-examination he admitted that when the Investigating Officer came to the house, he told that the case of murder was not likely to succeed unless somebody of the family became an eye witness of the incident. It was on this suggestion of the Investigating Officer that Gurumit Singh (PW 2) offered himself and requested the investigating Officer to make him a witness of the incident. If Gurumit Singh can become an eye witness of the incident at the instance and the suggestion of the Investigating Officer, we would not be surprised that this witness too became an ocular witness of the incident to implicate the accused for the murder of Mst. Tej Kanwar. In his cross-examination, the witness has given a clue as to how the things were cooked up and manipulated. In his cross-examination the witness stated that the police arrived in that very night at the place of the incident. The police was brought on the spot by his uncle Iqbalsingh (PW 1). The Investigating Officer stayed for two/three hours in that night and made some investigation.Thereafter the Investigating Officer went away with. Darshansingh (PW 5).The police also came on the next day with Darshan singh remained at the police station through out the night. Dorshansingh These facts amply show that the police had arrived at the spot on the very day of the incident and remained for some hours along with the sons of the deceasedvictim. Iqbalsingh PW 1 had first gone to the police station and brought the police on the place of the incident. The police thereafter took Darshansingh (PW 5) with them and he remained at the police station through out the night. These facts speak for themselves and strongly suggest that PW 3 Gurumitsingh was falsely introduced at a witness of the occurrence. It may also be pointed out that PW 3 Lakhvindrasingh, being a child of very tender age, can be easily tutored to speak anything against the accused. The sons of the deceased victim were already inimical to the accused. No wonder that they introduced PW 3 Lakhvindrasiugh as the ocular witness of the incident. Being a child of tender age and low understanding, Lakhvindrasingh (PW 3) could be expected to speak or testify anything at their behest.
11. PW 2 Gurumitsingh and PW, Lakhvindera Singh have alleged to have seen the incident. The incident took place in the noon. The house in which the incident took place is situate in the inhabitated locality of the village. When these two children saw the incident, it was expected from them that they would have raised cries and attracted the people of the locality. But none of them raised the cries and attracted none. Their calmly seeing the incident with stoic resignation betrays their claim to have seen the incident. Their conduct is highly unnatural and unusual and does not fit-in with the circumstances of the case.
12. PW 1 Iqbalsingh is the son of the deceased-victim. He stated that at about 2.00 p.m. on the day of the incident he reached his house while returning from village Manner. When he arrived at the gate of the house, he saw the accused going out.. He entered the house and saw his mother Mst. Tej Kanwar lying dead near the stack of Bansitia. Lakhvindra Singh and Gurmitsingh were standing there and were weeping. They told him that the accused had killed Mst. Tej Kanwar. He sent them to the field to inform their parents and other relatives. The age of Iqbalsingh (PW 1) was nearly 18 years at the time of the incident. Now, there are some striking features which do not permit us to hold that he had arrived on the spot and had seen the accused leaving the place of the incident. The age of the accused, as recorded in his statement under Section 313, Cr.PC, was nearly about 70 years. He was, thus, an old man and PW 1 Iqbal Singh was a youngman. If this witness had seen the accused leaving the place of the incident, he could have easily nabbed him then and there. But he did nothing and allowed the accused to run away. His this conduct is highly unusual and unnatural and persuades us to hold that in fact he had not seen the accused leaving the place of the incident. It is strange that this witness, who was a youngman, did not go to the field to inform his brothers of the incident. He sent PW 2 Gurmit Singh and PW 3 Lakhvindra Singh, the children of extremely tender age, to the field to inform their parents of the incident. Had this witness Iqbal Singh seen the accused leaving the place of the incident, his natural re-action would have been to nab the accused then and there or atleast to go to the field to inform his brothers of the incident. His inaction strongly suggests that his claim to have seen the accused leaving the place of the incident is not true.
13. There are some other formidable reasons to dismiss the whole story of the prosecution. PW 3 Lakhvindrasingh, as pointed out earlier, stated that Iqbalsingh (PW 1) went to the police station and brought the police in the night of the very day of the incident. The police stayed for 2/3 hours and made some investigation. Thereafter the police went, taking PW 5 Darshan Singh with them. The police then also arrived on the next day with Darshan Singh. Darshan Singh remained at the police sation through out the night. This shows that the police had arrived on the spot after a few hours of the occurrence and stayed there for some hours. Iqbal Singh (PW 1) had brought the police there on the spot. In these circumstances it would be legitimate for us to infer that the police must have been informed of the incident by Iqbal Singh (PW 1). Iqbal Singh denied to have gone to the police station and to have brought the police on the spot. This does not appear to be true in view of the direct testimony of PW 3 Lakhvindra Singh. It appears that the police arrived on the spot within a few hours of the incident. The arrival of the police within a few hours of the incident and the registration of the case on the next day at about 11.00 a.m. are the circumstances speaking heavily against the prosecution. Something must have happened which has been concealed by the prosecution.
14. PW 5 Darshan Singh was not in village Sunderpura on the day of the incident and had gone to Sri Ganganagar. There were many other sons of the deceased-victim in the village and every-body came to know of the murder of Mst. Tej Kanwar before the return of Darshan Singh to the village. It is strange that no FIR of the incident was lodged and nobody went to the police station. They waited for the arrival of PW 5 Darshan Shing. Darshan Singh also remained at the house through out the night and went to the police station only on the next day. There was, thus, enough time for the sons of the deceased-victim for manipulations. The FIR was, thus, lodged after considerable delay and no satisfactory explanation has been furnished for this delay. A delayed FIR without explanation casts serious doubt on the prosecution case.
15. The sons of the deceased-victim were admittedly on inimical terms with the accused. They had formerly prosecuted him for the murder of their uncle. The accused was acquitted in that case. The accused is said to have struck blows to PW 5 Darshan Singh before this incident. They had thus, a big bias and grudge against the accused. The present case appears to be the out-come of that enmity which the sons of the deceased-victim were harbouring against the accused. We may repeat here that the incident took place in the noon and that too in the inhabitated locality. The injuries inflicted to the deceased-victim were numerous and extensive. She must have raised cries, but no inhabitant of the locality was produced in evidence by the prosecution in support of its case.
16. Taking all these factors into consideration, namely, the delayed FIR without any explanation for delay, PW 2 Gurmit Singh and PW 3 Lakhvindrasingh not being mentioned as eye witnesses of the incident in the FIR Ex.P 2, the inimical relations between the prosecution witnesses and the accused, the non-examination of any person of the locality, no trail of blood being found in the street and upto the house of Bikar Singh and the false introduction of PW 2 Gurmit Singh and PW 3 Lakhvindra Singh as the ocular witnesses of the incident, we are unable to maintain the conviction of the accused. He was wrongly convicted.
17. In the end, the appeal of accused Jugraj Singh is allowed. His conviction and sentence under Section 302, IPC are set-aside and he is acquit ted of the said offence. He is in jail and shall be forthwith set at liberty if not wanted in any other case.