JUDGMENT
G. Radhakrishna Rao, J.
1. This appeal by A. 1 and A. 2 is from the judgment of the learned Additional Sessions judge, Nizamabad, convicting and sentencing them to undergo imprisonment for life and also to pay a fine of Rs. 200/- each in default to further undergo simple imprisonment for three months for the offence punishable under Section 34, 302 of the Indian Penal Code.
2. There are four accused in the case before the learned Addl. Sessions Judge, Nizamabad. A. 1 and A. 2, appellants herein, were chargesheeted for the offence punishable under Section 302, I.P.C. for committing the murder of the deceased Laxman Rao on 4-8-1990 at 2.00 a.m. at Padampalli village by beating him with an axe and kammakatti respectively on his head, shoulder and chest. A. 3 and A. 4 were chargesheeted for the offence punishable under Section 302 read with Section 34, I.P.C. for assisting A. 1 and A. 2 in the commission of the offence.
3. The case of the prosecution, in brief, is as follows : A. 1 proposed to give his daughter in marriage to P.W. 5 Shivkumar who is the brother of A. 2, P.W. 5 was not agreeable to it. P.W. 5 approached the deceased, his cousin, who took initiative in the matter and got the marriage of P.W. 5 performed with one Manik Bai on 11-4-1990 in spite of the opposition of A. 2. Since the date of marriage, A. 1 and A. 2 bore grudge against the deceased and hatched a conspiracy to murder the deceased with the assistance of A. 3 and A. 4. In pursuance of the said conspiracy, A. 3 on 4-8-90 at 2.00 a.m. went to the house of the deceased and asked him to accompany him on some work. The deceased followed A. 3 to the nearby school building. In the meanwhile, A. 1 armed with an axe and A. 2 armed with a kammakatti (knife) went to the school building and beat the deceased on his head, shoulder, chest and other parts of the body resulting in his instantaneous death. P.Ws. 1 and 2, the brothers of the deceased who came to the mango garden nearby for guarding purpose came to the place of incident on hearing the cries from school building and they identified A. 1 and A. 2 on focussing the battery light and they witnessed the incident. On the next morning i.e. 5-6-90, P.W. 1 went to the Police Station, Madnoor at 11 a.m. and gave Ex. P. 1 complaint to P.W. 9, the Sub-Inspector of Police. On the basis of that, a case in Cr. No. 26 of 1990 under section 302, I.P.C. was registered and Ex. P. 9, F.I.R. was issued. Thereafter, P.W. 9 visited the scene of offence at about 12.30 p.m. after securing the presence of P.W. 6, a Junior Assistant working in Juker Mandal and another and prepared the inquest report Ex. P. 3 and Exs. P. 4 and P. 5 panchanama of the scene of offence and sketch plan of the incident and seized M.Os. 1 to 3 and examined P.Ws 1, 2 and 4 and recorded their statements. Thereafter, the dead body of the deceased was sent for post mortem examination which was conducted by the Civil Asstt. Surgeon, Govt. Hospital, Banswada (P.W. 7) and she issued Ex. P. 6 post-mortem certificate opining that the deceased died due to shock due to the injuries. A. 1, A. 3 and A. 4 were arrested on 1-7-90 and A. 2 surrendered before the Court.
4. In support of their case, the prosecution has examined P.Ws 1 to 10 and got marked Exs. P. 1 to P. 11. On behalf of the defence, D.W. 1 was examined to prove that there was no motive for the accused to commit the offence and that the marriage of P.W. 5 was performed by him (D.W. 1) only.
5. A. 1 and A. 2 who were charge sheeted for the offence punishable under section 302, I.P.C. were found guilty basing on the direct testimony of P.Ws. 1 and 2 and the evidence of P.W. 3 and the medical evidence and other circumstantial evidence and accordingly convicted and sentenced them to suffer imprisonment for life. However, the learned Sessions Judge gave benefit of doubt to A. 3 and A. 4 and acquitted them of the charges. The present appeal has now been filed by A. 1 and A. 2 against their conviction and sentence.
6. The motive for the commission of the offence, according to the prosecution, is that P.W. 5 who is the brother of A. 2 refused to marry his maternal uncle’s daughter i.e. A. 1’s daughter and that the deceased assisted P.W. 5 in marrying the sister-in-law of one Baswanthrao, the Sarpanch of Gundoor village. Having bore grudge that the deceased was responsible for the marriage of P.W. 5 with another girl, A. 1 and A. 2 hatched a conspiracy to do away with the deceased and they were assisted by A. 3 and A. 4. On the date of the incident, A. 3 a labourer took the deceased from the house to the school building and there A. 1 who was armed with an axe caused injuries on the backside of the deceased and A. 2 who is armed with a knife also stabbed the deceased and A. 3 and A. 4 were also present at the scene of offence. The further case of the prosecution is that at the time when the incident took place, the deceased raised cries and that cries were heard by P.Ws. 1 and 2 and at 2 or 2.30 a.m. the brother of the deceased who are sleeping in the mango garden on that night guarding the garden. On hearing the cries they came to the school building and after focussing the torch light they saw A. 1 and A. 2 beating the deceased with their weapons. They also saw A. 3 and A. 4 at the place of incident. As against the motive attributed by the prosecution, the defence has examined D.W. 1 who is the cousin of A. 1 and paternal uncle of A. 2, who deposed that the deceased has not performed the marriage of P.W. 5 and that he himself performed the marriage and the wedding cards were printed in his name. He also deposed that there was no proposal to give the daughter of A.1 in marriage to P.W. 5. When there is the direct evidence of D.W. 1 to the effect that the marriage of P.W. 5 was got performed by him with another girl, the motive attributed to A. 1 and A. 2 that because the deceased performed the marriage of P.W. 5 with another girl, they bore grudge against the deceased, is of any significance in this case. It is also the case of the prosecution that some girl who is not closely related with the deceased was given in marriage to P.W. 5. Under these circumstances, it is difficult to believe that A. 1 and A. 2 had a grouse against the deceased, on account of P.W. 5 marrying another girl.
7. The doctor P.W. 7 who conducted the post-mortem examination found the following internal injuries on the body of the deceased :
“1. Lacerated wound 4″ x 1″ x 1 1/2”, two inches below behind left ear.
2. Lacerated wound mid frontal region 2″ x 1″ x 1/4″.
3. Chop wound back of neck all structures visible 3″ x 1/2″.
4. Chop wound right back of shoulder 3″ x 2″.
5. Chop wound 3″ x 1″ left shoulder, bone visible.
6. Lacerated wound 3″ x 1″ bone deep left axilla.
7. Incised wound lower abdomen muscle deep 2″ x 1/2″.
8. Half inch away from injury No. 7 another incised wound 2″ x 1/2″.
9. Lacerated wound 2″ above 9th left inter costal space 2″ x 1/2″.
10. Chop wound right cheek 4 1/2″ x 2″ with fracture of mandible.
11. Lacerated wound 2″ below right ear 3″ x 1″ x 1/2″.
12. Lacerated wound 2″ above right clavicle 2″ x 1/2″ x 1/2″.
On dissection she found the following internal injury :
“Laceration of frontal lobes and fracture of left frontal bone and fracture of 6th and 7th, left ribs. Fracture of right mandible and fracture of lest humerus”.
All the injuries are ante mortem in nature.”
8. She opined that the death was due to shock and haemorrhage and issued Ex. P. 6 post-mortem certificate. Ex. P. 3 is the inquest report made after conducting inquest over the dead body of the deceased. In the light of the injuries that were found in the inquest report and the post-mortem certificate Ex. P. 6 issued by P.W. 7, we find that the death of the deceased was caused as a result of the injuries caused on him and the death was homicidal in nature.
9. P.Ws. 1 and 2 who are the real brothers of the deceased are said to be the direct witnesses in this case. P.Ws. 1, 2 and the deceased and their father were living in one house in three separate portions. According to P.Ws. 1 and 2, they kept their mango garden as joint and on the night of the incident they were guarding the mango garden. The incident occurred, according to the evidence of P.Ws. 1 and 2, in the mrigisara karthi and the availability of mangoes on the trees cannot be ruled out, as generally ryots having small extents will sell their produce only when the fruits were ripened and when there is good market rate, and therefore their coming to the mango garden for guarding purpose also cannot be ruled out. Whether these persons have gone to the mango garden on the night of the incident and whether they witnessed the incident is a matter to be decided. P.Ws. 1 and 2 say that while they were going to the mango garden for guarding, the deceased was in the house. While they want to return to the house due to drizzling of rain, at about 2 or 2.30 a.m. they heard some cries from the school building. P.W. 2 says that first they could not think that they are the cries of the deceased and on the mid-away they thought that they are the cries of the deceased. Therefore, their version is that they heard the cries of their brother and they went near the school building and saw A. 1 and A. 2 causing injuries on the deceased. Their evidence is that they focussed the torch light and they saw A. 1 and A. 2 causing injuries and on seeing them they ran away towards the village. They further state that they went near the deceased and after seeing him dead they went to the village leaving the deceased at the scene of offence. It is not their case that A. 1 and A. 2 threatened them and due to fear they left the deceased and went to the village. But, on the other hand, their evidence is that A. 1, A. 2, A. 3 and A. 4 ran away from the place of incident after seeing them. The natural conduct of the brothers on seeing the incident of attack on their own brother would be to resist the same or atleast they should first go and see their brother who was lying with injuries and see whether the deceased is alive or not or any medical treatment is to be given or not. At last, one of them could have retained at the place and the other could have gone to the village and informed the same to the wife of the deceased and their father and other relations. They have not even called the people living in harijanwada which is nearby the school building. Their conduct of simply seeing the deceased after the accused left the place of incident and going to the house leaving the deceased at the scene; P.W. 1 going to the police station 11 a.m. on the following day even though the police station is 20 kms. away from the village, indicates that their observing the incident at that time appears to be doubtful. The very conduct that has been exhibited by P.Ws. 1 and 2 throws any amount of doubt as to the truthful nature of the incident. Another factor that has been elicited during the prosecution evidence is that the mango garden is nearby harijanwada and that harijanwada is in between the mango grove and school building and that there are 10 to 15 houses in harijanawada. If really P.Ws. 1 and 2 heard the cries in the mango garden we fail to understand how the persons in the harijanawada which is nearby the school building where the incident took place could not have heard the same. None of the persons living in harijanawada were examined except P.W. 4 who was, however, treated hostile and her statement Ext. P. 2 before the police is not of any held to the prosecution. None of the harijans have come to the place of incident on hearing the cries and the very conduct of P.Ws. 1 and 2 leaving the place of incident indicates that what has been stated by them is not the real or truthful version of the case and that such conduct cannot be expected from persons who are said to be the real brothers of the victim. Further, according to the prosecution, A. 3 came to the house of the deceased at 2 p.m. and the incident took place at 2 or 2.30 a.m. whereas according to P.W. 3 the wife of the deceased was taken by A. 3 from the house at 11 p.m. Therefore, the very witnessing of the incident by P.Ws. 1 and 2 becomes doubtful.
10. P.W. 3, the wife of the deceased says that her husband was taken away by A. 3 from the house at 11 p.m. in the night and she waited for half an hour but the deceased did not return. She saw A. 1 and A. 2 passing in front of her house after half an hour armed with the axe and kamakatti. If the really saw A. 1 and A. 2 passing in front of her house, she could have informed the same to others, as A. 1 and A. 2 are alleged to have bore grudge against the deceased. She also states that two days prior to it the deceased alone went to the mango garden. If really A. 1 and A. 2 wants to murder the deceased, they would have chosen the day when he was alone in the garden and they would not have chosen the day when P.Ws. 1 and 2 are in the mango grove guarding the same, which is admittedly, very near to the school building. A suggestion was made to P.W. 3 that the deceased has kept one harijan lady Bharathibai as his mistress and that he was beaten by the villagers for the same. The dead body was found near the school building. Therefore, the possibility of persons having grouse against the deceased, because of the alleged intimacy developed by the deceased with the harijan lady, causing the death of the deceased also cannot be ruled out.
11. Another circumstance which we found from the prosecution evidence is that P.Ws. 1 and 2 who immediately after seeing the incident came to their house and informed of the same to the wife of the deceased and others i.e. at about 2.30 a.m. The immediate conduct of a wife who was informed about her husband’s death would be to first rush to the scene of offence. However, from her evidence it is seen that she had gone to the place of incident at 6 a.m. in the morning. When P.Ws. 1 and 2 and the deceased and his wife are residing in the same house and when she was informed of the incident, she should be anxious to see the deceased. P.W. 3 in her cross-examination says that there are four houses in between their house and the school building. So, when the house is very near to the school building and when there are street lights and when P.Ws. 1, 2 and their father are there to accompany her to the place of incident, it is difficult to believe how P.W. 3 or any other person would be unable to go to the place of incident in the night till 6 a.m. in the morning. The above circumstances clearly indicate that the persons who have witnessed the occurrence are not P.Ws. 1 and 2. In these circumstances, we find that no reliance can be placed on the version of P.Ws. 1, 2 and 3. If their evidence is excluded, there are no other incriminating circumstances to find that it is A. 1 and A. 2 who have caused the injuries which resulted in his death. The appellants A. 1 and A. 2 are, therefore, entitled for benefit of doubt.
12. The Criminal Appeal is, therefore, allowed. The conviction and sentence of imprisonment for life imposed by the learned Sessions Judge and also to pay a fine of Rs. 200/- each in default to suffer simple imprisonment for three months are set aside. Both A. 1 and A. 2 shall be set at liberty, if not required in any other cause.
The fine amount, if paid, shall be returned to them.
13. Appeal allowed.