JUDGMENT
Shyam Sunder Byas, J.
1. By leave, the State has come-up in appeal and challenges the judgment of the learned Additional Sessions Judge, Banswara dated September 2,1974, by which the accused-respondents Halu, Nanka and Puniya were acquitted of the offence under Section 302 or 302/34, I.P.C
2. At about 8.30 p.m. on July 13,1973, PW 1 Dharji appeared at Police Station, Banswara and verbally lodged report Ex. PI. It was stated therein that at about 4.30 p.m. on that day his brother Kanji (the deceased-victim) his wife Mst. Sajjana (PW 4), his brother Dhanji (CW 1) and his wife were cleaning the grass-bundles in the river near their fields situate in Mauja Sakwadiya. He was up-rooting the grass in his field. The three accused Halu, Nanka and Puniya came there. Accused Halu had an axe with him while the remaining two had lathies. Accused Halu struck blows on the head of Kanji with his axe and the other two accused struck blows to him with their lathies. The accused Nanka and Puniya also struck blows to him (Dharji PW 1) and his other brother Dhanji (CW 1) with their lathies. Kanji fell down and there was profuse bleeding from his wounds. Kanji became unconscious on the spot. The incident was seen by PW 2 Veerji, PW 3 Mst. Hamiri and PW 5 Parthu. PW 2 Veerji and PW 5 Parthu were then taking bath in the river. The police registered a case under Section 307, I.P.C. and proceeded with investigation. The Station House Officer Ishwar Lal (PW 13) arrived on the spot on July 17, 1973 and prepared site plan Ex. P 2. Kanji was taken to the General Hospital, Banswara, where his injuries were examined by PW 16 Dr. P.L. Bhardwaj, the then Medical Officer Incharge. The doctor noticed the following injuries on his person:
(1) One incised wound clean cut margins right parieto-occipital region bone deep 3″ x 3″ fracture underlying bone suspected;
(2) Peorioccular echhymosis both eyes bluish with defused swellings;
(3) One oblique incised wound clean cut margins on the head right eye-brow 2 ” x 5 ” bone deep, 3/4″ into point one bone deep fracture under lying bones;
(4) Incised wounds clean cut left side above eye brow verticle 2″ x 3″ deep margins sharp fracture under lying bone.
Injury No. 2 was found simple caused by some blunt weapon while the remaining three were found grievous caused by some sharp-edged weapon. The injury report issued by the doctor is Ex. P 14. The injuries of Dharji (PW 1) and Dhanji (CW 1) were also examined by Dr. Bhardwaj. Simple injuries caused by blunt weapons were found on their persons. The injury reports prepared by him are Ex. P 4 and Ex. P 19. Kanji, despite treatment, did not survive and passed away at about 10-20 a.m. on July 20, 1973. His post-mortem examination was performed by Dr. Bhardwaj at about 12.40 p.m. on the same day. He noticed some external injuries mentioned in his injury report Ex. P 14. On the dissection of the body, he found the following:
Fracture of frontal bone on both side left and right. There was clotted blood in scalp layer epidural and sub-dural haemorrhage in clotted form, No tear of Dura and Brain. Clotted blood over frontal parietal lobes.
In the opinion of Dr. Bhardwaj, the cause of death was head injury leading to fracture of the skull bone and infra-cranial haemorrhage. The post-mortem report prepared by him is Ex. P 18. The police added Section 302, I.P.C. thereafter. The accused persons were arrested and in consequence of the informations furnished by them, Iathies and axe were recovered at their instance. On the completion of investigation, the police submitted a challan against the three accused in the Court of Munsif & Magistrate, Banswara. The learned Magistrate, after holding an enquiry, as was the procedure at that time, committed the accused persons to take trial in the Court of Sessions. The learned Additional Sessions Judge framed a charge under Section 302 against accused Halu and under Section 302/34, I.P.C. against accused Nanka and Puniya, to which they pleaded not guilty and claimed the trial. In support of its case, the prosecution examined thirteen witnesses and filed some documents. In defence, the accused examined six witnesses. Dhanji was examined as a Court witness. It was alleged by the accused persons that the prosecution has placed only a lope-sided and truncated version of the incident suppressing the real facts. According to them, at that time they were returning to their village and happened to pass near the river. The members of the complainant party including the deceased-victim were sitting concealing themselves. As soon as they reached the place of occurrence, the members of the complainant party emerged out and made an assault on accused Halu and other persons. Accused Halu sustained injuries as mentioned in his injury report Ex. D 7. Halu was examined on that very day by Dr. Bhardwaj. On the conclusion of the trial, the learned Sessions Judge held that the prosecution as well as the defence witnesses were unreliable. They had suppressed the real facts and had put forward only false stories. The injuries of accused Halu were not explained by the prosecution witnesses and so also the injuries on the deceased Kanji and his brothers Dharji and Dhanij were not explained by the defence witnesses. He further held that even if it is taken that the accused persons inflicted injuries on Dhanji and the decased-victim Kanji they did so in exercise of the right of private defence. They were, therefore, completely saved. Taking these views, he found the charges not proved against the accused respondents. The accused-respondents were consequently acquitted of the offence they were charged with. Aggrieved-against their acquittal, the State has taken this appeal.
3. We have heard the learned Public Prosecutor Mr. L.S. Udawat and Mr. P. R. Chaudhary, the learned Counsel for the accused respondents.
4. We have gone through the judgment of the learned Additional Sessions Judge and are constrained to observe that the judgment written by him is laconic and defective. He has not at all discussed the evidence of the eye witnesses and has not recorded a finding as to whether the deceased Kanji was assaulted and belaboured by the accused-respondents. He proceeded that the eye witnesses were false simply because they had not explained the injuries found on the person of accused Halu. We are unable to appreciate his approach. Since the appeal is against acquittal and the acquittal is challenged as erroneous, the entire prosecution evidence will have to be read and considered.
5. The prosecution has examined PW 1 Dharji, PW 2 Veerji, PW 3 Mst. Hamiri, PW 4 Mst. Sajjana and PW 5 Parthu as the ocular witnesses of the incident. CW 1 Dhanji was examined as a Court witness since he was an injured person who sustained injuries in the incident. There are, thus, three witnesses speaking about the occurrence. The incident is alleged to have taken place near the river-side as depicted in site plan Ex. P 2.
6. PW 1 Dharji, who had lodged the First Information Report Ex.P 1 of the incident stated that at about 5.30 p.m. on the day of incident, he was working in his field. His brother Kanji (deceased-victim), and his wife Mst. Sajjana (PW4),his brother Dhanji (CW1) and his wife Mst. Kekli were washing the grass-bundles in the river situate nearby his fields. Parthu (PW 5) and Veerji (PW 2) were taking bath in the river. Hamiri (PW 2) had come to the river with her she-buffalo to provide water to the animal. The accused persons came there. Accused Halu had an axe while accused Nanka and Puniya had lalhies. Accused Halu struck three blows of his axe on the head of Kanji. Kanji fell down and became unconscious. There was profuse bleeding from his wounds and the clothes he was wearing got drenched with it. The witness further stated that accused Nanka and Puniya struck blows with their lathies to Kanji. The same version of the incident was given by PW 2 Veerji. According to him, also, the accused persons came together. Accused Halu had an axe while Nanka and Puniya had lathies. Accused Halu struck blows on the head of Kanji with his axe and the remaining two struck blows to him with their lathies. The accused thereafter went away. Kanji became unconscious on the spot. PW 3 Mst. Hamiri narrated the incident in more or less in the same words. She had taken her she-buffalo to the river to provide water to it. According to her, when Kanji and the other members of the complainant party were cleaning the grass-bundles, accused persons came there. Accused Halu had an axe while accused Nanka and Puniya had lathies. Accused Halu struck blows on the head of Kanji with his axe and the other two accused struck blows to him with their lathies. PW 4 Sajjana is the widow of the deceased-victim. She stated that at the time of the occurrence she and her husband Kanji were washing the grass bundles in the river. Accused Halu, Nanka and Puniya came there. Halu had an axe while the remaining two accused had lathies. Accused Halu struck blows with his axe on the head of her husband Kanji. Kanji fell down. The other two accused struck blows to her husband with their lathies. PW 5 Parthu also gave the same narration of the incident. He deposed that the accused persons went to Kanji (the deceased-victim) and wife Mst. Sajjana, who were washing the grass-bundles in the river. Accused Halu had an axe while the other two had lathies. Accused Halu struck blows with his axe on the head of Kanji and the remaining two struck blows to him with their lathies. CW 1 Dhanji also gave the same version of the incident. He was washing the grass-bundles in the river along with the deceased Kanji and his wife Mst. Sajjana. He deposed that the accused persons came there where they were washing the grass-bundles. Accused Halu had an axe while accused Nanka and Puniya had lathies. Accused Halu struck blows on the head of Kanji with his axe and the other two struck blows to him with their lathies.
7. We have carefully read the evidence of the aforesaid eye witnesses, each of whom has given a detailed and graphic description of the incident. These witnesses have admitted the presence of each other on the spot. The names of all these witnesses have been mentioned in the First Information Report Ex. P 1 lodged within two or three hours of the incident. All of them were cross-examined at some length, but nothing could be elicited from them which may make their testimony unworthy of belief or credence. It is true that PW 1 Dharji and CW 1 Dhanji are the real brothers and PW 4 Mst. Sajjana is the widow of the deceased-victim. But this relationship in itself is not sufficient to throw away their evidence over-board.
8. These eye witnesses have given a consistent version that it was accused Halu who was armed with an axe and who had administered blows on the head of Kanji with his axe. The injury report Ex. P 14 shows that three incised wounds were found on the head of the deceased-victim Kanji. We have, therefore, no difficulty in concluding that accused Halu had landed three blows with his axe on the head of the deceased-victim Kanji.
9. As regards accused Nanka and Puniya, the allegation of the eye witnesses is that they struck blows to Kanji with their lathies. But this is not supported and corroborated by the deceased-victim’s injury report Ex. P 14. No injury caused by any blunt object was found on his body except injury number 2 which was only echhymosis and swelling. Since the medical evidence does not support the prosecution version that accused Nanka and Puniya struck blows with lathies to the deceased-victim, it does not stand proved that these 2 accused caused any injury to the deceased-victim. It appears that the echhymosis and swelling, that is injury No. 2 was sustained by the deceased-victim when he fell down the injuries were caused to him by accused Halu.
10. Accused Nanka and Puniya, thus struck no blows to the deceased victim.
11. The learned Sessions Judge was much impressed by the fact that the eye witnesses had rot explained the injuries found on the person of accused Halu. His injury report is Ex. D 7. The injuries found on his person are as under:
(1) One contused wound left occipital region 3/4″ x .15″ x .15″;
(2) One contused wound left parial region 3/4″ x .15″ and .15;
(3) Two contused wounds back of elbow rept 1/2″ x .15″ x .15″;
(4) Diffused swelling back right side thoraid lumber region;
(5) Abrasion right shoulder region medial side 1″ x .2″.
12. Now the injuries found on the person of accused Halu are trivial and insignificant. Such injuries can be self-inflicted. The failure of the prosecution witnesses to explain the injuries on the person of accused Halu, in these circumstances, is of no importance and does not adversely affect the prosecution case.
13. The learned Sessions Judge held that accused Halu had a right of private defence. It was the complainant party who made an assault on him and caused injuries to him. In order to ward-off the aggression and being further beaten he landed blows to the dedceased-victim. According to the learned Sessions Judge, these facts were sufficient to make out a plea of the right of private defence of person. We are unable to maintain this finding of the learned Sessions Judge. The mere presence of trivial and insignificant injuries on the person of the accused does not raise the presumption that he must have acted in the exercise of the right of private defence. As stated above, these injuries could be self-inflicted. In order to make out a plea of private defence, the accused must show that he had received the injuries in the incident. There is no material on record to raise the inference that accused Halu had sustained the injuries in this very incident. No right of private defence was, therefore, available to the accused Halu.
14. One of the grounds which found favour with the trial court is that the prosecution had not come with the motive sufficient enough to incite the accused Halu to kill Kanji. The suggestion of the prosecution witnesses that the victim’s brother Dhanji (CW 1) had illegally cultivated the Government land, is not a sufficient motive to push the accused to commit the crime. We are again not impressed with the approach of the learned Sessions Judge. When there is direct evidence, the absence or inadequacy of motive loses much of its significance. It has been proverbially said that motive is locked in the heart of the accused. Absence or inadequacy of motive is only a circumstance to be taken into consideration in evaluating and assessing the evidence of the eye witnesses. If there is nothing to throw away the direct evidence of the ocular witnesses, the absence or inadequacy of the motive has no relevance. The absence or inadequacy of motive simply suggests that the evidence of the eye witnesses should be read with care and caution. If the evidence is not open to challenge, the absence or inadequacy of motive will recede in the background. Here in the instant case, we have five eye witnesses speaking about the occurrence. Their presence on the spot is not in doubt. Two of them, viz., PW 1 Dharji and CW 1 Dhanji have sustained injuries in this very incident. The incident had taken piece near the fields of these witnesses. Therefore, the absence or inadequacy of motive in the instant case does not help the accused for any purpose.
15. The investigation, according to the learned Sessions Judge was not fair. Accused Halu went to the Police Station and remained with the Investigating Officer from July 13, 1973 yet he was not arrested. His case was not registered. It is true that the police did not promptly proceed with the investigation. The accused were not arrested till July 30, 1973. These lapses are there. But they do not affect the merits of the case. If the police refused to register the case on the report of accused Halu against the members of the complainant-party he had full twenty days time at his disposal to approach the higher Authorities or file a complaint in the Magistrate’s court. He remained free from July 13, 1973 to July 30, 1973. He had, thus, ample time to take legal action against the members of the complainant party, in case he was an aggrieved person. But he failed to do so. The prosecution should not be allowed to suffer on account of his failure to take legal action against the members of the complainant party.
16. The last question, which now survives for consideration is the nature of offence made out from the death of Kanji. The occcurrence took place in the afternoon of July 13, 1973. Kanji remained alive thereafter and died at about 10-20 a.m. on July 20, 1973 i.e., nearly after seven days of the incident. The offence was not pre-planned or pre-meditated. No motive has been alleged for the killing of Kanji by accused Halu. In these circumstances, the intention to commit murder was not there. The injuries caused by Halu were not such as to cause the death instantaneously on the infliction of the injuries. We are, therefore, of the opinion that the case is not covered by Section 300, I.P.C. However, knowledge that the accused Halu by his act, was likely to cause death of Kanji can be safely imputed to him. The offence, therefore, made out falls under the Part II of Section 304, IPC. We have held above that the injuries to Kanji were inflicted only by accused Halu. No injury was inflicted to Kanji by accused Nanka and Puniya.
17. As regards the applicability of Section 34, IPC, we find no material. Accused Nanka and Puniya did not inflict any injury to the deceased Kanji. They were merely with accused Halu. But by the mere fact of their being with accused Halu it cannot be said that they had shared a common intention with him in inflicting injuries to Kanji. The circumstances arising in the case do not permit us to press into service Section 34, IPC against accused Nanka and Puniya.
18. We are fully conscious that we are hearing an appeal against acquittal and an acquittal should not be lightly set-aside. An accused under our Criminal Jurisprudence is presumed to be innocent and this presumption stands further strengthened by his acquittal. We are also alive to the legal position that when two views are possible on evidence, the view taken by the trial Court should be respected. The acquittal is to be interfered with on substantial and compelling reasons. Here in the instant case, the trial Court took a superficial view of the evidence without any effort to evaluae and assess it. The interference has, therefore, become inevitable.
19. In the result, the appeal is partly allowed as under
(1) the acquittal of accused Haul is set-aside. He is convicted under Section 304 Part II, IPC and is sentenced to four years’ rigorous imprisonment. He is on bail. He is allowed one month’s time to surrender before the learned Sessions Judge, Banswara to serve out the sentence. In case he fails to surrender himself, the Sessions Judge will issue a warrant of arrest against him and send him to jail for the aforesaid purpose. The period of detention undergone by him during investigation, enquiry and trial shall be set-off against the term of imprisonment imposed on him; and
(2) the acquittal of accused Nanka and Puniya is maintained and the appeal filed by the State against their acquittal is dismissed.
20. The appeal shall stand accordingly disposed of.