JUDGMENT
Navin Chandra Sharma, J.
1. Appellants Dubbal and Thawara have been convicted under Section 302 read with Section 34, IPC and sentenced to imprisonment for life by the learned Sessions Judge, Dungarpur and to a fine of Rs. 100/-and in default of the payment thereof to rigorous imprisonment for one month.
2. The appellants were tried by the learned Sessions Judge, Dungarpur and both of them were charged Under Section 302 read with Section 34, IPC for the murder of Laxman s/o Valji Wagadia resident of Dhangaon, P.S. Galiyakot District Dungarpur. Prosecution alleged that the deceased Laxman was having illicit relationship with Smt. Ratan DW 4 wife of Deva, Dubbal appellant is uncle-in-law of Smt. Ratan DW 4 and Thawara appellant is her husband Deva’s elder brother. Valji, husband of Smt. Kaudi PW 5 and Lalji were brothers. Galab, Lala PW 6 and Laxman deceased were brothers. Galab, Lala PW 6 and Laxman deceased were sons of Smt. Kaudi widow of Valji Bhema PW 8 was son of Lalji who was Smt. Kaudi’s husband’s elder brother. On December 14, 1979 at 10.30 p.m. Bhema PW 8 lodged an oral FIR at Police Station, Galiyakot stating that on December 13, 1979 at about 10 or 11 p.m. Smt. Kaudi PW 8 and her sons Lala PW 6 and Laxmam deceased were sitting in the “parasal,’ of their house in village Dhangaon. Bhema PW 8 was also sitting at that time in the “parasal” of his house which was adjoining the house of Smt. Kaudi PW 5. At that time both the appellants and Dhanji brother of Dubbal appellant came in the compound of Smt. Kaudi’s house armed with lathies and asked Laxman deceased as to why he had abducted Smt. Ratan wife of Deva. Thawara appellant then dragged Laxman and brought him outside the “parasal” of Smt. Kaudi’s house and thereafter both the appellants and Dhanji started beating Laxman with “Lakries”. Laxman raised a cry and on hearing that his elder brother Galab & his wife Smt. Champi PW 4 came on the place of the incident from their field. The appellants and Dhanji inflicted injuries on the head and neck of Laxman with “lakries” as a result of which Laxman fell down. Bhema and others could not rescue Laxman out of fear and the appellants and Dhanji taking Laxman to be dead ran away. It was stated by Bhema that the appellants had been Laxman on account of this enmity that about a month before the date of incident Laxman had brought Smt. Ratan wife of Deva after abducting her and the appellants and Dhanji had later on taken her back. Laxman succumbed to the injuries sustained by him at 4 or 5 p.m. Bhema stated to the SHO that he has come to the Police Station to lodge the First Information Report after leaving the dead body of Laxman in the pare of Lala and Galab. After necessary investigation, the Police filed a charge sheet against the appellants before the Munsif-cum-Judicial Magistrate, Dhanji co-accused was reported to be absconding. The Judicial Magistrate, Sagwara by his order dated March 21, 1980 committed the appellants for trial to the court of Sessions Judge, Sagwara. The learned Sessions Judge charged the appellants under Section 302 read with Section 34, IPC and after trial convicted both of them for the said offence and sentenced them as aforesaid.
3. The learned Sessions Judge believed the testimony of PWs 5 & 6 Smt. Kaudi & Lalla as eye-witnesses to the incident and held that it was established by the evidence of these two witnesses that the appellants were indiscriminately beating Laxman deceased with lathies causing fracture of first and second cervical vertebrae compressing cord. He also held that the postmortem report Ex. P 13 and the evidence of Dr. Surendra Kumar Mathur PW 10 corroborated the testimony of the eye-witnesses and also established that swelling behind the right ear 6×6 cm. was sufficient to have caused the death of Laxman in the ordinary course of nature which had resulted in the fracture of first and second cervical vertebrae. According to the learned Sessions Judge, first and second cervical vertebrae are very hard and strong and their fracture could not be caused unless more than one lathi blow had been inflicted by the assailants on that part of Laxman’s body.
4. The learned Sessions Judge did not believe the defence version of the incident as given by Smt. Ratan DW 4 that it was Dhanji who had inflicted injury on Laxman deceased and that the appellants did not play any part in the incident. The learned Sessions Judge further stated that there was also motive for the appellants to murder Laxman deceased. The motive was that Laxman had illicit relations with Smt. Ratan DW 4 wife of Deva. Dubbal appellant was uncle-in-law of Smt. Ratan DW 4 and Thawara appellant was her husband Deva’s elder brother. The appellants could not tolerate this illicit relationship of Laxman deceased with Smt. Ratan wife of younger brother of Thawara appellant and, therefore, they decided to murder Laxman.
5. Both Dubbal and Thawara have filed the present jail appeal. Shri B.S. Rajpurohit Advocate was appointed as Amicus Curiae for the appellants. We have heard Shri B.S. Rajpurohit Amicus Curiae and Shri S.K. Mathur, the learned Public Prosecutor and have perused the record.
6. We have already pointed out the relationship between Smt. Ratan DW 4 and the appellants and also the relationship between Laxman deceased and the main prosecution witnesses. We may also point out that the appellants are also related to Laxman deceased as appears from the statement of Bhema PW 8 in his cross-examination. Before proceeding further, we may narrate the version of the appellants as given by them in their statements under Section 313 Cr. P.C. before the learned Sessions Judge. Both the appellants while totally denying their participation in the alleged incident stated that Laxman deceased had abducted Smt. Ratan and the prosecution witnesses specially Laxman’s mother and brother’s wife have deposed lies in order to cover up the sin committed by Laxman. In their defence evidence Smt. Ratan DW 4 has become their spokeswoman. She has stated that about a month before the incident she had gone to jungle to cut the grass. At that place Laxman deceased met her and told her that he would keep her as his wife and she may accompany him. She refused to do so. Thereupon Laxman forcibly took her to his house and kept her there for four or five days. On the date of the incident, Lawman’s mother Smt. Kaudi PW 5 had gone to the agricultural field and Laxman’s brother Lalla PW 6 had gone to work on stone quarry. Laxman forcibly raped her. She raised a cry whereupon her uncle-in-law Dhania, who is the absconding accused in the case came running and inflicted 2 or 3 ‘lakdi’ blows on the head and back of Laxman. She then ran away from the house of Laxman. According to her the appellants were not there at all.
7. It would thus appear that it is not in dispute that on the day of the incident Laxman deceased was beaten to death. What is in dispute is that according to the statement of Smt. Ratan DW 4 it was Dhania absconding accused who had committed the crime and not the appellants. On going through the prosecution evidence we find that Smt. Kaudi PW 5 and Lalla PW 6 have deposed against the appellants as eye-witnesses to the incident. As has already been stated Kaudi was mother and Lalla was elder brother of Laxman deceased. They have deposed that on the date of the incident Kaudi, Lalla and Laxman were sitting under the ‘dhal’ of their house and at about 10 a.m. the appellants and Dhania armed with lathies came there and Thawara appellant inflicted lathi blow on the head of Laxman while Dubbal appellant inflicted the next blow on the head of Laxman by lathi, Dhanji or Dhania absconding-accused inflicted a lathi blow in the back of Laxman. Both Kaudi and Lalla did not try to rescue Laxman out of fear that the appellants would also cause injury to them. The learned Sessions Judge has believed the testimony of both these eye-witnesses.
8. It was contended by Mr. B.S. Rajpurohit, the Learned Amicus Curiae that Bhema PW 8, who had lodged the FIR of the incident Ex. P 10, has not supported the prosecution case and has supported the defence version, He has even denied having lodged the FIR and stated that the police had obtained his thumb mark on a blank paper. It was pointed out that Champi PW 4 has falsely tried to become an eye-witness despite the fact that at the time of the alleged incident she was on the field of her husband Galab PW 7 and the field was at a considerable distance from the place of the incident and as such Champi PW 4 could not even hear the cry of Laxman. It was also argued that Kaudi and Lalla should not have been believed to be truthful witnesses by the learned Sessions Judge in as much as they have not even supported the prosecution version about the motive which actuated the appellant to commit the alleged crime. Kaudi PW 5, it was stated has denied illicit relationship between Laxman and Smt. Ratan and Lalla PW 6 has shown ignorance of this fact. Apart from that Smt., Kaudi had not deposed in her police statement as to which of the accused inflicted injuries on Laxman in what order and on what part of the body and while in her court statement she pointed out both these things. It was urged as a matter of fact, both Smt. Kaudi and Lalla were not even present on the spot. Smt. Kaudi was at the field while Lalla had gone to work on the stone quarry and this is supported by the defence evidence. Thus neither motive was established nor the alleged eye-witnesses had seen the incident. It was also not established as to who inflicted the fatal blow on Laxman. The lathies recovered had no blood stains and they do not connect the appellants with the crime. As against this, the learned Public Prosecutor contended that both Smt. Kaudi and Lalla were eye-witnesses to the incident and they were rightly believed by the learned Sessions Judge. Both the appellants and Dhania had come together armed with lathies and the appellants inflicted injuries on the vital part of the body of Laxman causing his death. As to the alleged motive, it was stated that even the defence witness Smt. Ratan DW 4 has disclosed the motive herself and Lalla PW 6 has also stated in the cross-examination that the appellants were making allegation that Laxman had illicit relationship with Smt. Ratan and Champi PW 4, who is brother’s wife of Laxman, has also deposed that Laxman used to remain in company with Smt. Ratan. From the evidence of Dr. Surendra Kumar Mathur PW 10, who carried out the post mortem examination of the dead body of Laxman has deposed that Laxman died of the injuries to the 1st and 2nd cervical vertebrae resulting in compression of cord and other nerves. Laxman had fracture of 1st and 2nd cervical bone apart from fracture of occipital bone. He has also stated that swelling behind the right ear 3 x 6 c.m., was sufficient to have caused the death of Laxman in the ordinary course of nature & this has resulted in the fracture of 1st & 2nd cervical vertebraes. It was urged that the medical evidence also thus corroborates the evidence of the above two eye-witnesses and the learned Sessions Judge has rightly convicted the appellants for the offence under Section 302 read with Section 34, IPC.
9. We have given our careful consideration to the rival contentions urged before us by the learned Amicus Curiae and the learned Public Prosecutor. We have already stated that not only prosecution witnesses and Laxman deceased inter-se were closely related, but the prosecution witnesses and the appellants were also related to each other by family ties. They were Meenas by caste and were residents of the tribal area of Dungarpur. Two important phenomena of human behaviour have projected themselves crystal clear in this case. The first phenomenon projected is that whatever concessions other relations may give, a mother and a brother cannot give any concession to the assailants of her son or his brother. They are zealous even to the extent that they do not want to expose their child as a bad character how so ever the child might have been. Keeping this phenomenon of human behaviour in mind, we have to appreciate the evidence of Smt. Kaudi PW 6 and Lalla PW 6. The second important phenomena of human behaviour has been projected by the evidence of Smt. Ratan DW 4 which has proved the unimpeachability of the ancient saying that “even Gods do not know the character of a woman and the fate of a man what to say of mortals.” Here is Smt. Ratan wife of Deva who was a woman aged 22 years. According to her own statement she was married to Deva three years before the incident. Deva was serving and earning his livelihood in Gujarat. Deva used to come to his village Dhangaon only once in a year and use to stay for about 4 days in a year and then used to go back to Gujarat. Smt. Ratan states that mostly she used to remain in her father’s house. It is thus clear that a young woman of the age of Smt. Ratan had sexual deprivation for three long years because her husband Deva used to visit village Dhangaon only once for about 4 days every year and then used to go back to Gujarat. Although in her examination-in-chief Smt. Ratan stated that before the date of the incident, Laxman deceased had abducted her and had kept her at his house for only 4 or 5 days and had committed rape with her on the date of the incident, but in her cross-examination she clearly admitted that when Laxman had brought her, he kept her for about 25 days in the house of his brother Galab and Laxman used to live with her in the house of his brother during these 25 days and even in the day. Later on elder brother of Laxman named Galab was fed up with this illicit intimacy between Laxman and Smt. Ratan and raised an objection against Smt. Ratan living in his house and asked her why she did not live in the house of Laxman which was in the village. It is an admitted position that Galab’s house was on the agricultural field at a distance from the village Dhangaon and Laxman’s house was in the village itself. Thereafter Smt. Ratan shifted to Laxman’s house in village Dhangaon and lived there for 5 or 6 days before the date of the incident. Smt. Ratan during this entire period of about one month neither cared to run away from the house of Galab or Laxman nor tried to lodge a report in the police about her abduction or rape. On the contrary, she lived voluntarily with Laxman for such a long period and had carnal intercourse with him in a peaceful manner. She is now deposing against the prosecution only after the death of her paramount in order to pose that she by herself was virtuous lady so that she may not fall in the eyes of her husband and in-laws. That is, after all, a woman’s character which cannot be predicted even by Gods. At least this leads to one irresistible conclusion that Smt. Ratan wanted to pose herself as a chaste lady victim of Laxman’s abduction and rape. The disrespect which she was bound to suffer in the eyes or her husband and in law is apparent from the fact that after the death of Laxman, she was not taken back by her husband and she is living since then in her father’s house. She now wants to pacify her husband and in-laws by posing herself as a chaste woman.
10. This was a strong motive for the nearest relations of the husband of Smt. Ratan to murder Laxman Deva, husband of Smt. Ratan, was living in Gujarat. Thawara appellant was real elder brother of Deva and Dubbal appellant was real uncle of Deva husband of Smt. Ratan. Who else than they ought to have or could have decided to murder a man who was outraging the chastity of the female who had been married in their family? In Sunder Singh v. State of Uttar Pradesh , their Lordships of the Supreme Court said that the accused may have had an eye on some one’s wife i.e. of the deceased and had already developed a liaison with her, it cannot be said that these circumstances are not sufficient motive for the dastardly crime. The reverse is equally true. Again in Kishanlal v. State of Haryana , their Lordships stated ‘what girl would foist a rape charge on a stranger unless a remarkable set of facts or clearest motive is made out.” Generally no girl people make a false charge and not the girl foists a rape charge on man. In our considered view, there was strong motive for the appellants to commit the crime and the above mentioned motive furnishes the necessary corroboration to the testimony of the eye-witnesses.
11. We have to appreciate the evidence of the prosecution witness in this background. The first witness of the family of Laxman is Champi PW 4 who is wife of Galab PW 7 who was elder brother of Laxman. Smt. Champi has clearly deposed that her ‘Devar’ Laxman had intimacy with Smt. Ratan and he used to remain in her company. Kaudi PW 5 is the mother of Laxman who was eye-witness to the incident and she has clearly deposed that while she along with his sons Lalla and Laxman were sitting under the projected part of their house in village Dhangaon, the appellants and Dhania came armed with lathies and the appellant inflicted lathi blows on the head of Laxman and Dhanji inflicted lathi blow on the back of Laxman. Lalla PW 6 has also narrated the same story as an eye-witness. We do not find any reason to disbelieve their presence at the time of the incident and also their testimony that the appellants and Dhania came together armed with lathies at the place of the incident and inflicted lathi blows on Laxman causing injuries as found in the post mortem report. The appellants in their defence have tried to put forward a theory that neither Smt. Kaudi nor Lalla were present at their house in the village at the time of the incident and they were not eye-witnesses to the incident. For this purpose they have examined Seva Ram DW 1, Nanu Ram DW 2, Dhula DW 3 and Smt. Ratan DW 4. Seva Ram has been examined to say that on the date of the incident Smt. Kaudi was on the field of his son Galab which is at a distance of about 1 or 1-1/2 miles from the house of Laxman in the village and that on the date of the incident Kaudi remained throughout the day on the field of Galab and thus, could not see the incident. Nanu Ram DW 2 has been examined to prove that Laxman had been granted a lease to excavate stones and ‘patties’ in the quarry in village Dhangaon and after the death of Laxman this lease was continued in favour of his brother Galab. Dhula DW 3 has been examined to state that even when Laxman was alive, Lalla used to work on the stone quarry in respect of which Laxman was granted excavating lease. Smt. Ratan, as already stated, has been examined to say that on the date of the incident she and Laxman alone were at Laxman’s house and that Kaudi was on the field and Lalla was on the quarry. The falsity of this defence evidence is amply borne out from their own testimony. Seva Ram DW 1 has admitted in his statement that on the field situated on the outskirts of the village, Galab and Champi have their houses and both of them live there. He has also admitted that Smt. Kaudi does not live with his son Galab and lives in a separate house. Thus, when admittedly Smt. Kaudi does not live with his son Galab, it cannot be believed that at the time of the incident she was not at her house but was at the house of Galab. Shah Mohammed Patwari DW 6 has deposed that land comprised in Khasra No. 883 had come to the share of Galab as a result of partition and he was living there after constructing his own house. It was at a distance of about 2-1/2 miles from village Dhangaon. Lalla and Laxman had their houses in village Dhangaon. Thus, it cannot be believed that on the date of the incident Smt. Kaudi was not in her own house in the village but was in the field. Champi PW 4 has denied the fact that on the date of the incident her mother-in-law Smt. Kaudi was at the field and she has stated that she was at her house, i.e., at the place of the incident. No question on the point was put to Galab PW 7 in cross-examination. So far as Smt. Ratan is concerned we have already sufficiently dealt the incredibility of her testimony and of its nature. All that Nanu Ram DW 2 states is that Laxman had been granted quarry lease for extracting ‘patties’ and ‘katlas’ for the period from February 13, 1979 to February 12, 1980 and after Laxman’s death this lease was continued in the name of his brother Galab. It is difficult to believe that while the lease was in the name of Laxman, he did not use to go to the quarries and in his place Lalla used to go there. In our view, the statement of Dhula DW 3 is unreliable. Merely because Smt. Kaudi did not state in her police statement as to on which part of the body and in what order the appellants and Dhania inflicted injuries on Laxman her testimony as eye-witness cannot be disbelieved As already stated, it is well-established that both the appellants and Dhania armed with lathis, in the back ground of already extensively-quoted motive, came on the scene of the incident suddenly and dragged Laxman out and started beating him by inflicting lathi blows resulting in his death. The reason which led to taking place of the incident and the object for which the appellants and Dhania had come together armed with lathies and the fact that all the three inflicted lathi injuries simultaneously on laxman leads to irresistible conclusion that the appellants committed murder in furtherance of their common intention to murder Laxman and they were rightly convicted by the learned Sessions Judge, Dungarpur.
12. We may also deal with the decision of a learned Division Bench this Court in the case of Gordhan and other v. The State of Rajasthan reported in 1986 (2) WLN 453 which was relied upon before us by the learned Amicus Curiae and to which one of us was a party to the judgment. In Gordhan’s case (supra) the facts were that deceased Balusing Rajput was the Sarpanch of Gram Panchayat Udasar while accused Gordhan was a Panch of the said Gram Panchayat. There was faction between Balusing Sarpanch and Gordhan accused and five members of the Panchayat were on the side of Gordhan while 7 members were the supporters of the deceased victim Balusing. The State of Rajasthan had allotted a major portion of pasture land of village Udasar to the Forest Department. It was alleged that the deceased Balusingh was an instrument in getting this allotment of land to the Forest Department. This allotment was resented and protested by the accused Gordhan and the persons belonging to his group. Apart from that deceased Balusing had obtained a mining lease from the State Government to excavate the lime pebbles, and it was said that accused Gordhan and his supporters were not happy with the grant of this lease of quarry to the deceased Balusing and therefore, on April 24, 1973 when the deceased Balusing was going to his quarry to show to the labourers a new place of excavation, the six accused persons suddenly emerged from the thorny fences of the field and made an assault on Balusing with axe, ‘barchhi’, Sela, Jeyee and lathies. According to the medical evidence, death of Balusing took place on account of his head injury No. 7. Two injuries were inflicted on the head which were injuries Nos. 7 and 8. According to the eye witnesses, Basti Ram had inflicted injury No. 7 and likewise they did not state that accused Basti Ram had inflicted injury No. 7 and likewise they did not state that accused Hanuman had inflicted injury No. 7 to Balusing. Thus the author of fatal injury No. 7 could not be ascertained. The learned Division Bench found as a fact that the motive about there being two factions in the Panchayat and the active role of Balusing deceased in getting the pasture land allotted to the Forest Department was not sufficient to show that the accused persons wanted to commit the murder of Balusing and the suggested motive was grossly inadequate to push the accused persons to commit the murder of Balusing. The other fact that Balusing was suspended from the post of Sarpanch and did not hand over charge to Up Sarpanch was also held not sufficient to infer that the accused persons wanted to take the life of Balusing simply for that reason. According to the learned Division Bench, which decided Gordhan’s case the grant of lease of exacting the lime pebbles in favour of deceased Balusing by the State might have annoyed the accused, but this annoyance could not be to the extent that they wanted to finish Balusing for ever. His Lordship Byas, J. stated that “there was thus no motive good, bad or indifferent, which promoted the accused persons to take the life of Balusing”. The learned Judge then proceeded on to observe that when a person is killed as a result of the violence used by unlawful assembly, the nature of offence may take one or the other of the four shapes dealt by him in para 20 of the reported judgment. Having dealt them the learned Judge proceeded on to observe that there is no motive forth-coming from the side of the prosecution. The relations between the deceased and the accused had not sunk so low that they intended to kill him. They were simply annoyed with Balusingh as he had played an active role in getting the pasture land allotted to the Forest Department. In such circumstances the only inference which could be safely drawn was that the common object of the unlawful assembly constituted by the six accused persons was only to give a good thrashing and beating to the deceased and no more. The common object of the assembly was not to commit the murder of Balusingh. In such circumstances, the murder was not committed in furtherance of the common object of the unlawful assembly and the author of the fatal injury was also not known, as to which members caused it then none of the members could be convicted for the offence under Section 302 read with Section 149, IPC and therefore the accused persons were convicted under Section 326 read with Section 149, IPC instead of under Section 302 read with Section 149, IPC.
13. It is quite clear from the facts of Grodhan’s case (supra) and findings arrived at by the learned Judges on facts that there was no motive, good, bad or indifferent, which could prompt the accused persons in that case to take the life of Balusingh and, therefore, the common object of the unlawful assembly constituted by them was only to give a good thrashing & beating to the deceased and no more and it was not to commit the murder of Balusingh. We have already quoted two decisions of the Supreme Court where in an accused or deceased has an eye on some one’s wife, there arises sufficient motive for the crime of murder. Even where a wife, a young lady, repeatedly refused to oblige her husband by leaving employment and joining the matrimonial home, the Supreme Court in Ramanand and Ors. v. State of Himachal Pradesh, held that it was a strong motive for the appellant husband to put an end to the life of his wife. The present case before us falls in this category of cases. Here was a case where deceased Laxman had developed close intimacy with Smt. Ratan wife of Deva during Deva’s absence in Gujarat. Whose blood would not boil except that of husband’s brother and uncle, if a woman who had come to their family by marriage is sharing bed with a stranger? That was a more than strong motive for the appellants to commit murder of such a person who himself being married was enticing the wife of other.
14. The evidence of Dr. Surendra Kumar Mathur PW 10 clearly goes to show that swelling behind the right ear 6×6 c.m. was sufficient to have caused the death of the victim in the ordinary course of nature and this had resulted in the fracture of first and second cervical vertebrae. According to him, Laxman died of injury to the 1st and 2nd cervical vertebrae resulting in the compression of cord and other nerves. It may be stated that fractures of the skull, neck or spine are usually the most dangerous. In skull fractures, the brain is often injured. In neck or spine fractures, the spinal cord or the nerves coming out of it are crushed and pinched between the fragments of the vertebrae. If the victim cannot move his fingers, his neck may be broken; if he cannot move his legs, his back may be broken (See Justus, J. Schifferes Ph. D., in his book “The Family Medical Encyolopedia”-18th Branch January, 1970 at page 205). It has been held by the Supreme Court in B.N. Srikantiah Siddiah and Anr. v. State of Mysore , that injuries on the head or the neck are on the vital parts of the body. Thus we are clearly of the opinion that the appellants had a common intention to murder Laxman and in pursuance of that common intention injuries were inflicted on the vital parts of Laxman’s body which were sufficient in the ordinary course of nature to cause his death. The appellants were, therefore, clearly guilty of the offence under Section 302 read with Section 34, IPC and they have been rightly convicted by the learned Sessions Judge, Dungarpur, for the said offence by his judgment dated December 23, 1980.
15. There is no merit in this jail appeal and the same is here by dismissed.