Rajasthan High Court - Jaipur
Kishna Ram And Ors. vs State Of Rajasthan on 21 April, 1987
Equivalent citations: 1987WLN(UC)379
Author: Ashok Kumar Mathur
Bench: Ashok Kumar Mathur
JUDGMENT
1. The five appellants have been convicted under Sections 161 or 161/149, IPC and sentenced to life imprisonment. They have further been convicted under Sections 460 or 460/149 IPC and sentenced to three year's R.I., under Section 148 IPC and sentenced to one year's R I. and under Section 147, IPC but no separate sentence has been awarded to them, by the learned Addl. Sessions Judge No. 1, Jodhpur on 14-12-1976. One joint appeal has been filed by all the five appellants against their convictions and sentences being D.B. Criminal Appeal No. 49/77. Two separate jail appeals have also been filed by Mahadeo and Mansha Ram being D.B. Criminal Appeals No. 66/77 and 67/77 respectively. The three appeals are, therefore, being disposed of by a common judgment.
2. The facts of the case briefly stated are these. It is alleged that on 23-9-1975 in the night the five accused formed an unlawful assembly with the common intention of murdering Bhura Ram and Pancha Ram and in furtherance of that common object they went armed with swords, Dhariya and Lathis to Khatiyon-ki-khatod in village Basani Hari Singh and murdered Bhura Ram there Later, they proceeded to the 'Bada' of Pancha Ram where Pancha Ram was sleeping on a cot and inflicted injuries on him resulting into his death One Jabbar Singh is alleged to have seen the first incident and had informed Mehram of it and Neni daughter of Pancharam who was an eye witness to the Second incident narratted it to Dayalaram, who immediately reached there on hearing her cries and who had taken Neni to Mehram and informed Mehram about it, whereupon Mehram lodged the First Information Report of this incident which had taken place about mid-night at police station Pipar 11:30 am on 24-9-1975. The police Station is 42 Kms away from the place of the occurrence. The case was registered. The police reached the place of incident Shri Avtar Singh, SHO Police Station Pipar, who was at that time at Jodhpur in connection with official duty also reached the spot on hearing that murder had taken place at Basni along with Madan Lal Sharma ASP. After usual investigations the police put up a challan against the five accused persons, who were committed to the court of Sessions, Jodhpur and from where the case was transferred to the learned Addl. Sessions Judge No. I Jodhpur. The learned Additional Sessions Judge framed the charges regarding the aforesaid offences against the accused who denied the same and claimed to be tried. Whereupon the trial started and the prosecution examined as many as 20 witnesses. One Sanwaldas, Head Constable, who had already been examined as a prosecution witness was again examined as a court witness. A number of documents were also produced. The accused were examined. They maintained their denial of participation into alleged incident and produced six witnesses in defence. On conclusion of the trial, the learned Addl. Sessions Judge convicted and sentenced the accused persons as aforesaid.
3. We have heard the learned Counsel of the appellants and the learned, Public Prosecutor and have gone through the record.
4. The fact that Bhuraram and Pancharam had died on account of the injuries received by them in the night of 23-9-1975 and that the injuries were sufficient in the ordinary course of nature to cause the death has not been disputed before us by the learned Counsel for the appellants. The post mortem report and the statement of Dr. J.S. Choudhary in this respect has not been challenged. According to Dr. J.S. Choudhary the following injuries were found on the person of Pancharam:
(1) Incised wound 6-1/2" x 1-1/2" x 2-1/2" on the middle part of the neck on right side; (2) Incised wound 3-1/2" x 1-1/2" 2-1/2" just below right injomatic bone; (3) Incised wound 6" x 2" x 3" just below right ear;
(4) Incised wound 6" x 1" x 2" on the lower part of the neck on right side; (5) Incised wound 1-1/2" x 1/2" x bone deep on the right restoid ragion; (6) Incised wound 2" x 1/2" x bone deep on the upper part of right mastoid region; (7) Incised wound 4" x 1/2" x 1/2" on lower 1/3 of right arm; (8) Incised wound 1-1/2" x 1/4" x 1/4" on lower 1/3 of right fore arm; (9) Incised wound 1/4" x 1/2" x 1/4" on the lower 1/3rd of the right fore-arm; (10) Incised, wound 2-1/2" x 1/2" x 1/2" on right shoulder posteriorly; (11) Incised wound 2" x 1/2" x 1/4" on the upper part of right side of the chest; (12) Incised wound 1-1/2" x 1/2" x 1/4" on the upper part of right arm posteriorly; (13) Incised, wound 1/2" x 1/2" x 1/4" on lower 1/3 of right fore arm; (14) Incised wound 1/4" x 1 /2" x 1/2" on lower part of right ear.
And according to him the cause of death was haemorhage resulting from several injuries and the injuries to carotid vessels of neck.
5. He had also found the following injuries on the dead body of Bhura Ram:
(1) Incised wound 5-1/2 x 3" x 3-1/2" on the middle part of the right side of the neck extending posteriorly; (2) Incised wound 3" x 1/2" x bone deep on right parietal region; (3) Incised wound 9" x 1/2" x 1/2" on the left side of the spine; (4) Incised wound 1" x 1/2" x 1/4" on left elbow joint;
(5) Incised wound 3-1/2" 1" x 1 on right buttock;
(6) Incised wound 4" x I" bone deep on upper part of occipital region.
According to him the cause of death was haemorrhage resulting from injuries of blood vessels of neck and several injuries combined.
6. So far as the deceased Bhura Ram is concerned, the learned Sessions Judge has found that there is no evidence worth belief which may connect the accused with the murder of Bhura Ram He has disbelieved the eye witness Jabbarsingh in this respect and consequently he has also not relied upon the evidence of Mehram and Smt. Punki as their evidence were based on the information given to them by Jabbarsingh. That finding has not been challenged before us by the learned Public Prosecutor, we are, tharefore, only left with the question of murder of Pancharam. The learned Sessions Judge has relied upon the evidence of Kumari Neni PW 37 although according to him she is a partly reliable and partly unreliable witness He has sought corroboration of her evidence by the medical evidence, He has also placed reliance upon the evidence of Ramdayal PW 2. Tilokarm PW 4 and Mehram PW 13 as corroborative piece of evidence supporting the statement of Neni. He has also found that there was motive for the accused persons to have murdered Pancharam in as mush as according to the prosecution Pancharam, Bhuraram and the prosecution witnesses Parasram and Bhagirath had been acquitted from the charge of murder of Modaram and the accused are the relations of the deceased Modaram in as much as Jagram and Kishnaram are brothers being sons of Dhannram and Jagaram had gone in adoption to Moda brother of Dhanna. The other accused are said to be the associates of Jagram. But he has also observed that even though the motive may not be established the evidence of Neni coroborated by the evidence of Ramdayal, Tilokaram and Mehram was sufficient to establish the charges against the accused persons.
7. The prosecution had also relied upon the recovery of sword from Jagram, a sword from Kishnaram and Lathi from Mahadeo but the learned Addl. Sessions Judge does not appear to have placed reliance upon these recoveries. Jagram's sword and Mahadeo's Lathi have hot been connected with the offence. The sword recovered from Kishanaram is alleged to have been stained with human blood but it appears that this circumstance had not been put to the accused in his statement Under Section 313 Cr PC and it has also not been established as to whether the blood stain was of the deceased Pahcharam or the deceased Bhuraram and, therefore, the learned P P. also has not been able to place much reliance upon this recovery. We are, therefore, now left with the evidence of PW 3 Neni, PW 2 Ramdayal PW 13 Mehram and PW 4 Tiloka Ram and the circumstance of motive. The learned Counsel for the appellants has criticized this evidence and has urged that this evidence is not at all reliable and the learned Add I. Sessions Judge was entirely wrong in basing the convictions of the appellants on such unreliable evidence.
8. Before we consider the criticism levelled by the learned Counsel for the appellants against this evidence, it may be stated the PW 3 Neni alleges to be present on the site where Pancha Ram was killed as she was sleeping on another cot nereby and was awakened by the groans and cries of Pancha Ram and she alleges to have seen the five accused inflicting blows with swords, Dhariya and Lathis on Pancha Ram. According to her Jagram and Kishna Ram were armed with swords, Mansha Ram had a Dhariya, Mahadeo and Padma Ram had Lathis. She further stales that on seeing this, she raised cries and then Ramdayal PW 2 reached the spot and she narrated the story to Ramdayal. The accused had by that time run away. Ramdayal states that on that night he had gone to look after his 'Bajara' cop in the field which was about a mile away from Pancharam's 'Bada' and while returning from the field he had heard the cries of Kumari Neni from the terrace of her 'bada' and at that time he had also seen the five accused coming from the side of that 'Bada'. The accused, according to him were armed. He further states that then he went to 'Medi' saw Pancha Ram lying dead on the cot with injuries on his person and then Neni told him that the five accused had inflicted injuries with swords, Dhariya and Lathis on her father whereupon he took Neni to Men Ram's house where Mehram and Tilokaram were present. Mehram is the elder brother of Pancharam and Tilokaram is Pancharam's son. They informed Mehram and Tilokaram about this incident and thereafter Mehram had proceeded to the police station to lodge the report. Mehram and Tilokaram have corroborated this facts.
9. The learned Counsel for the appellants had critisized the evidence of Neni on a number of grounds. We shall examine them one by one. The first and fore-most ground on which the evidence of Neni has been criticized is that she is the daughter of the deceased Pancharam and is, therefore, a highly interested witness We do not find force in this contention because the near relation of the deceased cannot be disbelieved merely on the ground of relationship, if otherwise the statement of the witness appears to be reliable. In the present case, although the learned Sessions Judge has found that in certain respects Neni cannot be said to be a truthful witness but on the essential part of the story he has relied upon her and we do not see any reason to take different view. Her presence at the spot is most natural, her mother had died earlier, she is a girl of about 14 years of age and, therefore, she used to stay with her father in the night and on the date of this incident also she was there. It was urged that she being a girl should be expected to be sleeping with other ladies in the house but this cannot be accepted because ordinarily the other women must be sleeping with their husbands and, therefore, this mother-less girl must be sleeping at the place where her father used to sleep.
10. It was then urged that Neni is a child witness and she has been tutored in as much as so far as the date of the incident is concerned, she specifically states that it was Asoj Vadi Teej in the first half but when asked about the other days and dates of the Hindi Calendar, she showed her ignorance and, therefore, it clearly appears that the date of the incident had been tutored to her. The learned Addl Sessions Judge has relied upon on this cirticism and on this ground he has found her to he unreliable but we do not agree with him. A day or a month related to a particular incident can always stick to the mind and can be remembered but the other dates or months may either not be known or may not be kept in memory. On Asoj Vadi Teej the witness, had lost her father and, therefor, she could have remembered this date even without tutoring. Therefore, she cannot be discarded on the ground that she does not remember the other day or dates of the Hindi Calendar.
11. A further ground urged for disbelieving this witness was that she tries to hide her relationship with Ramdayal @ Dayala. The learned Sessions Judge has accepted this criticism also. We, of course, do not find much force in this contention, although, we may not altogether discard it. Neni is aged about 14 and a clear concept of relationship may not be expected from her. Dayala is the son of Girdhari brother of Pancha's father Hardeoram and is thus a second cousin of Neni. Unless this relationship had been plainly explained to her she may not be expected to know the same. Mehram PW 13, who has disclosed this relationship and on the basis of which information the learned Sessions Judge has held that Neni is trying to conceal her relationship with Ramdayal, himself does not appear to be quite certain in this respect. What he states is that Magnaram was his grand-father who had two sons Hardeo and Girdhari. Hardeo is the father of the witness Mehram but Meh Ram does not know whether Girdhari was eider or Hardeo was elder and that he used to call Girdhari. Giddha. Thus when Mehram's evidence about the relationship itself is a little shaky Neni's evidence cannot be discarded with, reference to Mehram's evidence. We are, therefore, clearly of the opinion that Neni is a witness who can be relied upon so far as she is not contradicted by other circumstances. We further find that she also cannot be discarded on the ground that she is a child witness because she is about 14 years of age, when she can be expected to remember an incident which she had herself seen. Further before recording her statement, the learned Sessions Judge had put her a few questions in order to ascertain whether she could understand the questions and give proper answers and he was of the opinion that she was of a mature understanding and that she also knew the sanctity of oath He, therefore, administered oath to this witness.
12. It was also contended by the learned Counsel for the appellants that if Neni was really present at the spot at that time of this incident the accused would not have left her alive in order to appear in evidence against them and would certainly have put her to death and, therefore, she should not be relied upon as an eyewitness. We are not impressed by this contention, also. The accused had a score to settle with Pancharam and they concentrated upon Pancharam They, therefore, need not have necessarily killed Neni even if she was there. Further the accused may not have thought it proper to have killed a little girl and, therefore, they may have spared her. The conduct of the accused in leaving her alive does not necessarily give rise to an inference that she was not at all present at the seen of the incident when otherwise her presence appears to be natural.
13. It was also urged that if Neni was really an eye witness the Investigating Officers could have certainly called her at the spot when they inspected the site and prepared the inquest report but according to Investigating Officer he had seen the site in the presence of Mehram and did not call Neni This according to the learned Counsel makes the evidence of Neni highly doubtful as an eye witness. We are unable to accept this contention also. It does appear that the Investigating Officer had seen the site and prepared inquest report etc. at the instance c f Mehram and not Neni. But this does not necessarily lead to the conclusion that Neni was not an eye witness. The Investigating Officer has given an explanation that during the course of investigations if the First Informant is present, the site is inspected in his presence and the inquest report etc are also prepared in his presence and if the First Informant is not present then the eye witness if any are called and these investigations are made in their presence. He further states that if the names of the eye witnesses are disclosed at the spot he examines those witnesses on that very day as far as possible. Now in the present case Mehram was present at the time of the site inspection and the preparation of the inquest report, therefore, Neni may not have been called by him. Further Neni was examined on that very day after the site inspection etc. Not only this, the fact that Neni was an eye witness had already been disclosed in the First Information Report itself. In these circumstances the mere fact that the site inspection was not carried out in the presence of Neni loses its significance and her absence at the time of the site inspection does not detract from her being an eye witness. The learned Counsel for the appellants had relied upon Savia and Anr v. State of Rajasthan (1985 Cr.LR (Raj) 18) but in the circumstances pointed out above, the fact that Neni was not called at the time of the site inspection cannot be fatal to the prosecution. Apart from the reason given by the Investigating Officer for not calling Neni at the time of the site we can also not lose sight of the fact that Neni's father had died on the previous night. She was a child aged about 14, her mother had already died earlier and, therefore, she must have been in a grave bereavement and grief and, therefore, may not have been available at the time of the site inspection or may not have been called for that reason.
14. The learned Counsel had also relied upon the authorities Dhanna v. The State (1950 RLW 357) Pancha Ram and Ors. v. State of Rajasthan 1985 WLN (UC) 582), Datar Singh v. The State of Punjub (1975 SCC (Cr,) 530). We have kept the observations made in these authorities in our minds while going through the evidence of this witness. For the reason already Maud these authorities also do not apply to the present case. We are of the opinion that reliance on this witness can be placed except to the extent to which we shall refer a little later.
15. It was also contended by the learned Counsel for the appellants that Neni stated that she had received stains of blood on her clothes as also on her beddings during the course of this incident but her clothes and the beddings have not been produced to corroborate her statement. It is true that Neni has states so and her clothes and beddings had not been produced in order to corroborate her statement but in our opinion this circumstances also cannot make her evidence unreliable in as much as it appears that Neni was at a distance from the cot of the deceased Pancharam and in the night she may have thought that she also had received stains of blood on her clothes or the beddings but as a matter of fact she may not have received the same or the stains were so minute and insignificant that the Investigating Officer may not have thought it necessary to get them chemically examined. The extent of blood on these clothes and beddings has not been stated by Neni nor has been ascertained by the defence In these circumstances much capital cannot be made out of the fact that the clothes and beddings have not been produced. The learned Counsel for the appellants again relied upon Mada Singh v. The State of Rajasthan (1985 Cr.LR (Raj.) 73) in this respect. But for the reasons stated above that authority is distinguishable. Similarly, a forceful argument was raised by the learned Counsel for the appellants that Neni states that the sword belonging to one of the accused was left at the site but no such sword was recovered from the spot. That makes her statement altogether doubtful. But in the circumstances of the case we do not find much substance in this contention also. According to the evidence of Neni as also Ramdayal soon-after the incident Ramdayal had taken away Neni to Mehram's house. None remained near the dead body of Pancharam for some time. The possibility that during this time the sword had taken away by any of the accused or some body else cannot be ruled out. At the lime of the site inspection made of the next date no such sword was found lying at the spot and, therefore, it could not be recovered. In these circumstances the non recovery of the sword also cannot be a circumstance for disbelieving Neni's evidence.
16. It was also urged by the learned Counsel for the appellants that according to Neni, she and the deceased were sleeping on the roof of the 'Medi'. The deceased Pancha was having a blanket (Arandi) on his body where as Neni did not have any such convering on her body. He has further pointed out that according to Ramdayal it was a cold night and that is why after the incident he had gone and slept in the 'Kotha'. Therefore, it cannot be believed that Neni was sleeping on the roof without a blanket. She must, therefore, be disbelieved according to the learned Counsel but wt do not find any force in this contention also. It further appears from the evidence of Neni that the deceased did not have a shirt on his body while she was wearing her clothes That shows that Pancharam had the necessity of a blanket on his body where as Neni did not require it. It further appears from the evidence of the Investigating Officer that the blanket on the person of the deceased Pancharam had a number of cuts on it which further corroborates the evidence of Neni when she says that Pancharam was covered by a blanket when swords and Dhariya blows were given on him. Therefore, on this score also Neni's evidence cannot be discarded rather the fact the blanket had cuts on it corroborates her statement.
17. A criticism was further levelled that Neni says that when Ramdayal took her to Meharm's house she narrated the story to Mehram and Tilokram and there after she went to sleep. The conduct of the witness in going to sleep soon after her father had been murdered is unnatural according to the learned Counsel but we do not see any unnaturality in it. After having seen the incident and narrated the same to Mehram and Tilokaram she must have been keeping quite and it being the dead of night she may have fallen sleep After all she was only a girl of 14 years of age and the force of sleep could not have been resisted by her.
18. It was also contended that Neni stated that Jagram was having a 'dhata' on his face at the time of this incident. If so, she could not have recognised Jagram where as she states to have recognised him. To our minds this facts also does not make her statement unreliable. She does not state that the 'dhata' was tied in such a manner that she could not have recognised Jagram. It was a moonlit night Jagram belongs to the same village and is very well known to her. Therefore it should not have been difficult to recognise, Jagram even though he may have been wearing the 'dhata' at the time of this incident.
19. The last criticism levelled against her is that she states that Mahadeo and Padma who were having lathis with them had also given five or seven blows on the person of the deceased but the doctor did not find any injury with a blunt weapon on the person of Pancha Ram which makes her statement highly doubtful This aspect of the matter has been brushed aside by the learned Sessions Judge by saying that Neni may not have counted the number of blows and had only stated by approximation the number of lathi blows being five or seven. He has further observed that lathi blows may have disappeared by passage of time in as much as the incident had taken place in the night between 23rd and 24th September, 1975. where as the post mortem examination was carried on at 2.30 p.m. on 24-9-1975. He has further surmised that it may also be possible that the swords an J dhariya blows had also fallen at the same place where the lathi blows had fallen and, therefore, only sharp edged injuries became more prominent but we are unable to agree with the learned Sessions Judge in this respect and find force in the contention of learned Counsel for the accused appellants that Neni's evidence cannot be relied upon in this respect. We are, however of the opinion that Neni's evidence cannot be wholly discarded on account of this discrepancy and only the persons who are said to be wielding lathis at the time of this incident may be able to get benefit of this discrepancy. It appears to be a case of over implication so far as Mahadeo and Padma who are said to be wielding lathis are concerned. They may, therefore, get the benefit of doubt but so far as the other accused who are said to be wielding swords and dhariya are concerned, their part appears to be fully esablished by the evidence of Neni which is fully corroborated by the medical evidence in as much as a large number of injuries with sharp edged weapons have been found on the person of the deceased Pancharam.
20. Apart from the corroboration by the medical evidence Neni's evidence is further corroborated by PW 2 Ramdayal alias Dayalaram, who had been attracted to the scene of occurrence on hearing the cries of Smt. Neni and who had seen the accused coming from the side of Pancharam's 'bada' and further on reaching the 'bada' Neni had told him about the incident. Ram Dayal's evidence has also been criticized by the learned Counsel for the appellants on the ground that although he is near relative of the deceased being his cousin tries to conceal that relationship. As already stated above mere relationship with the deceased is no ground to dis-believe a witness if other wise his testimony is reliable and so far as the concealing of the relation-ship goes in the circumstances of this case this is not such a factor as may lead the court to discard the evidence of Ramdayal altogether. His presence near about the place of occurrence when he was attracted by the cries of Neni appears to be natural inasmuch as he says he had gone to his field for a check in the night and was returning from there towards the village. The learned Counsel for the appellants had, however, urged that this part of the statement of Ramdayal is also not reliable because he says that he was empty handed and it cannot be expected that he would have gone to the field in the night empty handed. We do not find force in this contention. He had gone for a casual check to see that the 'Bajra" crop standing in his field is not destroyed by cattle. He need not have necessarily been armed because cattle can be driven away even without any arm by crying at them or by pelting stones. Further it was urged that according to DW 3 Kazi Mohd. Ramzan, Patwari, there was no 'Bajra' crop in Ramdayal's field that year but as the learned Addl. Sessions Judge has found what the Patwari had produced was the 'girdawari' of 'rabi' and not of 'kharif'. Bajara is a 'kharif crop and the non-production of the 'kharif girdavari' rather supports the statement of PW 2 Ramdayal and does not in any way discredit him.
21. It was also contended that in the police statement Ramdayal did not state that he had seen arms in the hands of the accused vide Ex. D 1. In the first place it is admitted before us by the learned Counsel for the appellants that Ex. D 1 has not been proved and, therefore, it cannot be read in evidence as has been held in Labhshanker Maganlal Shukla v. State of Gujarat AIR 1979 SC 1012 and Muthu Naicker and Ors. etc. v. State of Tamil Nadu ) and in the second place what is of importance, in the statement of the witness is his seeing the accused coming from the side of Pancharam's 'bada' on that night. In the huff of the moment he may not have observed the arms carried by them. Similarly the further contention of the learned Counsel for the accused that in Ex. D 1 Ramdayal did not stale about the injury on the neck of the deceased cannot be of any avail.
22. Further it was contended that if Ramdayal had really seen the accused persons on that night the accused would also have seen him and would not have spared him. This contention does not have any substance because it is not necessary that the accused would have seen him. According to this witness he had sat down to urinate. He must, therefore, have sat at a place from where he could have observed the accused but the accused may not have seen him. The learned Counsel next contended that there is 'Abadi' near the 'bada' of Pancharam and it is strange that only Ramdayal who happened to pass by that side should have been attracted by the cries of Smt. Neni. Further when Ramdayal alleges to have taken Neni to the house of Mehram she was crying and still none from the locality was attracted. Thus according to the learned Counsel the evidence of Ramdayal appears to be concocted one. However, according to us this contention also does not hold water. The occurrence had taken place at the dead of the night at the 'bada' of the deceased Pancharam. According to Ramdayal Pancharam's 'bada' is surrounded by other 'badas' But they are not inhabiated. Only cattle are tethered and some time some persons sleep there and sometime no body stays there In these circumstances it is quite possible that no body else had been attracted by the cries of Neni. While Neni was being taken to Mehram's house, of course, there was 'abadi' on the way but it is not stated by Neni or Ramdayal that at that time Neni was crying so loud that people sleeping in side the houses at the dead of night may have been atracted by her cries. In these circumstances it cannot be held that Ramdayal's statement is unreliable.
23. The statement of Neni and that of Ramdayal is further corroborated by the evidence of Mehram PW 13 Tiloka Ram PW 4 to whom Neni and Ramdayal had reached just after the incident and had narrated the sotry to them. Mehram is the elder brother of the deceased Pancharam and Tilokaram is the son of the deceased. They were staying at the house while Pancharam was at the 'bada' on that night. It is quite natural that after the incident Neni must have been brought to Mehram & Tilokaram by Ramdayal and they must have narrated the incident to Mehram and Tilokaram. This fact further stands corroborated from the fact that after hearing story from Neni and Ramdayal, Mehram left for the police station and lodged the First information Report. In the first information report he has named Ramdayal and Neni and has also further stated that if was Neni who had witnessed the whole incident regarding Pancharam's death and Ramdayal had also heard her cries, seen the accused on the way and had reached the spot. The only criticism levelled against the evidence of PW 4 Tilokaram and PW 13 Mehram is that they are also interested witnesses being very near relations of the deceased but on that account their evidence cannot be discarded as the sequence in which they derived knowledge of the incident is most natural and the conduct of Neni in narrating the story to them is also very natural and relevant.
24. Apart from criticizing the evidence of the aforesaid witnesses, the learned Counsel for the accused vehemently urged that the First Information Report of this incident is alleged to have been lodged at the police station Pipar at a distance of 42 miles on the next day where as the police out post Aasop was only 6 miles away from the place of incident It should be expected that some report must have been lodged at Aasop regarding this incident and this fact further gains strength from the fact that constables Hathi Singh, Balu Singh from out-post Aasop had already reached the spot before Shri Avtar Singh, S.H.O. reached there but that report has been with-held. We do not find force in this contention in as much as it was a case of double murder and naturally report should have been made at the police station as it is well known that the outpost would not have been in a position to handle the situation. However, since the out-post was not very far off the rumour of the murder may have reached these constables and they may have reached the spot before Shri Avtar Singh S.H.O. could reach there from Jodhpur. The cross examination of the prosecution witnesses has not brought out that as a matter of fact any report, at the out-post had been made in this respect. Hence no adverse inference can be drawn against the prosecution.
25. It was also contended that it has not been established as to when the First Information Report lodged at police station, Pipar had reached the Magistrate and this also throws a doubt about the genuineness of the First Information Report. According to us, in the circumstances of the case, this contention is also devoid of force because from the First Information Ex P 18 it does appear that it was despatched from the police station on 24-9-1975 itself when it was lodged. However, on receipt of the same by the learned Magistrate, the learned Magistrate did not note the date of the arrival. On account of this mistake of the learned Magistrate, the prosecution agency cannot be blaimed. It has not been established by the cross examination that as a matter of fact the First Information Report had not reached the Magistrate within a reasonable time.
26. In these circumstance we are prepared to believe the prosecution story except to the extent that the participation of the accused Mahadeo and Padma has not been established beyond reasonable doubt.
27. It may be stated here that Ramdayal also alleged to have seen the two accused Mahadeo and Padma along with the three other accused Jagram, Kishanaram and Mansharam coming from the side of Pancharam's 'bada' and Mehram and Tilokram have also stated that Neni and Ram Dayal had told them about the presence of these two accused also. Therefore, a question arises that when Neni's evidence as regard to these two accused is held to be doubtful as it is not corroborated by medical evidence whether that evidence can be relied upon as it finds corroboration from the evidence of Ramdayal, Mehram and Tilokaram. On a careful consideration of the whole matter we are not statisfied that this part of the evidence is wholly reliable and to our minds, the presence of these two accused persons cannot be said to have been established beyond reasonable doubt. Ram Dayal states to have seen these two accused also coming along him. The other three accused from the side of Pancharam's 'bada' when he had heard the cries of Neni. From this statement it cannot necessarily be inferred that these two accused had also been present at Pancharam's 'bada' at the time of the incident and the possibility that they may have joined the other accused on the way when the three accused were returning from Pancharam's bada, cannot be ruled out. Similarly the possibility that although Neni may not have actually seen the accused Mahadeo and Padma inflicting blows on the person of Pancharam but may have included their names also when Ramdayal may have told her that he had seen Mahadeo and Padma also along with the three other accused and so far as Mehram and Tilokram are concerned, their knowledge is based only on the information given to them by Neni and Ramdayal. If Mahadeo and Padma were also present along with Jagram Kishanaram and Mansharam and were armed with lathis, it would be expected of them also to have inflicted injuries on the person of the deceased with these lathis but as already stated above, there are no injuries with blunt weapons on the person of Pancharam. Further it is also not without significance that there were no injuries with blunt weapons on the person of Bhuraram, although the case of the prosecution is that these very five accused persons had also inflicted injuries on the person of Bhuraram before they had attacked Pancharam. This further adds to the suspicion about the presence of these two accused persons in the incident and, therefore, according to us, they must get the benefit of doubt out so far as the three other accused Jagram, Kishnaram and Mansharam are concerned, it has been established beyond reasonable doubt that they had inflicted injuries with swords and dhahiya on the person of Pancharam resulting into his death As already stated above the fact that injuries were sufficient in the ordinary course of nature to cause the death has not been disputed before us.
28. So far as Jagram and Kishnaram are concerned the motive for the offence is also available. Pancharam and others had been acquitted of the murder of Modaram adoptive father of Jagram and, therefore, Jagram and Kishna (his brother) wanted to settle the score with Pancharam and Bheraram. It is urged that the acquittal was about a year back and, therefore, could not have been the motive. But according to us it depends upon the opportunity and, therefore, the distance of the time is not important.
29. No other ground was urged before us and the learned Counsel for the appellants did not place reliance on the defence evidence.
30. Since Mahadeo and Padma have been given the benefit of doubt, only three accused persons are left therefore, Sections 147 and 148 IPC are not applicable but since all the three accused had committed lurking house trespass by entering the 'bada' of Pancharam used as a human dwelling and had voluntarily caused his death, they can certainly be held guilty under Section 460 IPC and further when three caused were armed with deadly weapons and had made a concerted attack upon Pancharam causing his death, it can safely be concluded that they had a common intention of causing death of Pancharam and, therefore, they can be convicted under Section 302 read with Section 34 IPC instead of 302 read with Section 149 IPC.
31. The result, therefore, is that we allow the appeal of Mahadeo and Padma and acquit them of the charges framed against them. They are on bail and need not surrender.
32. So far as the accused Jagram, Kishnaram and Mansharam are concerned, their appeals are dismissed with the modification that their convictions under Section 302 or 302 read with Section 149 are altered to 302 or 302/34 IPC and their convictions under Section 148 IPC are set aside. The sentences of imprisonment for life under Section 302 or 302 read with Section 34 IPC and three year's rigorous imprisonment under Section 460, IPC are maintained. Both the sentences shall run concurrently.