S. S. BYAS, J. -
(1.)THESE two jail appeals-one by accused Anandiya and the other by accused Santosh Kumar and Kanhaiya Lal alias Collector-are directed against the judgment of the learned Sessions Judge, Bhilwara dated February 22, 1983 convicting and sentencing them as under:- S. No. Name of the accused Section Sentence awarded 1. Anandiya (i) 302, IPC Imprisonment of life. (ii) 302/34" Imprisonment of life. 2.Santosh Kumar (i) 302/34" Imprisonment of life. (ii) 324" One year's rigorous imprisonment. Imprisonment 3. Kanhaiya Lal alias Collector 302/34 IPC Imprisonment of life.
(2.)THE facts and circumstances leading to the prosecution and conviction of the appellants, run as under:
At about 8. 00 P. M. on 3. 7. 1977, deceased-victims Shivram, his father Lakhma Ram and of her persons of their family were sitting on a Chabutary out-side their house situate in village Radha-Ka-Bara Police Station Jahajpur district Bhilwara. The accused-appellants and one Kanaram are also residents of the same village. Accused Anandiya and Nathu (accused acquitted) happened to pass by their side. Shivram told accused Anandiya that the thefts were committed at his intance and the villagers were taking them to task. This annoyed accused Anandiya. He went to his house, instantly returned after five or six minutes accompanied by his two sons Santosh Kumar and Kanhaiya Lal alias Collector and two more persons Nathu and Kanaram. The accused persons started abusing Shivram and his father. Thereafter Nathu, Santosh Kumar, Kana and Kanhaiya Lal (Collector) caught hold of Shivram. Accused Anandiya had a Gupti with him. He thrust the Gupti deep into the left abdomen of Shivram. Shivram fell down and passed away instantaneously on the spot. Lakhma entreated with folded hands not to beat any further. Accused Anandiya thereupon caught hold of Lakhma and accused Kana s/o Lalu struck a blow of his sword on the left side of Lakhma's neck. It resulted in deep cutting of the neck. Lakhma also fell down and passed away then and there. Accused Santosh Kumar struck the blows of his farshi to Lakhnia's son Hari Prasad, (PW 4 ). Accused Kana s/o Lalu struck ablow of his weapon to Lakhma's other son Ganpatlal (PW 1 ). The accused persons thereafter dispersed away. There was profuse bleeding from the wounds of the victims. Ganpatlal (PW 1) immediately rushed to Police Station, Jahajpur and presented written report Ex. P 1 of the occurrence at about 9. 20 P. M. on the same day. The Police registered a case and proceeded with investigation. PW 10 Umraosingh, Head Constable of Police arrived on the spot and kept a watch on the dead bodies. Next day, on 4. 7. 77, PW 11 Bhopalsingh Deputy Superintendent of Police arrived on the spot and took up the investigation. He prepared the inquests of the victims dead bodies, inspected the site and took in possession the blood-smeared soil from there. The post mortem examination of the victims deadbodies were conducted at about 1. 20 P. M. on 4. 7. 77 by Dr. C. L. Verma's the then Medical Officer Incharge, Referal Hospital, Jahajpur. The doctor found the following ante-mortem injuries on the deadbody of Shivram:- (1) Stabe wound 2 c. m. x 1 c. m. x deep into the peritineal cavity, cutting through the 8th rib. On the left side of the chest in the nipple line over 8th rib-by a sharp, poluted, cutting weapon. (2) Fracture of the left 8th rib in the Nipple line. Consequent to injury No. 1. In the opinion of Dr. Verma, the cause of death of Shivram was shock caused by the stabe injury. Injury No. 2 was the result of injury No. I. He prepared post-mortem examination report EX. P 10. 3. The doctor noticed the following ante-mortem injuries on the dead body of Lakhma: (1) Incised wound 11 c m. x 5 c. m. x deep upto the vertebrae-on the left side of the neck. The wound extends from in front of the left ear cutting through the ear and below it down to the neck and upto the vertebrae-cutting through all the structures in the way, due to a heavy cutting weapon. (2) Fracture of the left mandible, consequent to injury No. 1. (3) Fractures of the left transverse proceeding at the 4th and 5th cervical vertebrae-consequent to injury No. 1. (4) Incised wound 5 cm. x 3 c m. x whole skin deep on the back of left forearm 3 c. m. above the neck. By a sharp weapon. (5) Incised wound 1. 5. cm. x 0. 5. cm. x whole depth. On the back at left palm by a sharp weapon. In the opinion of Dr. Verma, the cause of death was shock due to the injuries on the neck. The post mortem examination report issued by him is Ex. P 9.
The doctor was also of the opinion that the injuries found on the victims deadbobies were sufficient in the ordinary course of nature to cause death. The injuries of Hari Prasad, (PW 4) were examined by Dr. Verma. Four injuries were found on his body caused by sharp weapon, one of which was grievous. The injury report issued by him is Ex. P 8. The injuries of PW 1 Ganpatlal were examined by PW 7 Dr. P. C. Bapna, the then Medical Officer Incharge, Referal Hospital, Jahajpur. One incised wound was found on his body. The injury report issued by Dr. Bapna is Ex. P7. Accused Anandiya, Santosh Kumar Kanhaiyalal alias Collector and Nathu were arrested and in consequence of the disclosure statements made by them,some of the weapons used in the commission of the offence were recovered. The blood-stained clothes of the victims were also seized and sealed. Accused Kana s/o Lalu absconded and remained absconding for a party long time. On chemical examination, human blood was detected on some of the recovered articles, On the completion of investigation, the police submitted a challan against accused Anandiya, Santosh Kumar, Kanhaiya Lal alias Collector and Nathu in the Court of Munsif and Judicial Magistrate, Jahajpur showing accused Kana s/o Lalu as absconding therein. The learned Magistrate committed the case for trial to the Court of Sessions Judge, Bhilwara. The learned Sessions Judge framed charges under sections 148, 302, 302/149, 307/149, 324/149 etc. of the Penal Code against them, to which they pleaded not guilty and faced the trial. Three of them viz. , Santosh Kumar, Kanhaiya Lal alias Collector and Nathu pleaded alibi and stated that they were in far-distant villages at the time of the alleged occurrence. It was also pleaded that the members of the complainant party tried to drag-away Mst. Rajuri wife of Santosh Kumar. During trial, the prosecution examined 13 witnesses and filed some documents. In defence, three witnesses were examined. On the conclusion of trial, the learned Sessions Judge found no incriminating material against accused Nathu. His prevence was of course taken as proved but his participation in the commission of the offences was not taken as established. He was consequently acquitted of all the offence he was charged with. The three accused Anandiya, Santosh Kumar and Kanhaiya Lal alias Collector were convicted and sentenced as mentioned at the very out-set. Hence this appeal.
We have heard the learned Amicus Curiae and the learned Public Prosecutor. We have also gone through the case file carefully.
Mr. Adwani, the learned Amicus curiae did not and could not challenge the homicidal deaths of Lakhraa and his son Shivram. We have carefully gone through the testimony of Dr. Verma (PW 3) and the postmortem examination reports issued by him. We find no good and cogent reasons to disbelieve his opinion about the cause of deaths of the two victims. It, therefore, stands proved that the deaths of Shivram and Lakhmaram were not natural but homicidal in nature.
(3.)BEFORE proceeding further, we may point out that the prosecution has examined five ocular witnesses, each of whom has claimed to have seen the occurrence. They are: PW 1 Ganpatlal, PW 2 Madan Lal, PW 4 Hari Prasad, PW 5 Gajraj and PW 6 Mst. Batul.
In assailing the conviction, the first contention raised by the learned Amicus curiae is that all these witnesses are closely related to the two deceased victims No independent witness of the village has been produced by the prosecution. As such the conviction of the accused appellants under sec. 302, I. P. C. on the basis of these five eye witnesses is extremely risky. It was argued that since these five witnesses were interested persons in the deceased victims, their testimony should not be readily accepted as true. We have given our thoughtful consideration to the contention urged before us and find no substance in it. It is true that PW 1 Ganpatlal and PW 4 Hari Prasad are the real sons of deceased-victim Lakhma and the real brothers of deceased-victim Shivram. So also, PW 2 Madan Lal, PW 5 Gajraj and PW 6 Mst. Batul are the close relatives being the cousin and cousin's wife of the deceased-victim. We are unable to agree with the learned Amicus curiae that the testimony of an eye witness should discarded merely because he or she is a close relative of the victims. What is required is that the testimony of a relative witnesses should be examined carefully and cautiously.
The names of all these five witnesses have been mentioned in the First Information Report Ex. P. l lodged promptly within two hours of the occurrence at the police station which is only four miles away from the place of occurrence. That affords a check that these five witnesses were not falsely introduced as coular witnesses of the incident afterwards. Now, PW 1 Ganpatlal deposed that accused Santosh Kumar, Kanhaiya Lal alias Collector, Kana and Nathu caught hold of Shivram and thereafter accused Anandiya thrust the Gupti in his left abdomen and instantly took it out. Shivram fell down and passed away instantaneously on the spot. Thereafter accused Anandiya, Kanhaiya Lal alias Collector, Santosh Kumar and Nathu caught hold of Lakhma and accused Kana struck a blow of his Farshi like sword on his neck. The neck was nearly cut in half. Lakhma fell down and breathed his last then and there. The same facts were deposed by PW 2 Madanlal, PW 4 Hari Prasad, PW 5 Gajraj and P. W. 6 Mst. Batul. All these witnesses were cross-examined at great length. The learned Sessions Judge scrutinised their evidence with proper care and caution. He held that though Nathu was present but he tried to intervene and took no part in the commission of the murders. On a careful scrutiny of the testimony of these five witnesses, we are unable to take a different view. If these five witnesses were false or were interested in deposing falsely against the accused, Mst. Batul (P. W. 6) and P W. 5 Gajraj would not have deposed that the acquitted accused Nathu merely intervened and took no part in the commission of the offence. The finding of the learned Sessions Judge that accused Santosh Kumar, Kanhaiyalal alias Collector and Kana s/o Lalu caught hold of Shivram and accused Anandiya thrust the Gupti deep in his left abdomen, is based on a proper appraisal of the evidence of these live eye witnesses. We are unable to take different view. It, therefore, stands well proved that accused Santosh Kumar, Kanhaiya Lal alias Collector and Kana s/o Lalu caught hold of Shivram and, accused Anandiya caused his death by thrusting the Gupti in his left abdomen.