Decided on November 07,1984

HANSIYA Appellant


S. S. BYAS, J. - (1.)BY this judgment dated May 21, 1980, the learned Additional Sessions Judge, Sirohi convicted the accused Unia under sec. 302 and the remaining two Hansiya and Sadiya under sec. 302/34, IPC and sentenced each of them to imprisonment for life, with a fine of Rs. 100/-, in default of the payment of fine to further undergo one month's rigorous imprisonment. They have come up in appeal to challenge their conviction and sentence.
(2.)SUCCINCTLY stated, the prosecution case is that the deceased-victim Indersingh was an elder brother of PW 2 Daljeet Singh and lived in village Meerpur which is nearly two miles away from village Wilangiri district Sirohi. In the early hours of 1-11-78 (the next day of Deepawali) Inder Singh left his house on a bicycle to go to village Dodewa. On his way when he reached Wilangiri, one of the wheels of his bicycle got punctured. He contacted Rama (PW 6) and with his help got the puncture repaired. Rama and Inder Singh proceeded together on the road leading to village Kalandari. Rama was holding the bicycle. When they covered a few paces on the road, the three accused-appellants accompanied by five more persons viz. , Sadiya, Goma, Chima-niya, Tariya and Hatta (co-accused but acquitted ) came from behind armed with lethal weapons. Accused Unia had a Khunt (sharp edged instrument of cutting), Goma had a Bewla and the remaining six had lathi. They encircled Indersingh and started striking blows to him with their weapons. Indersingh fell down. The miscreants then lifted him and took him towards the house of Goma. PW 6 Rama tried to intervene but could not. He got frightened and went away putting the bicycle outside the house of Dharma Bhil. Pw 2 Salamsingh, who was in the house of Dharma, alongwith Dharma Bhil, Kana and Chamna Rajputs situate nearby, seeing the occurrence came out and asked the accused not to do so Tariya threatened him with dire consequences in case he dared to come out. Salam Singh immediately went to Meerpur and apprised the victim's brother Daljeet Singh ( PW 1 ) of the incident at about 9. 00 or 9 30 A. M. Daljeet Singh boarded the bus, reached Police Station Anadara and verbally lodged report Ex. P 1 of the occurrence at about 11. 45 A M. The police registered a case and proceeded with investigation. The Station House Officer Shri Jagdish Singh (PW 9) arrived at the place of incident and inspected the site. He took the blood-stained soil from the various places where the victim was belaboured and his dead body was found. The Investigating Officer prepared the site plan and the inquest report of the victim's deadbody. PW 5 Dr. D. C. Bapan, the then Medical Officer Incharge, Government Dispensary, Anadara was called on the spot. He performed the autopsy of the victim's deadbody at about 4. 00 P. M. on the same day. The Doctor found the following injuries:- External : (1) An incised wound 6 x 1 c. m. x bone deep situate on the scalp 2-1/2 c. m. above the left eye brow, laleral end and was 9 c. m. above the left external ear. (2) Incised wound 4 x 1/3 c. m. x bone deep horizentally situated just above the left eye brow. (3) Lacerated wound 1/2 x 1/2 c. m. just below the medial end of right eye brow. This was also bone deep. (4) An angular lacerated wound 1-1/2 x 1/3 c. m. on upper arm and lower arm 3/4 x 1/3 cm. x bore deep around the lateral angle of right eye. (5) Lacerated wound 1/2 x 1/3 c. m. x bone deep just 1/2 c. m. on the left side of nation. (6) Lacerated wound 1/2 c. m. x 1/3 c. m. x bone deep at the base of right alaenasi. (7) A punctured wound 1/2 c. m. x 1/3 c. m. opening in the mouth, 1-1/4 c. m. below the lateral to the left angle of mouth. (8) Lacerated wound 1-1/4 x 1 c. m. x bone deep situate on the left side of chis 2-1/2 c. m. below the left angle of mouth. (9) Lacerated wound 2 cm. x 1/3 cm. x bone deep 1-1/2 c. m. below the chin on the mid line. The wounds of injuries No. 8 and 9 were connecting and opening in the mouth. (10) Upper left incisor was missing with fresh wound socket. (11) Upper and lower jaw both fractured at multiple places with all teeth present except one incisor. (12) Two oblique bruises 13-1/2 x 2 c. m. and 13 x 2 cm. situated side by side on (he right side of chest, 3 cm. below the right nipple. (13) Bruise 7 cm. x 11/2 cm. just below the left nipple. (14) Bruise 5 cm. x 2-1/2 cm. situated on the anterior side of left shoulder. (15) Abrasion 3 c. m. x 1 cm. with 1/2 x 1/2 cm. x bone deep lacerated wound in the centre, situated on the left side of tibin at the junction of upper 2/3 and lower 1/3 of leg. (16) Lacerated wound 1/2 x 1/2 cm. just below the left tibial tuberosity. (17) A linear abrasion 3 cm. long on the shin of right tibia. Internal : Cranium and spinal cord- Scalp, skull and vertebrae-fractures present as mentioned in injuries No. 2 and 3 (external ). Heart- Right side contained little blood and left side was empty. Both lungs were healthy and pale. Stomach and its contents-There was little fluid present. Both instestines were empty. Liver, splees and kidney were healthy and pale. Bladder was empty. Fractures and dislocations-Both frontal bones, masal bones, orbital bones right, upper and lower jaw were having multiple fractures.
The injuries were ante-mortem. In the opinion of Dr. Bapna, the cause of death of the victim was multiple injuries leading to excessive haemorrhage and shock. He was also of the opinion that the injuries found on victim's body were collectively sufficient in the ordinary course of nature to cause death He was further of the opinion that injuries No. 1 and 2 were also individually sufficient in the ordinary course of nature to cause the death. Injuries No. 1 and 2 could be caused by sharp-edged weapon like khunt The post mortem examination reports prepared by him are EX P 9 and EX P 10. The accused persons were arrested and in consequence of their informations furnished by them whilst under police custody, Khunt and lathis were recovered The blood-stained clothes of the victim and of some of the accused persons were also seized and sealed. The articles were sent for chemical examination. Blood was found on them On the completion of investigation, the police submitted a challan against the three accused-appellants in the court of Munsif and Judicial Magistrate, Sirohi, who in his turn committed the case for trial to the Court of Sessions The learned Additional Sessions Judge, Sirohi framed charges against them under the appropriate sections of the Penal Code. The accused-appellants pleaded not guilty and faced the trial. The prosecution examined 11 witnesses and concluded its evidence and the accused-appellants were examined under section 313, Cr. P. C Thereafter the learned Public Prosecutor moved an application on 20-8-79 under section 319, Cr. P. C. that five persons viz , Goma, Tariya, Chamna, Saniya and Hatta be also impleaded and summoned to face trial. The learned Sessions Judge allowed the said application by his order dated 20-8-79. The aforesaid five persons were summoned to face trial. The learned Additional Sessions Judge then framed charges under sections 148, 302 and 302/ 149, I. P. C. against all the eight accused, to which they pleaded not guilty and faced the trial. In the course of trial, the prosecution examined 12 witnesses and filed some documents. In defence, the accused examined one witness Mst. Zammu (DW 1) daughter of Goma (accused but acquitted ). The evidence led in defence is that Zammu was married in the victim's village. A day before Deepa-wali the victim caught hold of her when she was coming from the field and committed rape upon her. She disclosed the matter to her husband and in-laws. Since Inder Singh was a Rajput and of forecious type, they advised her to go to her parents. She, thereafter came to her parents in village Wilangiri. On the next day of Deepawali, the accused came to her parents' house on bicycle with a hockey-stick in his hand. Her parents and brothers were there in their field. The victim abused her and asked her as to why she had come from Meerpur to Wilangiri. He thereafter started dragging her. She lifted a lathi lying nearby and struck blows to the victim with it. Inder Singh fell down outside her house. On the conclusion of trial, the learned Additional Sessions Judge found the prosecution story substantially true as against the three accused appellants. He found no merit or truth in the defence version. The learned Sessions Judge was of the opinion that no offence stood proved against accused Sadiya, Goma, Chimaniya, Tariya and Hatta (who were impleaded under section 319, Cr. P. C. during trial), they were consequently acquitted. The accused-appellants were convicted and sentenced as mentioned at the very out-set. Aggrieved against their conviction and sentence, they have come-up in appeal.

We have heard the learned counsel appearing for the accused-appellants and the learned Public Prosecutor. We have also through the case file carefully.

Before dealing with the contentions advanced on behalf of the appellants, we may say that the opinion of Dr. Bapna (PW 5) relating to the cause of death of the victim was not challenged before us. We have gone through the statements and found no reason to discard his opinion. It, therefore, stands established that the death of victim Indersingh was not natural but homicidal.

It was straneously contended by the learned counsel for the appellants that their conviction was wholly erroneous and unsustainable. Various grounds were canvassed by the learned counsel to assail the conviction which, for the sake of convenience, may be classified as under: - 1. The prosecution alleged no motive. The absence of motive destroys the very backbone of the prosecution case; 2. PW 1 Salamsingh and PW 6 Rama had not seen the occurrence. Their evidence was wrongly accepted as true by the trial court. They were merely chance-witnesses whose presence on the spot was highly doubtful. They were falsely introduced as ocular witnesses of the occurrence; 3. The testimony of PW 3 Chhagan Lal is purely hear-say and cannot be read in evidence for any purpose; 4. The prosecution is guilty for not examining the independent witnesses who had seen the occurrence. Dharma, Kana and Chamna who were admittedly with PW 2 Salamsingh in the house of Dharma and are alleged to have seen the occurrence, have not been examined. So also the hotel-keeper and other persons whose presence at the time of alleged occurrence has been admittedly by PW 6 Rama, have not been examined. The prosecution has furnished no explanation for not producing them in evidence, and 5. The recovery of weapons has been made but the weapons have not been connected with the commission of the offence. The report of the Serologist was not obtained.

(3.)TAKING the first contention, it can be said without the least hitch that the prosecution has alleged no motive as to why the victim was done to death by the appellants. It is really curious that murder was alleged to have been committed by the appellants without any motive. PW 1 Daljeetsingh, who is a real brother of the victim, nowhere stated that there was any bad-blood between the victim and the accused. However, the absence of motive has no material bearing when there is direct evidence showing the complicity of the accused in the commission of the offence. Motive is not an ingredient of the offence of murder and when there is direct evidence of eye witnesses, motive recedes to the background. But at the same time, absence of motive is always a circumstance for assessing the evidence adduced to prove the guilt. Absence of motive does require that the evidence of the eye witnesses has to be very closely, carefully and cautiously examined. Since no motive has been alleged in the instant case, the fact will have to be kept in mind while scrutinising and evaluating the prosecution evidence.
Coming to the second contention, it may be said that the whole prosecution case against the appellants rests squarely on the testimony of two witnesses viz. , PW 2 Salamsingh and PW 6 Rama, each of whom claims to have seen the occurrence. The court below accepted as true what they testified against the appellants. It was contended by Mr. Singhi, learned counsel for the appellants that the testimony of these two witnesses has been wrongly relied upon by the trial court.

Pw 2 Salamsingh deposed that at about 6. 00 or 7. 00 A. M. on the day of occurrence, he was at the house of Dharma Bhil where he had gone to hire the services of his son. Kana and Chamna were also with him there. While they all were sitting in the house of Dharma, he heard the cries "maro MARO" raised on the road. He and Chamna, Kana and Dharma came out. He saw the victim Indersingh lying on the ground The appellants and their five associates (co-accused who have been acquitted) were striking blows to the victim. Accused-appellant Unia had a Khunt, Goma (accused acquitted) had a Bewla and the remaining six had lathies. He asked the accused not to do so. Tariya (accused acquitted) threatened him not to come near otherwise he too would meet the same fate. The accused lifted the victim and took him towards their house The witness continued that thereafter he went to village Meerpur and narrated the incident in full (Saari Haqiquat) to the victim's brother Daljeetsingh. He told the names of all the eight assailants to Daljeetsingh. Daljeetsingh left for the Police Station. He went back to Kalandari. The police arrived there at about 1. 00 P. M. He stated that at the time of occurrence he had seen Rama (Pw 6) with a bicycle.

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