S. K. Dhaon, J. - (1.) ON 1st December, 1978, at about 7.30 A.M. one Smt. Ratan Devi aged about 60 years, widow of one Dr. Ripusudan Lal, was done to death in her own house in village Kotla within the jurisdiction of police station Narkhi, district Agra. The appellant faced the trial for the murder of the deceased and the learned Sessions Judge on 20th August, 1980 convicted him under section 302 of the Indian Penal Code and awarded him life imprisonment as sentence. This appeal is directed against the said judgment and order of the learned Sessions Judge.
(2.) THE first information was lodged at the police station Narkhi, at a distance of six miles from the place of incident, by Hub Lal P.W. 1, the village Chowkidar. After the registration of this report the usual investigation followed. THE body of the deceased was sent for post-mortem which was performed on 2nd December, 1978, at 12 noon by Dr. R. K. Gupta P.W. 6. THE appellant was arrested on 3rd December, 1978, near village Kaunch in a grove. It is alleged that he had certain injuries on both his hands which were examined on 4th December, 1978 at 12.25 P.M. by the same doctor who preformed the postmortem examination of the deceased. The prosecution case in brief is : On 1st December, 1978, some time before 7.30 A.M. the deceased along with her daughter Km. Krishan Kumari entered the house. They had arrived here from the house of Dhyan Pal P.W. 3, where they had spent the night together. In the courtyard the appellant, who was brought up as a son of the family by Dr. Ripudaman Lal and the deceased, was seen by Km. Krishan Kumari. She immediately apprised her mother of the fact of the arrival of the appellant. The mother immediately rushed to a room and tried to close the doors of the same, but before she could do that the appellant reached there and prevented her from closing the doors. He, thereafter, took the mother inside and bolted the doors. Immediately, thereafter, Km. Krishan Kumari heard a shriek of her mother. On hearing this shriek she rushed to the police out-post situate at a distance of not less than 11/2 furlongs from the house of the deceased and gave an information to the personnel of the police present there that her mother was being assaulted with a knife by the appellant. Immediately thereafter, Km. Krishan Kumari arrived at the scene of the occurrence along with two police constables and there she found her mother dead in the courtyard in pool of blood. The appellant was not found at the place. It may also be stated at this stage that the prosecution case also was that Km. Krishan Kumari had seen the appellant with a knife in his hand when he entered the house and the appellant on the fateful day was wearing a particular Tahmat and had on his shoulder a particular Gamcha (towel). Km. Krishan Kumari also gave out that the appellant was wearing a torn tee-shirt. The learned Sessions Judge clearly came to the conclusion, and in our opinion very rightly, that the fate of the prosecution case rested solely upon the testimony of Km. Krishan Kumari the sole eye-witness of the scene. No doubt, the learned Sessions Judge recorded a finding that her version was substantially corroborated by the version given by Badan Singh P.W. 10, the Head Constable, and also by the entries made in the general diary maintained at the police outpost (Ka-18), it is to be noted that the entry in the general diary was made at 7.45 A.M. The learned Sessions Judge after appraising the evidence and after hearing in mind the principles laid down by the Supreme Court in numerous cases as to the manner in which the testimony of a single eye-witness should be appraised reached the conclusion that the prosecution succeeded in proving its case as against the appellant.
(3.) BEFORE we examine the testimony of Km. Krishan Kumari, we would like to make a reference to the motive of the crime as attributed to the appellant by the prosecution. It was said that the appellant, though not the natural son of Dr. Ripudaman Lal and the deceased, was brought up by them as a son from his very childhood. The appellant, therefore, not only claimed himself to be the son of Dr. Ripudaman Lal but had also aspirations of succeeding to the property of the said doctor which comprised of agricultural land to the extent of about 150 bighas. The prosecution came out with the case that the appellant apprehended that the deceased may deal with the property in such a manner so as to mar his prospects of succeeding to the same after her death and, therefore, he had every reason to do away with the mother even before she could take any steps to either disinherit him or alienate the same. It is in evidence that the entire 150 Bigha of land was under the cultivation of two different persons, namely, Amar Pal and Chandrapal. It is also in evidence that the name of the deceased was mutated in the revenue papers immediately after the death of her husband Dr. Ripusudan Lal. Therefore, the deceased was the tenure-holder of the said plots. We have examined the relevant provisions of the U. P. Zamindari Abolition and Land Reforms Act and a combined reading of the provisions as contained in Sections 171, 172 and 174 makes it clear that since Dr. Ripusudan Lal, the original tenure-holder, died without leaving any male lineal descendant, his interest in the agricultural land devolved upon the deceased in her capacity as his widow. It is also clear from the said provisions that in the absence of a son the interest of the deceased will devolve upon the unmarried daughter and in this case it is the definite case of the prosecution that Km, Krishan Kumari was the only unmarried daughter. Therefore, from the legal stand point the appellant could gain nothing by committing the murder of the deceased. The agricultural plots would have been inherited straightaway by Km. Krishan Kumari. We are, therefore, of the opinion that the prosecution has not been able to establish any real motive which may have impelled the appellant to commit the crime. It follows that the prosecution cannot use this motive as an indicative of the circumstance of the guilt of the appellant. In the absence of a motive, the prosecution evidence has to be viewed by us rather cautiously. In other words, the prosecution can succeed in getting the appellant convicted only if we are satisfied that Km. Krishan Kumari is wholly truthful witness and an implicit reliance can be placed on her testimony without any corroboration. In this background, we have examined her testimony more than once. The first feature which strikes us is that this witness is very categorical that she left the house the very moment she heard the shriek of her mother and covered a distance of 1 1/2 furlongs to the police out-post running and shouting that her mother was being killed by the appellant. She also states that even at the police out-post she gave out that the appellant was killing her mother with a knife.Surprisingly enough, in the general diary (ka-13) recorded at 7.45 A.M. we find an entry that the witness had stated there that her mother had been killed by the appellant. No doubt, Sri Badan Singh, the Head Constable, in his oral deposition before the Court repeated the version of Km. Krishna Kumari that she had given out at the police out-post that her mother was being killed by the appellant. Having given an anxious consideration, we feel that the entry made in the general diary should be given preference of Badan Singh PW 10. This is, more so, for the reasons which we would disclose a little later apart from the oral testimony, there are two circumstances which go a long way in diluting the truthfulness of the version given by Km. Krishan Kumari. The first is that it sounds rather improbable that a daughter would have left her mother all alone in the house to be dealt with in any manner as the appellant liked and go running to the poire out-post after covering a distance of about 1 1/2 furlong instead of going out of the house and shouting and yelling and even crying. It is to be noted that the scene of the occurrence, the house of the deceased, is situate in the Abadi surrounded by a number of houses. It may also be noted that the prosecution failed to produce any witness of the vicinity who may have seen the appellant either entering the house of the deceased at or about the time of the occurrence or leaving the same after performing the act of murder. The second circumstance is that in her statement under Section 161 of the Code of Criminal Procedure which had been exhibited verbatim at the trial as Ext. kha 2, it has come out at the first impulse, the witness took a Danda and rushed towards the room but she failed to achieve anything as in the meantime the doors of the room had been bolted from inside by the appellant. This particular version was not narrated at all by the witness at the trial. We have, therefore, come to the conclusion that the witness did not come out with a truthful story and to us it appears that it is rather doubtful as to whether the witness had seen the appellant at all with the alleged knife in his hand. In other words, we have doubt whether the witness was present at the scene of occurrence or not when the actual assault on the deceased took place. It is probable that she may not have been present at the crucial juncture lor one reason or the other and the act was done by some one in her absence. Once we come to the conclusion that the incident had not been seen by Km. Krishna Kumari the foundation of the prosecution case is knocked off. We have already made a reference to the corroborative evidence of Badan Singh PW 10 and we have also indicated that we are not prepared to accept his version that the witness had stated at the police out-post that her mother was being killed. Instead, we have already indicated that we prefer to accept the recital in the general diary that the mother had been killed by the appellant. In the absence of any reliable corroborative evidence the conviction of the appellant on the sole testimony of Km. Krishan Kumari cannot be sustained.;