- (1.) THESE three appeals are directed against the judgement dated January 16, 1990, passed by the Sessions Judge, Sirohi, by which the learned Sessions Judge convicted and sentenced the accused-appellants for the offence under Section 302 I. P. C.
(2.) THE incident, which led to the prosecution and conviction of the accused-appellants Pooniya and Kaliya for the offence under Section 302 I. P. C, took-place on October 24, 1989, at about 8. 00 p. m. in village Sajlaphal Bhula when the accused -appellants Pooniya and Kaliya, after murdering Sakra R/o Sadla Kalipura, threw his deadbody in the well of Uda Kateriya. THE incident was witnessed by PW 2 Mst. Jomi. THE report of the incident Ex. P. l was submitted by PW 1 Reshma to the Station House Officer, Police Station, Rohida, near the well when PW 13 Amra Ram came to the village after recording the information in the Rojnamcha which was received by him at the police Station. THE story, as unfolded in this report Ex. P. l is that on October 24, 1989, at about 8. 00 p. m. , when Reshma was at his house, Leeba came to his house and informed him that his sister Mst. Jomi is sitting near the well of Uda Kateriya and has asked him that Poona and Kaliya after murdering Sakra, have thrown his deadbody in the well. Upon receiving this information, he went to the well of Uda kateriya, where he find his sister Mst. Jomi sitting there. On enquiry, Mst. Jomi informed him that accused Pooniya and Kaliya, in order to murder Sakra, have thrown him in the well. He tried to see into the well in the light of a match stick and saw some air bubbles on the surface of the water, but on account of night, he could not try to enter into the well and to save Sakra, but he saw the tobacco box of Sakra floating on the water in the well. About 12 months before, Ladiya-brother of Sakra, gave beatings to Poona (accused) and, therefore, on account of this old enmity, the accused have thrown Sakra in the well in order to kill him. THE police, after necessary investigation, presented the challan against the accused and both the accused-appellants were tried by the learned Sessions Judge for the offence under Section 302 I. P. C. THE prosecution, in support of its case, examined thirteen witnesses while the accused did not examine any witness in defence. THE learned Sessions Judge, after trial, found the case of the prosecution proved against both the accused beyond reasonable manner of doubt and he, therefore, convicted both the accused for the offence under section 302 I. P. C. and sentenced them to undergo imprisonment for life and a fine of Rs. 100/- each and in default of payment of fine to further undergo fifteen days-rigorous imprisonment. It is against this judgement passed by the learned Sessions Judge, convicting and sentencing the accused-appellants that they have preferred these appeals. Accused Pooniya filed an appeal through jail, which has been registered as D. B. Criminal (Jail) Appeal No. 109 of 1992, while accused Kaliya filed an appeal through jail, which has been registered as D. B. Criminal (Jail) Appeal No. 110/1992. Both the accused, also, filed a represented appeal, which has been registered as D. B. Criminal Appeal No. 58 of 1992. The nature of evidence, produced by the prosecution, consists of the evidence of PW 2 Mst. Jomi-the eye witness of the occurrence, which is sought to be corroborated by the evidence of PW 8 Leeba, PW 9 Hanja and PW 10 Uda, who came at the scene of the occurrence immediately after hearing the cries of PW 2 Mst. Jomi, who raised cries when both the accused threw Sakra into the well. This evidence is further sought to be corroborated by the evidence of PW 1 Reshma, who, also, reached at the place of occurrence on receiving the information from PW 8 Leeba and lodged the First Information as well as from the evidence of PW 3 Dr. Suresh Narain Mathur and PW 7 Dr. Jagdish Singh Shekhawat, who conducted the autopsy on the dead-body of Sakra in the village. PW 5 Javna and PW 11 Moba are the two persons, who took out the dead-body of Sakra from the well of Uda Kateriya. PW 4 Ratan Lal Garg is the Sarpanch of the village, who had written the First Information Report Ex. P. l on asking of PW 1 Reshma and which was handed over to PW 13 Amra Ram, Station House Officer, at about 11. 00 a. m. near the well. PW 6 Anwar Beg, PW 13 Ajay Ram and PW 13 Amra Ram are the three police officials. PW 6 Anwar Beg was the Constable, who came to the place of the occurrence alongwith PW 12 Amra Ram and the other Constables after receiving the information regarding the death of Sakra on account of drowning and before whom Ex. P. l was presented by PW 1 Reshma to PW 13 Amra Ram, S. H. O. , who handed-over the same to Anwar Beg (PW 6) to get the F. I. R. registered at Police Station, Rohida. He, after taking that report, went to the police Station and handed it over to PW12 Ajay Ram, Head Constable, and on this information, the First Information Report Ex. P. 17 was registered. PW 12 Ajay Ram was the Head Constable, who registered the F. I. R. PW 13 is Amra Ram, Station House Officer, who conducted the investigation and submitted the challan. PW 4 Ratan Lal Garg, PW 5 Jovana, PW 8 Leeba, PW 9 Hanja, PW 10 Uda and PW 11 Moba have not supported the prosecution case during trial and, therefore, they were declared hostile. Thus, the prosecution case rests upon the solitary statement of PW 2 Mst. Jomi, which is sought to be corroborated by the evidence of PW 1 Reshma and PW 3 Dr. Suresh Narain Mathur and PW 7 Dr. Jagdish Singh Shekhawat. Pw 1 Reshma is not the eye witness of the occurrence. He lodged the F. I. R. only on the basis of what was stated to him by Pw 2 Mst. Jomi. He was called by Pw 2 Mst. Jomi through Pw 8 Leeba while he was at his house and when he came to the place of the occurrence, the whole incident was narrated to him by Pw 2 Mst. Jomi. Thus, the case of the prosecution rests upon the solitary statements of Pw 2 Mst. Jomi. Pw 2 Mst. Jomi has stated that about a year before she had gone to her brother's house, who used to reside in village Sadlaphali. Before the sun-set, she went to the house of her sister Mst. Pooni alongwith her nephew Sakra. Mst. Pooni her sister- and accused Kaliya and Pooniya were, also, at their house. She demanded the cock from Mst. Pooni, which was given by her to her sister about twelve months before but Mst. Pooni refused to give it to her. Thereafter a quarrel ensued between both the sisters. Thereupon accused Pooniya asked Sakra that his (Sakra's) brother Ladiy inflicted injury on his leg, which resulted in the fracture of his leg and, therefore, they will kill him today and saying so, they tried to cought-hold of Sakra. Sakra ran away. Both the accused followed his. Accused Kaliya inflicted a lathi injury on Sakra. Accused Poona, also, inflicted a lathi injury on Sakra. Accused Poona, also, inflicted a lathi injury on Sakra. On receiving both these Lathi injuries, Sakra died at the spot and both the accused took the dead-body of Sakra and threw it in the well of Uda Kateriya, upon which she raised cries and on hearing the cries, Uda, Leeba and Hanja came there. She asked Leeba to inform her brother Reshma and till then she was sitting near the well. Pw-8 Leeba went and informed Pw 1 Reshma and her brother Reshma came at the scene of the occurrence. She thereafter narrated the story to her brother Reshma. Reshma, thereafter in the light of match sticks, saw in the well and saw the tobacco box Article 2 floating on the water. The motive for murdering Sakra was that ladiya, about 2 year before, inflicted injury to accused Pooniya and that was the motive with the accused appellants to kill Sakra. In the cross-examination she has stated that accused Poona inflicted injury on the ribs of Sakra and on receiving the injuries, Sakra fell down and thereafter accused Kaliya gave two injuries, on the neck of Sakra by two stones, which were weighing about 2 bg. and on receiving these two injuries, Sakra died at the spot. The well of Uda Kateriya was at a distance of 50 paces from that place and after murdering Sakra in that water course, they threw his dead-body in the well. She has, also, stated that on receiving these injuries, the blood came out from the postrils of the deceased Sakra, which spread in the water course. She has, also, stated that accused Kaliya and Pooniya threw the dead-body of Sakra into the well and when the body of Sakra was thrown in the well, at that time he was already dead. While taking the dead-body of Sakra to the well, accused Kaliya caught hold the dead-body from the neck while accused Pooniya caught hold his legs. She has, also, slated that when the police came there, at that time the dead-body of Sakra was floating in the well. She has, also, stated in the cross-examination that on account of the beatings given by the accused-appellants to Sakra, Sakra's neck was broken. She has, also, admitted that immediately after the occurrence, Uda (Pw 10) came there first and thereafter Leeba and Hanja came and she narrated the incident to all these persons, but they themselves had not seen the occurrence. According to this witness, Sakra died on account of the injuries indicted by the accused Pooniya and Kaliya and after his death, his dead-body was thrown in the well by these two accused. But this version, given by this witness does not find corroboration from the medical evidence. Pw 3 Dr. Suresh Narain Mathur and Pw 7 Dr. Jagdish Singh Shekhawat are the two doctors, which constituted a Board, who conducted the autopsy on the dead-body of Sakra. According to the evidence of these two doctors. Sakra had only two superficial abrasions on his person one abrasion of 10 cm. x 1 cm. was found at the right inframammory region on chest and the another abrasion measuring 5 cm. x 5 cm. was found at right thigh lateral aspect. According to these two doctors, frothy fluid was present in the larynx and Trachea, right lung and left lung. Mouth, pharynx and Oesophagus, stomach and small intestines were found full of gases. The cause of death, according to both these doctors, was asphyxia as a result of drowning. Apart from these two injuries, which are superficial in nature, no other injury was found on the person of Sakra. So far as these two superficial injuries are concerned, the possibility of receiving these injuries during the-scuffle while saving himself from the clutches of the assailants while throwing Sakra into the well or on account of presence of stones or some other hard surface/material in the well, cannot be ruled out. The deceased Sakra might have received these superficial injuries in that scuffle or due to the hard surface or material inside the well. In a case of drowning when the person gets drowned, he resists and tries to throw out the water aspirated. To achieve this he calls upon reserve energy in the form of extraordinary respiration. During the time the person gets drowned and asphyxia is being produced, some water also enters the stomach through gullet. Water and froth should invariably be found in respiratory tract from larynx to alveoli of the lungs in a case of drowning. The presence of frothy fluid in the larynex, trachea, right lung and left lung and the evidence of these two doctors clearly show that the death of Sakra was on account of asphyxia as a result of drowning while according to Pw 2 Mst. Jemi, Sakra was first murdered and then his deadbody was thrown in the well. There is another aspect of the case, also, i. e. the absence of injuries alleged to be inflicted by accused Pooniya and Kaliya by Lathis and stones on the person of Sakra. According to Pw 2 Mst. Jemi, accused Kaliya and Pooniya inflicted two injuries by Lathis, one each, and accused Kaliya, also, inflicted injuries by two separate stones on the neck of Sakra, but there was no corresponding injury found on the dead body of Sakra. Thus, the statement of this witness does not find corroboration from the medical evidence. The conduct of this witness as well as Pw 1 Reshma is, also, most unnatural. This witness Pw 2 Mst. Jemi had seen the accused throwning Sakra into the well and she raised alarm and sent Leeba (Pw 8) to inform Pw 1 Reshma and Reshma came to the scene of the occurrence immediately thereafter. According to Pw 1 Reshma, who reached near the well at about 8. 00 p. m. , none of them tried to save Sakra. If they had seen the accused throwing Sakra in the well then they should have tried to save Sakra and should have called other persons from the village in order to drage Sakra out of the well. Their conduct in not trying to get Sakra dragged out of the well and remaining sitting near the well, creates a doubt regarding their presence at the scene of the occurrence or their witnessing the occurrence. Even the case was not instituted on the report Ex. P. l. Some body had earlier informed the police regarding the presence of the deadbody in the well and the police arrived at the place of the occurrence not on account of the information given by Pw 1 Reshma or Pw 2 Mst. Jemi but when the police reached at the place of the incident, this written report Ex. P. l was submitted. Even in this report it has been stated that Sakra was thrown by these accused while he was alive, but Pw 2 Mst. Jemi has specifically stated that he was first murdered and then his deadbody was thrown in the well. If these witnesses would have seen the occurrence then they would have tried to rescue Sakra first either themselves or by calling some persons from the village and should have, also, reported at the police Check post, Bhola, which is only at a distance of one furlong from the place of the occurrence or they should have lodged a report at Police Station, Rohida, which is at a distance of about 8 Kilometres. Not reporting the matter to the police upto 11. 00 a. m. and at the well when the police came there on receiving the information from some other source, clearly raises a suspicion regarding the presence of these witnesses at the place of the occurrence and witnessing the offence. We are, therefore, of the opinion that Pw 2 Mst. Jemi is not an eye-witness of the occurrence and she has not seen the incident though she has been produced as an eye witness. This witness Pw 2 Mst. Jomi is, also, not the resident of village sadlaphali Bhura. She is the resident of Sagamata Ka Mandir and according to the prosecution, she had come to meet his brother Reshma. The delay in lodging the report, also, creates a suspicion in the prosecution case. The incident took place on October 24, 1989, and the report was lodged at the well at about 11. 00 a. m. on the next day when the police had already reached the place of the occurrence after receiving the information from some other source. Even this F. I. R. , which is alleged to have been recorded at 1. 00 p. m. on 25. 10-89 at the Police Station was received in the Court on October 26,1989, while the Court situated at Sirohi is connected with this village Rohida by bus service and which takes about only one hour, which fact has been admitted by Pw 13 Amra Ram.
(3.) SO far as the other witnesses are concerned, they have not supported the prosecution case and the prosecution case hinges upon the solitary evidence of PW 2 Mst. Jemi-the alleged eye-witness, who, according to us, has not witnessed the occurrence and, therefore, we are of the opinion that the prosecution has failed to prove the case beyond reasonable doubt against the accused appellants. As the prosecution has failed to prove the case beyond resonable manner of doubt against the accused appellants, we are of the opinion that the accused appellants deserve to be acquitted. In the result, the appeals filed by the accused-appellants Kaliya and Pooniya are allowed. The judgment dated January 16, 1992, passed by the learned Sessions Judge, Sirohi, convicting and sentencing the accused-appellants Pooniya and Kaliya, is set aside and both the accused-appellants are acquitted of the offence with which they were charged-with. ;