- (1.) THIS appeal is directed against the judgment dated June 30, 1984, passed by the Additional Sessions Judge, Nagaur, by which the appellant Magni Ram was convicted under Sections 302 and 447 I. P. C. and was sentenced to undergo imprisonment for life and a fine of Rs. 100/-, and in default of payment of fine further to undergo one month's rigorous imprisonment under Section 302 I. P. C, and three month's rigorous imprisonment under section 447 I. P. C. Both the sentences were directed to run concurrently.
(2.) THE incident, which led to the prosecution of the appellant Magni Ram, took place in the field of Smt. Sukhi of village Guda Bhagwandas in district Nagaur in the morning of October 2, 1983, when Smt. Sukhi was murdered by accused-appellant Magni Ram. THE report of the incident was lodged at Police Station, Panchori (district Nagaur) at 12. 30 p. m. by PW 11 Gulla. It was averred in that written report by PW 11 Gulla that about ten years before, Magni Ram (the appellant) was adopted by Shri (late) Binja Ram Meghwal-the husband of Smt. Sukhi. After the death of Binja Ram, accused Magni Ram turned Smt. Sukhi out of the house and forcibly took possession over the agricultural field. THEreafter she took half of the field from Magni Ram and started living separately. This was the bone of contention between Smt. Sukhi and accused Magni Ram. Smt. Sukhi is the maternal grand-mother of the informant Gulla (PW 11 ). Magni Ram wanted to turn Smt. Sukhi out of the agricultural field as well as the Dhani and, therefore, Ml. Sukhi had brought the informant Gulla (PW 11) from his village Dantina and he used to live with his maternal grand-mother. In the morning, he alongwith his grandmother Smt. Sukhi went to the field for collecting the water-melons and after collecting the water-melons, they were coming to the Dhani of Smt. Sukhi. When they reached in the field of Smt. Sukhi, where the Bazri and Moth crop had been sown, in the morning at about 7. 00 to 7. 30 a. m. , the accused Magni Ram came there armed with an axe and Jayee and started abusing Smt. Sukhi by saying and after saying so, he inflicted axe-blow on the occipital region of Smt. Sukhi by the sharp side of the axe. After crying, Smt. Sukhi fell down. Accused Magni Ram inflicted second blow by the axe on the head of Smt. Sukhi. At that time, the handle of the axe broke and thereafter accused Magni Ram inflicted injuries by Jayee. THE informant Gulla (PW 11) did not try to intervene on account of the fear and only raised an alarm. On hearing the alarm, THEkedar Jetha Ram (PW 9) came there, who was standing in his field and asked why he had killed the old lady, whereby accused Magni Ram ran away. When they took care of Smt. Sukhi, she was found dead. THEreafter he went to the village, called Bhoor Singh and Sugna Ram Meghwal and thereafter came to lodge the report. On the basis of this report, a case under Sections 302 and 447 I. P. C. was registered against the accused. After necessary investigation, the police presented the challan and the accused-appellant was tried by the learned Additional Sessions Judge, Nagaur, and the learned Additional Sessions Judge, after trial, convicted and sentenced the accused-appellant as mentioned above. It is against this judgement, convicting and sentencing the appellant that he has preferred the present appeal. The nature of the evidence, produced by the prosecution, consists of the evidence of four eye-witnesses, viz. , PW 1 Ramu Ram, PW 2 Jethi, PW 9 Jetha Ram and PW 11 Gulla Ram. PW 1 Ramu Ram and PW 2 Jethi did not support the prosecution case and were turned hostile. Therefore, there remains the testimony of only two eye witnesses, namely, PW 9 Jetha Ram and PW 11 Gulla Ram. The evidence of these two witnesses sought to be corroborated by the prosecution with the evidence of PW 3 Bhoora Ram and PW 4 Jeewan Ram Patwari, as well as the two motbir witnesses, viz. , PW 5 Gokul Ram and PW 8 Bhoor Singh. The prosecution case is further sought to be corroborated by the evidence of PW 12 Dr. Jugal Kishore and the recoveries made. PW 3 Bhoora Ram is the natural father of the appellant, who has not supported the prosecution case. PW 4 Jeewan Ram has been produced to show that the agricultural field, bearing khasra numbers 1164 and 1165 was entered in the name of Smt. Sukhi widow of Binja Ram Meghwal, which was mutated in the name of Magni Ram S/o Shri Binja Ram Meghwal and Ml. Sukhi widow of Binja Ram as joint Khatedars with respect of half of the land and Bhoora Ram S/o Shri Rewat Ram with respect to the remaining half of the land. He has, also, proved the Khatauni Ex. 3 and Girdawari Ex. 4 with respect to this land for the Samvat Years 2036 to 2039. PW 5 Gokul Ram and PW 8 Bhoor Singh are the two Motbir witnesses with respect to the preparation of the site plan and other recoveries. PW 6 Madho Singh was the Police Constable posted in the Crime Branch of Police Station, Panchori, who received the sealed articles of C. R. No. 49 of 1983 and kept those articles for one day in his custody in a safe and sealed condition and on October 19,1983, he took these articles from Fateh Singh and handed them over to Devi Singh on October 20, 1983. These articles were six in number. PW 7 Devi Singh was the Police Constable posted at Police Station, Panchori, who took the sealed articles in C. R. No. 49 of 1983 to the State Forensic Science Laboratory, Jaipur, on October 20, 1983. These articles were six in number and were sealed and remained intact throughout till he handed over these articles in the Stale Forensic Science Laboratory, Jaipur. PW 10 Mohammed Amin Khan was the Additional Superintendent of police posted at Nagaur on October 6, 1983 who arrested the accused Magni Ram and prepared the arrest memo Ex. 12. He has, also, proved the information Ex. 14 given by the accused under Section 27 of the Evidence Act with respect to the handle of the Jayee, which was hidden by the accused in his Dhani. PW 12 Dr. Jugal Kishore conducted the post-mortem on the dead-body of Smt. Sukhi and found twelve injuries on her person. The cause of death, according to Dr. Jugal Kishore was shock due to head injury with intra-cranial haemorrhage (sub dural) and multiple fractures. According to Dr. Jugal Kishore (PW 12), there were twelve injuries found on the person of the deceased and out of them, five injuries were caused by sharp-edged weapon and the remaining seven injuries were" found to be caused by blunt object. PW 13 Prem Nath was the Deputy Superintendent of Police, posted at Nagaur, who took the investigation in his hand on October 7, 1983, and on the basis of the information given by the accused under Section 27 of the Evidence Act, he recovered the handle of the Jayee from his hut after open the latch and got the handle recovered which was found smeared with blood. Thereafter he handed over the investigation to the Sub-Inspector. He has, however, in the cross-examination, admitted that the hut, from where the recovery was made in pursuance of Ex. 13, was not locked and was only latched. PW 14 is Faglu Ram, who conducted the investigation in the case and made certain recoveries, prepared various Memos and after due investigation, presented the challan in the Court. PW 15 is Head Constable Fateh Singh, who on October 2, 198. 3, was posted at Police Station, Panchori, and was the Incharge of the Malkhana at the Police Station. He has stated that the Malkhana of C. R. No. 49 of 1983 of police Station, Panchori, remained with him. The Station House Officer gave the Malkhana in sealed condition to him in two instalments and he kept the Malkhana in the sealed condition till he sent the sealed articles with Foot Constable Khinv Singh to the Office of the Superintendent of Police, Nagaur. He has stated that he sent in all five packets. The learned trial Court, after trial, relied upon the evidence of the two eye-witnesses PW 9 Jetha Ram and PW 11 Gulla Ram. He also, believed the prosecution case with respect to the recovery of Jayee at the instance of the accused Magni Ram. He, also, believed the motive and on the basis of the evidence, produced by the prosecution, he came to the conclusion that the prosecution has been able to prove the case against the accused Magni Ram beyond a reasonable manner of doubt and, therefore, he convicted and sentenced the accused under section 302 and 447 I. P. C, as mentioned above. We have heard learned counsel for the parties and gone through the record of the case as well as the judgement passed by the learned lower Court. The case of the prosecution rests mainly on the evidence of the two eye-witnesses, namely, PW 9 Jetha Ram and PW 11 Gulla Ram, which is sought to be corroborated by the medical evidence of PW 12 Dr. Jugal Kishore and the recover)' of the handle of the Jayee at the instance of the accused from his hut. Pw 9 Jetha Ram has stated that in the last Aasoj he was standing in his field and his catties were grazing. It was in the morning at about 7. 00/ 8. 00 a. m. when he saw that accused Magni Ram and his mother Smt. Sukhi were exchanging abuses to each other and the mother was carrying a kunda on her head, which was filled with water-mellons. The accused came from the field side, his mother put the Kunda on the earth and asked the accused not to kill her. The accused, at that time, was armed with an axe, and he stated that he will kill her. Thereafter the accused inflicted an injury on the occipital region of his mother Smt. Sukhi. After receiving the second injury by the axe. his mother fell down on the ground. According to this witness, the accused, in all, inflicted two injuries by the axe. Thereafter the accused inflicted injuries by the Jayee. The horns of the Jayee broke. The accused first inflicted injury by the axe and when the handle of the axe was broken, he inflicted injuries by the Jayee. Pw 11 Gulla Ram was accompanying his grand-mother and he raised alarms"maare RE MAARE RE". He, also, asked accused Magni Ram not to kill his mother and thereafter the accused ran away on the Eastern side towards his Dhani. Thereafter he asked Gulla Ram to go to the village and call Bhoor Singh and Magni Ram, but Gulla Ram told that he was afraid of and he should, also, accompany him. Thereafter both of them went to Bhoor Singh. Alongwith Bhoor Singh, Magna Ram came to the field and Gulla Ram went to the Police Station and lodged the report. He has further stated that it is only on account of the dispute regarding the land that the accused has killed the old lady. According to this witness, the incident took place in the field, which was cultivated and sown by the deceased Smt. Sukhi and the deceased used to live in the hut in the field itself. This witness has further stated that Gulla Ram is the grand-son of the deceased who was called by the old lady for taking care of the agricultural field. In the cross-examination, he has slated that the old lady put the Kunda near herself on the earth, but this Kunda was found at some distance. He has, also, stated that he saw the occurrence from a distance of 40 Paundas and the accused was armed with the axe as well as the Jayee. In one hand he was carrying the axe and in the other hand, he was carrying the Jayee. In the cross-examination he has, also, admitted that when the accused inflicted the injuries by the axe, at that time the old lady had an Odna over her head. He has, also, stated that the accused inflicted two injuries by the Jayee on the head of the deceased and thereafter took the handle of the Jayee with him as the horns of the Jayee were broken. Nobody intervened while the accused was inflicting injuries on the deceased. He has stated that Gulla Ram was standing at a distance of 10 paundas from the deceased. He has, also, admitted that Gulla Ram's health is better than that of the accused Magni Ram. He has, also, not stated that in his statement Ex. D. 2, recorded under Section 161 Cr. P. C, he has mentioned that the accused inflicted only one injury on the head of Smt. Sukhi by an axe, but how it has not been written by the police, he cannot say as he had told the police that the accused inflicted two injuries. He has, also, stated that he did not inform the police that the handle of the axe was broken, but that has, also, been written in the statement under Section 161 Cr. P. C. He has, also, admitted that the place where the dead-body was found lying, there were no signs of struggle nor that of any dragging etc. and it was giving an impression that the dead-body was brought from some other place and was kept there. This witness was confronted with his statement recorded under Section 161 Cr. P. C, but he could not explain the contradictions pointed out by the counsel for the appellant and has stated that he had Slated before the police, but that do not find place in his statement under Section 161 Cr. P. C. He has, also, admitted that his Dhani is situated at a distance of 60 Paundas from the place of the occurrence and there used to live several other persons and the occurrence could be seen from his Dhani, but he cannot say whether the inmates of the Dhani had seen the occurrence or not.
(3.) PW 11 Gulla Ram has stated that Smt. Sukhi was his maternal grandmother. About seven months before, in the morning, at about 7. 00/7. 30 a. m. , he, alongwith his maternal-grand-mother went to the field for collecting the water-melons. After collecting the water-melons, they placed the water-melons in a Kunda, which was being carried by his maternal grand-mother Smt. Sukhi. When they reached in the field of Smt. Sukhi, the accused came from the Eastern side armed with an axe and Jayee, started abusing Smt. Sukhi and asked "raand, I will kill you" and asked him, also, that he will kill him, too. Thereupon, the accused inflicted injury on the occipital region of Smt. Sukhi from the sharp side of the axe and thereafter inflicted one more injury with the axe on her head. On receiving the injuries, Smt. Sukhi fell down to the ground. After inflicting the second injury by the axe, the handle of the axe broke and the accused, thereafter, inflicted 10 to 12 injuries to Smt. Sukhi by the Jayee while she fell down on the ground. During the course of inflicting the injuries by Jayee, the horns of the Jayee were, also, broken. He saw the occurrence from the distance of 4 to 6 Paundas and he raised alarm and on hearing the alarm, Jatha Ram Thekedar, who was standing in his field on the Western side, came there and thereafter the accused ran away. Thereafter he and Jatha Ram took care of the deceased, blood was coming out from her mouth and she died. Jetha Ram asked him to go to the village and inform the Head but as he was not knowing the Head of the village, therefore, he asked Jetha Ram to accompany him. Thereafter they called Bhoorji and Sugna Ram and they saw the dead-body. Thereafter they asked him to go the Police Station and lodge the report and he went to the Police Station and lodged the report. He has, further, stated that he was called by his maternal grand-mother in the month of 'shrawan' to take care of the land. He has, also, stated that the field, where the occurrence took-place, belongs to Smt. Sukhi and her crop was standing there. He has, also, stated that the accused and Smt. Sukhi used to live separately. He has, also, stated that Smt. Sukhi had sown 20 Bighas of land while the remaining land was cultivated and sown by the accused. He has, also, stated that the accused killed Smt. Sukhi to keep the agricultural field with him. He has, also, stated that the proceedings under Section 107 Cr. P. C. were, also, going on between Smt. Sukhi and the accused. The police came at the scene of the occurrence and made the recoveries, prepared certain Memos and got his signatures. He, also, stated that the blade of the axe, handle, the broken piece of Jayee, the horns of Jayee and the blood-stained soil were, also, recovered and collected by the police. This witness was cross-examined by the accused and was, also, confronted with his statement recorded under Section 161 Cr. P. C, but he could not explain the discrepancies between these two statements. In the cross- examination, he has stated that accused Magni Ram and his maternal grand-mother Smt. Sukhi used to live separately for the last twelve months and he showed his ignorance about the person who cultivated 20 Bighas of the land of Smt. Sukhi. He has denied the suggestion that Smt. Sukhi was not living separately. He has, also, denied the suggestion regarding the non-cultivation of the land by Smt. Sukhi. He has stated that he got the report written from some unknown person in the fair (Mela), and for writing the report, he bought the plain paper from the market. He has denied the suggestion that the report of the incident was got written at village Guda. He also, could not explain the discrepancies between his statement recorded in the Court with that of the Ex. 15-the report lodged by him. Regarding certain facts, which were mentioned in the F. I. R. he has only stated that he cannot say why those facts have not been mentioned in the F. I. R. though he got them written in the report. He has admitted in the cross-examination that Jetha Ram's Dhani is situated at a distance of 60-70 Paundas, but he has denied that it is at some height from where the place of the occurrence could not be seen. He has, also, stated that at the place of the occurrence, there were some signs of struggle over the land, which was a sandy land and there were some marks of struggle and dragging at the place of the occurrence. He has, also, admitted in the cross-examination that when the accused inflicted injuries by the axe on the occipital region of the deceased Smt. Sukhi, at that time she was carrying an Odna on her head which fell down thereafter. He has, also, admitted that Jetha Ram did not come to his field as he was afraid that if he would go to the field then there would be his foot-prints near the dead-body and he would be unnecessarily harassed. He has, also, stated that he was standing at a distance of five paundas from the place of the occurrence and on account of fear he stooled in the Dhoti and went to the Police Station in the same state. We have gone through the statements of these two eye-witnesses and a critical examination of the evidence of these two eye- witnesses shows that these witnesses are not speaking truth and they are not reliable witnesses. The testimony of these two witnesses does not find support from the medical evidence. Both these witnesses have stated that the accused inflicted two injuries by the axe and 10 to 12 injuries by the Jayee while as per PW 12 Dr. Jugal Kishore, and as per the post-mortem report, the deceased had received five incised injuries and seven injuries by blunt weapon on her person. If the statements of these two witnesses are taken to be true then the deceased should have received only two incised wound and not five. Even the dimensions of these five injuries, which were caused by sharp-edged weapon, are of two different sizes. According to PW 12 Dr. Jugal Kishore, these injuries could be caused by two different weapons as well as by the same weapon. Even regarding the blunt-weapon injuries, the doctor is of the opinion that those injuries can be caused by two different weapons as well as by one weapon. The nature of the injuries, received by the deceased, thus, clearly shows that the version given by these two witnesses is not supported by the medical evidence. It is highly improbable that the culprit will carry two different types of weapon to attack Smt. Sukhi and will kill her in the open place, giving a chance to the nearby person (s) to witness the occurrence. The accused was the son of the deceased and if he wanted to kill her, he could have killed her in the house itself as he had sufficient opportunity to be with her all alone. The story of carrying the two weapons in order to attack Smt. Sukhi, seems to be highly improbable and does not appeal the conscience. As there were two different types of injuries and atleast two kinds of weapons have been used hence there is the possibility that two persons have attacked Smt. Sukhi and the cause of death may have been the result of attack by two persons by different weapons and not by one person by two different weapons. Both these witnesses have, also, stated that there was a dispute regarding the land and on that account, the accused has killed his mother. This motive, given by these two alleged eye-witnesses, also, does not find support from the record. The prosecution has placed on record Ex. 20-the judgment of the Sub-Divisional Officer, Nagaur, given in suit No. 60 of 1979 (Bhoora Ram vs. Smt. Sukhi ). This was the suit for declaration filed by Bhoora Ram and Magni Ram against Smt. Sukhi with respect to the agricultural land. In that suit, the deceased Smt. Sukhi filed a written statement on February 18, 1980, in which she admitted the claims for Bhoora Ram and Magni Ram and on the basis of that admission and the evidence produced by the persons, the suit was decreed and the mutation of the land, which stood earlier in the name of Smt. Sukhi, was entered in the name of Bhoora Ram, Magni Ram and Smt. Sukhi. Half of the land was mutated in the name of Bhoora Ram and the remaining half of the land was mutated in the names of Magni Ram and Smt. Sukhi. When Smt. Sukhi herself admitted the claim of the appellant and Bhoora Ram and on the basis of that admission the suit was decreed in favour of Bhoora Ram and the appellant on July 31, 1980, then there was no question of any dispute regarding the agricultural land. Moreover, both these witnesses have stated that PW 11 Gulla Ram was called by his maternal grand- mother for taking care of the agricultural land and he was living there since 'shrawan' i. e. , three months before the incident, but still he showed his ignorance and has stated that he did not know who cultivated and sown the land of Smt. Sukhi. Their evidence, also, does not find support from the attending circumstances. These witnesses have stated that the deceased was carrying water- mellons in the Kunda which she placed on the ground near herself, but that Kunda was found at a distance from the dead-body. There is one more aspect of the case that the Kunda was found in between the dead-body and the hut where it is alleged that the deceased used to live, while she was coming from the opposite side. If the Kunda was being carried by her then it would have been found near the dead-body or near the field from where she brought the water-mellons. Both these witnesses have stated that when the accused inflicted injury on the occipital region of the deceased, she was wearing the Odna on her head, but there was no cut-mark on this Odna. The conduct of these two witnesses further raises a suspicion on their evidence. Both the witnesses stated that they were standing there and saw the occurrence. PW 11 Gulla Ram was accompanying his maternal grand-mother and was with her. According to this witness, the accused threatened his grand-mother as well as him and asked that he will kill both of them, but neither Gulla Ram nor Jetha Ram tried to intervene though it has come in the evidence that Gulla Ram was healthier than that of the accused. The statement of PW 11 Gulla Ram further raises a suspicion on the ground that he has stated that he went in the cattle-fair (Mela) and got the report lodged from a person who was not known to him. He has, also, stated that he bought the paper from the market. We have seen the original record. The make and type of the paper, on which the so-called report has been written, is similar to the other papers, on which the Station House Officer, during the investigation, wrote the statements of the witnesses and prepared various Memos. This conduct of the witness, also, shows that this report was the result of concoction. There is a very strange and peculiar circumstance in the case that about 10 to 12 blows were repeated by the accused on the person of the deceased and there were no signs of struggle or dragging on the earth, though it is an admitted fact that it was a sandy land where the deadbody was found. PW 8 Bhoor Singh, in his cross-examination, has admitted that there was no signs of struggle or dragging etc. at the place of the occurrence and it appears that somebody has kept the deadbody at this place. The relevant portion of the statement of this witness reads as under : ,slk yxrk Fkk tsls yk'k dks mbkdj ykdj j[kk gks D;ksafd vkl ikl esa fdlh Hkh izdkj ds fu'kku ugha gsa** This witness PW 8 Bhoor Singh is the Up-Sarpanch, who was called by these two witnesses immediately after the occurrence. Gulla Ram was the real grand-son of the deceased Smt. Sukhi and he was accompanying her, but neither this witness nor PW 9 Jetha Ram took any steps to rescue the deceased from the hands of the accused. If PW 11 Gulla Ram would have been there he should have tried to rescue her. Moreover, as per this witness, the accused threatened him that he will kill him, also, but this witness did not receive any injury though he never ran away and remained standing there. The conduct of these witnesses, at the time of the occurrence as well as after the occurrence, clearly shows that they were not present at the scene of the occurrence and they had not seen the occurrence. ;