- (1.) THIS is an appeal against the judgment dated 12. 07. 1977 passed by the learned Sessions Judge, Balotra whereby he convicted the accused-appellants Hanuman, Uma and Moola, all sons of Maga resident of village Nateria Tehsil Chohtan District Barmer, for having committed offence under Sec. 302/34 IPC of murdering Rekha and sentenced them to imprisonment for life.
(2.) THE prosecution case as disclosed in the F. I. R. dated 2. 12. 1976, lodged by Thana, brother of deceased Rekha, at 1-30 A. M. is that complainant was informed by Ganga PW 2 that his brother Rekha is being beaten by Hanuman etc. in the field of Maga. Ganga had come to inform Thana on hearing the cries of Rekha. On receiving the information, complainant Thana PW 1 reached the field of Maga and found that Rekha was lying on the way leading to the field of Maga. His clothes were blood stained. Tikma and Sona were sitting by Rekha. On being enquired from Rekha, he informed that Hanuman, Moola and Uma, accused-appellants all sons of Maga, have beaten him by lathies. On being asked about the reason, Rekha further stated that he had quarrel with Hanuman's brother Uma in the morning and because of that, Hanuman has threatened that he will not be spared today. While Rekha was being taken to hospital at Chohtan for treatment, he died on the way and dead body was taken to Police Station. On the aforesaid report, a case was registered against the accused-appellants and after usual investigation the accused were challaned and committed to Sessions for trial. The learned Sessions Judge, Balotra found the accused-appellants guilty of having committed murder of Rekha and sentenced them as aforesaid. Hence this appeal. We have heard learned counsel for the parties and perused the record. The learned Sessions Judge had relied on the statements of Thana PW 1, Ganga Ram PW 2, Sona PW 3 and Tikma PW 4 in support of his finding of guilt against the accused-appellants. PW 1 Thana is not an eye witness. He has admittedly reached the scene of the occurrence as a result of information, given to him by Ganga Ram PW 2, much after the alleged incident had taken place. His statement is only of derivative knowledge. According to him, when he reached there, Sona and Tikma were sitting by the side of Rekha. He did not make any enquiry from Sona and Tikma but asked only Rekha and Rekha, according to him, informed that the accused-appellants have given him beating by lathies. The question is that how much reliance can be placed on the alleged dying declaration, made by Rekha to this witness. Before we examine this aspect, two things may be noticed from the statement of this witness. He has categorically stated that 'dhani' of Ganga is about 100 'pawandas' away from the scene of the occurrence and nothing can be heard and seen from the dhani of Ganga as to what is happening at the scene of the occurrence. Ganga also himself admits that he has not seen the occurrence but he only on hearing the cries of Rekha, rushed to Thana for calling him. If according to PW 1 Ganga was not at a place where he could hear the cries of Rekha or see anything, the very foundation of his story is based on doubt. Atleast, it can be said that there could not have been any information about the suspected assailants as he has not seen nor he could have heard anything of the incident from the scene of the occurrence at the place where he was. The conduct of PW 2 Ganga also appears to be abnormal and against the probable course of human conduct. He is a boy of thirteen years. He has stated that at the time of the occurrence he was at his field. Instead of rushing to the scene of the occurrence on hearing cries of Rekha, he rushed towards village for calling Thana. He does not even thereafter accompany Thana to the scene of the occurrence after informing him. His statement cannot be believed if statement of PW 1 is to be believed that nothing can be heard and seen from the field of Maga. PW 1 Thana has also stated that 'dhani' of Maga is about 300 'pawandas' away from his own 'dhani' that is to say much far from other neighbouring 'dhanies' of Ganga and Lakha. It may also be noticed that while in F. I. R. , Thana has stated on the basis of information, given by none other than deceased Rekha that he was beaten by lathies only. In the statements of Thana, Sona and Tikma, the story of beating, given by Moola with axe has been introduced at a later stage. While according to Thana PW 1, when he arrived at the scene of the occurrence, Rekha was conscious and he only informed as to who has given him the beating and in the F. I. R. the only weapons, attributed to the assailants were lathies. In his statement in the Court, Thana has stated that he remembered after 5-6 days that Rekha has an axe with himself which he had forgotten to inform the police. He informed the police after five days that Rekha also had an axe. The axe alleged to have been recovered at the instance of accused persons is stated to be axe belonging to Rekha and the trial Court has tried to explain away this discrepancy by assuming that Rekha must have become unconscious as a result of beating, given by Moola. If the assumption of trial Court is accepted to be plausible then it has to be assumed that Rekha was not in a state of consciousness as to give any statement when Thana reached there. In this connection, it will also be pertinent to notice that while F. I. R. is alleged to have been recorded at 1. 30 A. M. on 9. 12. 1976 immediately when the body of Rekha being taken to police station, but in his statement, PW 1 Thana is categorical that F. I. R. was not recorded immediately but recording of the F. I. R. was postponed till later in the day. While F. I. R. is alleged to have been recorded at 1-30 A. M. on 9. 12. 1976, it has reached the Court only on 14. 12. 76 that is to say after five days. Alongwith this extraordinary delay in reaching the F. I. R. in the court, there are strong circumstances which provide the legitimate basis for suspecting that F. I. R. was recorded much later than the stated hour affording sufficient time to the prosecution to introduce improvements and embellishments and set up a distorted version of occurrence. Reference in this connection may be made to a decision of their lordships of the Supreme Court in Ishwar Singh vs. State of Uttar Pradesh (1 ). In this case, this suspicion is further hardened by the statement of PW 1 Thana himself when he categorically admits that F. I. R. was not recorded at 1. 30 A. M. but he was told that it will be recorded later on in the day and this suspicion is further strengthened from the fact that story of beating, given by axe, has been introduced later on and there has been a recovery of axe belonging to Rekha at the instance of accused persons. In these circumstances, we are of the opinion that dying declaration attributed to Rekha by PW 1 Thana cannot be accepted on its face value unless it is corroborated by other piece of evidence. Prosecution has come with a specific case that PW 3 Sona and PW 4 Tikma were present at the scene of the occurrence and in their presence, Thana when reached the site, has asked Rekha as to what has happened and on that enquiry, Rekha made the statement, referred in F. I. R. PW 3 Sona and PW 4 Tikma both in their statements do not at all say that Thana asked about the incident and Rekha replied to Thana in the aforesaid manner. Infact PW 4 Tikma does not even suggest any such statement by Rekha at all. These were the only witnesses who could have corroborated about the truth of the dying declaration allegedly made to PW 1 Thana. In the aforesaid circumstances, the dying declaration, referred to in the statement of PW 1 Thana remains uncorroborated and as we have already discussed above, uncorroborated statement of Thana is not worthy of reliance in the present set of circumstances. Coming now to statements of PW 3 Sona and PW 4 Tikma who are stated to be eye witnesses. After having examined their statements closely, we are of the opinion that they are mere chance witnesses and do not appear to have any ostensible reason to be on the scene of the occurrence at the time and hour of the stated incident. PW 3 Sona in his statement has admitted that on the date of the occurrence, he was returning from village Chouhtan and had got down at Mane Ki Pau for going to his dhani. He has also admitted that from Mane Ki Pau to his dhani, straight route is of about one mile from the southern side and dhani of Maga does not come in the way and if he were to go through the dhani of Maga, he has to travel a distance of almost three miles. He had no other business except to reach his home and the night had already set in. In these circumstances, it does not stand to reason that what prompted this witness to take a three time longer route to go to his dhani from Mane ki Pau. In the like manner, PW 4 Tikma was coming from village Kaparau and his alleged destination was Besaniya village where he was supposed to visit his sister. It has not come on record what was the nature of business which prompted this witness to visit the house of his sister to reach there late in night particularly when according to him, there was no bus service from his village to village Besaniya and he was to travel on foot from Mane Ki Pau to the house of his sister. In his statement before police, PW 4 Tikma has categorically stated that he started for Besaniya alongwith Sona because way of Besaniya was through the 'dhani' of Sona. Sona has admitted in his statement that while going to his field straight from Mane ki Pau, Maga's field does not come in the way and the distance from Mane Ki Pau to his dhani is only one mile but in his statement in the Court, this witness has improved upon by saying that on the way to the house of his sister from Mane ki Pau, the field of Maga comes and it was Sona who had suggested that his field also comes in the way and, therefore, he stated before the Police that way to his sister's house goes through the dhani of Sona. It has also come in the statement of this Tikma that he came to meet Sona accidentally on the bus. The two statements are not reconcilable. Moreover Tikma has taken the way towards his sister's house on the suggestion, made by Sona PW 3 but as we have already discussed, PW3 Sona had known the direct way to his dhani which was much nearer than the way through Maga ki Dhani and, therefore, he was not expected to have taken Tikma through the longer roate towards village Besaniya. If it is to be believed that Tikma was going independently to village Besaniya through the dhani of Maga and was not aware of any other route then it is not explained way Sona at all joined Tikma to take a longer route to his house at that hour. Thus, the entire story of the presence of these two witnesses on the site appears to be concocted and not natural. As we have already discussed above, the F. I. R. does not appear to have been actually recorded at the time and hour when it has been so stated to have been recorded. The possibility of improvements and embellishments for making out a case in a planned manner cannot be ruled out. In this connection. it may also be noticed that injured was found in the field of Maga, father of accused appellants, after sun set. According to prosecution case itself, there was already existing enmity between the two. While in the F. I. R. it has been stated that Rekha was found lying on the way leading to Maga's field, all the four witnesses, discussed above, have stated that he was found in the field itself. A story has also been made out that while Rekha was in the field, he was armed with his own axe whereas accused were armed only with lathies. No explanation of whatever worth has been brought on record to explain presence of Rekha in the field of Maga at that hour. It may also be noticed that the axe which is alleged to have been recovered as a result of information, given by accused Moola is stated to be belonging to deceased Rekha. PW 1 Thana has stated that he, for the first time, informed the Police about Rekha having been accompanied with an axe and that having not been found on the scene of the occurrence on 14. 12. 76 whereas according to Ex. P. 19, the said axe had already been recovered on 13. 12. 76. This further lends credence to the plea of defence that prosecution has not come out with true version of the incident.
(3.) IN view of our aforesaid discussion, we are of the view that prosecution has failed to prove the guilt of accused-appellants beyond reasonable doubt and, therefore, conviction of the accused-appellants cannot be sustained. Before parting with the case, we may also make a mention that trial Court has also misread the statement of Dr. VK Vyas PW 9. While the trial Court has said that according to medical opinion, the injuries on the person of deceased Rekha were sufficient in the ordinary course of nature to have resulted in death, Dr. Vyas in his cross-examination has clearly stated that it was not possible that death would have caused merely on account of the injuries on the person of the deceased Rekha. Had there been prompt medical aid, the life of deceased would have been saved. It may be noticed that complainant has not immediately taken the injured Rekha to nearest hospital, stated to be at Chouhtan. Instead of taking the injured along with him, he went on camel to the village Chouhtan, hired a truck, returned back and then proceeded towards Chouhtan. In these circumstances, we find some force in the argument of appellant that even if the guilt of the accused were to be established, it would not have travelled beyond the offence under Sec. 304 P. II I. P. C. However, since we have held that the guilt of the accused has not been proved beyond reasonable doubt, we are not pursuing this argument any further. In the result, the appeal is allowed and the conviction & sentence, passed by the learned Sessions Judge, Balotra, is set aside. Since accused have already been released on bail, their bail bonds may be discharged. . ;