- (1.) HON'ble SHIV KUMAR SHARMA, J.-The appellants five in number along with co-accused Badam Bai and Tara Bai were indicted before the learned Additional Sessions Judge (Fast Track) No. 1, Jhalawar for having committed murder of Balkishan and Shyamlal in Sessions Case No. 288/2001. The learned Judge vide judgment dated November 8, 2001 convicted and sentenced the appellants as under : Bheru Lal & Girraj: U/s. 302 IPc Life Imprisonment with fine of Rs. 500/- each. U/s. 148 IPc Rigorous Imprisonment form three years and fine of Rs. 100/- each. U/s. 435 or 435/149 IPC: To suffer Rigorous Imprisonment four years and fine of Rs. 150/- each. U/s. 436 or 436/149 IPC: To suffer Rigorous imprisonment five years and fine of Rs. 250/- each. In default of total amount of fine i. e. Rs. 1000/- each to further suffer simple imprisonment for three months. Kailash Chandra, Purshottam & Gopal: + U/s. 302/149 IPc Life Imprisonment with fine of Rs. 500/- each. U/s. 148 IPc To suffer Rigorous Imprisonment for three years and fine of Rs. 100/- each. U/s. 435 or 435/149 IPC: To suffer Rigorous Imprisonment four years and fine of Rs. 150/- each. U/s. 436 or 436/149 IPC: To suffer Rigorous Imprisonment five years and fine of Rs. 250/- each. In default of total amount of fine i. e. Rs. 1000/- each to further suffer simple imprisonment for three months. All the sentences were ordered to run concurrently.
(2.) AS per prosecution story informant Basanti Bai (PW. 7) orally intimated Police Station Raipur District Jhalawar on October 26, 1997 that around 12. 30 and 1. 00 PM on the said day her sons Shyam and Balkishan had been belaboured by the appellants. Bheru Lal and Kailash inflicted sword blows on the neck and right hand of Shyam, while Purshottam and Gopal gave blows with sword and spear on the back and head of Bal Kishan. All the appellants then indiscriminately inflicted injuries on the person of Shyam and Balkishan and Girraj and Bheru crushed their heads with stones. After killing Shyam and Balkishan the appellants burnt her house, tractor trolly, and crop of onion and ground nut. On the basis of said information a case under Sections 147, 148, 149, 341, 302, 324, 323, 436, 435 and 427 IPC was lodged and investigation commenced. On completion of investigation charge sheet was filed and in due course the case came for trial before the learned Additional Sessions Judge (Fast Track) No. 1, Jhalawar. Charges under Sections 147, 148, 341, 302 in the alternative 302/149 436 in the alternative 436/149, 435 in the alternative 435/149 and 427 in the alternative 427/149 IPC were framed against the appellants who denied the charges and claimed trial. The prosecution in support of its case examined as many as 21 witnesses. In their explanation under section 313 Cr. P. C. the appellants claimed innocence and examined four witnesses in defence. On hearing final submissions, the learned trial Judge convicted and sentenced the appellants as indicated above and acquitted the co-accused Badam Bai and Tara Bai. The fact that death of the deceased Shyam and Balkishan was homicidal, is not in dispute. While conducting autopsy on the dead bodies, the skulls were found masticated. As per Post Mortem Report (Ex. P-35), Shyam received following antemortem injuries: " Whole skull masticated, No marks of tyre, Brain Protruding, Multiple fractures Incised Wound back of neck 6" x 4cm x 4cm deep Incised Wound on left shoulder 4cm x 1cm Incised Wound on Rt. Shoulder 3cm length Incised Wound Rt. Arm 7cm x 5cm x 1,1/2cm Incised Wound Rt. Ear and jaw 5cm x 5cm Upper maxilla dislocated Lacerated wound on vertex 6cm diameter Lacerated wound on vertex 7-8cm deep. " Bal Kishan sustained following ante mortem injuries vide Post mortem report (Ex. P. 34) :- " Whole skull masticated, Lacerated brain extruding on road, Left ear, left face, eye left Rt. Orbit maxilla frontal bone Incised Wound on back 8cm x 1cm Deep lacerated wound with depth of 7-8cm" The star witness of the prosecution case is Basanti Bai (PW. 7), whose testimony has been relied upon by the learned trial judge while convicting and sentencing the appellants. In her deposition Basanti Bai stated that her sons Shyam and Balkishan while proceeding to the well had been belaboured by the appellants. Corroborating the FIR she stated that Bherulal and Kailash inflicted blows with sword on the neck and hand of Shyam whereas Gopal and Purshottam gave blows with spear and sword on the person of Bal Kishan. All the appellants caused injuries on their person and crushed their heads with stones. Shyam and Balkishan died at the spot. Seeing her there, the appellants chased her, came to her house entered the house and burnt tractor, utensils and other goods. In the cross examination she denied the suggestion given to her that Balkishan and Shyam had gun and kattas with them. Mr. A. K. Gupta, learned counsel for the appellants canvassed that Basanti Bai (P. W. 7) was not an eye witness of the occurrence. Questioning the conduct of Basanti Bai, learned counsel contended that it was highly unnatural that being a mother she did not make attempt to save her children. In view of the material contradictions in her testimony, no reliance could be placed on her evidence. Site plan Ex. P. 17 also gave no corroboration to her testimony. Learned counsel further urged that the defence came with a definite case that the deceased came at the house of the appellants and attacked them and caused as many as 11 injuries to appellant Kailash Chand, out of which 10 were caused by sharp edged weapon. The prosecution has failed to give any explanation about the said injuries and also could not explain as to how the guns were found near the dead bodies of the deceased. The aspect of right of private defence of the appellants was not considered by the trial court and the appellants deserve to be acquitted of all the charges. Reliance is placed on Yogendra Morarji vs. State of Gujrat (1), Mohd. Ramzani vs. State of Delhi (2), Madan Mohan Pandey vs. State of U. P. (3), and Chuhar Singh vs. State of Punjab We have pondered over the submissions.
(3.) FACTUAL scenerio emerged on a careful scrutiny of record may be summarised thus- (i) Basanti Bai (PW. 7) is the mother or deceased Shyam Lal and Bal Kishan and she alone supported the prosecution case. (ii) Police Station Raipur situated at a distance of 18 kms. from the place of incident and the report was lodged with in two hours of the occurrence. (iii) Incident had taken place between 12. 30 and 1 PM on October 26, 1997 and as per site plan Ex. P. 17, the house of informant existed at a distance of about 100-150 metres from the place of incident. (iv) Fire arms comprising of 12 Bore Gun and Country made Pistol stained with blood, got recovered from the place of incident vide recovery memos Ex. P. 25 and Ex. P. 26. Abdul Rashid, Investigating Officer (PW. 21) deposed in his cross examination that country made Pistol was loaded and a bullet was found in the barrel of gun. (v) Vide Injury Report Ex. D. 2 appellant Kailash Chand sustained 10 incised wounds and abrasions three in number. (vi) Appellant Kailash Chand submitted a written report (Ex. D. 1) on October 26, 1997 with the Police Station Sunel at 5. 30 p. m. against Bal Kishan and Shyam Lal and case under sections 307, 341, 451, 323/34 IPC was registered. (vii) Bal Kishan and Shyamlal died on the spot and their skulls were found masticated. They also sustained various antimortem incised and lacerated wounds. It is trite that in a criminal trial credible evidence of even a solitary witness can form the basis of conviction. In the matter of appreciation of evidence of witnesses it is not the quantity but the quality that matters. However, when a case is based on the testimony of sole witness, his/her statement must be confidence inspiring. While appreciating the evidence of Basanti Bai (PW. 7) learned trial court observed that she was natural witness and there was no material infirmity in the testimony so as no doubt her presence near the scene of occurrence or discredit her testimony. While going through the evidence of Basanti Bai we have also not found any material infirmity as regards the place of occurrence, the manner of assault and the weapons assigned to the assailants. Her evidence is consistent so far as the basic features of the prosecution case are concerned and her evidence is corroborated by medical evidence as well as prompt first information report. If she did not make any effort to save her children from the assailants it does not render her presence near the place of incident doubtful. Different people behave and react differently in different situations. How a person would behave in a particular situation, can never be predicted. In State of U. P. vs. Man Singh (5), their Lordships of the Supreme Court indicated that where eye witnesses did not come out in open before the accused persons in order to make any effort to save the deceased in view of the fact that the accused persons were seven in number and they were all armed with lethal weapons whereas the eye witnesses were totally unarmed, the said conduct of the witnesses was quite natural. ;