JAIN, J. - (1.) FAKIR Chand S/o Ramrakh Jat was found murdered in the Khaliyan of Buddha Nayak in village 'dhani Bari' on 22. 11. 68. In this connection two sons of Buddha, Juglal and Mansingh were tried by the Additional Sessions Judge, Churu and were found responsible for causing the murder of FAKIR Chand. They were convicted for an offence under sec. 302 I. P. C. and sentenced to imprisonment for life. Both the convicts have challenged their conviction in this appeal.
(2.) ARJUN (P. W. 1) was grazing his herd of she goats in the nearby field on that day. Sometime before dusk he heard a cry from the Khaliyan of Buddha. He saw Juglal and Mansingh inflicting blows by 'khotan' to Fakir Chand. He went near the field of Buddha but he was threatened by the accused to dire consequences and as such he did not dare go to the place of occurrence. He, however, went to the village and met Mukhram (P. W. 2) at his house. Bheraram (P. W. 3) was also sitting with Mukhram. ARJUN informed them about the incident and stated that Juglal and Man Singh S/o Buddha have murdered Fakir Chand. Bheraram collected a few more persons including Sheraram (P. W. 4) brother of the deceased and they proceeded to the place of occurrence. The found they dead body of Fakir Chand covered by a blanket. Bheraram then accompanied by Mukhram went to Sidhmukh Railway Station where the police out post is also situated. He informed the head constable Deeparam but as the report could not be lodged in the out post they proceeded to Rajgarh. According to the prosecution, Deeparam also accompanied them. At 7-30 a. m. , on 23-11-1968 the first information report was lodged at the police station Rajgarh. It is Ex. P. 1. It was also mentioned in the F. I. R. by Bheraram that some 4 or 5 days prior to the date of occurrence Fakir Chand tried to misbehave with the wife of Juglal and on that account Buddha the father of Juglal reprimanded the deceased Fakir Chand. A case was registered under sec. 302 I. P. C. and Shri Ramlal, Station House Officer, (P. W. 6) proceeded to the place of occurrence and he took with him the medical officer, Dr. Shiv Narain Vyas (P. W. 7) for conducting the post mortem examination. According to the prosecution they reached the place of occurrence at 11. 40 a. m. on 23-11 1968 The S. H. O. started the investigation. He recorded the description of the dead body and the said memo is Ex. P. 2. He also collected blood stained earth and the blood stained clothes from the body of the deceased vide Ex. P. 3 and Ex. P. 4. Site Plan Ex. P. 5 was also prepared and the description of the site plan was recorded in Ex. P. 10. The Medical Officer did the autopsy of the dead body of Fakir Chand and the post-mortem prepared by him is Ex. P. 15. According to this report Fakir Chand was found to have sustained the following four injuries - (1) Contused wound with fracture: 3" x 1/4" x 1/2" scalp left parietal bone with fracture of the underlying bone and laceration of the muscles and brain. (2) Contused wound with fracture: 2-1/2" x 1/2" x 1/4" lateral side of injury No. 1 with fracture of the left parietal bone. (3) Fracture: both bones of the right leg lower one third. (4) Contused wound with fracture 2" x 1/2" x 1/4" left leg lower one third with fracture of the Tibia bone at the side of the injury. All the injuries were grievous and caused by blunt weapon. The doctor further opined that injuries Nos. 1 and 2 were dangerous to life. According to him the deceased died due to injury to the brain resulting from injuries Nos. 1 and 2. The accused persons were arrested on the same day. While in custody both the accused by disclosure memos Ex. P. 11 and Ex. P. 12 informed the investigating officer about the 'khotan' which they used as the weapon of offence and the place where they were concealed. This information led to the recovery of the two 'khotans' used by the accused persons in inflicting blows to Fakir Chand from one heap of the fodder in the Khaliyan of Buddha. The 'khotan' used by Juglal was seized by recovery memo Ex. P. 8 and that of Mansingh is Ex. P. 7. The blood stained earth, the blood stained clothes of the deceased and the scrapings of the blood found on the 'khotans' were sent for chemical examination. According to the report of the Chemical Examiner Ex. P. 13 all these articles were found positive for blood. These articles were passed on to the Serologist for examination. According to the report of Serologist Ex. P. 14 the blood stained earth and the blood stained clothes were found to be positive for human blood but as regards the blood found on the scraping from the 'khotans', the serologist reported that the origin of the blood could not be determined on account of the dis-integration. After the investigation was completed the two appellants were challenged in the court of Sub Divisional Magistrate, Rajgarh, who did the preliminary inquiry and committed both the accused to the court of Session to stand their trial under sec. 302 IP G. The accused denied their guilt and claimed trial. On behalf of the prosecution (P. W. 1) Arjun has been examined as an eye witness of the incident. Mukhram and Bheraram, who had gone to the police station to lodge the first information report have been examined as P. W. 2 and P. W. 3. Bheradas also been examined as P. W. 4. The investigating Officer Ramlal has been cited as P. W. 6 to prove the necessary memos prepared by him. Dr. Vyas as P. W. 7 proved the post mortem report Ex. P. 15. On behalf of the defence five witnesses have been examined. The learned trial Judge found both the accused guilty under sec. 302 I P. C. and sentenced them as aforesaid. Mr. Jodha learned counsel appearing on behalf of the appellants has contended that the trial Judge was not right in placing reliance on the sole testimony of P. W. 1 Arjun. He has criticised the statement of Arjun on various grounds. Another important contention that he has raised on behalf of the appellants is that the first information report was a concocted affair. He has based this argument on the statement of Bheraram (P. W. 3), in which the witness stated that he started from Sidhmukh at 10 a. m. on 23. 11. 1968 for Rajgarh. According to the learned counsel, if Bheraram had started at 10 a. m. it was not possible for him to have lodged the report at 7 30 a. m. of the day. A submission in this regard was also made before the learned trial Judge, but it was repelled. It is true that this witness has stated in cross-examination that he started for Rajgarh at 10 a. m. suggesting the day following the incident. It has also come in evidence that there are two trains leaving Sidhmukh railway station for Rajgarh ; one at 4 p. m. and the other at 11. 00 in the night. Ramlal (P. W. 6) Station House Officer clearly stated that he reached the place of occurrence at 11. 40 a. m. and he actually started his investigation from that time. According to Dr. Shiv Narain Vyas he started the post mortem examination itself after they reached the place of occurrence. The post mortem report also mentions 11. 40 a. m. as the time when the doctor commenced the autopsy of the dead body. This lends complete assurance to the statement of the investigating officer that he reached the place of occurrence at 11. 40 a. m. It appears that Bheraram made a mistake in giving the time of his starting for Rajgarh as 10. 00 pm. That apart, Shri Ramlal also stated that Deeparam Head Constable of Police out post Sidhmukh had also come to Rajgarh on the night intervening 22nd and 23rd. Deepram of course has not been produced by the prosecution. But according to the investigating officer he brought Deeparam with him from Rajgarh when he started to the place of occurrence to help him in the investigation of the case. Deeparam is one of signatories on the inquest report and the recovery memos. After having considered the evidence on record we are of the opinion that Bheraram and Mukharam accompanied by Deeparam started by 11 O'clock train in the night of 22-11-73 for Rajgarh and lodged the report early morning of the 23rd. If the time given in the statement of Bheraram had been correct it would not have been possible for the investigating officer and the medical officer to reach the place of occurrence at 1. 40 a. m. the distance being 32 miles. We, therefore, reject this submission as o no consequence. In the alternative an argument has been made by Mr. Jodha that if Bhera Ram and Mukharam had left Sidhmukh railway station by 11. 00 O'clock train they must have reached Rajgarh within one hour and there was no reason why the first information report could not be lodged soon after they reached Rajgarh This is no doubt true that there is no explanation as to why the report was not lodged soon after Bheraram reached Rajgarh. However, we are of the opinion that this circumstance is not enough to throw out the prosecution case. The report was made early in the morning and the Station House Officer after registering the case soon started for investigation at 8. 05 a. m. Another contention raised on behalf of the appellants is that it was not possible for Arjun to have seen the assailants inflicting blows by 'khotana' to the deceased from a distance of 100 to 150 pavandas and particularly when the time was about sun-set. From the evidence it is clearly borne out that it was not actually sunset and there was sufficient light for one to be able to see from a distance of about 700'. On behalf of the defence Matoo (D. W. 2) has been produced to prove that there was a sand-dune between the field of Jiwan Jagriya and the Khaliyan of Buddha Nayak where the incident had taken place. According to the witness even a man sitting on the camel's back could not see any one in the Khaliyan of Buddha. No cross-examination was directed in this regard either to Arjun (PW. 1) or the investigating officer (PW. 6 ).) According to the site plan prepared by the investigating officer, the field of Jiwan Jagirya adjoins the field of Buddha. The witness stated that on hearing hue and cry from the Khaliyan of Buddha he went towards the place of occurrence but he was threatened by the assailants and he proceeded to the village to inform the people there. In view of the evidence placed on behalf of the prosecution had in the absence of cross-examination in this regard on the part of the defence it is not possible for us to believe the defence theory that there was a sand-dune between Arjun and the place of occurrence on account of which it was not possible for him to have seen the incident.
(3.) ANOTHER submission on behalf of the appellant is that the witness was inimical to the accused. In this behalf Jaikaran (DW. 5) has been produced. According to the witness it appears that there was no direct enmity between Arjun and the accused. The witness stated that Kishanlal brother-in-law of Arjun stole some she-goats of Buddha and a case was instituted against Kishanlal and in that case Jaikaran appeared as a witness on behalf of the prosecution. He has not been able to state the result of that case. He, however, admitted that this happened in the year 1951. It is difficult to believe that Arjun will harbour any feeling of ill-will against the accused persons on that account and that too after such a long time. A discrepancy has been pointed out in the statement of Arjun and that of Mukhram (P. W. 2 ). Learned Counsel for the appellant contended that according to Arjun he was threatened by the accused when he wanted to go to the place of incident. This fact, according to him, was not stated by Mukhram (P. W. 2) and also in the F. I. R. It may be noticed here that Bheraram (P. W. 3) clearly stated at the trial that when Arjun wanted to go near the place of incident he was threatened and as such he could not reach the place of occurrence. Non-mention of this fact in the first information report or by Mukhram (P. W. 2) does not go to show that Arjun was telling a lie. According to Bheraram (P. W. 3) this fact was brought to the notice of Mukhram and Bheraram and if it was not mentioned in the first information report it was no fault of Arjun. The first information report has not been lodged by the eye witness. As such no capital can be made out of this omission and we are not prepared to hold that this is a contradiction or omission of any importance. Learned trial judge has found the statement of Arjun (P. W. 1) as truthful. His statement stands fully corroborated by the testimony of Mukhram (P. W. 2) and Bheraram (P. W. 3 ). After having scrutinised the evidence of these three witnesses we are of the opinion that the trial Judge was right in placing reliance on the statement of Arjun (P. W. 1 ). The learned trial Judge found that there was no clear evidence of motive. It is true that the motive as indicated in the first information report was that deceased Fakirchand tried to misbehave with the wife of Juglal but the author of the first information report at the trial stated differently. There he said that it was Mansingh's wife who was said to be molested by Fakirchand. Shera (P. W. 4) stated that it was Juglal's wife whom the deceased tried to misbehave with. Mukhram (P. W. 2) was silent. We, therefore, agree with the view taken by the learned trial Judge that there is no evidence of motive and it cannot be said that there was any enmity between the accused persons of the one hand and Fakirchand on the other. ;