TYAGI, J. - (1.) APPELLANT Mohan Singh has filed this appeal against the judgment of the Sessions Judge, Sri Ganganagar, dated 22nd December, 1969, whereby the appellant was convicted for an offence under sec. 302 Indian Penal Code and sentenced to life imprisonment.
(2.) THE facts as revealed by Gyanchand (P. W. 4), the only eye witness in this case, are as follows : Gyanchand and his brother Jogender Singh were serving the accused as his Siris and they used to reaside in a Kotha situate in the same Ahata where accused Mohan Singh used to live. On 11th of March, 1969, Jogender Singh had gone out to Punjab. His wife Mst. Taro and the only child 1-1/2 years old were left in the custody of his brother Gyanchand. At about 8 or 9 in the morning Mohan Singh rebuked Mst. Taro for having committed theft of fodder from his field. It is said that Mst. Taro also called bad names to Mohan Singh At that time Mst. Taro was preparing tea in her kitchen situate outside the Kotha. Mohan Singh could not tolerate this insolent behaviour of Mst. Taro and he, therefore, gave a Kulhari blow from the sharp side on the forehead of Mst. Taro and thereafter dealt two more Kulhari blows from the wrong side on the parietal regions of the forehead of the deceaseds Gyanchand, who was saddling the camel in the same Ahata of Mohan Singh, witnessed this occurrence. He raised an alarm whereupon accused Mohan Singh ran away from that place. It is said that on hearing the alarm Pargan (P. W. 1) reached the spot of occurrence and thereafter he was followed by Swaran (P. W. 3) and then by Shankar (P. W. 2 ). Besides these three persons, many other persons came but it is said that when Pargan, Swaran and Shanker reached the spot of occurrence, Gyanchand told them 'hat Mohan Singh had inflicted Kulhari blows on the head of Mst. Taro. Shanker was then sent to Padam-pur to fetch a jeep and when the jeep was brought Mst. Taro, who was lying in an unconscious state, was shifted immediately to Padampur where she was admitted in the hospital. Dr. C. S. Bhati (P. W. 6) examined the injuries of Mst. Taro and found that she had sustained the following three injuries on her head: (1) Incised wound 2" x 1/6" x 1/5" oblique on the right parietal region near the mid line of scalp, 1/2" away from the mid line. (2) Lacerated wound 2-1/2" x 1/3" x 1/2" on the right parietal region obliquely running downwards and forwards from near the mid line of the scalp, 1-1/2" away from the mid line lies the posterior end of the wound. (3) Lacerated wound 3-1/3" x 1/3" x 1/2" sagital on the left parietal region 4-1/2" above the left ear. The doctor also noticed the pupils of Mst. Taro dilated. He immediately enquired from the attendants of Mst. Taro whether the matter had been reported to the police or not and when he came to know that information had not been given to the police, he sent a note (Ex. P/3) to the Station House Officer, Police Station, Padam Pur that Mst. Taro wife of Jogender Singh, aged 20 years was brought to his dispensary in an unconscious state with multiple injuries on the head. The condition of the patient was serious and, therefore, the Station House Officer was requested to do the needful. It is said that the Station House Officer Shri Inder Singh (P. W. 7) sent his Head Constable and a Constable to the dispensary to find out if Mst. Taro was accompanied by any relation of hers with a direction to bring him to the police station. The Head Constable [took along with him Gyanchand (P. W. 4) to the police station where he was examined at 12. 30 p. m. and that, statement of Gyanchand recorded by the Station House Officer on that very day was treated as a first information report in this case. At 12. 25 p. m. Mst. Taro breathed her last. The same doctor Shri C. S. Bhati pet formed the autopsy of the dead body of Mst. Taro and found on opening the dead body comminuted depressed fractures of the right and left parietal bones under injuries Nos. 2 and 3. He also noticed dura and pia-arachonoid lacerated. He also discovered multiple lacerations and haemorrhages in the left cerebral hemisphere. The right cerebral hemisphere was compressed and lacerated by the depressed fracture of right parietal bone. In the opinion of the doctor, the cause of death of Mst. Taro was shock and haemorrhage as a result of sustaining injuries to the cranium. During investigation on the information furnished by Mohan Singh under sec. 27 of the Evidence Act, a Kulhari was recovered by the investigating agency from the Chhapar of Mohan Singh, but on examination by the Chemical Examiner it was not found stained with blood and, therefore, this recovery does not in any manner cannot the accused with the crime. After investigation, a challan was put up against Mohan Singh under sec. 302 Indian Penal Code in the court of Munsiff-Magistrate First Class, Shri Ganganagar who, after enquiry sent the accused-appellant to the court of session to stand the trial for the said offence. The prosecution produced as many as seven witnesses in this case. The accused denied the charge and examined his wife Mst. Harbhjankaur (D. W. 1) and Tarsaim Singh (D. W. 2) to prove that Mst. Taro was a lady of loose character and that somebody in the night inflicted injuries to Mst. Taro which were for the first time seen by Mst. Harbhajankaur (D. W. 1) in the morning at about 7 or 7. 30 and then with the help of Tarsaim Singh (D. W. 2) the injured was taken to the hospital at Padampur where she died at 12. 35 p. m. According to these witnesses, Gyanchand was not present in village 2 CC where Mst. Taro used to live and that Gyanchand was sent for by Tarsaim Singh from 1 DD where he was living with his parents and, according to Tarsaim Singh (D. W. 2), Gyanchand along with his father and another brother came to Padampur at about 2 or 2. 30 p. m. The learned Judge did not place any reliance on the defence theory. Believing the story as given out by the eye witness P. W. 4 Gyanchand, he found 'the accused-appellant guilty of an offence of murder and, therefore, convicted him under sec. 302 Indian Penal Code and sentenced him as referred to above. It is in these circumstances that this appeal has been preferred by the appellant to this Court. Mr. Thanchand, appearing on behalf of the appellant, vehemently urged that the trial court has erred in placing reliance on the testimony or P. W. 4 Gyan Chand, who, according to the circumstances as have been brought on the record, was not present on the scene of occurrence when Kulhari blows were given on the head of Mst. Taro. In this connection, he placed reliance on three circumstances, viz: (1) that if Gyanchand had been present at village 2 CC then he would have certainly sent a report to the police station, Padampur along with Shanker who was asked to go to Padampur to fetch a jeep for transporting Mst. Taro to the hospital; (2) that Swaran Singh who, according to the prosecution, reached the spot of occurrence immediately after the incident does not in his statement (Ex. D. 3) recorded under sec. 164 Criminal Procedure Code any-where mention that Gyanchand was present at 2 CC on that day when Mst. Taro was beaten; and (3) that Gyanchand's conduct was quite abnormal as he did not try to intervene when Mohan Singh is alleged to have inflicted Kulhari blows on the head of Mst. Taro. It was also urged that false witnesses Pargan (P. W. 1) have been introduced by Gyanchand which shakes the foundation of his testimony and, therefore, conviction of the appellant on the testimony of a sole eye witness of this type should not be sustained by this Court.
(3.) THE statements of Pargan (P. W. 1) and Swaran (P. W. 3) have not been believed by the trial court for the reasons given by that court and we agree with the reasoning of the learned trial Judge for discarding the evidence of Pargan (P. W. 1) and Swaran (P. W. 3) and therefore we also propose not to rely on the statements of these two witnesses, but it cannot be said with certainty that Pargan (P. W. 1) and Swaran (P. W. 3) did not at all visit the place of occurrence after the alarm was raised by Gyanchand and, therefore, in these circumstances it is difficult to accept that the prosecution has deliberately introduced such witnesses whose presence at the place of occurrence was impossible. On that ground, therefore, it is difficult for us to discard the testimony of Gyanchand. It is true that Pargan's name does not find place in the first information report (Ex. P. /l) and that Swaran (P. W. 3) has deposed certain facts which on the very face of them appear to be false, but discarding their testimony on these grounds would not make Gyanchand's testimony doubtful. Gyanchand was a lad of 18 and was living with his brother Jogender Singh. It is admitted by the accused himself in his statement under sec. 342 Criminal Procedure Code that Gyanchand was the Siri of Mohan Singh and, therefore, his presence at 2cc in his own house at the time of occurrence was quite natural. Gyanchand has deposed that he was saddling a camel when certain derogatory words were exchanged between Mst. Taro and Mohan Singh. Mohan Singh was undoubtedly the master of Mst. Taro's husband and, therefore, he could not tolerate abuses coming from the wife of his own servant. This enraged him and he dealt the Kulhari blows on the head of Mst. Taro. Gyanchand states that when he saw this incident he left the camel and started going towards the kitchen where Mst. Taro was beaten but before he cold reach him Mohan Singh had left the spot. The entire incident occurred in such a hurry that it did not provide any opportunity for witness Gyanchand to intervene. A scathing criticism has been levelled against the testimony of this witness Gyanchand (P. W. 4) and efforts have been made by Mr. Thanchand to persuade this Court not to place reliance on the statement of the eye witness, but we find that his testimony finds corroboration not only from medical evidence and the first information report (Ex. P. 1) lodged by him, but it gets support from the statement of Mst. Har-bhajan Kaur (D. W- 1) when she states that at the time when she saw Mst. Taro lying injured in her kitchen the tea was ready on the oven and the fire was burning in the oven. Gyanchand has also stated in the first information report (Ex. P. 1) that at the time of the incident Mst. Taro was preparing tea. He has also stated this fact in his deposition before the trial court. A suggestion has been made by Mr. Thanchand by referring to the post-mortem report that half digested food was found in the stomach of the deceased and, therefore Mst. Taro must have been hit somewhere between 12 and 1. 30 in the night and it was in the morning at 7 or 7. 30 that Mst. Harbhajankaur (D. W. 1) saw Mst. Taro lying in that condition. We regret, we cannot accept this suggestion of Mr. Than Chand on two grounds : Firstly, Mst. Harbhajankaur herself saw the fire burning in the oven and tea was being prepared by some one on that oven. According to the defence, Gyanchand was not in the village at 2gc on that day and, therefore, the question arises as to who it that fire in the oven which was then burning when Mst. Harbhajankaur came there and who prepared the tea which was found on the oven. ;