- (1.) THIS is an appeal by two accused Badra and Sawa who have been convicted by the Additional Session Judge Balotra under sec. 325 I. P. C. and sentenced to rigorous imprisonment for four years and a fine of Rs. 1000/- each. In default of payment of fine, they have been sentenced to undergo a further rigorous imprisonment for six months.
(2.) THE prosecution story in this case was that one Ashmal Mahajan, resident of the village Morseem, was a social, worker and President of the local Congress Comittee. He used to interfere with the administration of the thikana an in the jagirdar's right to realise certain taxes from the people. THEre was, thus, some enmity between him and the Thikana Morseem. It was alleged that on the 24th of Oct. , 1951 shortly after sun-rise, Ashmal went out to answer the call of the nature on this side of the village in which Ramdeoji's temple is situated. When he was returning after easing himself, four persons, namely, the two appellants Badra and Sawa and Jodh Singh and Heer Singh, who were incited by the younger son of the Thakur of Morseem, nemely, Ratan Singh and who was also present at the site, made a concerted attack on Ashmal and caused him so many injuries with lathis and sword that he died a few hours after the occurrence. According to the prosecution, one Abhey Singh wast at the time of occurrence, taking his buffalo to Kot-ki-Nadi which is very near the actual site, in order to enable her to drink water. He hard Ashmal's cries and also saw him being beaten. At the same time, Ashmal's brother Manmal and one Leela were taking their bath on Peechka well. THEy also heard the cries and asked Abhey Singh who was crying. Abhey Singh informed them that Ashmal was being beaten. THEreupon these two persons also went to the place where Abhey Singh was standing. THE assailants, however, ran away and could not be caught. Four of the assailants, namely, Badra, Sawa, Jodh Singh and Heer Singh, were challaned by the police under sec. 302 I. P. C. while Ratan Singh was challaned for abetment of the same offence under sec. 302 read with 114 I. P. C. The Extra-Magistrate, Bhinmal, who conducted the preliminary/enquiry, committed all the five accused, but he changed the offence from sec. 302 to sec. 304 I. P. C. The Additional Sessions Judge Balotra who tried the case, acquitted three of the accused, i. e. , Ratan Singh, Jodh Singh and Heer Singh and convicted and sentenced the two appellants as referred above. The appellants had pleaded innocence in the committing Magistrate's court and also in the trial court. Even now it is urged on their behalf that they are quite innocent, that they have been convicted on a very flimsy. discrepant and unreliable evidence and, there' fore, they should be acquitted. They did not dispute in the trial court the fact that Ashmal was assaulted by some persons on 24th October. 1951 and that he died the same day. But their case was that they were in no way responsible for his death. They were not incited by the Jagirdar or any person on his behalf to commit this crime and they were involved simply on account of suspicion. It was pointed out that several persons were living within a short distance from the site where the occurrence had taken place and yet the police had not produced any of the persons living in the neighbourhood. On the other hand, the person! who were examined by the prosecution were either relatives of the deceased or those who were themselves on inimical terms with the thikana. It was suggested that the deceased Ashmal had started a criminal case against some bhils and bhamis that the neighbour had seen two persons assaulting the deceased and in their view they were bhils or bhamis who could not be identified. Defence evidence was led to show that the assailants of the deceased were probably bhils or bhamis and even two names of Ratania Bhil and Karnia Bhami were suggested by the defence witnesses as the probable offenders. In this court also it has been contended by appellants' learned advocate that very probably the persons who assaulted Ashmal were the bhil and bhami suggested by the defence witnesses. But even if it be taken that accused were not able to establish the identity of the other assailants, it was none of their duty to do so. It was for the prosecution to bring the guilt home to the appellants. The trial court had found that the prosecution evidence was not reliable so far as three of the five accused, challaned by the police, were concerned. When the trial court came to a definite conclusion that three innocent persons were involved by the prosecution witnesses, the same evidence should not have been relied upon against the two appellants without any further corroboration. Learned Government Advocate on the other hand has urged that the first information report in this case was lodged soon after the occurrence, that the names of the witnesses and the offenders were mentioned therein that the discrepancies in the evidence of the prosecution witnesses are not material and that the appellants' conviction is fully justified on its basis. Now, in this case it is established beyond doubt that Ashmal was assaulted by some persons with blunt weapons on the 24th of October, 1951 early morning near Ramdeo-ji's temple in village Morseem when he was returning after answering the call of nature. Not only P. W. 4, P. W. 7 and P. W. 8 but even D. W. 2 Dhunk Singh have stated that when they went to the site. Ashmal was lying grievously injured. He did not name any of his assailants but only expressed a desire that he should at once be taken to Thana Bagora. Thereupon; he was placed in a bullock-cart of Hapta and when he was being taken to Thana Bagora, he expired in the way. The Sub-Inspector P. A. 9, Achal Singh, sent the corpse of the deceased with P. W. 6 Bhanwarkhan for post mortem examination and P. W. I, Dr. Ram Shanker Misra. conducted autopsy on the next day. He found 13 injuries on the person of the deceased of which the following four were grievous : (1) Simple fracture of right tibia and fibula; (2) Simple fracture of left tibia; (3) Simple fracture of right radius and ulna; and (4) Simple fracture of right third and fourth ribs of the chest. In his opinion all the injuries were caused by blunt weapon either individually or collectively As regards the cause of death, the trial court has remarked, and rightly so, that the evidence of this witness is not quite clear. In his examination-in-chief, he has stated that Ashmal had died of traumatic pneumonia but in his cross-examination, he stated that in his opinion the deceased was attacked by lobar pneumonia at least five days before his death because in the case of traumatic pneumonia there should have been some injuries to his lungs which were not found on autopsy. It was on account of the statement of this witness that the trial court reduced the offence to one under sec 325 I. P. C. There is no appeal in this Court on behalf of the prosecution and I would not, therefore, enter into the question whether an aggravated offence had taken place in this case. So far as the offence under sec. 325 I. P. C. is concerned, there can be absolutely no doubt that at least this much offence was committed in respect of the deceased Ashmal. The main points for determination in this appeal are: - (1) Whether there was any enmity between the Thikana Morseem and the deceased, whether the appellants were hirelings of the Thikana and the deceased was assaulted in pursuance of a conspiracy to do away which him; and (2) Whether the appellants took part in assaulting the deceased, To begin with the first point, the prosecution has examined in all nine witnesses in this case. Of them. P. W. 1 is Dr. Ram Shanker Misra. who conducted the autopsy of the deceased P. W. 6 Bhanwarakhan is only a formal witness who took the dead body to P. W. 1 P. W. 9 is Achal Singh, Sub-Inspector, who took down the first information report and investigated the cast partly Their statements do not throw any light on this point. Of the remaining six witnesses, P. W. 4 Leela P. W. 7 Abhey Singh and P. W. 8 Manmal are, according to the prosecution, eye witnesses to the occurrence. P. W. 4 Leela was not examined in the trial court on the question if be knew anything about the strained relations between the deceased and the Thikana. P. W. 7 Abhey Singh has stated that "the Thikana Morseem disliked Ashmal because he worked for the Congress "committee". P. W. 8 Manmal has stated that "ashmal was a Congress man and used to interfere with taking illegal lag-bag by the Thikana and therefore he was beaten". On the other hand, P. W. 2 Bhagwana has stated in examination-in-chief that "he did not know that there was bad blood between Ashmal and Thikana Morseem". Similarly. P. W. 5 Jatanlal has stated that "there was no enmity between the Thikana Morseem and Ashmal" Thus out of the four prosecution witnesses, who were examined to prove the enmity, two have definitely contradicted the prosecution, while the other two, i. e. , Abhey Singh and Manmal have no doubt supported the prosecution but they have done so in a very vague manner. Abhey Singh's mere statement that the Thikana was displeased with Ashmal does not carry us very far. He has not given any indicator as to how he knew that Ashmal was disliked by thikana. Moreover "thikana'' is a vary wide and vague term. Sometimes it is used for the jagirdar, sometimes for those incharge of the administration and at other times for the whole jagir itself. If the witness meant to suggest that the Jagirdar of the village was displeased with the deceased, he should have been definitely questioned on that point and then it should have also been brought out as to how he came to know that the Jagirdar was displeased with the deceased. A mere allegation was not enough. It should have been brought out that at least on one single occasion the Jagirdar had expressed himself before the witness in terms which showed his displeasure or that he had taken some action which showed that he was nursing an enmity against the deceased. Similarly, Manmal's statement is equally vague. He says that Ashmal was interfering in realization of lag-bag by the thikana, but there is no indication on the question as to when this interference was made, That is, whether this happened long before the occurrence or shortly before it. If Ashmal had interfered with the realisations in the distant past, it could not be said that the Jagirdar was nursing enmity since then and he proceeded to take revenue at this time. If, on the other hand, the prosecution had established that Ashamal had in the near past done something to irritate the Jagirdar, that would have thrown some light on this point. These two witnesses have not even named whether it was the Jagirdar or his son or the person in charge of the administration of the thikana who were displeased with the deceased. P. W. 7 Abhey Singh has himself admitted that two of the five accused whom he had named, had appeared in a criminal case against him in which he was convicted. He has also admitted that the thikana had filed a civil suit against him for realising Rs. 300/-and it was pending at the time when he was examined in the trial court. He, therefore, had his own axe to grind against the thikana. It appears that it was he who made the first information report and set the relations of the deceased to think that the Thikana Morseem had a hand in the murder of the deceased. This allegation was made by him in the first information report and it appears that the prosecution took it as a gospel truth without making any intelligent investigation in the matter This was a very serious charge against the thikana. What is suggested by the prosecution is that there was a conspiracy against the deceased to do away with him so that he may not interfere with the administration of the Jagirdar. It is strange that no investigation worth the name seems to have been made on this question although the crime is said to have originated on that account. The learned Additional Sessions Judge has himself remarked that "the terms between Abhey Singh and Thikana Morseem being strained, he is interested against the thikana and his evidence should be taken with cau-sion". Similarly, with regard to the witnesses Manmal and Leela he has remarked as follows "manmal and Leela are both eyewitness out they are relatives of Ashmal. had thikana been on good terms with Ashmal and these witness, these witnesses would have been more reliable but as I have mentioned already the relations between Ashmal and thikana were strained. Therefore,these two witnesses are interested against the thikana because of those bad relations and as being relatives of Ashmal In short these two witnesses are interested and their testimony suffers from this defect and should also be taken with caution Inspite of thus saying that Abhey Singh, Manmal and Leela were not altogether independent witnesses and inspite of his being conscious that their statements required corroboration by independent witnesses, he has not pointed out any other independent evidence on which he has relied. He seems to have presumed that there was an enmity between Ashmal and the thikana. He says, "had there been no enmity between thikana and Ashmal, Manmal and other relatives of Ashmal would not have agreed to Abhey Singh's suggestion in such a short time. It is obvious that the learned Judge has completed this picture of enmity more on imagination than on evidence on the record. Except a vague remark from Manmal that the deceased used to interfere with the realization of lag-bhag by the thikana, there is no evidence on record to show what sort of activities the deceased was carrying on against the thikana and whether he was becoming such a nuisance to the Jagirdar or his family members that they were driven to commit such a heinous offence as to take away his lief. I do not mean to suggest that there were happy and ordinal relations between the deceased and the Jagirdar. It is not impossible that the relations may not be happy because of a clash of interests but what I mean to say is that the evidence on the record does not justify the conclusion that the Jagirdar or his son Ratan Singh had made a conspiracy to assault or kill the deceased and that this occurrence had taken place in pursuance of that design. As pointed out above, this matter, required a very intelligent investigation and unfortunately the evidence in this behalf is almost nill in this case. The trial court has acquitted Ratan Singh who, according to the prosecution was the main abettor in this case and who was inciting the other four accused to kill the deceased. Similarly, two other accused Jodhsingh and Heersing have been acquitted by the trial court on the ground that they were not even present at the village Morseem on the day of occurrence. The appellants were certainly in the employ of the thikana but they had no grouse of their own against the deceased and therefore the case against them should have been and should be judged with a fair and open mind and not with the prejudiced vision that they were hirelings of thikana. To my mind, the first point is fit to be decided against the prosecution. Before leaving this point, 1 must however make it clear that the prosecution is not bound to establish the motive of the offence in a case like the present one and the failure on the part of the prosecution to prove the motive cannot deter the court from maintaining the conviction of the appellants if the case against them is otherwise proved by the prosecution evidence. Coming to the second point, the evidence against the appellants in this behalf consists of the statements of P. W, 3 Punam-Singh P. W. 4 Leela, P. W. 7 Abhey Singh and P. W. 8 Manmal. It is contended by the appellants' learned advocate that Punam Singh is a chance witness and so is Abhey Singh. Against Abhey Singh it is further proved out of his own month that he is not an good terms with the Thikana and there is civil litigation going on between them. He is, therefore, not an independent witness. Leela and Manmal are relatives of the deceased. Manmal P. W. 8 is the deceaseds own brother, and Leela is also an interested person because the deceased was his father's sister's husband and therefore he was also closely related. It is urged that the evidence of these two witnesses also cannot be said to be independent because of their relationship with the deceased. It is further urged that when these witnesses have been disbelieved by the trial court with regard to three other accused, Ratan Singh, Jodh Singh and Heer Singh, there was no reason to rely upon them only against the two appellants. Learned Government Advocate, on the other hand says that mere relationship of the prosecution witnesses to the deceased is not a good reason for discarding their evidence. He has referred to the following observation of their lordships of the Supreme Court in the case of Dalip Singh vs. The State of Punjabi (1): - "a witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means, unless the witness has cause, such as enmity against the accused, to wish to implicate him falsely. Ordinarily a close relation would be the last to screen the real culprit and falsely implicate an innocent person. It is true, when feeling run high and there is personal cause for enmity, that there is a tendency to drag in an innocent person against whom a witness has a grudge along with the guilty, but foundation must be laid for such a criticism and the mere fact of relationship far from being foundation is often a sure guarantee of truth. However, we are not attempting any sweeping generalisation. Each case must be judged on its own facts. "
(3.) I think, the said observation of their lordships does not very much help the prosecution in this case. It is true that the evidence of a certain witness cannot be discarded simply because of his relationships with the deceased or the person in respect of whom an offence is committed. In fact, if an offence is committed in a dwelling place, the person who are most likely to be present are the near relatives. It is also true that ordinarily close relatives and honest friends would rather prefer to get the real offender punished that to screen the real culprit and falsely implicate an innocent person. But at the same time it may be remarked that in a case like the present one where an occurrence takes place for away from the dwelling house of the deceased and when the presence of the near relatives or friend is not necessary or natural in the ordinary circumstances, then the fact that the prosecution is able to get, only relatives or interested persons and no independent evidence, does not go in its favour. What I mean to say is that the deceased in this case had gone out to answer the call of nature and it is not the case of the prosecution that he was accompanied by any of his relatives when he started from his house. According to the prosecution, both Manmal and Leela, who are his relatives happened to be present at the well since they had gone there independently for a bath. At a place like a well, other persons are also likely to be present ordinarily. In fact, Leela had himself stated in the committing Magistral's court that there were several other persons also present at the well. Under the circumstances. If the prosecution produced only relatives of the deceased like Manmal and Leela or a person like Abhey Singh who admittedly is not on good relations with the thikana, then the evidence of such persons, in my opinion, needs a closer examination. It is not a usual phenomenon that allthe persons residing near about the site of occurrence should fail to observe the occurrence while relatives who are normally not expected to be present at such a place should happen to come there. In the present case the prosecution has not produced any of those persons who were living near about the place of occurrence, but only Abhey Singh and two relatives of the deceased happen to witness the incident. Under the circumstances, their evidence cannot be taken unreservedly but it does require a close scrutiny. It is not meant to suggest that they must be disbelieved simply because of their relationship, but their presence not having come in the normal circumstances, their evidence is on no batter footing than those of other chance witnesses who may not be relatives. As observed by their lordships of the Supreme Court in the case of Dalip Singh vs. The State of Punjab (1 ). when feelings run high and there is personal cause for enmity, there is a tendency to drag in an innocent person against whom a witness has a grudge along with the guilty Sweeping generalisations in the matter of believing or disbelieving witness cannot be made and each case should be judge on its own merits. In the present case, the learned Additional Sessions Judge has himself not considered all the three eye-witness as independent persons. His remarks have already been quoted above and he has expressed more than once in his judgment that these witness are not implicitly reliable and some independent corroborative evidence- circumstantial or otherwise - is needed to support their version. It may be pointed out that while the learned Additional Sessions Judge had realised this necessity, he has fallen into an error while seeking corroborative evidence. He says, '•'the circumstances which support the testimony of Abhey Singh are the admitted death of Ashmal by beating and the strain the relations between Ashmal and Thikana Morseem. Further, had there been any other culprit, the relatives of Ashmal would not have preferred to blame the thikana, to the real murderers. " It may be remarked that the mere fact that Ashmal died because of beating is no circumstance to support the statement of these witnesses. Similarly, the mere fact that Manmal and Leela did not name any other offender is no corroboration of their Statement. Another corroboration which the learned Sessions Judge has sought is in the inference which he has deduced from the fact that the culprits could not go unnotice by the deceased since he was living even after they had departed and he must have given their names to these witnesses. It may be remarked that the learned Judge has simply drawn on his own imagination in making such a presumption. Neither Abhey Singh nor Manmal and Leela have stated anywhere that the deceased disclosed the names of the assailants to any of them or that he said anything which could help them in establishing the identity of the assailants. All that the deceased told them according to their own version was that be should be taken to the thana. The learned Sessions Judge, therefore, was not correct in presuming that the deceased must have given the names of the real culprits to the witnesses. Learned Government Advocate has argued that every witness should be considered to be honest and unless it is established that he is not trustworthy, his evidence should not be discarded. It is true that the court should not prejudice itself against any witness and should look upon his evidence with a fair mind but this does not mean that disinterested and independent witnesses stand on the same footing as those whose evidence is tainted on account of some reason. I have gone into the evidence of all the four witnesses with an unbiassed mind. P. W. 3 Punam Singh has stated that his dwelling is in the boundary of Morseem Village about three miles distant from the site of occurrence. According to his version he was coming to Morseem Village on the date of occurrence in order to get his shoes repaired by one Moda and at that time he saw that Heer Singh Jodh Singh, Sawa and Badra were proceeding from the village towards the temple of Ramdeoji. Jodh Singh had a sword in his hand while others had lathis. It is obvious that he is a chance witness. In cross-examination he has admitted that although he was coming from a distance of three miles in order to get his shoes repaired, he did not get them repaired not only on that day but even by the time he was examined in the court after some months. This throws doubts on the very purpose of his coming to the village. Further, he says that he did not see Jodh Singh at all before that day and yet Jodh Singh was not put to identification in a parade before the witness was examined in the court. When he was cross-examined as to where exactly he had met the accused, he stated that he had seen them near south of the temple although he said in his examination-in-chief that he had seen them near Peechka well. The plan of the site which has been produced in this case and which was prepared by P. W. 9 Achal Singh shows that the way by which the witness is said to have come to the village is about 330 feet north of site of occurrence, while the Peechka well is still further north of this tract. The temple of Ramdeoji is shown to be situated south of the site of occurrence and if the accused were going south of that temple, the witness could not possibly see them near about the Peechka well. This is a glaring inconsistency in his statement. This witness has not been believed by the trial court with regard to three other accused and I see no reason that he should be believed with respect to the appellants. P. W. 4, P. W. 7 and P. W. 8 have stated that all of them had collected at one place when they saw the accused. According to their version, it was Abhey Singh who saw them assaulting the deceased first. At that time Manmal and Leela were taking their bath at Peechka well. When they asked him who was crying, he said that it was Ashmal and then both of them went where Abhey Singh was standing. It is strange that although all the three witnesses say that they had seen the accused from one place, their statements are contradictory about their observation. I will first take up Abhey Singh P. W. 7 who saw the accused first. Abhey Singh has stated that on the day of occurence he happened to go to the site because he was taking his buffalo to Kot. ki-Nadi in order to enable her to drink water there. They learned Additional Sessions Judge has remarked that he could not understand why the defence felt shy of questioning this witness why he preferred to water his buffalo at Kot-ki-Nadi to other wells which the defence counsel had referred in cross-examination of this witness. It appears that while writing the Judgment the learned Judge did not refresh his memory by reading the statement of the witness, otherwise this remark would not have come in the judgment. The witness was cross-examined as to why he took his buffalo to a distant well Kot-ki-Nadi when water was available at other nearer wells". The witness admitted in cross-examination that there were other wells nearer his house and that there was one well called Raoton-ki-Bari and another called Faradia. He also admitted that (here was an "awara" on the well petechia and the cattle of the village used to drink water there Leaving all the nearer wells, he went to Kot-ki-Nadi which, according to his own admission, had gone dry long before the day. He has stated further that after the occurrence he dug up a pit at the Kot-ki-Nadi and when water oozed out his buffalo drank it. It is rather unusual that he should not take his buffalo to wells which were nearer his house and also to Peechka well which actually came in his way but he should go to a place which was dry in the hope that he would dig a pit and get water for his buffalo P. W. 9 Achal Singh, who was cross-examined, has stated that Kot-ki-Nadi was dry when he saw it on the next day after the occurrence. It is not easily believable that if water was dug out at Kot-ki-Nadi, P. W. 9 should find it altogether dry and fail to notice the pit which was dug by the witness. This story of taking the buffalo to Kot-ki-Nadi seems to have been introduced in order to justify the presence of the witness near the site. The witness has not only admitted that there is civil litigation between him and the Thikana Morseem but he has also admitted that the appellant Badra and accused Jodh Singh had appeared against him as witnesses in a criminal case in which he was convicted. He cannot, therefore, be said to be an independent witness. Moreover, when he was asked about the exact site where he was present when he saw the occurrence, he stated at one time that he witnessed the incident when he was north-east of Ramdeoji's temple about ten paundas (paces) from Kot-ki-Nadi. Later he said that he was present somewhere in the south-east of Kot-ki-Nadi. The plan shows that the south-east of Kot-ki-Nadi would be a very distant place from the one where he was shown to be present on this document. It is strange that although all the three witnesses say that they were present at the same place, yet when they were cross-examined they gave different places which clearly indicates that they are not reliable on this point also. When Abhey Singh was first asked whether Ashmal was standing or sitting when he saw laths belows being showered on him he said that he did not know and later he says that he had seen him falling down when blows were given him. This witness has also admitted that three or four persons were standing at the doors of their houses after the occurrence and their names were Kewda, Ranchora and Ramjeera who have appeared as defence witnesses. It may be mentioned here that the learned Additional Sessions Judge has said that the defence witnesses have not stated that both the appellants were not there, but this is wrong. They have given a clear statement that the persons whom they had seen were other that the appellants and that they were not identified. The next witness Manmal P. W. , 8 goes even a step further than Abhey Singh who had reached the site earlier. He says that he had seen all the five accused at the site, that Ratan Singh was standing at a small distance and that he was exhorting his four companions that Ashmal was a badmash, i. e. , scoundrel, and they should kill him. It cannot be believed that if Ratan Singh were present there this witness should have seen him with Abhey Singh who was present there earlier and who also remained with the witness throught should have failed to notice him or to here his talk. Manmal has further stated that Heer Singh and Jodh Singh told them that they should not come nearer otherwise they would meet the same fate as their brother did. Abhey Singh, on the other hand, has stated that there was absolutely no talk between the assailants and these persons. Similarly, Leela has stated that they had only, seen the assailants running away He does not say if there was any talk. There are other minor contradictions also between his own statements in the police, the committing court and the trial court, but I do not consider it necessary to go into them in detail. The trial court itself has found that both he and Abhey Singh are no; witnesses of truth. If they were to be believed, Rasan Singh, Heer Singh and Jodh Singh could not be acquitted. The trial court has found it proved that both these witnesses had involved Jodh Singh and Heer Singh falsely. Heer Singh was proved to be present on the day of occurrence at Jeevana, a place which is said to be no less than 20 miles distant from Morseem. His presence there was found proved not only by oral statements but even by documentary evidence. Similarly, the trial court has found that Jodh Singh, another accused, was present at Bilara which is still far off place from Morseem. He had led medical evidence to prove that he was suffering from pneumonia on that day and the trial court has found this fact to be proved. The prosecution has not filed any appeal against the acquittal of Jodh Singh, Heer Singh and Ratan Singh and when it is considered that manmal and Abhey Singh witnesses have been found to be wrong in respect of three accused, there is no guarantee left for the assertion that they are speaking truth against the two appellants. ;