N. C. SHARMA, J. - (1.) APPELLANTS Dubbal and Thawara have been convict ted under section 302 read with section 34 I. P. C. and sentenced to imprisonment for life by the learned Sessions Judge, Dungarpur and to a fine of Rs. 100/- and in default of the payment thereof to rigorous imprisonment for one month.
(2.) THE appellants were tried by the learned Sessions Judge. Dungarpur and both of them were charged under sec. 302 read with sec. 34 I. P. C for the murder of Laxman s/o Valji Wagadia resident of Dhangaon, P. S. Galiyakot, District Dungarpur Prosecution alleged that the deceased Laxman was having illicit relationship with Smt. Ratan D W. 4 wife of Deva. Dubbal appellant is uncle-in-law of Smt. Ratan D. W. 4 and Thawara appellant is her husband Deva's elder brother. Valji, husband of Smt. Kaudi PW 5 and Lalji, were brothers. Gulabji, Lala P. W. 6 and Laxman deceased were brothers, Gulabji, Lala P. W. 6 and Laxman deceased were sons of Smt. Kaudi widow of Valji. Bheema PW. 8 was son of Lalji who was Smt. Kaudi's husband's elder brother. On December 14, 1979 at 10. 30 P. M. Bheema P. W. 8 lodged an oral First Information Report at Police Station, Galiyakot stating that on December 13, 1979 at about 10 or 11 A. M. Smt. Kaudi P. W. 8 and her sons Lala P. W. 6 and Laxman deceased were sitting in the "parsal" of their house in village Dhangaon. Bheema P. W. 8 was also sitting at that time in the' parasal" of his house which was adjoining the house of Smt. Kaudi P. W. 5. At that time both the appellants and Dhanji brother of Dubbal appellant came in the compound of Smt. Kaudi's house armed with lathies and asked Laxman deceased as to why he had abducted Smt. Ratan wife of Deva. Thawara appellant then dragged Laxman and brought him out side the "parsal" of Smt. Kaudi's house and thereafter both the appellants and Dhanji started beating Laxman with "lakries". Laxman raised a cry and on hearing that his elder brother Galab and Galab's wife Smt. Champi PW. 4 came on the place of the incident from their field. THE appellants and Dhanji inflicted injuries on the head and neck of Laxman with "lakries" as a result of which Laxman fell down. Bheema and others could not rescue Laxman out of fear and the appellants and Dhanji taking Laxman to be dead ran away. It was stated by Bheema that the appellants had beaten Laxman on account of this enmity that about a month before the date of incident Laxman had brought Smt. Ratan wife of Deva after abducting her and the appellants and Dhanji had later on taken her back. Laxman succumbed to the injuries sustained by him at 4 or 5 P. M. Bheema stated to the S. H. O. that he has come to the Police Station to lodge the First Information Report after leaving the dead body of Laxman in the care of Lala and Galabji. After necessary investigation, the Police filed a charge - sheet against the appellants before the Munsif-cum-Judicial Magistrate, Dhanji co-accused was reported to be absconding. THE Judicial Magistrate, Sagwara by his order dated March 21, 1980 committed the appellants for trial to the court of Sessions Judge, Dungarpur. THE learned Sessions Judge charged the appellants under section 302 read with section 34 I. P. C. and after trial convicted both of them for the said offence and sentenced them as aforesaid. The learned Sessions Judge believed the testimony of Smt. Kaudi P. W. 5 and Lala P. W. 6 as eye-witnesses to the incident and held that it was established by the evidence of these two witnesses that the appellants were indiscriminately beating Laxman deceased with lathies causing fracture of first and second cervical vertebrae compressing cord. He also held that the post mortem report Ex. P. 13 and the evidence of Dr. Surendra Kumar Mathur P. W. 10 corroborated the testimony of the eyewitnesses and also established that swelling behind the right ear 6 x 6 c m. was sufficient to have caused the death of Laxman in the ordinary course of nature which had resulted in the fracture of first and second cervical vertebrae. According to the learned Sessions Judge first and second certical vertebrae are very hard and strong and their fracture could not be caused unless more than one lathi blow had been inflicted by the assailants on that part of Laxman's body. The learned Sessions Judge did not believe the defence version of the incident as given by Smt. Ratan D. W. 4 that it was Dhanji who had inflicted injury on Laxman deceased and that the appellants did not play any part in the incident. The learned Sessions Judge further stated that there was also motive for the appellants to murder Laxman deceased. The motive was that Laxman had illicit relations with Smt. Ratan DW 4 wife of Deva. Dubbal appellant was uncle-in-law of Smt. Ratan D. W. 4 and Thawara appellant was her husband Deva's elder brother. The appellants could not tolerate this illicit relationship of Laxman deceased with Smt. Ratan wife of younger brother of Thawara appellant and, therefore, they decided to murder Laxman. Both Dubbal and Thawara have filed the present jail appeal. Shri B. S. Rajpurohit Advocate was appointed as Amicus Curiae for the appellants. We have heard B. S. Rajpurohit Amicus Curiae and Shri S. K. Mathur, the learned Public Prosecutor and have perused the record. We have already pointed out the relationship between Smt. Ratan DW 4 and the appellants and also the relationship between Laxman deceased and the main prosecution witnesses. We may also point out that the appellants are also related to Laxman deceased as appears from the statement of Bheema P. W. 8 in his cross-examination. Before proceeding further we may narrate the version of the appellants as given by them in their statements under Section 313 Cr. P. C. before the learned Sessions Judge. Both the appellants while totally denying their participation in the alleged incident stated that Laxman deceased had abducted Smt. Ratan and the prosecution witnesses specially Laxman's mother, and brothers wife have deposed lies in order to cover up the sin committed by Laxman. In their defence evidence, Smt. Ratan D. W. 4 has become their spokeswoman. She has stated that about a month before the incident she had gone to jungle to cut the grass. At that place Laxman deceased met her and told her that he would keep her as his wife and she may accompany him. She refused to do so. Thereupon Laxman forcibly took her to his house and kept her there for four or five days. On the date of incident, Laxman's mother Smt. Kaodi P. W. 5 had gone to the agricultural field and Laxman's brother Lalla P. W. 6 had gone to work on stone quarry. Laxman and Smt. Ratan were alone in the house and Laxman forcibly raped her. She raised a cry whereupon her uncle-in-law Dhania, who is the absconding accused in the case came running and inflicted 2 or 3' lakdi' blows on the head and back of Laxman. She then ran away from the house of Laxman. According to her the appellants were not there at all.
(3.) IT would thus appear that it is not in dispute that on the day of the incident Laxman deceased was beaten to death. What is in dispute is that according to the statement of Smt. Ratan D. W. 4, it was hania absconding-aceused who had committed the crime and not the appellants. On going through the pro-section evidence we find that Smt Kaodi PW, 5 and Lalla P. W. 6 have deposed against the appellants as eyewitnesses to the incident. As has already been stated Kaodi was mother and Lalla was elder brother of Laxman deceased. They have deposed that on the date of the incident Kaodi, Lalla and Laxman were sitting under the 'dhal' of their house and at about 10 A M. the appellants and Dhania armed with lathies came there and Thawara appellant inflicted lathi blow on the head of Laxman while Dubbal appellant inflicted the next blow on the head of Laxman bylathi. Dhanji or Dhania absconding accused inflicted a lathi blow in the back of Laxman. Both Kaodi and Lalla did not try to rescue Laxman cut of fear that the appellants would also cause injury to them. The learned Sessions Judge has believed the testimony of both these eyewitnesses. It was contended by Mr. B. S. Rajpurohit, the learned Amicus Curiae that Bheema PW 8 who had lodged the F. I. R. of the incident Ex. P. 10 has not supported the prosecution case and has supported the defence version. He has even denied having lodged the F. I. R and has stated that the Police had obtained his thumb mark on a blank paper. It was pointed out that Champi P. W. 4 has falsely tried to become an eye-witness despite the fact that at the time of the alleged incident she was on the field of her husband Galab P. W. 7 and the field was on a considerable distance from the place of the incident and as such Champi PW. 4 could even not hear the cry of Laxman. It was also argued that Kaodi and Lalla should not have been believed to be truthful witness by the learned Sessions Judge inasmuch as they have not even supported the prosecution version about the motive which actuated the appellant to commit the alleged crime. Kaodi PW. 5. has illicit relationship between Laxman and Smt. Ratan and Lalla PW 6 has shown ignorance of this fact. Apart from that Smt. Kaodi had not deposed in her police statement as to which of the accused inflicted injuries on Laxman in what order and on what part of the body and while in her court statement she pointed out both these things. It was urged that as a matter of fact, both Smt. Kaodi and Lalla were not even present on the spot, Smt. Kaodi was at the field while Lalla had gone to wrok on the stone quarry and this fact is supported by the defence evidence. Thus neither motive was established nor the alleged eyewitnesses had seen the incident. It was also not established as to who inflicted the fatal blow on Laxman. The lathies recovered had no blood stains and they do not connect the appellants with the crime. As against this, the learned Public Prosecutor contended that both Smt. Kaudi and Lalla were eyewitnesses to the incident and they were rightly believed by the learned Sessions Judge. Both the appellants & Dhania had come together armed with lathies and the appellants inflicted injuries on the vital part of the body of Laxman causing his death. As to the alleged motive, it was stated that even the defence witness Smt. Ratan D. W. 4 had disclosed the motive herself and Lalla PW 6 had also stated in the cross-examination that the appellants were making allegations that Laxman had illicit relationship with Smt. Ratan and Champi P. W. 4, who is brother's wife of Laxman has also deposed that Laxman used to remain in company with Smt. Ratan. From the evidence of Dr. Surendra Kumar Mathur P. W. 10 who carried out the post mortem examination of the dead body of Laxman has deposed that Laxman died of the injuries to the 1st and 2nd cervical vertebrae resulting in compression of cord and other nerves. Laxman had fracture of 1st and 2nd cervical bone apart from fracture of occipital bone. He has also stated that swelling behind the right ear 6x6 c. m. , was sufficient to have caused the death of Laxman in the ordinary course of nature and this has resulted in the fracture of 1st and 2nd cervical vertebra's. it was urged that the medical evidence also thus corroborates the evidence of the above two eyewitnesses and the learned Sessions Judge has rightly convicted the appellants for the offence under section 302 read with section 34 I. P. C. We have given our careful consideration to the rival contentions urged before us by the learned Amicus Curiae and the learned Public Prosecutor. We have already stated that not only prosecution witnesses and Laxman deceased inter-se were closely related, but the prosecution witnesses and the appellants were also related to each other by family ties. They were Meenas by caste and were residents of the tribal area of Dungarpur. Two important phenomena's of human behaviour have projected themselves crystal clear in this case. The first phenomena projected is that whatever concessions other relations may give a mother and a brother cannot give any concession to the assailants of her son or his brother. They are jealous even to the extent that they do not want to expose their child as a bad character howsoever the child might have been, keeping this phenomena of human behaviour in mind, we have to appreciate the evidence of Smt. Kaudi P. W. 5 and Lalla PW 6. The second important phenomena of human behaviour has been projected by the evidence of Smt. Ratan DW 4 which has proved the unimpeachability of the ancient saying that "even Gods do not know the character of a woman and the fate of a man what to say of mortals. Here is Smt. Ratan wife of Deva who was a woman aged 22 years. According to her own statement she was married to Deva three years before the incident Deva was serving and earning his livelihood in Gujarat. Deva used to come to his village Dhangaon only once in a year and used to stay for about 4 days in a year and then used to go back to Gujarat. Smt. Ratan states that mostly she used to remain in her father's house. It is thus clear that a young woman of the age of Smt. Ratan has sexual deprivation for three long years because her husband Deva used to visit village Dhangaon only once for about 4 days every year and then used to go back to Gujarat. Although in her examination-in-chief Smt. Ratan stated that before the date of the incident. Laxman deceased has abducted her and had kept her at his house for only 4 or 5 days and had committed rape with her on the date of the incident, but in her cross-examination she clearly admitted that when Laxman had brought her he kept her for about 25 days in the house of his brother Galab and Laxman used to live with her in the house of his brother during these 25 days and even in the day. Later on elder brother of Laxman named Galab was fed up with this illicit intimacy between Laxman and Smt. Ratan and raised an objection against Smt. Ratan living in his house and asked her why she did not live in the house of Laxman which was in the village. It is an admitted position that Galab's house was on the agricultural field at a distance from the village Dhangaon and Laxman's house was in the village itself. Thereafter Smt. Ratan shifted to Ratan's house in village Dhangaon and lived there for 5 or 6 days before the date of the incident. Smt. Ratan during this entire period of about one month neither cared to run away from the house of Galab or Laxman nor tried to lodge a report in the police about her abduction or rape. On the contrary, she lived voluntarily with Laxman for such a long period and had carnal intercourse with him in a peaceful manner. She is now deposing against the prosecution only after the death of her paramour in order to pose that she by herself was virtuous so that she may not fall in the eyes of her husband and in laws. That is, after ail a woman's character which cannot be predicted even by Cods. At least this leads to one irresistible conclusion that Smt Ratan wanted to pose herself as a chaste lady victim of Laxman's abduction and rape. The disrespect which she was bound to suffer in the eyes of her husband and in-laws is apparent from the fact that after the death of Laxman, she was not taken back by her husband and she is living since then in her father's house. She now wants to pacify her husband and in-laws by posing herself as a chaste woman. ;