SHRIMAL, J. - (1.) THIS appeal has been directed against the judgment dated January 24, 1974 of the learned Sessions Judge, Ganganagar whereby the accused-appellant Hardeo Singh, son of Lalsingh was convicted for the murder of Ram Kumar under sec. 302, I. P. C. and sentenced to imprisonment for life
(2.) SHORN of unnecessary details the prosecution story as disclosed at the trial is that some days prior to the date of occurrence the accused had a quarrel with Ramkumar (deceased) in the cinema house. On May 8, 1973 at 8 p. m. near the shop of Bhaguram and the Gandhi Park in the Mandi of Karanpur the accused caught hold of Ramkumar (since deceased), threw him down, sat on his chest, inflicted four injuries with a knife on the person of Ramkumar and took to his heels. PW. 5 Hariram witnessed the occurrence, but without helping the Injured or informing any body regarding the occurrence he quietly went to his residence. P. W. 1 Suratsingh, P. W. 2 Bhogaliya and others reached the site of the occurrence. P. W. 1 Suratsingh took his brother Ramkumar (since deceased) to the hospital at Karanpur in a jeep. The doctor on duty declared him dead. Thereafter P. W. 1 Suratsingh went to the Police Station at Karanpur and gave first information report Ex P. 5 at 8. 40 p. m. By the time the first information report was lodged, the name of the assailant was not known to the informant and as such the name of the assailant has not been mentioned in the first information report Ex. P. 5. P. W. 10 Jagmalram, Station House Officer, Karanpur after registering a case under sec. 302, I. P. C. , proceeded to the hospital and thereafter went to the scene of occurrence. He prepared a site plan, recovered the sheath Art. 1 and handle Art. 2 of the knife from the scene of occurrence. The recovery memo is Ex. P. 14. The autopsy on the dead body of Ramkumar was performed by P. W. 9 Dr. Chanderhash Sharma. The post-mortem report is Ex. P. 1. On May 9, 1973 the house of the father of the accused was searched. One shirt Art. 7 and a 'chaddar' Art. 8 were seized (vide Ex. P. 11) because they were suspected to be stained with blood. None of these articles, however, were sent to the Chemical Analyser or to the Serologist for analysis and as such their recovery is of no avail to the prosecution. On May 10, 1973 the accused was arrested vide Ex P. 18. The Police after usual investigation submitted a challan against the accused-appellant under sec. 302, I. P. C. , in the Court of Munsiff and First Class Magistrate, Karanpur, who after taking proceedings under sec. 207-A, Cr. P. G. committed the accused-appellant to the Court of Sessions Judge, Sri Gapga-nagar to stand his trial under sec. 302, I. P. C. The accused pleaded not guilty to the charge. The prosecution examined ten witnesses in support of their case, out of whom P. W. 1 Suratsingh is the brother of the deceased and author of the first information report Ex. P. 5. P. W. 4 Omprakash and P. W. 5 Hariram were examined as eye-witnesses of the occurrence, but both of them turned hostile to the prosecution. They were allowed to be cross examined. The statement of PW. 5 Hariram recorded in the committing court was taken on record of the Sessions Court under sec. 288, Cr. P. C. , and the same was marked as Ex. P. 9. P. W. 8 Jaibhagwan was examined to prove the motive for commission of the crime but he did not support the prosecution and was declared hostile. PW. 9 Chanderhash Sharma is the doctor who performed autopsy on the dead body of Ramkumar. PW. 10 Jagmal Ram is the Investigating Officer of the case The accused denied his complicity in the crime. He did not examine any witness in his defence. The learned Sessions Judge held that P. W. 5 Hariram was not a chance witness. He had seen the occurrence and his statement recorded in the committing court marked as Ex. P. 9 was of intrinsic worth. It was taken to be true and reliable. He chose to place reliance on the statement of the witness recorded in the committing court. Placing reliance on the statement Ex. P. 9 the Learned Judge found the accused guilty of the offence punishable raider sec. 302, I. P. C. and sentenced him as mentioned above. Aggrieved by the aforesaid judgment the convicted accused-appellant has challenged his conviction and sentence by this appeal. It cannot be disputed that Ramkumar (deceased) sustained four injuries with a sharp-edged weapon at the time and place alleged by the prosecution and which led to his death. PW. 9 Dr. Chandcrbash Sharma who conducted the autopsy on the dead body of Ramkumar (deceased) found the following external injuries : - 1. Incised wound l"x1/2"x1" right second intercostal space 1" from mid line placed transversely. 2. Incised wound l"x1/2"x4" on the right side of cheat 4" from the below injury No. I. 3. Incised wound l"x1/2"x5"on the right side of chest 3" below injury No 2. 4. Incised would l"x1/2"x7" on the left side of chest, 3" from injury No. 3, horizently. On opening the body of the deceased, he noticed to following internal injuries : - "pleural cavities full of blood. Left lung perforated at the site of injury No. dium perforated at the site of injury No. 2 and 4 pericar- 4 full of blood. " The death of Ramkumar in the opinion of PW. 9 Dr. Chanderhash Sharma was caused by shock and haemorrhage due to the injuries to the vital organs. He further opined that the injury No. 2, or 3 or 4 could individually cause death in the ordinary course of nature, and the injuries could have been caused by a knife Mr. Bhimraj, learned counsel for the accused-appellant has challenged the conviction and sentence of the appellant on a number of grounds which will be dealt by us shortly ad seriatim. Mr. Mathur, appearing on behalf of the State has supported the judgment of the trial court. It is true that there is no evidence on record to hold that the relations-between the appellant and Ramkurmr (deceased) were strained or that a quarrel had taken place between them in the cinema house. PW. 8 Jaibhagwan, who was examined to prove enmity between the appellant and Ramkumar (deceased) has not supported the prosecution case on this point. Thus there is no evidence on record to hold that there was adequate motive for the accused to cause the murder of Ramkumar (deceased ). The proof of motive satisfies the judicial mind about the likelihood of the authorship of the crime, but its absence only demands deeper forensic search and cannot undo the effect of evidence, otherwise sufficient. Motives of mens are often shrounded in mystery, they are subjective, submerged anamenable to easy proof. Where there is a clear proof of motive for the crime, that lends additional support to the findings of the court that the accused was guilty, but the absence of clear proof of motive does not necessarily lead to the cotrary conclusion The fact that the prosecution was not able to discover such an impelling motive would not reflect upon the credibility of a witness proved to be a reliable one. Keeping the above principle in view we now proceed to evaluate other evidence in the case. There is considerable force in the contention of the learned counsel for the appellant that the entire prosecution case against the appellant rests on the o?al testimony of P. W. 5 Hariram, who claims to be an eye-witness to the murder Ramkumar. The learned Sessions Judge believed his evidence. PW. 5 Hariram stated in the trial court that on the date of the occurrence he was relieved of his duty at 6 p. m. but that he stayed in the office for an hour more before leaving for home. While he was passing through the market and reached near the shop of Jhabarmal he saw the accused-appellant Hardeo Singh inflicting injuries with a knife on the person of Ramkumar (since deceased ). At that time Ramkumar had fallen down on the road. The witness failed to state the number and particular part of the body of Ramkumar on which the injuries were inflicted by the accused appellant. Thereupon he was permitted to be cross-examined by the prosecution. During the course of cross examination the witness admitted that he was examined in the committing court and his statement, marked A to B in Ex. P. 9, wherein he stated "that the accused-appellant Hardeo Singh threw Ramkumar (deceased) on the road, sat on his chest, inflicted 2 or 4 injuries with a knife on him and took to his heels", was correct. He admitted that the afore-mentioned statement made by him before the committing court was correct and being an illiterate man be had forgotten to state the details. He further stated that just after the occurrence Bhaguram, Shivedayal and other appeared on the scene of occurrence but he did not narrate the occurrence to any one of them. On the application made by the prosecution, after hearing the parties, the statement of the witness recorded in the committing court marked as Ex. P. 9 was taken on the record of the trial court under section 288, Cr. P. C. , wherein he had supported the prosecution case.
(3.) THE learned counsel for the applicant has argued by placing reliance on Sharnappa vs. State of Maharashtra (1) that since P. W. 5 Hariram, according to the prosecution, resiled from his previous statement made in the committing court and his statement in the committing court has been brought on the record of the trial court under section 288, Cr. P. C, his evidence cannot be accepted unless the Court is satisfied that it is true and reliable and this requirement that the statement to be acted upon must be proved to be true and reliable is absolutely binding. He further urged that the evidence of this witness suffers from serious infirmities and it ought not to have been relied upon by the learned Sessions Judge for convicting the accused appellant or at any rate should not have been acted upon in the absence of its corroboration in material particulars fey independent evidence. In support of the above contention he has placed reliance on Sharnappa vs. State of Maharashtra (supra) wherein Hon'ble Das Gupta J. , speaking for the Court observed as under: - "where a person has made two contradictory statements on oath it is plainly unsafe to rely implicitly on his evidence. In other words, before one decides to accept the evidence brought in under sec. 288 of the Code of Criminal Procedure as true and reliable one has to be satisfied that this is really so. How can satisfaction be reached? In most cases this satisfication can come only if their is such support in extrinsic evidence as to give a reasonable indication that not only what is said about the accurrence in general but also what is said against the particular accused sought to be implicated in the crime is true. " P. W. 5 Hariram in his statement Ex, P. 9 recorded in the committing court stated that on the of the date occurrence at 7-30 pm. after being relieved of his duty he was going home. When the witness reached near the shop of Bhaguram, he heard a quarrelling noise. Walking 2 or 3 steps he saw that the accused appellant Hardeo Singh threw Ramkumar (deceased) on the road, sat on his chest and inflicted about 4 knife injuries on his person, and thereafter took to his heels. THE witness further goes on to state that the accused was known to him. As a result of injuries Ramkumar (deceased) bled profusely and could not speak. Bhaguram, Shiveyal, Bhagaliya and others reached the scene of occurrence. P. W. 2 Bhagaliya went to inform Ramkumar's brother Gabbar. THE witness P. W. 5 Hariram did not go to inform Gabbar about the occurrence because there had been some quarrel between them. THE witness further goes on to state that he narrated the occurrence before the Panchayat. THE witness in his cross-examination stated that at the time when the accused inflicted knife blows, the other persons were also present on the scene of occurrence, such as Jhabar Hotelwala and his brother in-law. He neither cried for help nor stated that the accused Hardeo Singh had inflicted the knife blows. He quietly left the scene of occurrence after the accused had taken to his heels. For the first time he narrated the occurrence before the Pancahyat at 12 noon on the next day on the cremation ground. In his cross-examination before the trial court he admitted that he did not raise any alarm for help at the time when the accused Hardeo Singh inflicted injuries on Ramkumar. Neither the accused nor the victim uttered any word at the time of occurrence. He stayed at the scene of occurrence for 20 minutes A large number of persons had gathered there. Some of them asked him as to who had caused injuries to Ramkumar, in reply to which the witness stated that he did not know. THE witness further goes on to state that P. W. 1 Suratsingh and PW. 3 Gordhan Das met him, but he did not disclose to them the name of the assailant as they had not asked him about it It is also admitted that the witness went to the hospital, but there also he did not disclose the name of the assailant to any one. THE witness also admitted that a few days prior to the occurrence the accused Herdeosingh had quarrelled with him, when they beat each other with shoes. THE witness watered down his statement Ex. P. 9 made in the committing court and stated that his relations with P. W. 1 Suratsingh were not good, but there was no exchange of hot words or blows with each other. Thus it is clear that some facts were introduced in the statement of the witness during the course of cross-examination in the trial court which may in fact have the effect of nullifying what he stated earlier. On the basis of the above statement the learned counsel appearing on behalf of the accused-appellant has urged that the two statements of P. W. 5 Hariram - one recorded in the committing court Ex. P. 9 and the other recorded in the court, disclose that his testimoney regarding the actual assault by the accused appellant on Ramkumar (deceased) in both the courts was more or less similar and as such the learned Sessions Judge ought not to have declared the witness hostile and ought not to have allowed the prosecution to bring on trial court's record the statement of the witness recorded in the committing court, Section 288, Cr. P. C. is not meant for permitting the prosecution to use it as a device for bringing the committing court's statement on record of the trial court. When an earlier statement is brought on the record of the trial court under section 288, Cr. P. C. , the accused is given an opportunity to cross examine the the witness and the answers elucidated in cross examination, at the trial, should be read as an integral to the statement of the witness recorded in the committing court. The learned Public Persecutor for the State urged that it was open to the trial court to choose between the two statements, because both the statements are evidence of the fact stated therein and the tenor of the statements recorded in the trial court shows that the answers given by the witness in cross-examination in the trial court were obtained as a result of clever manoeuvring on behalf of the defence. A witness may be cleverely tutored as in the case on hand to introduce some facts in a subtle way in a statement which may, in fact, have the effect of washing off what has been stated earlier or which has been introduced with a design to help the party other then the person calling him to make the statement. It is open to the prosecution to show that the answers given by the witness during the cross examination in the trial court have been falsely introduced and that the Court should choose the statement recorded in the committing court and the trial court has committed no error of law in placing explicit reliance on the statement Ex. P. 9. We have given our anxious consideration to the rival contentions raised by the parties. The discretion conferred on the Court to allow the party to cross-examine his own witness is unqualified and untrammelled. It is to be exercised whenever the Court from the witnesses' demeanour, temper, attitude, bearing or the tenor and tendency of his answers or from a perusal of his previous inconsistent statement or otherwise thinks that granting such permission is expedient to extract the truth and do justice. Granting such permission does not amount to adjudication by the court as to the veracity of the witness. The purpose of cross examination of a witness is not only to discredit but also to elicit admissions of facts which would help to build the case of the cross examiner. When a party with the leave of the Court confronts his witness with his previous inconsistent statement, he does so in the hope that the witness might revert to what he had stated previously. If the departure from the prior statement is not deliberate but is due to faulty memory or a like cause, there is every possibility of the witness veering round to his former statement. To judge which of the two statements is to be chosen a Court is required to compare both the statements. Before acting upon the statement recorded in the committing court, the court must come to a conclusion that the evidence is true and can be safely relied upon. It can no doubt leave a pa-t of the testimony and can place reliance on a part which is acceptable as true and reliable. Now we will consider the material omissions, contradictions and inherent improbabilities in the statement of PW 5 Hariram and consider as to what extent he can be relied upon for maintaining the conviction of the appellant under sec. 302, IPC. Two questions arise for our consideration : (i) whether PW 5 Hariram actually saw the appellant Hardeo Singh inflicting injuries on the person of Ramkumar; and (ii) whether P. W. 5 Hariram told the truth. In both the statements one recorded before the committing court Ex. P. 9 and the other recorded the trial court; the witness admitted that he for the first time disclosed the name of the assailant at 12 p. m. on May 9, 1973 i. e. after the expiry of nearly 16 hours of the occurrence. He has also admitted that be neither raised any alarm nor rushed for help of the victim at the time when the appellant was inflicting injuries on Ramkumar. The learned Sessions Judge appears to have been impressed by the fact that the villagers are not only afraid of the assailants but are further afraid of facing police investigation and of going to courts several times and this apathy on the part of the witnesses in this part of the country is well known. On the basis of the above reasoning the learned Judge held that there was nothing unusual if the witness concealed the name of the assailant from every body until he was before the Panchayat. We do not feel persuaded to agree with the learned Sessions Judge. The murder in the case on hand was not committed as a result of faction existing in the village or or in consequence of family feuds. It was the result of stray quarrel between two persons. There is nothing on record to hold that the accused was a gangster or a confirmed criminal of whom people would fear. Moreover, the Police had arrived at the scene of occurrence within a short time and there was no reason for the witness to be afraid of the accused. It is also not possible to accept the explanation sought to be given on behalf of the prosecution that as the relations of the witness with PW. 1 Suratsingh (Gabbar), brother of the deceased were not cordial he did not like to go to the Police or inform any body regarding the gruesome murder for sixteen hours even though he had a number of opportunities to divulge the secret. Ramkumar (deceased) was a Harijan and a member of his community. The witness had no quarrel with the deceased. The murder was committed in the open market where there were many shops. If the witness would have been the accused inflicting injuries with a knife on the person of Ramkumar, he would have atleast cried for help even if he did not dare to pursue the accused. The witness has further failed to give any cogent reason as to why he kept silent about the gravely incriminating circumstance against the accused for 16 hours This is a serious infirmity in the statement of this witness Ex. P. 9, recorded before the committing court. Reference may be made to State of Orissa vs. Brahmananda (2 ). In this case their Lordships of the Supreme Court while considering the effect of delay in disclosing the name of the assailant for a day and a half observed as under: - "where in a murder case the entire prosecution case depended on the evidence of a person claiming to be eye-witness and this witness did not disclose the name of the assailant for a day and a half after the incident and the explanation offered for non-disclosure was unbelievable, held that such non-disclosure was a serious infirmity which destroyed the eredibility of the evidence of the witness and that the High Court was correct in rejecting it as untrustworthy and acquitting the accused. " ;