CHAUHAN, J. - (1.) THE alleged homicidal death of Smt. Roshan Bai, and the conviction of the appellant for offence under Section 302 IPC has brought the appellant before this court. THE appellant has challenged the judgment dated 7. 4. 04 passed by the Addl. Sessions Judge, Ramganj Mandi, District Kota whereby the learned Judge has convicted the appellant for the afore-mentioned offence and has sentenced him to life imprisonment and has imposed a find of Rs. 2,000/- and to further undergo a sentence of three months of rigorous imprisonment in default thereof.
(2.) IN a nutshell the case of the prosecution is that on 5. 5. 02 Shri Radhey Shyam (P. W. 1) lodged a written report at Police Station Chechat wherein he claimed that between 10 and 11 a. m. while he was sitting in the Shop of Nanda Lodha, one Munna Baret came and informed him that his sister-in-law, Smt. Roshan Bai, was lying dead in the 'khadi' (gorge ). He immediately went to the place and there he saw that his sister-in-law was lying dead and that she had sustained an injury on her head. He further claimed that the appellant had hit her on the head with an axe and he saw him running away from the scene of the crime. He further alleged that one Durgi Bai, Jatan Bai and Ramesh Bai had seen the occurrence. These three ladies had tried to rescue the deceased. When these ladies had raised a hue and cry, then Jawahar and Munna Baret had rushed to the place of occurrence. Lastly he claimed that his sister-in-law had gone into the 'kakria khadi' in order to cut and collect wood. On the basis of this report the police registered a formal FIR, FIR No. 43/02, and commenced the investigation. IN order to prove its case the prosecution examined 14 witnesses and submitted 28 documents. IN his defence the appellant neither examined any witness, nor submitted any document. However, his statement under Section 313 Cr. P. C. was recorded wherein he denied the case of the prosecution. After going through the oral and documentary evidence, the learned trial court convicted and sentenced the appellant as afore- mentioned. Hence this appeal before this court. Since this appeal was sent by the appellant from the jail, vide order dated 21. 1. 08 Mr. S. P. Poshwal was appointed as an Amicus Curiae. Mr. Poshwal contended firstly the prosecution has failed to prove any motive for the alleged murder. Secondly, the appellant suffered from insanity when he committed the alleged murder. Therefore, the benefit of Section 84 IPC should be extended to him. Thirdly, the testimony of Kumari Durgi Bai (P. W. 2) cannot be relied upon as she is a child witness. Fourthly that Kumari Jatan (P. W. 4) and Kumari Sanju Bai (P. W. 5) have not supported the case of the prosecution. Kumari Jatan Bai has been mentioned as an eyewitness in the FIR itself, yet she has not supported the prosecution case and both Jatan Bai and Kumari Sanju Bai have been declared as hostile witnesses. Lastly, the testimony of Kumari Durgi Bai (P. W. 2) and Smt. Ramesh Bai (P. W. 3) are full of contradictions. Therefore, these two witnesses, although relied by the trial court in order to convict the accused appellant, are untrustworthy witnesses. On the other hand, Mr. Ashwini Kumar Sharma, the learned Public Prosecutor, has contended that in a case of direct evidence non-existence of motive is irrelevant. Secondly, the appellant has not placed any evidence to prove that he was suffering from insanity when the alleged occurrence took place. Thirdly, although Kumari Durgi Bai (P. W. 2) is a child witness, but her testimony has not been shattered in the cross- examination. Since Kumari Durgi Bai had accompanied her mother, the deceased in this case, her testimony is both natural and reliable. Fourthly because two witnesses have turned hostile this by itself would not damage the case of the prosecution. Lastly, there are no glaring contradictions in the testimonies of Kumari Durgi Bai (P. W. 2) and Smt. Ramesh Bai (P. W. 3 ). According to the learned Public Prosecutor there is sufficient evidence, both direct and circumstantial, for upholding the impugned judgment. We have heard the learned counsel for the parties and have perused the impugned judgment and have critically examined the record. A bare perusal of the impugned judgment reveals that the learned trial Judge has culled out a motive for the alleged crime by reading the statement of Radhey Shyam given under Section 161 of Cr. P. C. and by relying on the testimony of Ram Prasad (P. W. 7), the husband of the deceased. According to both these witnesses there is strong possibility that the appellant had tried to outrage the modesty of the deceased and when she resisted his moves, the appellant flared up and hit her on the head with an axe. However, as Radhey Shyam (P. W. 1) had not stated anything about such a possibility in his testimony before the court, his statement under Section 161 Cr. P. C. cannot be relied upon in order to discover a motive for the crime. Moreover, the testimony of Ram Prasad (P. W. 7) at best is a hypothetical statement as he was not an eye-witness to the incident. In his statement he merely states the possibility that "since his wife was physically challenged, the appellant must have tried to outrage her modesty and must have killed her with an axe. " Since the said statement is hypothetical in nature, it cannot be relied upon to prove the existence of a motive. Furthermore, statement of these two witnesses are not corroborated by the testimony of Kumari Durgi Bai (P. W. 2) and Ramesh Bai (P. W. 3) - the two eye-witnesses. In case the appellant had tried to outrage the modesty of the deceased, the eye-witnesses, Kumari Durgi Bai and Smt. Ramesh Bai, would have stated so in their testimony. Therefore, apparently no motive seems to exist for the alleged crime.
(3.) HOWEVER, the settled principle of criminal jurisprudence is that the absence of motive in a case of direct evidence is irrelevant. In case of direct evidence even if the motive does not exist, even then, the accused can be convicted on the basis of the direct evidence of the eye-witnesses. After all, motive is difficult to discover as it lies deeply buried in the mind of the accused. Therefore, even if a motive has not been proved by the prosecution, this being a case of direct evidence, the absence of motive is not fatal to the prosecution case. Thus, the first contention raised by the learned counsel for the appellant is unsustainable. The defence of insanity seems to be an afterthought taken by the accused at the fag end of the trial. A perusal of the record clearly reveals that the defence has not suggested even to a single witness about the possibility that the accused was insane at the time of the occurrence. Moreover, the appellant has not produced any medical evidence, oral or documentary, to prove his insanity at the relevant time. In case the appellant wants to seek the benefit of an exception, the burden of proof lies on him to prove the existence of the said exception. However, in the present case the appellant has failed to discharge the said burden. Moreover, the fact that the accused ran away from the scene of the crime when a hue and cry was raised by the eye- witnesses, clearly demonstrates that he understood the nature of his act. After understanding the illegal nature of the act or that what he had done was wrong, in order to save his skin the accused intentionally ran away from the scene of the crime. Thus, the accused has failed to establish that he did not understand the nature of his act, when the alleged crime was committed by him. Hence, the benefit of Section 84 IPC cannot be extended to the appellant. Therefore, the second contention raised by the learned counsel for the appellant is devoid of any merit. Undoubtedly, Kumari Durgi Bai (P. W. 2) is a child witness. However, despite a probing cross-examination, her testimony has not been shattered by the defence. Since the deceased had gone for cutting and for collecting the wood, it was but natural for Kumari Durgi Bai, a child of 11 years, to accompany her mother. Therefore, she is a natural witness who has graphically described the occurrence. Since the appellant was a resident of the same village, it was not unusual for a child to be able to identify the appellant. Lastly, her testimony is corroborated by the testimony of Smt. Ramesh Bai (P. W. 3 ). Therefore, Kumari Durgi Bai is not a tutored witness. Hence, she is a reliable and a trustworthy witness whose testimony has rightly been relied upon by the learned trial Judge. Hence, the third contention raised by the learned counsel for the appellant is baseless. ;