THANVI, J. - (1.) BOTH these Criminal Appeals including one sent through jail by accused Kesra Ram, are arising out of the same incident, and, therefore, they are being disposed-of by this common judgment.
(2.) THESE appeals are directed against the judgment of learned Additional District & Sessions Judge, Jaisalmer dt. 24. 11. 203, whereby he convicted accused appellants Uda Ram and Kesra Ram under sections 302 and 307 IPC and accused appellant Asu Ram under sections 302/34 and 307/34 IPC. For the offence u/s. 302 IPC, accused Uda Ram and Kesra Ram were sentenced to undergo life imprisonment along with a fine of Rs. 1000/- each and in default, to further undergo six months' R. I. and for the offence u/s. 307 IPC, they were sentenced to undergo ten years' R. I. along with a fine of Rs. 1000/- each and in default, to further undergo six months' R. I. So far as accused appellant Asu Ram is concerned, for the offences u/ss. 302/34 & 307/34, he was sentenced to undergo life imprisonment along with a fine of Rs. 1000/- and in default, to further undergo six months' R. I. and ten years' R. I. along with a fine of Rs. 1000/-and in default, to further undergo six months' R. I. respectively. All the substantive sentences were ordered to run concurrently. In nutshell, the prosecution story is that on 25. 4. 01, Rai Saheb alias Hari Singh was sleeping on cot at his Murabba Chak No. 72-73, CWB, Tawriwala, near him his daughter Gayatri Devi was on the second cot and his wife Kamla alongwith his son Ramgopal were sleeping on the third cot. In the mid night at 12. 00, accused Uda Ram, Kesra Ram and Asu Ram came there. Accused Kesra was having axe in his hand, Uda Ram was having sword in his hand and Asu Ram was having `angochha' (towel) and belt in his hand. Accused Uda Ram inflicted sword blow on the head of Hari Singh and Kesra Ram gave axe blow. On hearing the cries, his daughter Gayatri Devi, wife Kamla and his son Ramgopal woke up. Accused Asu Ram put `angochha' (towel) on the mouth of Gayatri Devi, accused Kesra Ram inflicted axe blow on the head of Kamla and Uda Ram cut her wrist and finger. Accused Kesra Ram and Uda Ram also inflicted axe and sword blows respectively on the person of Ramgopal. Hari Singh died on the spot and his wife became unconscious but later on, she also died. Upon hearing the cries of Gayatri Devi and Ramgopal, his brother Surendra Singh and one Balveer Singh came on the spot, who were sleeping nearby in the neighbouring field and on seeing them, all the three accused ran away. Accused Uda Ram took sword with him but he & other two accused left the sheath of sword, axe, `angochha' (towel) and belt on the spot. Thereafter, other persons including Sher Singh and Budha Ram from the nearby `dhanis' also came on the spot. After conducting post mortem and usual investigation, all the three accused were chargesheeted u/ss. 302, 307, 326, 324, 323 read with 34 IPC before the court of learned ACJM, Pokaran, who committed the case to the Sessions. After hearing the arguments on charge, the learned Sessions Judge framed the charges against all the three accused u/ss. 302, 307, 326 and 324 IPC, to which the accused pleaded not guilty. The prosecution examined 18 witnesses. The statements of the accused were recorded u/s. 313 Crpc. They produced five witnesses in defence. After hearing the arguments, the learned trial Judge convicted the accused appellants as above. While assailing the judgment of the learned trial Judge, it has been contended by Mr. P. N. Mohanani learned counsel for the appellants that firstly, there is no allegation of the prosecution against the accused appellant Asu Ram, who was having no weapon with him except `angochha' (towel) and belt and he has not been attributed any injury on any person, except putting `angochha' on the mouth of Gayatri Devi, which cannot be said to be sharing a common intention with other co-accused. According to him, the defence has fully established the plea of alibi of accused Asu Ram, who was at Ganganagar on the date of incident. Further, the shirt Ex. P. 23 is said to have been recovered from accused Asu Ram, but the blood stains on the shirt have not been detected in the FSL Report, Ex. P. 40. There was no motive of the accused Asu Ram or of other accused to kill Hari Singh and his wife Kamla. The only suggestion about abducting Gayatri Devi by the accused persons has been brought on record from the mouth of investigating officer PW 17 Bagdawat Ram, who narrated it on the basis of interrogation from the accused, which is not admissible in evidence. With regard to accused Uda Ram, it is alleged that sword has been recovered from him in pursuance to the information furnished u/s. 27 of the Evidence Act but in the original FIR, Ex. P. 35, lodged by Sher Singh, the names of accused Uda Ram having sword in his hand or of other two accused, have not been mentioned. The second FIR Ex. P. 1 lodged by Surendra Kumar, son of deceased, is improved version. Thus, the allegation against Uda Ram was omnibus about cutting neck of Hari Singh, hands of Kamla and causing injuries on the person of Ramgopal. The allegation against the accused appellant Kesra Ram is about recovery of axe from the spot but there is no reliable evidence to implicate him for inflicting injuries on the person of Ramgopal. Further, according to the learned counsel, the testimony of Gayatri Devi is unreliable, as she did not receive any injury, which shows that she was not present on the spot. According to the learned counsel, in the absence of any motive or other incriminating circumstances, the act of accused cannot fall under the category of causing death, which can be termed as culpable homicide amounting to murder. In support of his contention, he has placed reliance on (i) Sohan Singh vs. State of Uttaranchal reported in 2006 Cri. L. J. 316; (ii) Dharam vs. State of Haryana reported in 2007 Cri. L. J. 791 and (iii) Shanta Bai vs. State of Maharashtra reported in 2008 Cri. L. J. 2048. Per contra, learned Public Prosecutor has supported the judgment of the trial Court. Having re-appreciated the evidence brought on record and from the post mortem reports Ex. P. 17 of deceased Rai Saheb alias Hari Singh and Ex. P. 18 of Smt. Kamla Devi, it appears that injuries on their examination were found to be ante mortem in nature, which were caused by sharp edged weapon and the cause of death has been opined to be haemorrhagic shock. The post mortem was conducted by Dr. Ramavatar Sharma, PW 7 on 26. 4. 2001. All the first three injuries on the skull and neck of deceased Hari Singh were caused by sharp weapon and they were sufficient in the ordinary course of nature to cause death. Likewise, all the nine injuries of deceased Kamla Devi on the skull i. e. on occipital and temporal region, as noted in the post mortem report Ex. P. 18, were also sufficient in the ordinary course of nature to cause death. Injured Ramgopal was examined by Dr. P. K. Saini, PW 6, vide Ex. P. 30, who noticed six injuries on the person of Ramgopal, out of which injury No. 1 was on the right parieto frontal region with 12 x 1. 5cm x bone deep, which was dangerous to life, which could have been caused by sword `article 9 and axe 'article 2'. According to the doctor, had there been no proper treatment, injured could have died. Ofcourse, there is no injury report of Gayatri Devi on the record.
(3.) IT is true that no motive has been attributed for killing Hari Singh and his wife Kamla Devi by the accused appellants but in every case, motive is not a relevant fact to arrive at the guilt of the accused. The motive becomes relevant, when a case is based on circumstantial evidence. The conduct of the accused and the part played by him in commission of crime is relevant. IT is a settled principle of the Criminal Jurisprudence that motive alone is not a sine qua non for establishing the guilt of the accused. In the present case, the prosecution witnesses have not said anything about the motive leading to murder of the two persons viz; Hari Singh and Smt. Kamla, husband and wife respectively, who were sleeping on the cot in the mid night with their daughter Gayatri and son Ramgopal but in this regard, the investigating officer Bagdawat Ram (PW 17) has stated in the last para of the examination in chief that during interrogation with the accused, it was revealed that accused appellants wanted to abduct daughter of deceased viz; Gayatri and thereby, they killed Hari Singh and his family and in the cross examination, he has denied that he found this motive at his own. Upon perusal of the oral evidence brought on record, the important evidence is of Gayatri (PW 1) and injured Ramgopal (PW 3), who were sleeping on the cots nearby the deceased. Gayatri (PW 1) has stated that one person put a cloth into her mouth and when she woke up from the cot, she saw Asu Ram and rest two viz; Uda Ram and Kesra Ram attacking on her father. Uda Ram with sword and Kesra Ram with axe gave blows on the neck and head respectively of deceased Hari Singh. When her mother intervened, she was fallen down by accused Asu Ram, who caught hold of her hair and Uda Ram cut both the hands of her mother and Kesra Ram inflicted injuries with axe on the head and other parts of her body. Uda Ram also inflicted 2-3 sword blows on her brother Ramgopal. She has further told that all the three accused killed her father and mother. Upon hearing her cries, Balveer Singh and Surendra Singh came and on seeing them, the accused ran away. The accused left `angochha', belt, axe and sheath of sword. According to her, she knew all the accused previously, as they used to come towards their field for grazing cattle. Ramgopal (PW 3) has also supported the statement of Gayatri (PW 1) about putting cloth on her mouth. According to him, when he was hidden behind the wheat bags due to fear, accused Asu Ram caught hold of him and Uda Ram and Kesra Ram inflicted blows. They also killed his mother and father with sword and axe. Surendra Kumar (PW 2) reached there immediately after the incident. He has also supported the prosecution version by naming all the three accused appellants including the articles, which they left on the spot. Balveer Singh (PW 9) has of course not identified the accused but he has corroborated the incident and also stated that the accused left the articles on the spot and Gayatri told him that accused Asu Ram and Uda Ram were having swords, while Kesra Ram was having axe in his hand but she did not tell him as to which accused inflicted injuries to which person. The contention of the learned counsel for the appellants is that in the F. I. R. Ex. P. 35, the names of accused have not been stated by Sher Singh, PW 5, who went to the Police Station, but this cannot be a ground to discard the main FIR, Ex. P. 1 lodged by Surendra Kumar in the morning of 26. 4. 01 to SHO, Police Station Nokh, Camp Tawriwala, where the incident took place. The report Ex. P. 35 is the oral information given by Sher Singh to the Police Station about the incident that one person and his wife are lying on the field and lot of blood is oozing out from their bodies, therefore, action be taken. This report was lodged at 7. 30 AM and thereafter the SHO left the Police Station at 8 AM and received FIR Ex. P. 1 from Surendra Kumar son of deceased Hari Singh, PW 2. Merely because, there is no mention of names of assailants & deceased in the oral report made by Sher Singh, it cannot be said that the case has been concocted at a later stage. Sher Singh, PW 5 in his examination in chief has of course narrated the names but merely because of non-mentioning of names of the accused in the original oral report to the police Ex. P. 35, it cannot be said to be such an omission or improvement, upon which the whole prosecution case may be thrown out. Especially in a case of direct evidence when an incident like double murder takes place in a field in the midnight and a person, who is not an eye witness, goes to the police for reporting the matter, it is quite possible that either he himself may not give any name or the police may not record the names of culprits. F. I. R. is not a substantial piece of evidence in its true sense but it is the evidence of a fact of an incident, whereby the Criminal machinery is moved in motion. When the direct evidence is available, it is immaterial whether the names have been given in oral report, Ex. P. 35, especially when the names of culprits are appearing in the FIR, Ex. P. 1, which has been taken down by the SHO on the spot after receiving the original information of commission of crime. ;