LODHA, J. - (1.) DURING the night intervening August 21 and 22, 1965, a theft is alleged to have been committed in the house of Birah Singh, son of Moher Singh Gujar, resident of Shergarh The complainant was relived of currency notes of Rs. 500/- and ornaments, utensils and clothes worth about Rs. 2500/ -. First information report of the occurrence (Ex. P. 6) had been lodged by Birah Singh with the Police Station, Bayana, on August 22-1965, at 5. 30 p. m. Birah Singh and his brother Daya Singh suspected Bhagwan Singh of the village Shergarh to be the thief. On August 27-1965, Mst. Moti Bai, daughter-in-law of Bhagwan Singh, told her brother-in-law Roshan, P. W. W. 4, a boy of about 13 years old, to request his father to take her to her parents' house at Uncha. Bhagwan Singh agreed to it. It was decided that they would go next morning to Uncha via Dumaria Rly. Station. Bhagwansingh was employed as a labourer in a crush machine, installed somewhere near Sikandra. He proceeded on his duty in the early hours of the morning of August 28-1965. Thereafter Mst. Moti Bai, wife of Shanker Singh, and her brother-in-law Roshan, left their house. They went to the crusher machine, where Bhagwan Singh joined them. All the three persons then left for Dumaria Railway station. They crossed Sikandara and when they proceeded a little ahead therefrom, Birah Singh and Daya Singh waylaid them. Daya Singh was armed with a lathi. Birah Singh was, however unarmed. Both Daya Singh and Birah Singh told Bhagwan Singh to return to Shergarh. Bhagwan Singh told them that he would leave her daughter-in-law to her parents' house and then would return to his village just after a day. Thereupon, Birah Singh and Daya Singh spoke to him that they would not allow him to go further and that if he persisted to do so, he would be put to death. Bhagwan Singh defied their mandate. Birah Singh caught hold of him and felled him down. Daya Singh snatched away his lathi and handed it over to his brother Birah Singh. Both the accused mercilessly gave beating to Bhagwan Singh with lathis. Mst. Moti Bai and Roshan raised an outcry, which attracted three other persons on the spot. These people attempted to intervene in the matter, but the accused did not desist from their activity. Thereupon two of them went away. Bhagwan Singh asked the third person to take him under the shade of a tree. Thereafter he was again beaten by the accused with lathis. Bhagwan Singh died on the spot after sometime. The two accused then searched the box which was with Mst. Moti Bai, but they could not find any stolen thing therein. Both Mst. Moti Bai and Roshan were told by the accused to go back to Shergarh, lest they might also be killed. Mst. Moti Bai concealed herself in a quarry. Roshan somehow managed to reach the Police Station, Bayana, where he submitted first information report Ex. P. 8 on August 28, 1965, at 4 p. m. Police registered a case against the accused under sec. 308, I. P. C. , and investigation followed. The Station House Officer, Bayana, Manoharlal, P. W. 8, arrived at the spot. He prepared 'panchnama' of the dead body of Bhagwan Singh, Ex. P. 12. He also prepared site plan Ex. P. 6 and inquest report Ex. P. 7. He seized blood-stained sand, a turban and a pair of shoes of Bhagwan Singh deceased under memos Exs. P. 9 to P. 11. Dr. Anant Narain, P. W. 9 Medical Officer, Bayana, performed the post-mortem examination of the dead body of the deceased. He found the following external injuries on his dead body - (1) Contusion 5" x 1" obliquely, near inferior angle of scapula. (2) Contusion 6" x 1/2 obliquely, left lumbar region. (3) Contusion 5-1/2" x 1/2" obliquely, left supra scapular region. (4) Contusion 2" x 1/2" obliquely on left shoulder, 1-1/2" distal to achromion. (5) Contusion 2"x 1/2" obliquely on posterior aspect of middle third of left arm. (6) Contusion 3" x 1-1/2" transversely on anterior aspect of right arm junction of upper one-third and lower two-thirds. (7) Contusion left side of face, zygoma, upper and lower eye-lids. (8) Lacerated wound 1/2" x 1/4"x 1" on left shoulder with surrounding contusion (on injury No. 4 ). (9) Lacerated wound 1-3/4" x 1/2" x 1/2" on posterior aspect of left arm, near its middle. (10) Lacerated wound 1" x 1/4" x 1/2" on dorsal aspect of left hand, second metacarpal two inches proximal to meta-carpal phalyngeal joint with edema. (11) Lacerated wound 1/2" x 1/2" on lacerated aspect of root of thumb, left hand. (12) Lacerated wound 1/4" x 1/4" x 1/4" on dorsal aspect of first inter phalyngeal joint of left ring finger. (13) Lacerated wound 3-1/4" x 1/4" x 1/2" obliquely on medial side of left forearm, middle one third exposing bone and muscles. (14) Lacerated wound 3"x 1/2"x l/3" on medial side of left leg, vertically three inches above medial maliolus, exposing muscles and bone. (15) Lacerated wound 1/4" x 1/4" x 3/4" punctural) on lateral aspect of leg, junction of upper three-fourth and lower one-fourth. (16) Lacerated wound 3" x 1/2" x 1/4" transversely on lateral maliolus, left leg. (17) Lacerated wound 6"x4" on anterior aspect of right leg from lateral maliolus upwards vertically, exposing tendons muscles, with injuries to the nerves and blood vessels with fracture of the tibia, and fibula, right side - bones fractured at three places in this six inches' area. The limb below is hanging with skin and muscles on medial and posterior side. (18) Punctured wound 1/2" x 1/4" x 1/2" on anterior aspect of right leg in its middle with edges contused. (19) Lacerated wound l" x 1/2" on scalp obliquely, four inches above occiput and 1/4 inches left of mid line. All the injuries were ante-mortem in nature. Injury No. 17 was grievous. The injuries were caused by blunt objects. According to the Doctor no injury was individually sufficient to cause death. But all the injuries collectively were sufficient in the ordinary course of nature to cause death. In the opinion of the medical witness Bhagwan Singh died of bleeding from the injuries in general and injury No. 17 in particular, which was rupture of the nerves, blood vessels, and fracture of bones, tibia, fibula, and resulting shock. On conclusion of the investigation, the police put up a challan in the court of learned Munsiff-Magistrate, Bayana. The said Magistrate conducted committal proceedings in accordance with S. 207-A Cr. P. C. and committed both the accused Daya Singh and Biran Singh to the court of Sessions Judge, Bharatpur, to take trial under sec. 302, I. P. C. Both the accused were charged under secs. 302 and 302/34, I. P. C. , on February 11, 1966. to which they pleaded not guilty and claimed to be tried. In support of its case the prosecution examined 9 witnesses. In their statements recorded under sec. 342 Cr. P. C. the accused denied to have committed any offence. Their plea was that Bhagwan Singh had illicit [connection with Mst. Moti Bai. That fact angered the family members of the father of Mst. Moti Bai and her husband. It was, therefore, possible that some person from the family of the father of Mst. Moti Bai might have assassinated Bhagwan Singh. Their other plea was that the faces of the assailants were covered and, therefore, they could not have been identified by the eye-witnesses. In their defence, the accused examined 2 witnesses D. W. 1 Prabhu and D. W. 2 Man Bhota. By his judgment, dated September 3, 1966, learned Sessions Judge, Bharatpur, convicted both the accused Birah Singh and Daya Singh, under secs. 302/34, I. P. C. , and sentenced each of them to imprisonment for life.
(2.) AGGRIEVED against the above verdict, the two accused, Daya Singh and Birah Singh, have taken this appeal. Contention of learned counsel for the appellants is two fold. His first grievance is that no offence under sec. 302/34 I. P. C. , has been brought home to the accused. Hukam, P. W. I. Mohar Singh, P. W. 2 and Sitaram, P. W. 5. do not at all support the prosecution story. Mod Bai P. W. 3. stated before the committing court (vide Ex. D. 1) that she did not know Birah Singh and Daya Singh before hand. Roshan, PW 4. has dis-owned a portion of his statement marked A to B in Ex. D. 3. recorded by the police and as such his statement too, according to learned counsel, cannot be said to be of sterling worth. The other witnesses have made categorical statements that the faces of the accused persons were covered at the time of the assault. This fact, according to the learned counsel for the appellants, is corroborated by Prabhu, D. W. 1, and Man Bhota, D. W. 2. The other point raised by learned counsel for the appellants, is that even if it is held that the accused persons gave beating to Bhagwan Singh, the matter would at the most be covered by S. 325/34, I. P. C. , and in that case they should be released under the provisions of the Probation of Offenders Act, 1953. We may take up the first point first. The most important witness of the event is Roshan, P. W. 4. Roshan is aged 13 years. Some questions were put to him by the trial court at the inception of his statement. Thereafter it was convinced that the witness understood the difference between truth and falsehood and that his understanding was well developed and he was a competent witness. He was administered oath. Since the court has recorded its opinion that the witness understood the sanctity of speeking the truth and has given its reasons why it thought so, his evidence could safely be acted upon: vide Rameshwar s/o Kalyan Singh vs. The State of Rajasthan (1 ). The presence of this witness is assured not only by the prosecution witnesses, Hukam, P. W. 1, Moharsingh, P. W. 2 and Sitaram, P. W. 5, but also by Prabhu, D. W. I, as well. His presence is further made certain by his going to the Police Station, Bayana, from the place of occurrence promptly and filing a first information report. Roshan, no doubt, is the son of the deceased Bhagwan Singh. The fact that the prosecution witness in a murder trial is the son of the victim does not detract from the value to be attached to his evidence. Naturally enough the witness may be interested in seeing that the murderer of his father is convicted of the offence. He cannot, however, be expected to adopt a course by which he would implicate an innocent person and substitute him for the person who actually perpetrated the crime and that too when no enmity, as such, has been proved to have existed between the witness and the accused as would induce him to give false evidence, and to substitute the accused as murderers in place of the actual murderer. His feeling might have been the strongest against the real culprit, but that would not falsify his statement on the mere ground of his taking a close interest in the deceased : vide Bhupendra Singh vs. State of Punjab (2 ). The witness has stated the whole prosecution story in all its aspects. He has said that when both he and his sister-in-law started from their house at Shergarh for going to Uncha, their father accompanied them at the crusher machine near Sikandara. When they crossed Sikandara and travelled a distance of about one mile thereform, both Daya Singh and Birah Singh waylaid them. Birah Singh was empty handed. Daya Singh was armed with a lathi. The two accused belonged to his village and, therefore, he knew them beforehand. The accused persons told his father to return to Shergarh On his refusal to do so, Birah felled him down. Both the persons then gave rigorous beating to his father. Three other persons came over there. They endeavoured to intervene in the scuffle, but when the accused did not refrain from beating his father, two of them left the place. Bhagwan Singh asked the third to take him under the shade of a nearby tree. There was a box with Mst. Moti Bai, It was searched by the accused, but nothing incriminating was found therein. Bhagwan Singh was done to death on the spot. The accused persons then told the witness and Moti Bai to go back to Shergarh, lest they would be slaughtered. Mst. Moti Bai concealed herself in a quarry. The witness somehow managed to reach the Police Station Bayana, and lodged the first information report. Veracity in the testimony of the witness has not been impaired or shaken in the cross-exami-nation. Only at one place he has disowned a part of his police statement at portion marked A to B in Ex. D. 3 by saying that he did not state that Daya and Birah first told his father with folded hands to return to his village. This small contradiction is no doubt there but it is of little importance. From this trivial inconsistency it cannot be inferred that Roshan is not a witness of sterling worth. The evidence of Roshan is supported by the first information report, lodged by him, within five hours of the occurrence at the Police Station, Bayana, which is situated at a distance of 4 miles from the place, where Bhagwan Singh was killed, the first information report gives full details of the whole happening as also the names of the accused. The testimony of Roshan is again supported by the medical evidence given by Dr. Anant Narain, P. W. 9. As stated above, Dr. Anant Narain has said that the deceased Bhagwan Singh sustained as many as 19 injuries of which injury No. 17 was grievous. In the circumstances stated above, learned Sessions Judge was perfectly justified in placing unqualified reliance on the testimony of P. W. 4 Roshan. Another material witness of the case is P. W. 3 Mst Moti Bai. Her presence is assured by P. W. 1 Hukam, P. W. 2 Mohar Singh, P. W. 4 Roshan and PW. 5 Sitaram as also by D. W. 1 Prabhu. Her name appears in the first information report Ex. P. 5, filed soon after the occurrence. There is thus no manner of doubt that Mst. Moti Bai was present on the scene. She relates in its entirety whole prosecution story, as has been stated by P. W. 4 Roshan. She is certainly related to the deceased. But mere relationship to the murdered man is no ground for not acting upon her testimony when she is otherwise reliable in the sense that she is a competent witness who was expected to be near about the place of occurrence and could have seen what had happened. No doubt, there is one significant discrepancy in her statement. She told the committing court in her statement Ex. D. 1 at portion marked A to B that she did not know Birah Singh and Daya Singh from before, but immediately afterwards she corrected herself and said in her statement that she knew them to some extent. She identified Daya Singh in place of Birah Singh and vice versa in the first instance. But subsequently she amended her previous version when the names of the accused were recited. As has been pointed out in Vadivelu Thevar vs. the State of Madras (3), witnesses generally speaking are classified into three categories, namely - (1) wholly reliable, (2) wholly unreliable, and (3) neither wholly reliable, nor wholly unreliable. In the first division the court can safely arrive at the conclusion either way It may either acquit the accused or convict him on the basis of a single witness. In the second category the court is not faced with any difficulty in arriving at its conclusion. It is in the third set of class that the court has to be circumspect and has to look forward for corroboration in material particulars by reliable testimony direct or circumstantial. The evidence of Mst. Moti Bai does not fall within the first category, nor is it covered by the second one. It perceptibly falls within the third category and can be made use of for the purpose of corroborating the testimony of Roshan, P. W. 4. The accused and Mst. Moti Bai reside in the same village. She might have committed an error in identifying the accused in the committing court, but soon after she corrected herself in her lapse. Above all, she identified the two accused before the trial court. When the witness knew the accused to some extent beforehand, it was not feasible for the police to have an identification parade held in the course of investigation. At any rate, failure to hold identification parade would not make inadmissible the evidence of identification in the court. The weight to be attached to such identification is a matter for the courts to decide- vide Kanta Prasad vs. Delhi Administration, (4 ). In this case, the trial court has taken the evidence of Mst. Moti Bai into consideration, which it was entitled to do. Where one part of a witness' evidence is disbelievable, the trial court has the right to act on the rest of his or her evidence : vide Sukha vs. State of Rajasthan (5 ). The argument of learned counsel for the appellants that since a part of the statement of Moti Bai is not reliable, her whole statement should be discarded is not convincing. The reasoning that when one part of a witness's evidence is disbelieved, it is unsafe to act on the rest is a hackneyed one with all its eloquence and we decline to accept it. We do not, however, propose to lay down that the conviction of the accused can rest on the sole testimony of Mst. Moti Bai. In our opinion, her statement can safely be utilised for the purpose of corroborating the testimony of Roshan P. W. 4. There is another important corroborative factor which lends support to the statement of Roshan. Mst. Moti Bai, P. W. 3, has stated that the accused persons told her father-in-law that he had got the theft committed at their house sometime before the occurrence. This fact is further mentioned in the first information report Ex. P. 5. Hasarilal, P. W. C. Head Constable, Police Station, Bayana, also touches this aspect of the matter. According to the testimony of this witness, Birah accused, son of Mohar Singh Gujar, approached him at the police station, Bayana, and presented to him a written report Ex. P. 5. The Sub-Inspector registered a case No. 131 under sections 380, and 457, I. P. C. against Bhagwan Singh and Rajendra. The witness has been cross-examined by the accused. Questions were also put to the accused in the course of their examination under sec. 342, Cr. P. C. , whether they suspected Bhagwan Singh to be a thief in respect of a larceny having been committed in their house. To this interrogation their answer was in the negative. Thus, the prosecution has succeeded in successfully setting up motive for the crime. It is a settled law that where the prosecution evidence is clear, cogent and reliable, the question of motive is of no importance: vide Gur-charan Singh vs. State of Punjab (6 ). In other words, the motive is not an element essential to prove the guilt in a criminal trial. It is only a fact to be reckoned with along with other circumstance of corroboration. It is not an indispensable link in the chain of circumstantial evidence, nevertheless it is a string which runs through all the links and helps to forge a complete chain. Be that as it may, in the instant case motive also lends additional support to the finding that the accused were really guilty. The defence put forward on behalf of the appellants in the trial court is that Bhagwan Singh might have been killed by some members of the family of Mst. Moti Bai as she had illicit connection with her father-in-law. No such defence was taken by them earlier. It was put forward by them for the first time in the court of sessions. This is an important circumstance that militates against the plea put forward against the defence. A question was put to Mst. Motibai in the course of her cross-examination on this score, to which her reply was that it was absolutely wrong to say that her father-in-law had any sexual relation with her. She further stated that it was incorrect to suggest that her husband and the members of her family were displeased with her father-in-law on this count. No evidence was led by the accused in their defence in support of this plea. Thus, the plea taken by the accused in their statements neither appears to be plausible, nor has it been substantiated. The other defence taken by the accused is that the assailants of Bhagwan Singh could not have been identified by the witnesses as their mouths remained covered with mufflers. Learned counsel for the appellants relied on the statement of Hukam P. W. 1, Mohar Singh, PW 2, Sitaram, P. W. 5, and Prabhu, D. W. I. Hukam and Mohar Singh became hostile to the prosecution. Hukam stated before the police in his statement Ex. D-1 at portion marked A to B that both Birah Singh and Daya Singh Gujars of Shergarh administered beating to Thakur Bhagwan Singh. When the witness was confronted with this positive statement, he could not give any satisfactory explanation, in regard to this inconsistency. Similarly, Mohar Singh told the police at portion marked A to B in Ex. P. 2 that he saw Birah Singh and Daya Singh Gujars of Shergarh armed with lathis on the spot and that an injured person was lying there. The witness was faced with this inconsistency, but he furnished no satisfactory explanation in respect thereto. Sitaram P. W. 5 has said that the faces of the assailants were covered. He made no such statement earlier. He has also said that he could not identify the assailants. It cannot, therefore, be concluded from the statement of this witness that the attackers had in fact their faces covered at the time of the commission of the crime. Prabhu, D. W. 1. has said that on his inquiry on the spot the woman and the boy told him that the persons had their faces covered and that they did not know their whereabouts. The witness has further said that similar was the statement before him by Bhagwan Singh. In the cross-examination the witness deposed that he did not inform, of the fact that the deceased. Roshan and Mst. Moti Bai had not recognised the assailants of Bhagwan Singh to police or S. P. It is for this reason that the trial court discarded the testimony of Prabhu and we see no reason why a contrary view should be taken in the matter. Similarly, Ran Bhota, D. W. 2, has stated that two parsons were running from the side of Gadna and Khar passed by his side. Both had their faces covered. In the cross-examination the witness has deposed that he did not follow these persons, nor did he know the persons who were running He also did not report this fact to the Station House Officer or the S. P. No reliance can be placed upon the vague deposition of Man Bhota, D. W. 2. His testimony is indefinite, obscure and indecisive. For the reasons stated above, we are convinced, beyond any manner of doubt, that the accused Birah Singh and Daya Singh administered beating to Bhagwan Singh with blunt objects. They caused as many as 19 injuries, including one grievous hurt which is injury No. 17, as a result of which Bhagwan Singh died. Now the question remains as to under what section of the Indian Penal Code the accused persons can be convicted ? Dr. Anant Narain, P. W. 9, has deposed that he noticed 19 injuries on the body of the deceased Bhagwan Singh in the course of conducting post-mortem examination. Injury No 17 was grievous No injury was individually sufficient to cause his death. All the injuries, according to the Doctor, were collectively sufficient in the ordinary course of nature to cause death. In his opinion, the cause of death was haemorrhage due to bleeding from the injuries in general and injury No. 17 in particular, which was a rupture of the nerves, blood vessels and fracture of bones, tibia and fibula and the resulting shock. It is true that injuries were so many. But it is at (he same time to be noticed that these injuries were not inflicted on any vital part of the body of Bhagwan Singh. Death of Bhagwan Singh was caused due to the combined effect of all these injuries. In that context, it is to be considered whether the case can safely be covered by any of the clauses of sec. 300, I. P. C. Loking at the matter objectively, the injuries which the accused inflicted did not include specifically any injury to any vital organ of the body. Therefore, we are of the opinion that S. 300, I. P. C. , does not cover the case. In asmuch as death has been caused, the matter must still come at least within the meaning of culpable homicide not amounting to murder. S. 299, I. P. C. , is in three parts. The first part relates to doing of an act with the intention of causing death. In the present case the accused did not intend to cause the death. The second part deals with the intention of causing such bodily injury as is likely to cause death. Here again the intention must be to cause precisely the injury likely to cause death. But that also does not appear to be the intention of the accused. The matter, therefore, falls within the third part of S. 299, I. P. C. The accused did act with the knowledge that by their act they were likely to cause death of the victim. The case having been covered by the third part of sec. 299, I. P. C. is undoubtedly punishable under second part of S. 304, I. P. C. , as culpable homicide not amounting to murder. Laxman Kalu Nikalje vs. The State of Maharashtra (7) provides an analogy.
(3.) BEFORE we part with this case, it may be pointed out that learned counsel for the appellants urged that the accused Daya Singh is suffering from tuberculosis and that the other accused Birah Singh is below 21 years of age and, therefore, they should be given benefit of the provisions of the Probation of Offenders Act, 1958. In the memo of the appeal, Daya Singh's age has been given as 25 years. In his statement before the trial court, his age is noted as 24 years. Birah Singh's age in the memo of appeal is mentioned as 30 years. In his statement before the trial court, his age is inserted as 25 years. There in also nothing in law that in a serious crime like this benefit of the provisions of the Probation Act, 1958, can legitimately be claimed by the accused on the ground of sickness. In the result, we partly accept this appeal and alter the conviction of the accused Birah Singh and Daya Singh from sec. 302/34, to sec. 304, Part 11, I. P. C. , and in lieu of the sentence of imprisonment for life, impose on each of them a sentence of six years' rigorous imprisonment. With this modification the appeal stands dismissed. .;