SHARMA, J. - (1.) THIS is an appeal filed by Roopsingh against the judgment of the learned Sessions Judge, Balotra dated 23. 9. 74 by which, the appellant was convicted under section 302, I. P. C. and sentenced to undergo imprisonment for life and to pay a fine of Rs. 100/-, in default of payment of fine, to further suffer rigorous imprisonment for one month.
(2.) THE prosecution case against the appellant was as follows: Roopsingh appellant was grazing his she-goats near the boundary wall of his field on 30. 5. 73 at about 5. 30 p. m. On the boundary wall of his field, there was a tree of Arana. When the appellant was trying to cut branches of this tree, Bhuribai deceased came there having iron pan in her hand. On seeing the appellant cutting the branches of Arana tree, she asked the former why he was cutting the branches of a tree which was standing in her field. THE appellant replied that the tree was standing in his field and so he was cutting its branches. THEreupon, Mst. Bhuribai deceased caught hold of the shirt of the appellant and pulled it as a result of which, the shirt was torn. This led to exchange of pushes and grappling between the two. THE appellant thereupon struck a violent blow with his axe on the neck of Mst. Bhuribai and immediately thereafter, inflicted another blow on her head with the same axe. THE result of these two injuries was that Mst. Bhuribai fell down and her injuries began to bleed profusely. THE appellant also received stains of blood on his shirt, axe and its wooden handle. Mst. Bhuribai shortly afterwards succumbed to her injuries there and then at the spot. When the appellant was striking blows on the body of Mst. Bhuribai, Oatsingh had come there to rescue the victim of assault but out of fear of being beaten by the appellant, he ran away from there. This incident was eye-witnessed by Balwantsingh, Chothia and Bharatia from some distance. After Mst. Bhuribai had died, Roopsingh appellant rushed to the police having the axe in his hand. In the way, he met Amarsingh to whom he disclosed that he had killed Kansingh's mother with the axe and next it was the turn of Kansingh to be killed. Roopsingh then went to police-station Siwana and made a verbal report of the incident to the police the very day at 6. 40 p. m. and produced the axe. Upon receiving information of murder from the appellant, the police registered a criminal case under sec. 302,1. P. C. on 30-5-73 and took up usual investigation into the matter. In the course of investigation, the appellant was arrested and the axe which he produced before the police, was seized and sealed properly in the presence of motbirs. The shirt which the appellant was wearing on his body was also taken into possession and sealed by the police. Khushal Singh S. H. O. then went to the place of occurrence, inspected the site, prepared a site inspection memo and a site plan and took into his possession one pair of shoes, one iron pan belonging to the deceased. The dead body of Mst. Bhuribai was sent to Siwana Government Dispensary for post-mortem examination. Dr. S. M. Mehta conducted an autopsy over the dead body and found the following ante mortem injuries on it : - (1) Incised wound 12-1/2 cm. x 2-1/2 cm. (width at middle, tapering gradually at both the ends), on face and neck 2 cms, below the left ear lobule. Depth of the wound was 2 cms. at anterior end, 7-1/2 cms. at middle and 5 cms. at the posterior end. Direction of the wound was medially, forwards and slightly downwards. Along with soft tissues injury associated with firm blood clots, there were fractures of : - (a) Mandible on left side just above the angle cutting the whole width through and through the whole thickness. (b) 5th cervical vertebra out from left side horizontally with slightly downwards towards right side cutting the spinal cord completely. Right side of body vertebra was cut partially. (2) Incised wound 8x1/2 cms. over head 5 cms. above the right ear. Direction was forwards and medially. Similar and corresponding cut was present in right parietal bone cutting whole thickness. It is associated with laceration of brain with meninges for about 2 x 1/2 cms. near the posterior end of the wound. There was a hard blood clot of the size 4x2x1 cms. between skull bone and durameter over the brain laceration. Brain and meninges were heavily congested around the laceration for an area of 8 x 10 cms. Both the injuries were grievous in nature and were caused with sharp edged weapon such as an axe in the opinion of the doctor. The doctor definitely opined that the death of Mst. Bhuribai occurred on account of coma and shock caused by brain and spinal injuries. He further opined that the two injuries cumulatively as well as individually were sufficient in the ordinary course of nature to cause the death of Mst. Bhuribai. The appellant expressed his desire to confess his guilt. So, he was sent to judicial custody and his confessional statement was recorded by Sukhvir Singh, S. D. M. Balotra on 7-6-73. The S. H. O. sent the axe. the shirt of the appellant, blood smeared soil, control soil, one Ghaghra, one Kanchali and one Odhana of the deceased to the Assistant Director (Biology), Police Forensic Science Laboratory Jaipur for detection of blood. The Assistant Director, upon analyais, found the aforesaid articles stained with blood. He sent blood-stained cuttings and samples from the exhibits to the serologist for further analysis but there is no report of the Sero-logist available on the record to show that the articles were positive for human blood. The S. H. O. collected other necessary evidence in the case and, eventually, filed a charge-sheet against the appellant under sec. 302, I. P. C. in the court of Munsif Magistrate, Balotra. The learned Magistrate held an enquiry, preparatory to commitment and upon finding, a prima facie case exclusively triable by the Court of Session, committed the appellant to the Court of Sessions Judge, Balotra for trial under sec. 302, I. P. C. The learned Sessions Judge tried the appellant for the offence of murder and convicted and sentenced him in the manner stated above. Aggrieved by his conviction and sentence, the appellant has preferred this appeal. We have carefully perused the antire record and heard Mr. Doongar Singh learned counsel for the appellant and Mr. N. S. Acharya, Public Prosecutor for the State. It has been contended before us by Mr. Doongar Singh that the prosecution could not prove the guilt of the appellant beyond reasonable doubt, because it transpires from the prosecution evidence itself that the appellant caused two injuries to the deceased with axe in exercise of his right of private defence of person and property. It was further urged that even if the plea of right of private defence of person and property is negatived, there is sufficient material on the record to show that the appellant committed the crime under grave and sudden provocation which was offered to him by the deceased Mst. Bhuribai. Lastly, it was argued that even if the prosecution evidence is believed at its face value, the case against the appellant clearly falls within exception four to sec. 300, I. P. C. as the act was done by him without premeditation, in a sudden fight, in the heat of passion upon a sudden quarrel and without taking undue advantage or without acting in a cruel or unusual manner. Mr. N. S. Acharya, Public Prosecutor, on the other hand urged that the act of the appellant clearly fell under clause three of Sec. 300, I. P. C. because he intended to cause such bodily injuries to the deceased as were sufficient in the ordinary course of nature to cause her death. It was further argued by the learned Public Prosecutor that from the facts and circumstances brought on the record, no right of private defence of person or property could legitimately accrue to the appellant nor could it be reasonably held that he killed Mst. Bhuribai under grave and sudden provocation offered to him by her According to the learned Public Prosecutor, the case of the appellant is also not covered by exception four to sec. 300, I. P. C. because he took undue advantage by striking violent blows with an axe on the vital parts of the body of unarmed deceased without any lawful excuse. We have considered the rival contentions. At the outset, we may observe that the prosecution has led direct evidence to prove the connection of the appellant with the crime. As many as three reliable witnesses have been examined by the prosecution at the trial to establish that no other person but the appellant had caused fatal blows to the deceased with a sharp edged axe. The eye-witnesses are Oat Singh P. W. 1, Bharatia P. W. 8 and Chothia P. W. 9. Oat Singh P. W. 1 claimed to have seen Roop Singh appellant striking three blows on the head and one blow on the neck of Mst. Bhuribai with an axe from a distance of 60 panwadas. He further claimed to have gone to the rescue of the deceased but Roop Singh ran after him. So, out of fear, he disappeared from the scene. Similar is the evidence of Bharatia PW 8 and Chothia P. W. 9. These two witnesses also claimed to have seen the appellant inflicting blows on the body of Mst. Bhuribai with an axe. The aforesaid three eye-witnesses have clearly implicated the appellant in the commission of the crime and we see no reason to disbelieve their evidence, as it has not been shaken at all in cross-examination by the learned counsel for the appellant. Apart from this, Bharatia and Chothia eye-witnesses were not on inimical terms with the appellant prior to the occurrence. The mere fact that Bharatia and Chothia were doing work at Kansingh's well on daily wages is not sufficient to treat them as interested witnesses, especially when they were not related to either party. Oat Singh PW 1 no doubt is closely related to Kan Singh, son of the deceased but mere relationship with the deceased is no groud for outright rejection of his evidence, especially when his presence at the time and nearabout the place of occurrence could not be doubted.
(3.) THE prosecution examined Balwant Singh P. W. 7 also in support of its case but, in our opinion, Balwant Singh was not an eye-witness to the actual commission of the crime, because he could not see the appellant striking blows on the body of the deceased from a distance of 126 panwadas which are equal to 252 paces. Apart from this. Balwant Singh admitted that he was informed about the occurrence by his brother Oat Singh. Oat Singh also testified to this fact by stating that Balwant Singh came to know about the occurrence only when he had received information from him (Oat Singh ). Consequently, we differ from the learned Sessions Judgd that Ba!want Singh also had seen the appellant committing the crime. As stated earlier, the guilt of the appellant has been conclusively established by cogent and unimpeachable evidence of Oat Singh P. W. 1, Bharatia P. W. 8 and Chothia P. W. 9 eye-witnesses whose evidence does not suffer from any infirmity. Apart from the evidence of the three eye-witnesses, there is the confessional statement of the appellant which he made before the Sub-Divisional Magistrate, on 7-6-1973 and which was repudiated by him at a later stage. The learned counsel for the appellant contended that the appellant retracted his confessional statement at the earliest opportunity by stating that it was not free and voluntary and was preceded by threats and inducement held out to him by the police. The above contention is devoid of substance. There is no material on the record to show that the appellant was persuaded or coerced to make a confession by any person in authority. On the other hand it appears from the record that the appellant was sent to judicial custody on 4-6-73 after he expressed his desire to make a clean breast of him and thus he was given no less than three days to decide whether or not to make a confession. It further appears that before proceeding to record the confession, the Sub-Divisional Magistrate put certain questions to the appellant and issued requisite warnings to have an assurance of the fact that the confession which he was going to make was not an out come of any inducement, threat or promise, from the side of the police or from any other person in authority, having reference to the charge against him as mentinoed in sec. 24 of the Indian Evidence Act. Then the Sub-Divisional Magistrate recorded the confession statement after taking care to see that the requirements of secs. 164 and 364 Cr. P. C. were fully satisfied. The appellant's mere assertion that he was coerced, tutored or induced by the police to make the confession cannot be relied upon as true, in the absence of any material on the record. Thus the confession was not only proved to be voluntary but it has also been established that it is true. In the confessional statement the appellant disclosed that at about 5 p. m. he was cutting branches of 'arana' tree with an axe for grazing his she-goats. At that time the deceased came there and asked him not to cut the branches of the tree. This lead to a quarrel. The deceased caught hold of his 'kurta' i. e. shirt and tore it and grappled with him. There upon, he struck blows on her head and neck with the axe as a result of which she fell down and her wounds began to bleed. When we compare the above confessional statement with the evidence of the three eye-witnesses and the probabilities of the case, there is no escape from the conclusion that the confession made by the appellant bears a ring of truth especially when immediately after the occurrence the appellant himself went to the police station and made a first information report about the incident and produced the blood stained axe. It is no doubt true that some corroboration to the retracted confessional statement of the appellant is required as a rule of prudence before convicting him on such a statement but as stated earlier such corroboration is not lacking in this case. The reliable evidence of the three eye-witnesses provides ample corroboration to the confessional statement of the appellant in all material particulars. We have, therefore, before us sufficient materials for holding that no other person but the appellant was responsible for causing fatal injuries to the deceased with an axe at the time and place alleged by the prosecution. ;