R.S. Sarkaria, J.
1. Criminal Appeal No. 56 of 1974 by Maharaj Singh and Hotam Singh, sons of Kanchana, and Criminal Appeal No. 280 of 1974 by Khilaku Singh alias Ajmer Singh, are directed against a common judgment, dated December 17, 1973, of the Rajasthan High Court, whereby the acquittal of these three appellants recorded by the trial court, was reversed and each of them was convicted under Section 302 read with Section 34, Penal Code, for the murder of Gupta and sentenced to imprisonment for life. The appeals arise out of these facts :
2. Three or four days before Deepawali, on Oct. 27, 1967, Gupta deceased was proceeding in the company of the Sarpanch Jhandel Singh, Mohan Singh,Durge, Kanhaiya, Mohanle and Prabhu Kumar of village Soha to village Bari for making purchases for the coming Deepawali festival. At Kanchanpur Tonga Stand, they were looking for a tonga for going to Bari. The appellants Maharaj Singh, Hotam Singh and Khilku (hereinafter referred to as the accused) came there and caught hold of Gupta and forcibly took him to a Chabutra. Soon thereafter, on his return to Kanchanpur from village Maheshara, where he had gone for begging, Mnnshi, brother of Gupta, was informed by a boy in front of the Chakki of Raghubir Singh, that Gupta had been caught and forcibly taken away by the accused with them. Munshi then went to the house of the accused and saw Gupta tied there to a Neem tree with a rope.Munshi and his companions, Jhandel Singh and Mohan Singh etc. entreated the accused to release Gupta.The accused told them that Gupta had stolen their Bajra crop and they would release him only if 50 maunds of Bajra grain were given to them, otherwise they would take him to Dholpur Police Station. Jhandel Singh asked the accused persons to either allow Gupta to take oath and state the truth regarding the charge of thefts, or in the alternative, the accused should take the oath and then take away the Bajra which would be supplied. This offer was not accepted by the accused and they did not release Gupta but forcibly took him to the Haveli of the Thakurs where the accused were residing. Munshi and Kanhaiya followed the accused and Gupta to the house of the accused. Munshi and Kanhaiya wanted to followed the accused and the deceased into the Haveli but were not allowed to do so by the accused. After some time, all the three accused came out of the Haveli and brought out Gupta whose hands had been tied with a rope and the rope was handled by Maharaj Singh. Khilku was armed with a muzzle-loading gun and Hotam Singh had a country-made pistol with him. Bigha (PW 11) joined Munshi and Kanhaiya.All these three entreated the accused, in vain, to release Gupta.The accused then forcibly marched away Gupta towards Dholpur. Munshi, Kanhaiya and Bigha followed them, They took Gupta to a distance of about two furlongs from the village where Hotam accused told the other accused that it was a proper place for the purpose. Thereupon, all the three accused forcibly took Gupta into the field under Arhar crop, Munshi Bigha and Kanhaiya, also, wanted to follow the accused but under threat of dire consequences, were made to halt on the ridge of the filed. After going a few paces into the field, Hotam Singh fired two shots. On being hit, Gupta fell down.Thinking that Gupta was still alive, Khilku fired his, gun, wounding the deceased on the neck. Khilku reloaded his gun and fired again towards Gupta.Thereafter, all the three accused ran away from the spot. Munshi then went to the Police Station, Bari, 6 1/2 miles away, and lodged the First Information Report(Ex.P-10) there at 3.30 p.m. The Investigating Police Officer came to the spot, prepared the inquest report and sent the body for postmortem examination. Dr. R.B.Nigam (PW 13) found these five external injuries on the dead-body :
(1) Blackish burn 3/4' x 1/2' behind the left ear.
(2) Blackish bum 1' x 1/2' on the outer and upper margin of left ear.
(3) Gun-shot wound 1/2' x 1/4' with blackish margins upto 3/4' all round the wound on the left side of neck behind the angle of mandible causing fracture of the body of the left mandible and fracture of, the first molar tooth of left side.
(4) Gun-shot wound 1,1/4' x 1,1/4' circular entering the abdominal cavity on the left side of abdomen 5' away and parallel to umbilicus with gun-powder burn nearly 3' all round the wound.
(5) Gun-shot 1,1/4' X 1.1/4' circular entering the abdominal cavity on left side of the abdomen in the mid axillary in the kidney region with blackish gun powder stain nearly 3' all round the wound. These three gun-shot wounds had inverted margins and were the wounds of entry. There was no exit wound.
In the opinion of Dr. Nigam, Gupta died due to severe haemorahage and shock resulting from gun-shot injuries which were sufficient in the ordinary course of nature to cause the death. The Doctor also found in the abdominal cavity two cardboard Khokhas, 6 cardboard round pieces and 72 small pellets. In the opinion of the Doctor, the shots which caused the fatal injuries had been fired from a point-blank range. He further opined that two separate fire-arms must have been used in inflicting the gun-shot injuries found on the body of Gupta. In cross-examination, Dr. Nigam clarified that the injuries found on the body of the deceased were the result of not more than three gun-fires.
3. Maharaj Singh and Hotam Singh were arrested on January 11, 1968 from a nearby jungle. Maharaj Singh and Hotam Singh were first put -on trial. Khilku bad absconded. He was arrested later on November 28, 1968 and was tried separately. The Sessions Judge acquitted the accused persons in both the trials. The State went in appeal against those acquittals to the High Court with the aforesaid result. Hence, these appeals which are being disposed of by a common judgment.
4. At the trial of Maharaj Singh and Hotam Singh, the statements of Kanhaiva (PW 5) and Bigha (PW 11) recorded by the Committing Magis trate were transferred under Section 288, Cr. PC to the Sessions record. Munshi was also examined at that trial. At the trial of Khilku Singh, Munshi a1one was examined as an eye-witness. At both the trials, Munshi had substantially supported the prosecution story set out above. Six prosecution wit nesses namely, P.W. 1, P.W. 2, P.W. 3, P.W. 4, P.W. 5 and P.W. 11 turned hostile and were cross-examined by the Public Prosecutor.
5. Learned Counsel for the appellants contends that it was highly unsafe to convict Khilku on the testimony of the sole eye-witness, Munshi, who was the elder brother of the deceased. Great stress has been laid on the fact that the Medical Officer, who conducted the post mortem examination, did not find any ligature marks on the hands or arms of the dead-body; that the rope (Article 2) had no blood-stains on it. The absence of imprints of the rope on the arms, or wrists of the deceased, and the absence of blood stains on the rope, according to the learned Counsel, falsify the evidence of Munshi (PW 7), in as much as he testified that the arms and (wrists) hands of Gupta had been tied with a rope when he was forcibly taken into the Arhar field and shot dead there by the accused.
6. At Khilku's trial, Dr. Nigam (PW 10) said in cross-examination, that he did not find any mark of tying by string on either wrist of the deceased Roop Chand (PW 9), Investigating Officer, testified that when he saw the dead-body at the spot, both its hand were found tied with a rope. The witness took that rope into possession. In cross-examination, he stated that he had seen the marks left by the bandage of the rope on the wrists of the dead-body but there were no such signs of the bandage of the string on the arms He however, admitted that he had not made any mention about the presence of such marks on the wrists of the dead-body in the Panchanama which was prepared by him before untying the string or in the note which he had sent to the medical officer. This non-mention, according to the investigator was due to a slip of mind.
7. In our opinion, the mere fact that the Doctor who conducted the autopsy, did not note or find any imprints of a rope on the wrists of the dead body, is hardly a ground for rejecting the evidence of Munshi that the hands of the deceased had been tied at his back when he was forcibly taken by the accused into the Arhar field aud shot dead there. The wrists around which the rope had been tied are not flabby limbs of the body. The deceased was a rustic, hardskinned villager. The rope was therefore, not likely to leave any distinct imprints on the wrists. In any case, they might have disappeared or become extremely faint at the time of the post mortem examination which was conducted about 24 hours after the string had been united by the investigating officer. There was no reason to doubt the testimony of the investigating officer that he found the hands of the dead-body tied with the string (Ex. Article 2) which he had untied and taken into possession there at the scene of offence before the Panchayatdars.
8. Even the hostile witness, Jhandel Singh (PW 4) in whose presence the investigating officer had untied the rope from the wrists of the deceased, did not categorically deny that the hands of Gupta were found tied at his back with a string. When the Public Prosecutor read out to him his previous statement (Ex. P-6) in which he had spoken to that fact, the witness replied that 'he might have stated like that'. Much capital therefore, can be made out of the fact that the Medical Officer, who conducted the post mortem examination, did not find any imprints of the rope or strang on the wrists of the dead-body.
9. The second contention of the learned Counsel for the appellants is that there was a conflict between the statements of Munshi and Dr. Nigam, inasmuch as Munshi has testified that Hotam Singh and Khilku Singh had fired four shots at the deceased, whereas in the opinion of Dr.Nigam, the injuries found were the result of three gun-fires only. This so-called conflict between the ocular account given by Munshi and the testimony of Dr. Nigam Was pressed into argument before the High Court, also The learned Judges negatived this contention, and rightly so with these observations :
The Doctor discovered 5 external injuries at the time of post mortem examination. Injuries Nos. 1 and 2,which were noted on the left ear of the deceased could be caused by one gun-shot only and, therefore, it is difficult to accept the statement of the doctor which he made in the cross-examination that only three fires were opened at the deceased because injury No. 3 is on the left side of the neck, injury No. 4 is on abdomen and similarly injury No. 5 is on abdomen. Munshi (PW 7) has categorically stated that two shots were fired on the abdomen and two on the neck. The ear is not far from the neck and, therefore, the injuries Nos. 1,2 and 3 were perhaps considered by the Doctor as the result of one gun-shot fire. In our opinion, the importance that has been given by the learned trial judge to the alleged discrepancy which was discovered by him in the statements of Munshi and the medical expert loses all its importance.
10. We agree with this reasoning which furnishes a complete answer to this argument advanced on behalf of the appellants.
11. Learned Counsel next pointed out some more discrepancies in the statement of Munshi (PW 7). It was urged that he had in his testimony rendered at the trial of Khilku, contradicted his earlier statement made at the trial of Maharaj Singh and Hotam Singh; that in his earlier statement (Ex. D-l), the witness had stated that he was informed by a boy that his brother Gupta had been caught hold of by the accused whereas in his subsequent statement at the trial of Khilku he had said that Gupta was caught by the accused at the Chakki of Raghubir Singh. When the witness was confronted with this variation in his earlier statement, he explained that whatever he had stated at the trial of Khilku was correct.
12. As rightly pointed out by the High Court, Munshi was examined at the trial of Khilku about two years after the incident in question. This discrepancy had therefore, crept in owing to a lapse of memory. In any case, this discrepancy relates only to the initial phase of the events preceding the murder. Sufficient time must have been taken by the events that followed the initial capture of the deceased and culminated in his murder by the accused in the field, two furlongs away from the village. The deceased was first charged by the accused publicly with the theft of Bajra and in spite of the entreaties of Munshi and others was forcibly taken into their Haveli and then was openly and forcibly marched away from the village to the place of his execution in the filed.There was sufficient time and opportunity, therefore, for Munshi (PW 7) to come implore the accused to release his brother, Gupta. It was therefore, natural for Munshi and his companions to follow the accused when they were forcibly taking away Gupta from the village. Munshi, being the elder brother of the victim, was naturally most concerned to see what the accused were doing to Gupta. Munshi was not disposed to give up easily his entreaties and efforts to secure the release of the victim. The witness was a landless beggar by profession, while the accused were Thakurs, i.e erstwhile feudal proprietors of the village. They were carrying fire-arms. In the circumstances, therefore, it was not possible for Munshi (PW 7) and his companions to rescue Gupta by use of physical force. There was nothing unnatural in the story narrated by Munshi in the witness-box that he saw the murder, while standing on the ridge of the field of occurrence.
13. The High Court has dealt with and effectively dislodged all the arguments given by the trial court for discarding the testimony of Munshi. He could not be disbelieved merely because he was the elder brother of the deceased. Munshi's evidence received ample corroboration in material particulars from the First Information Report (Ex.P-10) which had been lodged by him on the very day of occurrence at 9 a.m. At the trial of Maharaj Singh and Hotam Singh, the evidence of Munshi received substantial corrobation from the transferred statements of Khilku (PW 5) and Bigha (PW 11).The High Court has fully discussed the evidence and dispelled the main reasons given by the trial court for acquitting the accused persons.
14. We agree with the High Court that the view of the evidence taken by the trial court was manifestly erroneous & the arguments employed by it for acquitting the accused persons, were utterly unsustainable.
15. For the foregoing reasons, we dismiss these appeals and maintain the conviction and sentence of the appellants. If any of the appellants is on bail, he/they shall surrender to his/their bail-bonds to serve out the sentence inflicted on him/them.