Malik Sharief-ud-din, J.
(1) Accused Bhoot Nath was tried by Shri K.P. Verma, Additional Sessions Judge, Delhi and vide his order dated 18.9.84 the accused was convicted under sections 325 and 302 Indian Penal Code The accused was sentenced to three years' rigorous imprisonment for the offence under section 325 while he was awarded death sentence under section 302 Indian Penal Code The learned Additional Sessions Judge has made a reference for confirmation of the death sentence along with the proceedings of the case to this court.
(2) We have heard Mrs. Ahlawat. amices Curiae for the accused and Mr. R.P. Lao for the State and have also carefully gone through the record of the case.
(3) We may make a reference to the brief facts of the case. The prosecution case is that across the Bridge running between Shakarpur and I.T.O. there is a vast stretch of vacant land along the bank of river Jamuna on which there were four jhuggies. out of which o
(4) After going through the record of the case we are of the view that since the learned Additional Sessions Judge in his judgment has made a detailed reference to the evidence led in the case we need not over-burden this judgment by making reference to the entire evidence most of which is formal in nature. We will only refer to the evidence which is material for the settlement of the controversy. It may be noticed that the injuries sustained by the deceased and by Public Witness 8 Daljit Singh are not in controversy and the cause of death of Bahadur deceased is not disputed. As noticed by Dr. B.N. Reddy, there were as many as 29 injuries on the person of deceased Bahadur when postmortem was conducted. Dr. Reddy is, however, of the view that none of these injuries individually or collectively was sufficient to cause death in ordinary course of nature. All the injuries, according to him, were ante mortem and were recent. He further opined that injuries I to 7, 11, 14, 18 to 20,22, 26 and 27 were caused by blunt force object and injury Nos. 8 to 10, 15 to 17, 21 and 24 were caused by some pointed piercing blunt weapon such. as Trishul Ext. P-l. Injury Nos. 12, 13, 23, 25, 28 and 29 were caused by blunt surface, probably by dragging the person by holding feet. Some of these injuries, as stated above, according to him, could be caused by Trishul, Ext. P-l. Death, according to him, was due to asphyxia as a result of drowning. It would be seen that this medical evidence is quite consistent with the prosecution story as narrated above. The medical evidence supports the prosecution case that the deceased was beaten by weapon like Trishul, Ex. P-l and other objects and was thereafter dragged and drowned which ultimately caused his death.
(5) Before we make reference to the eye witnesses we at this stage take notice of the' defense of the accused as unfolded by him under section 313 Criminal Procedure Code . About the prosecution witnesses he says that they are interested. He has also said that Ram Avtar along with 3/4 other persons brought Bahadur and Daljit Singh who were having injuries on their person for treatment to him at about 2.00 in the mid-night; that these persons were residing in the near-by jhuggi and they also informed him that one of these two persons had jumped in the river Jamuna. He further states that he advised them to trace that man and after sometime when they brought that person in unconscious state to his jhuggi for treatment, he applied some medicine and also gave him his clothes to wear which constituted Tehmad and a piece of red cloth; that he advised them to take him to hospital and asked the other person who was having minor injuries to go to police station; that some police officials came and took him from. his jhuggi and implicated him in this case.
(6) There are four eye witnesses to this incident. They are Daljit Singh Public Witness 8, Ram Avtar Public Witness 12, Smt. Krishna Public Witness 13 and Raja Ram Public Witness 22. First information is given by Public Witness 22 Raja Ram. It is to the effect that Bhoot Nath is carrying one person on his shoulders and he was going towards Vikas Minar and that there is something wrong with the person who is being carried by Bhoot Nath on his shoulders. It was actually on this information that S. 1. Kulwant Rai along with other members of the staff left for I.T.O. Bridge at about 6.40 A.M. The information was received at about 6.25 A.M. Police apprehends Bhoot Nath accused carrying Bahadur deceased on his shoulders at I.T.O. Bridge. Bahadur was found dead and was found to have sustained many injuries. Thereafter, Ram Avtar Public Witness 12 made a detailed statement about what he had seen on the basis of which this case came to be registered. The investigation officer in the beginning thought that the injuries on the person of the deceased were apparent cause of death but after the postmortem examination revealed that death was due to asphyxia he found further evidence to the effect that after beating the deceased and Daljit Singh Public Witness 8 Baba Bhoot Nath accused had tied the deceased with a rope and dragged him to the nearby river Jamuna where he gave the deceased dips in the water and after sometime dragged him back to the jhuggi and left him outside and in the morning when he found Bahadur dead he put him on his shoulder and proceeded towards I.T.O. Bridge, probably, to dispose of the body.
(7) Mrs. Ahlawat, amices Curiae for the accused, has thrown challenge to the eye witness account on the ground that at the time when the case was registered and before the postmortem examination was conducted, Pw 12 Ram Avtar had not stated that the accused was seen tying the deceased with rope and dragging him to river Jamuna where the deceased was drowned and after sometime the deceased was dragged back to the jhuggi by the accused. She urges that this story and evidence in this regard was brought into being only after the real cause of death was discovered on postmortem.
(8) Before we answer this contention of Mrs. Ahlawat, we may make a reference to two eye witnesses and find out whether eye witness account is trust worthy or not. It is writ large on the face of the record that the accused is a 'tantrik' and people used to go to him with their problems. It would also be noticed that the persons occupying the nearby jhuggies up to the date of incident had no grievance against the accused. In fact they never had any complaint. These poor orthodox people, in view of the accused being a 'tantrik', were rather having regards for the accused. Under the circumstances we Fail to understand as to what the accused means by stating that the witnesses arc interested. By making this vague statement, perhaps, he wants to convey that they are inimical or they have become witnesses because the police wanted them to be so. We fail to see any truth in this vague statement of the accused. That is not to suggest that the accused has to prove his innocence. We are only making this observation to indicate that the eye witnesses in this case are trust-worthy and there is no reason to disbelieve them.
(9) Another reason for holding this view is that Daljit Singh Public Witness 8 was also beaten by the accused. He suffered fracture. The accused had earlier given him shelter. Daljit Singh Public Witness 8 as such would be the last person to screen the real culprit and involve and innocent person. The accused had been kind to him by providing him shelter. The account given by Daljit Singh is similar to what the other eye witnesses have stated which also goes to show that the eye witnesses were speaking the truth.
(10) Public Witness 8 Daljit Singh has deposed that a few days prior to the incident he as well as Bahadur deceased had started residing in the jhuggi of the accused at Jamuna bed near Gautampuri. On the night of occurrence be heard noise and saw Sanichar Baba accused beating Bahadur by Trishul, Chimta, fists etc and telling Bahadur that he had stolen his money which Bahadur deceased was denying. According to him, after heating Bahadur the accused came to him and told him that he had committed theft of his money and then inflicted injuries with Trishul on his left arm and leg resulting in the fracture of his left arm and leg. He thereafter saw the accused tying the deceased with a rope. The accused then dragged the deceased up to Jamuna river and drowned him in the water and after some-time dragged the deceased back. Bahadur deceased was unconscious and was unable to speak. At dawn he saw the accused picking up Bahadur on his shoulders and trying to run away but was apprehended by the public. He was taken to hospital by the people From the public. He has identified Trishul, Ext. P-l, Chimta Ex. P-5 and Phukni, Ext. P-6 as the same with which the accused launched this assault. He has also identified the rope Ext. P-7. According to him some other persons who were sleeping outside their jhuggi had also witnessed the occurrence. He admits that accused was practicing 'tantrik' to provide relief to the people.
(11) Similar version has been given by Public Witness 12 Ram Avtar. Ram Avtar, however) admits that in his earlier statement on the basis of which this case came to be registered he had not stated before the police that accused had dragged Bahadur up to the river Jamuna and had immersed him in the water. He, however, states that it is absolutely wrong to suggest that he has deposed at the instance of police.
(12) Public Witness 12 Smt. Krishna, wife of Ram Avtar says that on the day of occurrence her husband returned at 200 A.M. in the night and went to the jhuggi of the accused for having a Bidi. After sometime they heard a noise coming from the jhuggi of the accused. Her husband then went to the jhuggi of the accused and saw what was happening. After sometime there was again a noise and her husband again went to the jhuggi of the accused Thereafter, she also went and saw the accused dragging Bahadur, after tying his hands, towards river Jamuna. She then returned to the jhuggi but in the morning she found the accused carrying the body of Bahadur towards I.T.O. Bridge and a crowd had followed the accused. According to her excepting her and her husband, no one else had come on the scene of occurrence.
(13) Public Witness 22 Raja Ram has deposed that on the date of occurrence he was residing in a jhuggi which was situated at some distance from the jhuggi of the accused and he had gone to answer the call of nature when he saw the accused dragging a person whose hands were tied with a rope from river Jamuna towards his jhuggi. At about 6.15 Am when he woke up and was preparing to go to work and reached near the jhuggi of the accused he saw 7 to 10 persons there and found the accused picking a dead body on his shoulders and going towards the bank of Jamuna. He immediately reported the matter to police post. The police apprehended the accused and took the dead body into possession. He then saw the police coming to the jhuggi of the accused where Trishul, Chain, Phukni etc. were taken into possession.
(14) We have already stated as to why we are not prepared to disbelieve the eye witness account. The eye-witness account in this case is not only trust worthy but is also consistent with the medical evidence. The witnesses are quite independent and there is no reason for them to speak lies. There are some minor contradictions in the testimony of Ram Avtar and his statement made earlier before the police but keeping in view the mental level of these poor people such discrepencies are bound to arise particularly when their testimony is recorded long after the incident takes place. It would, however, be seen that Ram Avtar has been consistent in so far as the prosecution story is concerned. He admits that he had not made mention earlier before the police about the deceased being dragged and drowned in Jamuna river and then dragged back to Jhuggi by the accused and when it was suggested to him that be was making the statement at the instance of police be emphatically said that he was speaking the truth and not making a false statement.
(15) We may take notice of the injuries sustained by Daljit Singh Pw 8. He was attended to by Public Witness 2 Dr. B.P. Mohanty. Dr. Mohanty operated upon him as he had fracture of left arm bone and fracture of left thigh bone. These injuries were categorised by the doctor as grievous vide his report Ex. Public Witness 2/A.
(16) We have already advanced our reasons as to why we believe the eye witness account. To our mind the eye-witness account in this case is neither tainted nor can it be said that there eye witnesses are in any way interested. The eye witnesses have no personal grievance against the accused and their testimony is consistent also with the testimony of Public Witness 8 Daljit Singh, another victim of the assault. At the cost of repetition we would like to make it clear that Daljit Singh Public Witness 8 can in no case be disbelieved for various reason that we have already mentioned. We also find that the eye-witness account in this case is also supported by the report of Cfsl which has clearly established that beating to the deceased was given by Trishul. Chimta and chain, all of which were found to be stained with human blood of Ab group which was the blood group of the deceased. There is over-whelming evidence that both Public Witness 8 Daljit Singh and Bahadur deceased were residing with the accused for a few days in his jhuggi and on the night of occurrence both were present in the jhuggi of the accused. Both of them within the view of Public Witness s 12 and 13 Ram Avtar and Smt. Krishna were beaten by the accused. Both had taken refuge in the jhuggi of the accused as they did not want to sleep on the foot-path and render themselves vulnerable to the police. Above all the accused had been found carrying the dead body on his shoulders and was going towards I.T.O. Bridge. The information about it was given by Raja Ram Public Witness 22 and the accused was caught carrying the dead body on his shoulders. Dr. Reddy has opined that the injuries were possible by Trishul. by dragging and by blunt object. In these circumstances w& find it difficult to agree with Mrs. Ahlawat that the accused is innocent and is not connected with the commission of this crime. There is over-whelming evidence indicating that the accused and accused alone has committed this crime. We under the circumstances are of the view that the accused has rightly been convicted and sentenced by the learned Additional Sessions Judge under section 325 Indian Penal Code
(17) We, however, do not find it be case for conviction under section 302 Indian Penal Code, much less for death sentence. The learned Additional sessions Judge does not seem to have taken into consideration all the circumstances in identifying the offence, that seemingly has been committed by the accused. In order to find out the nature of the offence committed we find it necessary to travel back a little with a view to examine the back-ground in which this offence came to be committed.
(18) It will be noticed that the accused had suspicion that the deceased had stolen his bag containing money. On this suspicion he started beating him with Trishul, Chimta, chain etc. whatever was handy. The nature of the injuries sustained by the deceased by this beating is such that neither individually nor collectively they are capable of causing death of the deceased. It will be seen that no fatal injury is inflicted. Having failed to get back his money from the deceased the accused turned to Daljit Singh suspecting that he might have stolen his money. He beat him also causing fracture of his left arm bone and left thigh bone and made him rather immobile. In doing so the entire idea was to get back his money and not to kill. Having failed to get back his money even from Daljit Singh, the accused again turns to Bahadur, perhaps, thinking that Bahadur deceased was the real culprit and he is responsible for stealing his money. In order to teach him a lesson he ties him and drags him to nearby river Jamuna where he dips him in water. This the accused is doing as in all probability he thought that Bahadur deceased in this way might admit and return his money, never knowing that he was causing his death. It will be seen that even after giving him dip in Jamuna water the accused has dragged the deceased back to his jhuggi, never knowing that Bahadur had died. If he were to know that Bahadur had died, he would not have brought the dead body back. It was only in the morning hours that the accused found him dead. He was stricken with panic and in that panic he takes the dead body on his shoulders and goes towards I.T.O. Bridge probably to dispose of it. One cannot, however, be sure as to what was in the mind of the accused and how he intended to deal with the dead body. If the accused had intended to kill he could have killed with Trishul itself by inflicting fatal blows on the vital parts of the body of the deceased. If the accused had intended to drown the deceased he would not have brought him back to his jhuggi and could have disposed of the body during night itself. The very fact that after dipping the deceased in Jamuna water he dragged him back shows that his sole concern was to somehow frighten the deceased and get his money back. never knowing that by his foolish and stupid act he had caused the death of Bahadur. Under these circumstances it can hardly be said to be a case where there was premeditation or any intention to kill. We cannot, however, rule out the knowledge of the accused that by this act of his he was likely to cause death of Bahadur. We, thereforee, set aside the conviction and sentence of the accused as recorded by the learned Additional Sessions Judge under section 302 Indian Penal Code, convict the accused under section 304 Part Ii and sentence him to rigorous imprisonment for a period of six years The conviction and sentence passed by the learned Additional Sessions Judge under section 325 Indian Penal Code is maintained. We, however, direct that both the sentences would run concurrently. This Murder Reference is decided accordingiy.