L.S. Mehta, J.
1. This appeal emerges from the judgment of Shri B.K.D, Badge, the then Additional Sessions Judge No, 1, Jodhpur, dated July 20, 1966, convicting the accused Bhikla, Roopla, Lachmaina and Kishnia, sons of Bhera, Jat, residents of Abu, under Section 302, read with Section 34 IPC, and sentencing them each to imprisonment for life.
2. The prosecution story is like this. Maharaj Bhaktiram, a Guru of the Jat community, lived in the village Ahu, Police Station, Bhojasar. His servant, P.W. 4. Nahera Ram also resided with him. The accused Lachmania was alleged to have kept his own sister, as his mistress. This act of Lachmanina enraged the Jat community. Subsequently, the Jats of the surrounding villages assembled together, Maharaj Bhaktiram also praticipated in the deliberation of the community meeting. The Jats eventually excommunicated Lachmania along with his three brothers, Bhikla, Roopla, and Kishnia. For this reason the accused persons began to bear grudge against Maharaj Bhaktiram. On October 12, 1965, Bhaktiram went along with his camel to his agricultural land, known as Sunaronwala field, for fetching Bajra stalks. When he was returning with his camel, loaded with Bajra stalks, he passed through the land of the accused. There he was confronted defiantly by the accused. They all administered severe beating to him with sticks. Amana Ram s/o Asu P.W. 6, and Amana Ram, s/o Kistura P.W. 8, witnessed the occurrence. Amana Ram P.W. 6 beseeched the accused not to beat the Maharaj Thereupon Bhikla told him that the Maharaj would not be left alive and that if he intervened, he too would meet the same fate. Amana Ram, P.W. 6, then informed of this happening to Bhera Ram, P.W. 9 the 'Chela' of the Maharaj. Dana Ram was also apprised of the whole incident. Bhera Ram went to the spot. He saw the accused throwing earth on the nose of the Maharaj to find out whether he was still alive and perceiving that there was same life left in him, the accused again belaboured him relentlessly with sticks till he breathed his last. P.W. 1 Dana Ram approached the Police Station, Bhojasar and lodged first information report Ex. P, on October 13, 1965 at 9 A.M. In the meantime accused Bhikla and Roopla went to the 'Dhani' of the Maharaj and entrusted Maharaj's camel to Nahera Ram. P.W. 4 stateting that the Maharaj had already been uprooted and was lying in the field and that he should be brought home in a cart. In the course of investigation, P.W. 12 Devilal, S.H.O. Bhojasar, went to the spot and prepared site inspection memo Ex. P.5, site plan Ex. P.6 description memo of the corpse Ex. P.7, inquest report Ex. P.8, seizure memo of blood stained clothes and shoes of the deceased Ex. P.10. Accused Bhika was arrested on October 13, 1965. A blood stained 'Bandi' was seized from his possession vide Ex. P.11. The rest of the accused person were arrested on October 16, 1965. In the course of investigation Bhika furnished information in regard to his concealing the weapon of the offence. The information was reduced into writing and is marked Ex. P. 17. In consequence of this information the police recovered a blood stained lathi at the instance of the accused Bhika memo Ex. P. 12. Both the 'Bandi' and the lathi were examined by the Chemical Examiner and the Serologist. The report of the Chemical Examiner was that both the articles were positive for blood; vide Ex. P.23. According to the Serologist, the two articles were stained with human blood vide Ex. P.24. Autopsy of the dead body of Bhaktiram was conducted by Dr. Ram Narain Parihar, Medical Officer, Phalodi. The following injuries wefe noticed on his person:
1.Contusion 1' x3/4 on front of middle of head-Simple and by blunt weapon.
2. Contusion 11/2' x 1' on left temporal bone with fracture of the temporal bone--Grievous and by blunt weapon.
3. Lacerated wound 1' x1/2' on left elbow outer part. Simple and by blunt weapon.
4. Contusion 2' x1' on outer side of left arm. Simple and by blunt weapon.
5. Lacerated wound 1/2'x1/4'x skin deep on inner side of left ring finger and a contusion on little finger. Simple and by blunt weapon.
6. Lacerated wound 1/2'x1/4 x skin deep on web of the left index finger. Simple and by blunt weapon.
7. Five contusions 1/2'x1/4', 1/2'x1/2', 1/2'x1/4' and 1/4'x1/4' on dorsum of hand left. Simple and by blunt weapon.
8. Lacerated wound 2/3' x1/2' on medial side of right index finger with contusion on the middle finger. Simple and by blunt weapon.
9. Two contusions 11/2'x3/4' and 1 x1/2' on dorsum of the right forearm. Simple and by blunt weapon.
10. Two contusions 1/4'x1/6' and 1/6'x1/3' on back of right elbow. Simple and by blunt weapon.
11. Contusion on front and outer side of right elbow 1' x3/4' x bone deep with blunt weapon.
12. Lacerated wound 1'x3/4' x bone deep with compound fracture of the right tibia on front of upper 1/3rd of the right leg. Grievous and by blunt weapon.
13. Lacerated wound 1'x3/4'x1/2 on outer side of the left knee. Simple and by blunt weapon.
14. Contusion 1' x 1' no outer side of left leg obliquely. Simple and by blunt weapon.
15. Two laceratad wounds 3/4'x1/4'x1/4. and 1/2'x1/4 x1/5' on front of left leg. Simple and caused by blunt weapon.
16. Three contusions on back of left hip in the middle simple and by blunt weapon.
17. Contusion 4'x1' no back of right hip. Simple and blunt weapon.
18. Two contusions 3'x1' and 2x1' on back of the body on the ribs. Simple and by blunt weapon.
According to the Doctor, the above injuries were caused by blunt objects, External injury No. 2, the Doctor adds, was individually sufficient to cause the death of the Maharaj. The Doctor is further of the opinion that all the injuries together could also result in the death. After the investigation was concluded, the police put up a challan in the court of the First Class Magistrate, Phalodi. The said Magistrate conducted preliminary inquiry in accordance with the provisions of Section 207-A, Cr. P.C. and committed all the four accused to the court of Sections Judge, Jodhpur, to stand trial under Section 302, read with Section 34, I.P.C. The case was subsequently transferred for disposal to the court of Additional Sessions Judge No. 1, Jodhpur. The accused pleaded not guilty to the charge under Section 302/34 I.P.C. In support of its case the prosecution examined 12 witnesses. In their statements recorded under Section 342, Cr. P.C, the accused denied to have committed any offence. In their defence they did not produce any evidence. Eventually the learned Additional Sessions Judge No. 1, Jodhpur, convicted and sentenced the accused, as aforesaid. Hence this appeal.
3. Contention of learned Counsel for the accused is two fold. His first contention is that no offence under Section 302, read with Section 34. I.P.C, has been brought home to the accused Roopla, Lachmania and Kishnia. According to him, P.W. 8 Amana Ram, son of Kistura, was not present on the spot and P.W. 6 Amana Ram, son of Asu, could not be said to be wholly reliable. The trial court, the counsel adds, went wrong in convicting the above three accused persons on the basis of the testimony of the above named two witnesses. The next point raised by him is that the trying Judge could not have convicted Bhikla under Section 302 read with Section 34, I.P.C. He ought to have been acquitted or in the alternative, if his statement recorded by the committing court is taken in vidence in accordance with Section 287, Cr. P.C., he could have been convicted either under Section 304, Part I or under Section 325, I.P.C. and not under Section 302 read with Section 34, I.P.C. He referred to an unreported decision of this Court, Nathu v. State, D.B. Criminal Appeal No. 122 of 1958. Learned Deputy Government Advocate, on the other hand, by and large supported the judgment of the trial court.
4. We first take up the case of Roopla, Lachmania and Kishnia. First information report Ex. P.1 was filed by Dana Ram P.W. 1 on October 13, 1965 at 9 a.m. On interrogation made by the Police, Dana Ram first named only Bhikla etc. as had been disclosed to him by Amana, son of Asu, and not other accused persons. Amania had informed Bhera Ram, P.W. 9, of the happening and not Dana Ram. P.W. 1 Amana Ram, P.W. 6, has categorically stated that he gave information to Bhera Ram and not to anybody else. Both Bhera Ram and Dana Ram have pointedly stated that they were not the authors of the first information report and that it was written by one Vaidhyaraj. Bhere Ram has further said that he did not give its contents to the Vaidhyaraj. The alleged scribe of the report Vaidhyaraj has not been examined by the prosecution. Danaram has also stated that he was at a distance of about 100 paundas from the place where the report was got written. It is thus not clear as to who was the author of the first information report. No adverse inference, therefore, can be drawn against the accused Roopla, Lachmania, and Kishnia on the basis of the contents of Ex. P.1. It may also be mentioned that the object of the provisions as to first information report is to obtain early information of the alleged criminal activities, to record the circumstances before there is time to be forgoten or embellished, and it has to be remembered that the report can be put in evidence when the informant is examined if it is desired to do so, vide Emperor v. Khawaja Nazir Ahmad A.I.R. 1945 P.C. 18. In this case Ex. P.1 being the earliest version of the the event is not of very material help to the prosecution in so far as the involvement of the accused Roopla, Lachmania, and Kishnia in the crime is concerned.
5. The most important eye witness of the occurrence is P.W. 6 Amana Ram, son of Asu Ram. He says that he saw all the four accused beating the Maharaj, Bhikha gave lathi blows to the head of the victim. Roopa and Lachmania struck lathi blows on the stomach of the Mahraj and Kishnia hit lathi blows on his legs and feet. It is not clear from the statement of this witness as to why he happened to be at the place of the occurrence at the crucial moment. His 'Dhani' is about 300 'Paundas' away from that place and his field is about 100' paundas' away from there. It is also not understood that when he had left his 'Dhani' with the Maharaj, why he remained behind. He also did not make any report of the incident to the authorities concerned, nor did he make mention of the story to Dana Ram, P.W. 1 He narrated the story to Bhera Ram. But Bhera Ram was not the author of the first information report Ex. P.1. In the police statement he did not mention as to which accused gave which blow on the victim. He admits that that the Maharaj left Sonaron-wala field earlier than him. He further admits that he saw beating from a distance 100 'paundas'. i.e. about 500 ft. According to the first information report the occurrence took place on October 12, 1965 at 8 p.m. In the charge sheet also the time mentioned is the same. Assuming that there was moonlit night at the time of the occurrence, the witness could not have easily recognized the accused persons from such a long distance. By moonlit night one can recognize, when the moon is at the quarter, persons at a distance of from twenty one feet in brightest moonlight from twenty three to thirty three feet and at the very bright period of the full moon, at a distance Of from thirty three to thirty six feet vide Criminal Investigation, by Dr. Hans Gross, Fifth Edition, page 159. It cannot, under the circumstances, be said with exerctitude that the witness could really identify all the accused persons from a distance of 500 ft. Learned Deputy Government Advocate has argued that the occurrence took place at about sun set. He has drawn our attention to certain portions of the statements of Amana Ram, P.W. 6 Amana Ram, P.W. 8, and Jetha P.W. 3. and has argued that the time given in the first information report was erroneously inserted. As we have already pointed out, first information report, containing earliest version, forms a very important document. Time given in that report cannot lightly be ignored. That apart, Dana Ram has clearly mentioned in his statement that there was enemity between the accused persons and the Jats with respect to one Mst. Kanchu. Amana P.W. 6, being a Jat, cannot be said to be an independent witness required no corroboration.
6. Generally speaking oral, testimony, as has been held by their Lordships of the Supreme Court in Vadively Thever v. the State of Madras : 1957CriLJ1000 may be classified into three categories (1) wholly reliable (2) wholly unreliable; and (3) neither wholly reliable nor wholly unreliable. In the first category of proof the court should have no difficulty in coming to its conclusion in either way. It may convict or acquit the accused on the teslimony of a single witness, if it is found to be beyond reproach or suspicion of interesfedness, incompetence or subornation. In the second category, the court equally has no difficulty to come to its conclusion. It is in the third category of cases that the court has to be circumspect and has to look for corroboration in in material parts by reliable testimony, direct or circumstantial. In this case, having regard to the facts and circumstances mentioned above, we are of the opinion that the testimony of P.W. 6 is covered by the third category. Therefore, the court has to weigh it carefully and unless his testimony is materially corroborated, it would not be safe to convict the three accused person solely on its basis.
Aman Ram, P.W. 8 also professes to have seen the occurrence. He says that he asked Bhern Ram to bring a post card and when he was returning from his 'Dhani' after taking a post card from him, he saw the occurrence. This part of his statement is not corroborated by Bhera Ram. Amana Ram, P.W. 6 has unequivocally said that nobody was present on the. spot except himself. This version of P.W. 6 altogether excludes the presence of Amana Ram. P.W. 8, on the site of the happening. Amana Ram P.W. 8, has said that he saw the incident silently He neither spoke a word nor did he intervene in the matter. This is certainly an unnatural conduct. He further admits that when he gave information to Bhera Ram of the happening, he did not tell him that a report should be made to the police. According to Dana Ram, P.W. 1, there was enemity between the accused and the Jat community. He being a Jat, his evidence cannot be held to be said reliable. His name is also not mentioned in the first information report Ex. P.1 Learned Deputy Government Advocate has argued that Amana Ram, P.W. 8, was on the southern side of the occurrence, whereas Amana Ram, P.W. 6 was on its northern side and, therefore, they could not have possibly seen each other. This argument does not sound well. If Amana Ram, P.W, 8, was really present on the site, it was but natural for P.W. 6 Amana Ram to have him and to seek his assistance with a view to intervene in the matter and to come to the rescue of their Gurn Maharaj Bbaktiram. These circumstances indicate that it is very doubtful whether Amana Ram, P.W. 8 was was really present on the scene of the occurrence.
7. Bhera Ram, P.W. 9 has stated that he saw Bhikharam putting sand on the nose of the victim and when he perceived that he was still alive, he, along with the other accused, further administered beating to him. This version of Bhera Ram P.W. 9, is not supported by Amana Ram, P.W. 6. Moreover, he did not mention this fact in his earlier statement anywhere. The trial court, therefore, rightly discarded this portion of the ststemcnt of Bhera Ram.
8. It is also worthy of note that when Bhikharam and Roopla came to Nahera Ram; it was Bhikha whe told him that his Guru had been uprooted. Nothing was uttered by Roopla at that time. From this circumstance also it cannot be inferred that Roopla was also actually involved in the crime.
9. Now coming to the motive, Amana Ram, P.W. 6, has testified to the fact that Lachmania had developed illicit relation with his own sister as a result of which he and the other three accused were excommunicated by the Jat Panchayat. The witness however was not admittedly present in the meeting of the panchayat. His evidence on this point, therefore, could not be said to be direct. That being hearsay is inadmissible. Where there is clear proof of motive for the crime, that lends additional support to the finding of the court that the accused was guilty, but the absence of clear proof of motive does not necessarily lead to the contrary conclusion. The lack of proof of motive has the effect that the other evidence bearing on the guilt of the accused has in be very closely examined vide Atley v. State of Uttar Pradesh : 1955CriLJ1653 . In this case as there is no positive or convincing evidence in regard to the motive the evidence direct as well as circumstantial has to be very carefully scrutinised. Its close scrutiny shows that it is not strong enough to connect the three accused with the crime.
10. No recovery of any article connecting the three accused with the crime has also been made. Bhikha has not stated in his statement recorded by the committing court that these three accused persons were present on the scene of the occurrence. Contrary to this he has positively said that he alone was present there and inflicted lathi blows to the Maharaj. There are two important factors in every criminal trial that weigh heavily in favour of the accused persons (1) that the accused is entitled to the benefit of every reasonable doubt and (2) that when an accused person offers a reasonable explanation of his conduct, then, even though he cannot prove his assertions, they should ordinarily be accepted unless the circumstances indicated that they are false. In this connection reference is made to Aher Raja Khima v. State of Saurashtra : 1956CriLJ426 . Here Bhikha has given a reasonable explanation of his conduct and that assertion, in our opinion, cannot be said to be indicative of a false story.
11. From what we have stated above, we are of the opinion that the vidence of Amana Ram, P.W. 6, cannot be said to be wholly reliable and we refuse to convict the three accused persons on the basis of his testimony alone, when it is not supported in matarial particulars by other evidence. In the absence of other evidence connecting the three accused with the crime we do not think it safe to convict the three accused for a serious offence under Section 302 read with Section 34, I.P.C.
12. We now switch over to the case of Bhikha accused. The dead body of the Maharaj was found in the field of Bhikha, This fact is proved by Motbirs Manohar Das, P.W. 10 and Kistura, P.W. 11, as also by the S.H.O. Devilal, P.W.12. Their statements, are supported by the site inspection memo Ex. P. 7. His name is found in the first information report Ex. P. 1. The statement of P.W. 6 Amana Ram is corroborated in material particulars by other evidence. A blood stained 'Bandi' has been recovered in the presence of Motbirs, Manohar Das and Kistura, under memo Ex. P.11. This 'Bandi' has been found by the Chemical Examiner and the Serologist to be stained with human blood. No explanation has been furnished by the accused how blood appeared on his 'Bandi' He furnished information under Section 27 of the Evidence Act that he concealed the weapon of the offence underneath Bui bushes in his field. This information was recorded by the police and is marked Ex. P.17. Pursuant to that information recovery of the lathi was made by the police vide Ex. 12. The lathi was found stained with human blood by the Chemical Examiner and the Serologist vide Ex. P.23 and Ex. P.24. The accused also made, though not in a clear and percise manner, an extra judicial confession before Ranjeet Singh P.W. 2, and Nahera Ram P.W. 4, when he came back from the field and entrusted the camel of the Maharaj to Nahera Ram. The most important piece of evidence is his own admission before the committing court. In that statement he has said that Bhakti Ram came to his field with a lathi and aimed it at him. He, however, made in attempt to fend off the impact of the lathi blow, Bhaktiram told him that he was having illicit connection with his siter. This put him into a rage and he gave 4 or 5 lathi blows to him. Thereafter he went inside his 'Dhani' None of the other accused was present on the spot. This statement of the accused Bhikla was taken on the file of the Additional Sessions Judge. Jodhpur. in accordance with the provisions of Section 287 Cr. P.C. The statement of the accused recorded by the Committee Court, under Section 208, 209 and 342 Cr. P.C. must be treated like any other piece of evidence vide Hate Singh Bhagatsingh v. State of Madhya Bharat : AIR1953SC468 .
13. From the above discussion, it is obvious beyond any reasonable doubt, that it was the accused Bhikla who had administered beating to Maharaj Bhakatiram on the date of the occurrence.
14. Now, the question remains under what offence Bhikla should be convicted. The other three accused persons Roopla, Lachmania, and Kishnia are being acquitted under Section 302 read with Section 34 I.P.C. The accused Bhikla, therefore, cannot be con viced under Section 302 read with Section 34, I.P.C. for having committed the the offence conjointly with the other accused, who are being acquitted. That is a legally impossible position. When the 3 accused are being acquitted on the ground that the evidence furnished by the prosecution is not acceptable, the result in law would be that they did not take part in the commission of the said offence. The effect of acquittal of the three accused is that they did not cojointly act with accused No. 1 Bhikla in committing the murder. If they did not act cojointly with the accused Bhikla, Bhikla could not be said to have acted cojointly with them.
15. Reading the statement of the accused which he gave before the committing court, together with other evidence, it can safely be inferred that the accused Bhikla felt extermely annoyed when he was told by the Maharaj that he had illicicit connection with his own sister. He was enraged on account of such provocative language used by the deceased. The accused is young man of about 30 to 32 years of age, and on account of his youth too he was likely to feel enraged because of the incitement or annoyance, In that view of the matter, we are inclined to hold that the accused acted on grave and sudden provocation in inflicting injuries on the person of the deceased with a lathi, the case thus falls within Exception I to Section 300 I.P.C. The fact that the fight took place all of sudden leaves no room for doubt that the accused must have acted at the spur of the moment on account of grave and sudden provocation received by him from the Maharaj. The injuries caused by the accused to the deceased were, as permedical evidence, sufficient in the ordinary course of nature to cause the death and the accused must have known that they would result in his death. The offence would, therefore, be one which would fall under Section 304, Part I : vide Nathu v. State, D.B. Criminal Appeal No. 122 of 1958.
16. In the result, the appeal is partly allowed and the conviction of the accused Bhikla is altered from under Section 302/34 to one under Section 304 Part I, Penal Code, and the sentence of life imprisonment is changed to six years' rigorous imprisonment. The three accused Roopla, Lachmania and Kishania are acquitted of the offence under Section 302 read wish Section 34, Penal Code. These three accused persons should be released forthwith, if they are not required in any other case.