M.L. Joshi, J.
1. The Sessions Judge, Udaipur, has convicted Bhagwan Das son of Jagroop Das by caste Kamad resident of Dhol under Section 302 I.P.C., and sentenced him to death. He has, therefore, made this reference for the confirmation of death sentence passed on him. The appellant Bhagwan Das has also filed an appeal against the judgment of conviction and prayed for his acquittal. The murder reference (No. 2 of 1972) and the appeal preferred by the appellant (Criminal Appeal No. 135 of 1972) arise out of the same judgment and are being disposed of together by this judgment.
2. The incident out of which the above mentioned cases have arisen is illeged to have taken place in the night intervening 25th and 26th of April,1971. Relevant facts are that Chun Das and Manna were real brothers. Bheru Das is son of Chun Das and is nephew of Manna Bheru Das was married to Mst. Vardi (D W. 1) who is the sister of accused Bhagwan Das. Mst. Dhulki is brother's widow of Manna and is grand mother of Bheru Das. Accused Bhagwan Das is residint of village Dhol which is at a distarce of 4 miles from Sancheli. Bheru Das and his relations used to reside at Sanchli. Relations between Bheru Das and his wife Mst. Vardi were not cordial, as Mst. Vardi used to run away to her parents house without informing her husband and she also neglected to attend to bouse hold duties. This led to Quarrels not infrequently between Vardi on one hand and Bheru Das, his uncle Manna and grand-mother Mst. Dhulki on the other.
3. The prosecution story is that in between the night of 25th and 26th April, 1971, accused Bhagwan Das came to the house of Mst. Dhulki and knocked the door Manna thereupon opened the door and lit the lamp. At that time Manna & Mst. Chunki, whom we shall refer later, was sleeping on the roof of the house. Manna arranged a bedding for Bhagwan Das and both Manna and Bhagwan Das slept outside the house on the Chabutari (platfrom). Mst Dhulki, however, slept inside the house. The main door of the house opens on the Chabutari.
4. After sometime Mst. Chunki beard cries 'mare-re mare-re' from outside the house. She got up and saw accused Bhagwan Das inflicting knife blows on Manna, The cries also seem to have attracted Mst. Dhulki, who opened the door and came out of the house and a ked as to what had happened. Thereupon accused Bhagwan Das told her that Manna was simply raving under the influence of intoxication. This, however, did not convince Mst Dhulki and she went near Manna to verify the fact for herself. As soon as she come on Chabutari, she was felled down by accused Bhagwan Das, who inflicted knife blows to her also. Thereafter the accused gave a call to Mst. Chunki as to whether she was asleep or awake and whether there was grass available on the roof. Mst. Chunki thereupon told the accused that she was awake and hat there was no bundle of grass on the roof. The accused at once went on the roof and caused stab wounds with a knife on the person of Mst. Chunki also. Mst. Chunki thereupon shouted and that attracted Heerka, whose house is at a distance of about 30 paundas from the house where Mst. Chunki, Manna and Mst. Dhulki were sleeping Heerka inquired as to what had happened. There upon Mst Chunki told that they had been stabbed by the accused and he should call for the villagers Bhagwandas having heard this left Mst. Chunki and rushed towards Heerka. In the mean time Mst Chunki managed to slip out of the house and concealed herself behind the stack of firewood, which was lying at a little distance from the house in question She, however, heard Heerka saying to the accused to spare him and assured him that he would not call villagers, but that Lad little effect on the accused. It is alleged that Mst. Chunki saw the accused inflicting blows on the person of Heerka from the place where she had concealed herself. Mst. Chunki remained behind the stack of firewood till the day break, as she had been frightened. Early in the morning she went towards village and came accross Dhanna Sharkar (P.W. 2), to whom she narrated the whole incident that had taken place in the night. Dhanna Shankar came on the spot and saw Mst. Dhulki and Manna lying dead and Heerka gasping for life. He left for the police station where he lodged first information report which is Ex P/6. The police registered a case under Section 302 and 307, I PC. Having done that, the S.H.O. Jabbar Singh came on the spot for investigation He found Mst. Chunki seriously injured and Manna, Dhulki and Heerka lying dead on the spot. On the 'Tehrir' received from the S.H.O. Jabbar Singh, Dr. Mahendra Singh, Incharge of the Primary Health Centre, Saira, had also accompanied the S.H.O. to the spot. S.H.O. Jabbar Singh prepared the inquest reports (Exs. P/7, P/8 and P/9) of Manna, Mst. Dhulki and Heerka. Mst. Chunki was taken by Dr. Mahendra Singh to the Primary Health Centre Saira, for her examination and rendering medical assistance. In the same afternoon Dr. Mahendra Singh (P.W. 10) performed the postmortem examination on the dead bodies of Manna, Mst. Dhulki and Heerka. He found 8 external injuries on the body of Manna, which are as follows:
1. Incised wound 1/2' x' x' in the left side of the upper lip near the angle of the mouth
2. Incised wound ' x' x' near left side of the angle of the mouth
3. Incised wound 2' x' x' on the lower lip right side from the mid line
4. Incised wound 1' x' x 2' on the right cheek
5. Punctured wound 1' x' x6' in the right side of the chest 3' lateral to the midsternum line just below clavicle
6. Punctured wound 1' x 1' x 7' in the the mid clavicular line 2 ' from the midsternum line
7. Incised wound 3/4' x1/8' x4' on the right side of the chest below the right nipple in the nipple line
8. Punctured wound 1' x' x5' on the right side of the chest posterior axillary line and 10th rib was found fractured.
On opening the body he found the following:
1. The 10th rib was found fractured on the right side.
2. The pleura was found injured and cut and filled with blood clots.
3. Right lung was punctured having a cavity 3' X 1' X' filled with blood clots and right lung was collapsed.
4. The left lung was also found collapsed.
5. Peritonial cavity was filled with blood clots.
6. Stomach was empty.
7. Liver was injured showing 1' x' x1/4' cavity.
In the opinion of the doctor the injuries were ante mortem caused by sharp edged weapon and injuries Nos. 5 and 6 were, according to him, individually sufficient in the ordinary course of nature to cause death.
5. Dr. Mahendra Singh found in all 11 external injuries on the body of Mst. Dhulki, as under:
1. Incised wound 1' x1/3' x1/4' on the medial 1/3' of the clavicle
2. Punctured wound 1' x' x5' on the left breast 1' above and medial to the left nipple
3. Punctured would 1' x' x2' on the left breast 1 1/3' below in the nipple line
4. Punctured wound 1' x' x3' on the left breast 4' below the nipple in the ant. axillary line
5. Incised wound ' x' x1' in the epigastrium
6. Punctured wound 1' x' 6' in the epigastrium 3' above the umbilicus, left to the mid line
7. Incised wound 4' x' x' on the lower th of the upper atm-transverse in shape
8. Incised wound 1 1/3' x4' cross sections, in the upper ' of the left forearm
9. Incised wound 1/3' x ' x' in the left elbow on the outer aspect
10. Incised wound 1' x1/3' x' in the left scapula
11. Incised wound 1' x' x1' in the back in the mid line in the thorasic region.
On opening the body the Doctor found the following:
1. The pleura was injured and punctured.
2. The right lung was found collapsed.
3. The left lung punctured in the upper lobe having a cavity of 3' XI' XI' in dimension filled with blood clots. The left lung was found collapsed.
4 There was a cut on the ant side of the pericardium and poricardial cavity was filled with blood.
5. The heart was healthy and left ventricle was found dilated and right ventricle was empty.
6. The peritoneal cavity was filled with blood and faeces.
7. The stomach was empty.
8. The large intestines were found cut and the faecal matter was coming out.
All the injuries, according to the Doctor, were caused by sharp edged weapon and were ante mortem. In the opinion of the Doctor injury No. 2 was sufficient in the ordinary course of nature to cause death. Injuries Nos. 3, 4, 5 and 6 were collectively sufficient in the ordinary course of nature to cause death.
6. Likewise the Doctor found in all 8 external injuries on the dead body of Heerka which are as follows:
1. Incised wound ' X' X' I cm. above the left eye-brow
2. Incised wound ' x1' x' on the left parietal region
3. Lacerated wound 1' x1/3' x' on the left posterior auricular region
4. Lacerated wound 1' x' x' on the left temporal region
5. Incised wound 1' x1' x' on the occipital region
6. Incised wound 2' x' x' on the front parietal region
7. Lacerated wound 1' x' x' on the right parietal region
8. Incised wound 2 ' x1' x3' in the neck just below the larynx.
On the opening the dead body the Doctor further found the following facts:
1. On opening the sculp, the docter found haemorrhage in the left temporol region, and there was haemorrhage on the durameter and Arochnoid meter.
2. Larynx and trachae were cut.
3. Right and left lungs were found collapsed
4. The heart was normal and left ventricle was found dilated.
5. The stomach was found empty.
All the injuries were ante-mortem and injury No. 8. according to the Doctor was sufficient in the ordinary course of nature to cause death. Mst. Chunki had the following injuries:
1. Cut wound on the left arm 5' x1' x1 on upper 1/3rd posterior lateral incised wound
2. Gut wound lower 1/3rd ant. 1' x' x' incised wound left arm
3. Incised wound 1' x1/3' x' on the lateral aspect of the elbow joint
4. Incised wound size 3' x' x' on the upper th of the forearm
5. Incised wound 2' x' x' on the lower 3/4th of the forearm and 1' x' x
6. Incised wound 2'' x' x ' below th 1 x 1 cm on the left lateral chest wall
7. Incised wound 1' x 1' x' an the left scapula
8. Cut wound 1' x' on the left shoulder joint
9. Cut wound '' x' x' on the lower th of the wrist
10. Incised wound 1' x 1' in the web between right thumb and index finger
11. Lacerated wound ' x' in the lower 1/3rd of the fore-arm on the radial aspect
12. Incised wound ' x below the iliac crest on the left side semicircular
13. Incised wound ' x' x' triangular in shape on the left side of the neck
14. Seven incised scratches on the left breast
15. Incised wound 2' x' x' on the left temporo-parital region, semi circular.
7. Accused Bhagwan Das was arrested at police Outpost Bishna Ex. P/17, At the time of his arrest he was wearing Dhoti and Baniyan, which were found to be stained with blood, The S.H.O. Jabbar Singh (P.W. 11) also found injuries on the person of the accused He, therefore, sent him to the doctor for medical examination. The injury report of the accused is Ex. P/5. As the case being that of murder, the charge of the investigation was taken by Deputy Superintendent of Police Shri Keshan Singh (P.W. 14) on 30th of April, 1971. On that day the accused gave information Ex P/27 to the effect that he had concealed the bush-shirt smeared with blood in the hole (pit) after removing stones inside the 'kot' (wall of stones) of his house situated at village Dhol and that he had put the stones again to cover the hidden article, bush-shirt. He also informed that he had put the knife and the Chaddi (underwear) which he was wearing on the day of incident at the house of Patwari Jodh Singh at village Dhol. This information memo was reduced into writing by the Dy. S.P. Shri Keshan Singh and marked as Ex. P/27. On this information, Dy. S.P. Keshari Singh (P.W. 14) occompanied the accused to his house where the accused took out the bushshirt stained with blood from the place in respect of which he had given information. The bush-shirt is Ex. 9. On the same day at 3 p.m. the accused took Dy. S.P. Shri Keshan Singh to Patwari Jodh Singh's house for the recovery of Chaddi and knife The accused got the Chaddi recovered from the roof of the house of the Patwari and thereafter demanded the key of the room from Patwari Jodh Singh and opened the lock of that room and got the knife smeared with blood recovered from the shelf of the room. The knife is Ex 1 and the Chaddi is Ex. 10. The memo Ex. P/13 relates to the recovery of the Chaddi and knife and was prepared by Dy S.P. Keshri Singh (P.W. 14). All these articles, viz; the Dhoti, the Baniyan, the bush-shirt, the Chaddi and the knife, were sent for chemical examination and for Serologist's report. The report of the Chemical Examiner is Ex.P/28 & that of Serologist is Ex P/29. According to the reports of the Chemical Examiner and the aforesaid articles were found stained with human blood.
8. After investigation the police put up a challan under Section 302 and 307, I.P.C., in the Court of Additional Munsif Magistrate No.2, Udaipur. who commited the accused to stand his trial for offences under Section 302 and 307, I.P.C., in the Court of Sessions Judge, Udaipur. The accused denied the guilt and claimed to be tried.
9. The prosecution in all examined 15 witnesses, out of whom P.W. 1 Mst. Chunki is alleged to an be eye witness of the incident. The prosecution also relied upon the recovery of blood stained bush-shirt, knife and Chaddi, beside other circumstances, which shall be noticed later. The accused in his statement under Section 342, Cr.P.C. denied his presence on the spot and pleaded alibi and complicity in the crime. He produced two witnesses in his defence.
10. The learned Sessions Judge relying upon the testimony of Mst. Chunki and circumstantial evidence recorded his finding as under:
Thus we have the direct evidence of Mst. Chunki against the accused Bhagwan Das supported by the circumstances that Bhagwan Das's Bush shirt, Dhoti and and Baniyan were found stained with blood Dhoti and Baniyan were recovered from his own person and the Bush-shirt at his instance and in pursuance of his information. There were injuries also on the person of Bhagwan Das which were received almost at the same time, when the deceased Mst. Dhulki Manna and Hearka and the injured Mst. Chunki received the injuries. Then there is also the recovery of the knife stained with blood in pursuance of the information given by the accused and at his instance. Along with this we also find that the accused has motive to kill Mst. Dhulki and Manna. All these pieces of evidence taken together leave no room for doubt that it was the accused Bhagwan Das who inflicted injuries on all these persons and caused the deaths of 3 of them.
Consequently the learned Sessions Judge held the accused guilty under Section 302, I.P.C. for attempting to murder Mst. Chunki and convicted him under that section also, but did not pass a separate sentence under Section 307, I.P.C. It is in these circumstances that the murder reference and criminal appeal have come before us.
11. Mr. M.M. Singhvi, learned amicus curiae, vehemently urged that the prosection evidence on the record is wholly insufficient to bring home the guilt to the accused and the accused deserves to be acquitted. We, therefore, propose to examine the prosecution evidence.
12. The evidence against the accused consists of direct testimony of Mst. Chunki and the recovery of blood stained bush-shirt and knife, Baniyan and Dhoti and also the circumstance of his being last seen with the victim Manna on the night of the incident. We first of ail take up the direct testimony of Mst. Chunki. There can be little room for entertaining doubt as to her presence on the spot at the time of the occurrence. The injuries on her body put an impressive seal of reliability on her presence on the spot at the relevant time. Mst Chunki has stated that she used to graze the village cattle and earned bread from the villagers in lieu of her services of grazing that cattle. She has said that she used to sleep at the house of Mst. Dhulki for the last 1 year prior to the date of incident and that she was also sleeping on the fateful night at the house of Mst. Dhulki According to her in the night intervening 25th and 26th April, 1971, Bhagwan Das came to the house of Mat Dhulki and knocked at the door. Manna opened the door and therefore lit a lamp and arranged for the bedding for Bhagwan Das. Manna and Bhagwan Das slept near each other on the Chabutari while Mst. Dhulki slept inside the house and she (Mst Chunki) slept on the roof of the house. She adds that some time thereafter she heard the cries of 'Mare-re Mare-re' which aroused her from sleep and she saw accused Bhagwan Das inflicting knife blows on Manna. According to her Mst. Dhulki also came out of the house and asked as to what the matter was. Thereupon accused Bhagwan Das replied that Manna was crying under the influence of intoxication. Mst Dhulki came out of the house to verify this fact for hereself. As soon as she had come out she was felled down by knife injuries. Bhagwan Das thereafter went inside the house and inquired of Mst. Chunki whether she was awake or asleep Receiving the answer from Mst. Chunki, Bhagwan Das went on the roof, caught hold of her tuft and began to stab her with the knife. This led Mst. Chunki to shout that she was being stabbed and that attracted Heerka, and whom she asked to call the villagers. The accused thereupon rushed towards Heerka and stabbed him with the knife Mst. Chunki has further deposed that while Bhagwan Das chased Heerka she slipped away from the house and concealed herself behind the stack of firewood, which was lying at some distance from the house in question and from there she saw the accused injuring Heerka by knife. Mst. Chunki is of course the solitary eye witness, but at the same time her presence on the spot is very well established from her statement and also from the injuries which she had received on the spot. She his no animosity against the accused and it is difficult to understand as to why she would falsely ilmplicate the accused Bhagwan Das. Her testimony has been however assailed firstly on the ground that she was an interested witness as she was given shelter by Mst. Dhulki. The learned Sessions Judge has considered this aspect of the case and we agree with him that the interestedness is not of such a nature which would induce her to falsely implicate the accused-appellant and spare the real culprit. She herself was the victim and it does not stand to reason that she would spare the real culprit and implicate an innocent person.
13. It was contended that the story told by Mst. Chunki is not credible, as it was not possible for Mst. Chunki to have seen the fact of actual stabbing by the accused in the pitch dark night. It is to be remembered that the accused had come in the night and knocked at the door a lamp was lit and thereafter he was provided with a bedding and Manna and the accused then went to sleep on the Chabutari. Mst. Chunki was also in the house and it was not difficult for her to identify Bhagwan Das with the and of the light shed by the lamp. Moreover, Bhagwan Das did not remain silent, but he had also spoken words when he had come and thereafter he had also spoken to Mst. Dhulki that Manna was crying under the influence of intoxication. Further more he had even given a call to Mst. Chunki before he proceeded to the roof of the house for stabbing Mst. Chunki. Mst. Chunki had been stabbed from very close quarters and looking to the totality of the facts mentioned above, it was not at all difficult for Mst. Chunki to have identified the accused when he was causing injuries to Manna, Mst. Dhulki and herself.
14. The learned amicus curiae strongly assailed the testimony of Mst. Chunki on the ground that Mst. Chunki had not stated in her statement under Section 164, Cr.P.C., the fact of her actually witnessing the stabbing by the accused on the persons of Manna and Mst. Dhulki We have perused her statement under Section 164, Cr.P.C. Having perused it we are unable to agree with the contention of the learned amicus curiae. Mst. Chunki was examined under section was 164. Cr.P.C. on 29-4-1971 and the statement is Ex. D/2. The tenor of the statement does not exclude the possibility of her witnessing the fact of stabbing Manna and Mst. Dhulki by the accused. Even in that statement she had deposed that the cries 'mar-re-mare-re' were raised by Manna and on hearing the cries Mst. Dhu ki rushed out of the house and asked as to what had happened and thereafter Mst. Dhulki cried 'mare-re mare-re'. Thus her statement does not exclude the possibility of her witnessing the actual stabbing of Mst. Dhulki and Minna by the accused. It my also be recalled that Mst. Chunki had narrated the incident to Dhanna Shankar (P.W.2) the next morning and had told him that the accused had stabbed Minna and Mst. Dhulki. It my be that Mst. Chunki had not stated in so many words in her statement under Section 164. Cr.P. C, that she saw the accused-appellant stabbing Mst. Dhulki and Manna, but that will, in our opinion, not detract from the value of her statement at the trial, which cannot be said to be in any way inconsistent with the statement under Section 164, Cr.P.C.
15. Another point of attack, which was made by the learned amicus curiae was that Mst. Chunki had made a false statement as to the witnessing of stabbing of Heerka by the accused. It was contended that the witness could not have actually seen the stabbing from behind the stack of fire wood, as claimed by her. This may be true and to that extent it appears that Mst. Chunki has not made correct statement about this fact. We do not think, that Mst. Chunki could have seen the accused stabbing Heerka from the place were she was hiding. It was further contended that she had contradicted her previous statement given in the committing court. In the committing court. Mst. Chunki had alleged that she could not identify the knife in the dark night, but she has stated at the trial that she had identified the knife. The second contradiction which was pointed out that in the committing court she had admitted that she was provided with food, Sari and a Lugra by the police, but at the trial she had gone back upon her statement and denied these facts. It is true that in the committing court Mst. Chunki had admitted that she was provided with Sari, Lugra and food by the police and that the policehad further assured her maintenance in the future at the cost of the State She had also stated that she was asked to state as desired by the police. She has, however, denied these facts at the trial. To that extent she had gone back upon her statement on oath made in the committing court which to some extent impair her veracity. We may, however, observe that on that account alone she cannot be branded as a wholly unreliable witness so as to discard her testimony altogether. We will scrutinise her testimony with caution and seek independent corroboration before placing reliance upon her evidence. Her testimony finds corroboration in her former statement made to Dhanna Shankar at the earliest opportunity after she had witnessed the incident. It may be pointed out that Mst. Chunki being frightened, had concealed herself behind the heap of fire-wood and moved therefrom after the day break and went towards the village where she came accross Dhanna Shankar (P.W.2). to whom she narrated the whole incident. Dhanna Shankar had immediately lodged F.I.R. Ex. P/6 as per information supplied by Mst. Chunki (P.W.I). He has proved the former statement of Mst. Chunki made to him in his statement as P.W.2. Thus the testimony of Mst. Chunki gets due corroboration from her former statement which is admissible under Section 157 of the Evidence Act. The earliest version given by. Dhanna Shankar in the FIR Ex. P/6 also lends corroboration to the testimony of Mst. Chunki to the extent that she had seen the accused stabbing Manny and Mst Chunki.
16. The direct testimony of Mst. Chunki further finds corroboration from the circumstantial evidence on the record.
17. The first link in the circumstantial evidence is that the accused had come in the night and slept by the side of Manna on the Chabutari. He was last seen by Mst. Chunki with deceased Manna. To this extent there is no denying the fact that the statement of Mst. Chunki is quite uniform and there is no reason to disbelieve her on that score. Another link in the chain of circumstantial evidence is that the accused was not found on the spot after the incident. He has also fa led to explain as to how murder of Manna and Mst. Dhulki had taken place in the house in the night when he was sleeping by the side of Manna. The accused has denied his presence on the spot, altogether and has tried to evolve the plea of alibi from the testimony of her sister Mst. Vardi (D.W. 1) and P.W.3 Jodh Singh, Patwari. He, however, did not raise the plea of alibi in his statement under Section 342,Cr.P.C. We have exemined the testimony of Mst. Vardi (D W. 1) and Jodh Singh (P.W. 3) on the point of' alibi and having perused the same, we are convinced that these witnesses out of interestedness have deposed to oblige the accused. The plea of alibi, in our i opinion, is clearly an after thought and is not sustainable on the facts and in the circumstances of the case. The accused's denial of his presence on the spot also raises an adverse inference against his innocence. The circumstances of blood stained Dhoti and Baniyan have not very much weighed with the learned Sessions Judge, as they could be explicable on the basis of the injuries received by the accused on his palm. But the injuries on the palm are very significant circumstance, which goes against the accused. Let us notice the exact injuries on the body of the accused as deposed by Dr. Mahendra Singh (P.W. 10) They are as under:
1. Out wound 1' 1/10 m.m. on the left hypothenar region transverse on the left palm
2. Scratch about 1/3' x 1/8' on the the left thumb
3. Scratch 1/3' x 1/8 x on the dorsal aspect of the left palm.
4. Scrach 1/3 rd x 1/3' on the little finger
5. Scratch on the right forearm middle ' x ' x
6. Lacerated wound ' x' x' on the middle finger, right hand
7. Scratch on the forearm 1' above the wrist, of the right hand
The accused stated that he received the above injuries while doing the work of a mason. No time and date when the injuries were received have been given out by him nor there is any evidence to establish this version of the accused.
18. The duration of injuries deposed to by the Doctor coincides with the time of the incident. According to Dr. Mahendra Singh (P.W. 10) such injuries could not be caused in the manner as alleged by the accused. Looking to the nature of injuries, the explanation put forth by the accused inspires no conviction. On the other hand the injuries are tell-tale and are compatible with the complicity of the accused with the crime. The small cut wound No, 1 or wound No. 6 could not have resulted in substantial bleeding either.
19. The next link in the chain of circumstances is the recovery of blood stained bushshirt from the possession of the accused in pursuance of the information given by the accused. The accused Bhagwan Das gave information to Kesari Singh (P.W. 14), Dy. S.P., while in custody that he could get the bush-shirt recovered from the hole under the wall of his house where he had concealed it by covering stone slabs thereon. Kesari Singh had testified to this information and memo in that behalf which is Ex. P/27. The bush-shirt was recovered at the instance of the accused in the presence of the 'motbirs' from the place which was given out by the accused. Dhanna Shanksr (P.W. 2), 'motbir' and Keshan Singh, Dy S.P. (P.W. 14), have proved this recovery. This bush-shirt was put for id notification before Rameshwardayal, S.D.M., Udaipur, on 3-5-71. Jodh Singh (P.W. 3) and Sukhlal (P.W. 12) have indentified it as belonging to the accused. Although the accused has denied the ownership of the bush shirt, but there is no reason to disbelieve Jodh Singh (P.W. 3) and Sukh Lal (P.W. 12) on this fact. The bush shirt was found to be stained with human blood vide Chemical Examiner's report Ex. P/28 read with the Serologist's report Ex P/29 As pointed out by the learned Sessions Judge, the blood stains on the bush-shirt were several in number and few scratches and trivial cut on the palm could not stain the bush shirt so extensively. The accused has failed to furnish any explanation in this regard. He has even denied the ownership of the bush-shirt. It is established that bush-shirt Ex 9 belonging to the accused & that it was extensively stained with human blood and it was discovered on the information furnished by the accused and it is, therefore, a clear and convincing link between the accused and the crime.
20. Another important incriminating circumstance is the recovery of the knife at his instance. After the bush-shirt was recovered the accused in pursuance of information recorded in Ex. P/27 took P.W. 14 Kesari Singh, Dy. S.P., to Jodh Singh's house and asked Jodh Singh to open the lock of the room. When the room was opened the accused brought out a knife which was in the stone built shelf and handed it over to Kesari Singh. The recovery memo is Ex P/13 and is duly proved by Dhanna Shankar (P.W. 2), Jodh Singh (P.W. 3) and Kesari Singh (P.W. 14). Jodh Singh, however, appears to evince interest in the accused and is out to help him, which fact is obvious from the perusal of his statement itself. He has stated that one Shersingh constable had taken that knife from him on 22.4-71 and brought it back on 27-4-71. This appears to be false. Nowhere, he had made a mention of this important fact except for the first time in his statement in the Court. The knife Ex. 9 was also sent for Chemical Examination & it was found stained with humen blood vide Ex. P/28 and Ex P/29. It was, however, contended that the knife was not recovered from the possession of the accused, but from the room of Patwari Jodh Singh. It is evident from the testimony of Jodh Singh that the accused used to work at his place and attend his errands He had access to the room. Jodh Singh deposed that the knife belonged to him. Jodh Singh, as already pointed out, appears to have a soft corner for the accused appellant, as he has evolved the false version that one Sher Singh constable took the knife from him and 22nd of April, 1971. This version is not at all believable and is an after thought. The accused had special knowledge, where the knife was kept and it was he, who gave information while in custody as to where the blood stained knife was kept and it was in pursuance of that information that the knife was recovered from the room of Jodh Singh Patwari. Jodh Singh (P.W.3) has stated that accused had come to his house in the night of 25th April, 1971, and had it a lamp in the room where from the knife was recovered. He also stated that the accused had come in the morning at about 7 A M. on 26th April, 1971, and remained in the house while he had gone to fetch water. The accused had reasonable opportunity of access to the room. The seizure of knife and bush-shirt with human blood on them without any explanation for such blood is a valuable piece of evidence which taken together with other circumstances, lends assurance to the trust worthiness of the evidence of Mst. Chunki against the accused. We, therefore, feel no hesitation in relying upon the testimony of Mst. Chunki, which stands corroborated by independent evidence on the record.
21. The learned Sessions Judge has relied upon the motive as one of the incriminating circumstance against the accused While dealing with the question of motive, the learned Sessions Judge has mainly emphasised on the bad relations between Mst. Vardi on the one hand and her husband and his relations on the other. He has further observed that prior to the date of incident Mst. Vardi had gone to her father's house and had not returned to her husband's house. Be that as it may, it cannot be said that there was immediate or proximate motive for the commission of the crime on the night of the incident. We, therefore, do not attach much importance to the motive of the accused, as relied upon by the learned Sessions Judge At the same time we may observe that even in the absence of proof of motive, the case against the accused-appellant is proved beyond any manner of doubt on the evidence of Mst. Chunki, duly corroborated by independent circumstances, mentioned above, and, therefore, hold that it was the accused, who had caused the murder of Manna, Mst. Chulki and Heerka.
22. Attempt was made on behalf of the defence to suggest that it was Heerka, who had killed Manna and Mst. Dhulki and that the accused has been falsely implicated. The argument of the learned amicus curiae is that Heerka was having sexual intercourse with Mst. Chunki against her will which made Mst. Chunki to raise a cry. Mst. Dhulki having heard the cry was awakened, whereupon Heerka inflicted injuries on her. On the cry raised by Mst. Dhulki, Manna was also attracted on the scene and Heerka inflicted injuries to Manna also who killed Heerka. We have examined this argument very carefully, but it is not tenable in the facts and circumstances of the case. As to the suggestion that Heerka was having forcible sexual intercourse with Mst. Chunki, it may be stated that there is not an iota of evidence to sustain such suggestion From the evidence of Jabbar Singh (P.W. 11) it is clear that the dead body of Heerka was lying in the Chowk out side his house shown at No, 2 in the site plan Ex P/II. This is quite some distance from the house where Mst. Dhulki and Manna lay. It is extremely unlikely that Manna (55) an old man could inflict so many injuries on Heerka (25) and yet Heerka with a number of wounds on his head and body could run to his house. No blood marks have been noted in between Manna's house and Heerka's house. The suggestion thus made to Mst. Chunki is without foundation, improbable and we reject it.
23. An attempt was made to raise a doubt in the case of the prosecution with reference to the lacerated wounds on the person of Mist. Chunki and Heerka. The learned amicus curiae suggested that the existence of two laceracted wounds on the person of Heerka and one lacerated wound on the person of Mst. Chunki, at least, raised a doubt that there were more than one assailants one of whom had a blunt weapon otherwise there could be no valid explanation for the existence of the lacerated wounds. It was submitted that Mst. Chunki had stated that the accused only used the knife. The lacerated wounds, therefore, should have been caused by some other assailant and that atleast makes the prosecution case doubtful, and, therefore, the benefit of doubt should be given to the accused. We may observe that the benefit of doubt to which the accused is entitled should be reasonable--the doubt which rational thinking men will reasonably, honestly entertain and 'not the doubt of a vacilating mind that has not moral courage to decide, but shelters itself in a vain and idle scepticism.' The principle of benefit of doubt does not mean that the evidence must be so strong as to exclude, even a remote possibility that the accused could not nave committed the offence. If such a view is taken, it will give room for fanciful conjuctures or untenable doubts and will result in deflecting the course of justice if not frustrating it altogether. Dr. Mahendra Singh (P.W. 10) has stated that the lacerated wounds could be caused by blunt object. Although we are not inclined to accept this suggestion of the doctor, but mere existence of the lacerated wounds does not necessarily lead to the conclusion that they were caused by blunt object only. Looking to the categorical testimony of Mst. Chunki, to us it appears, the doctor might have mistaken incised wounds as lacerated wounds. We may refer here to Medical Jurisprudence by Jhala and Raju (3rd Edition 1969) at page 167 where the learned authors, while discussing the topic on the lacerated wounds, have observed as follows:
Occasionally draging the person caught in some way also causes lacerated wounds when relatively blunt weapons or crushing force accompanies the tearing force, the edge also gets contused. Some authors go to the extent of stating that a lacerated wound is always a contused lacerated wound. But this is not correct. Process of pinning or fixing and tearing do not require contusing or crushing force necessarily to bring about a tear or laceration. It is the angularity, which is very necessary for pinning that governs laceration, if cutting force is not steadily applied, even a knife is capable of producing lacerated wounds. This occurs when there is shaking of hand, grasping the knife as in struggle or if the body moves as during struggle or attempted escape. In these cases the knife and skin tears instead of hnife moving and skin being steady.
Note:-Italcs is ours.
In the circumstances the mere existence of lacerated wounds, in our opinion, does not raise any rational doubt in our mind.
24. Lastly it was contended that the subsequent conduct of the accused negatives his criminality. It was urged that in the morning of 26th April, 1971, the accused had gone to the house of Jodh Singh and prepared tea for him. This conduct was that of a normal man and had the accused committed the crime he would not have made himself readily available to the police. In fact human behaviour is seldom uniform and is often unpredictable because what motivates him is difficult to postulate. This conduct, therefore cannot be taken to be any guide to establish the innocence of the accused and even to cause doubt in favour the accused.
25. The result of our discussions is that the case against the accused has been fully established from the evidence of Mst. Chunki & corroborated by circumstantial evidence discussed above and, we, therefore, hold the appellant guilty of murders of Manna, Mst. Dhulki and Heerka as well as for attempting to murder Mst. Chunki.
26. Finally it was urged that assuming that the court was inclined to act upon the testimony of Mst. Chunki and the circumstantial evidence on record a conviction for murder, the court should not impose the extreme penalty of law looking to young age of the accused. We cannot accede to this line of argument. The first question that has to be considered in a case like this is, whether the accused has been proved, to the satisfaction of the Court to have committed the crime. If the court is convinced of the truth of this prosecution story, conviction has to follow. The Court thereafter has of look whether there are any extenuating circumstances, which can be said to mitigate the enormity of the crime. In this case there are no such mitigating circumstances which can be legitimately urged in support of the view that the lesser penalty under Section 302, IPC, should meet the ends of justice. The mere fact that the accused is of 25 years, cannot be taken to be a mitigating circumstance. The accused has committed three could blooded murders of Manna, Mst. Dhulki and Heerka in a determined manner and in the circumstances we see no justification in awarding the lesser penalty provided by law.
27. We, therefore, dismiss the appeal preferred by the accused and accept the reference made against him and confirm the sentence of death awarded to him.