S.C. Agarwal, J.
1. This appeal has been fifed by the appellant Jassa Singh under Section 374 of the Code of Criminal Procedure 1973, against the judgment dated 7th April, 1978 passed by the Sessions Judge, Pali in Sessions Case No. 49 of 1977, whereby the appellant has leer; convicted of the offence under Section 325 I.P.C. and has been sentenced to rigorous imprisonment for a period of 4 years and a fine of Rs. 1000/- are in default of payment of fine, it has been directed that the appellant will undergo rigorous imprisonment for a further period of 6 months.
2. In Sessions Case No. 49 of 1977, the appellant was prosecuted on a charge Under Section 302 IPC for having committed the murder of one Smt. Birdi on 13th September, 1975 at about 2 pm. at village Kala Kote. The case of the prosecution is that in village Kalakote, there is a field, 'Bera Navoda' measuring 15 Bighas in Khasra Nos. 327 and 328 and in the said field there is a 'Padua' (hut). The said field originally belonged to Smt. Birdi (deceased) and was first mortgaged by her with the appellant under a registered mortgage deed dated 20th April, 1976 and subsequently it was sold by Smt. Birdi to the appellant for a sum on Rs. 8,000/- under a, registered sale-deed dated 24th May, 1976 A dispute had arisen between Smt. Birdi and the appellant with regard to the payment of the price for the said property and a litigation had also taken place between them. On September 13, 1975, at about 12 O'clock in the day, Smt. Birdi had gene to 'Navoda Bera' for the purpose of looking into the 'Padwa' situated in the said land and while she was in the said field, she was assaulted by the appellant with a lathi, as a result of which she fell down near the chabu ari in the said field. The appellant lifted Smt. Birdi and took her towards the field of Nage Singh and placed her on the side of footpath near the said field. Akhesingh (P.W. 2) who was living with Smt. Birdi and had gone to look after his Til Crop, while returning from his field, was informed by Harisingh (P.W. 1) that the appellant had assaulted Smt. Birdi with lathi and had taken her away and Akhey Singh thereupon went in the direction in which the appellant had gone and met the appellant while he was returning after placing Smt. Birdi by the side of foot path near the field of Nage Singh. When Akhey Singh made inquiries from the appellant as to why he had assaulted Smt. Birdi, the appellant threatened to assault him also. Thereafter, Akhey Singh (P.W. 2) went near Smt. Birdi and found that there was some life left in her and she was lying in the sun. Akhey Singh (PW. 2) lifted and put her under the shade of a tree and soon thereafter she died. Akhey Singh thereupon covered her with a sheet of cloth and went to the village and informed Got Singh (P.W. 5) and thereafter Akhey Singh went to Police Station. Raipur, and lodged the report (Ex. P.1) there on 13th September, 1977, at 5 p.m. After the said report had been lodged Shri Jodhraj (PW. 9), S.H.O. of the said Police Station, came to the scene of occurrence prepared memo (Ex. P.2) as well as site plan (Ex. P.3) & sent the dead body of Smt. Birdi to the Government Hospital at Raipur for post-mortem examination. The appellant was arrested on 14th September, 1977 vide Memo (Ex. P.5). The post-mortem examination was conducted on 14th September, 1977 at 10 A M. by Dr. Vijay Raj and in the report (Ex. P.8) it is stated that the following external injuries were found on the person of the deceased:
1. A lacerated wound on left hand 6' below elbow joint mediallv of 1'x1/4' simple blunt (injury is present over an scar of 2'x2').
2 A bruise with haemotoma on left side of lower part of chest wall over 9th & 10th ribs which is joint posteriorily on abdomen of 4'x 3/4'.
3. A bruise on left side of neck at root 1/2'x1/2'-
3. On post-mortem examination the following internal injuries were found:
1. Walls, ribs and Cartilages - On left side lower part of chest there is a bruise with haemotoma of 4' x 3/4' lower part of chest towards abdomen posteriorily. There is a fracture of 9th and 10th ribs.
2. Abdomonal walls : on posterior wall of abdomen left side there is bruise with haemotoma extending from lower part of chest down wards.
3. Peritoneum : Peritoneum is intact. Peritonial cavity is full of blood.
4. Spleen rupture at lower pole of 1'x1/2'x1/2'.
4. The cause of death according to the post-mortem report is the fracture of 9th and 10th ribs leading to rupture of spleen and haemorrhage. After completing the investigation, a challan was 61nd against the appellant in the court of the Munsif & Judicial Magistrate, First Class, Jetaran on 10th October, 1977 and by order dated 21st November, 1977, the judicial Magistrate, 1st Class, Jetaran committed the appellant to the court of Sessions for trial in respect of offence Under Section 302 IPC.
5. The prosecution in support of its case has placed reliance mainly on the testimony of Harising (PW. 1) who is claimed to be the eve witness of the entire occurrence and on the testimony of Akheysingh (PW. 2), who arrived at the scene soon after the assault and had deposed about the removal of the body of Smt. Birdi by the appellant and who thereafter went to lodge the First Information Report at the police station In addition to above two witnesses, the prosecution has examined Ghisu Singh (PW. 3) and Dudh Singh (PW. 4) who are the attesting witnesses to the memo of Site Inspection (Ex. P.2), Site Plan (Ex. P.3), Memo of seizue of the dead body of Smt. Birdi (Ex. P.4) and Memo of Arrest of the appellant (Ex. P.5) and the Seizure Memo regarding recovery of the Lathi (Ex. P.6) Gor Singh (PW. 5), Hem Singh (PW. 5) and Vijay Singh (PW. 8) were examined to prove that there was a dispure between the appellant and Smt. Birdi with regard to the payment of the balance price for the land sold by her to the appellant but Hem Singh (PW. 6) and Vijay Singh (PW. 8) did not support the prosecution and they were declared hostile. Dr. Vijay Raj (PW. 7), is the Medical Officer Incharge of Government Dispensary, Raipur, who had conducted the past mortem examination of Smt. Birdi and proves the post mortem report (Ex. P.8). Jodhraj (PW. 9) is the S.H.O. of Police Station Raipur, who had conducted the investigation. The Investigation Officer has stated that he had inspected the site and prepared the Memo of Site Inspection (Ex. P3) and the Site plan (Ex. P.3) before examining Hari Singh (PW. 1) who is the sole eye-witness of the occurrence & that even after examining Hari Singh (PW. 1) he did not take Hiri Singh to the site for the ourpose of verification. He states that the Memo of Site Inspection and the site plan were prepared by him on the basis of information given by Akhey Singh (PW. 2).
6. The defence of the appellant is that he has been falsely implicated due to enmity and that there was no dispute between him and Smt. Birdi with regard to the price of the land sold by her to the appellant and that on the other hand on account o the said sale, Akheysingh (PW. 2) and Harisingh (PW. 1) had started bearing a grudge against the appellant and they were saying that either the appellant should be killed or Smt. Birdi should be killed The appellant, in his statement recorded under Section 313 CrPC, has further stated that Akehy Singh (PW. 2) had removed certain things from the field 'Navoda Bera' which had given rise to a dispute between Smt. Birdi & Akhey Singh and Smt. Birdihad also lodged a report with the police against Akhey Sirgh and that Akhey Singh bore enmity against Smt. Birdi for that reason. The appellant, in support of his aforesaid defence, has placed reliance on certain documents (Ex D1 to Ex. D.10) and has also examined his son Khimsing aged 8 years as DW 1.
7. The entire case of the prosecution against the appellant rests on the evidence Harising (PW. 1) who claims to have witnessed the entire occurrence and on the evidence of Akhey singh (PW. 2) who had arrived at the scene soon after the assault and had been informed by Harising (PW. 1) about the same and who claims to have seen the appellant returning after he had placed the body of Smt. Birdi by the side of foot-path near the field of Nagesingh. Before examining the evidence of these two witnesses, it may be nosed that Harisingh (PW. 1) is the cousin brother of Akheysingh (PW. 2). Akheysingh (PW. 2) has stated that Smt Birdi was his aunt and in the First Information Report, he has stated that as Smt. Birdi had no issue, Akhey Siogh was living with her as her adopted son for the past 10 years Akhey Singh has admitted during the course of cross examination, that after the sale of the field by Smt. Birdi in favour of the appellant, the relations between the Smt. Birdi and Akheysingh had got strained This is also supported Dy the complaint 'Ex D 2) which was filed by Smt. Birdi on 11th June, 1976 at Police Station Raiour, where in she has stated that as a result of the sale of the field by her in favour of the appellant, Akheyingh and his brothers have become very angry and were extending threats of killing her and that on 1st June. 1976, Akheysingh and his brother had removed the wooden articles for the working of the field which had been sold by her to the appellant and that on 10th June. 1976, Akheysingh his brothers Rughasingh and Bhaironsingh along with Harisingh and Anandsingh sons of Makhan Singh had come to her hose with the object of looting and assaulting her and started assaulting her and also removed goods worth Rs. 600/- from ber house. Apart from that Harisingh (PW. 1) has admitted that Bhairon Singh, the father of the appellant, had instituted a case against him and other persons in the court of Munsif and Judicial Magistrate, Jetaran and in connection with that case, he had been arrested Harisingh has further admitted that Bhaironsingh had also filed a case under Section 107 Or PC against him Thus it would be clear that Harisingh (PW. 1) and Akheysingh (PW. 2) are related to each other and arc involved as accused in cases launched by the deceased Smt. Birdi as well Bhaironsingh, the father of the appellant. Both these witnesses are thus partisan witnesses and this circumstance will have to be borne in mind white considering the testimony of these witnesses.
8. Harisingh (PW. 1) has deposed in his statement in the Court that on the date of the alleged occurrence at about 2 P.M. he was grazing his cattle on the Magri known as 'Tambolion Ki Dang' which lies towards the west of the field Navoda Bera' and that he saw Smt. Birdi coming to 'Bera Navoda' from Kali Kankar and that at that time, the appellant was in 'Bera Navoda'. He has further stated that Smt. Birdi after arrival, stood near the chabutari in the said field & there was exchange of hot word between her and the appellant and thereafter tin appellant gave a blow with lathi on the neck of Smt. Birdi as a result of which she raised a cry and fell down and after Smt. Birdi had fallen down on the ground, the appellant gave lathi blows on the body of Smt. Birdi. The said witness has further stated that thereafter the appellant lifted Smt. Birdi with both his hands & took her towards Pipli-Wali-Magri, that while the appellant was taking Smt. Birdi towards Pipli-Wali-Magri, Akheysingh arrived and he informed Akheysingh that the appellant had assaulted his mother near the chabutari and was taking her and that thereafter Akheysing ran in the direction in which the appellant had taken Smt. Birdi. The witness has further stated that after reaching near the boundary of the field of Nagesingh, the appellant placed Smt. Birdi there and returned to his Bera and Akheysingh removed Smt. Birdi under the Khejri tree. The said witness has further claimed that he was able to hear the talk between Smt. Birdi and the appellant before the assault and that Smt. Birdi was demanding money from the appellant and the appellant told her to go back or else he would kill her. Harisingh has claimed that the place where he was standing is situate at a height and that from that place he was able to see the whole incident and also hear the talk. The witness has also admitted during the course of cross-examination that at the time when the assault had taken place, the wells of Roopsingh and Ghisusingh, which are situate towards south of the place where he was standing, were being worked but that he did not shout at the time when Smt. Birdi was assaulted even though the voice from the place where he was standing could have been heard at the said wells. The witness has stated that the did not consider it necessary co shout or call them.
9. While taking into consideration the evidence of Harisingh (PW. 1) it has to be noticed that in his statement recorded under Section 161 Cr.P.C. Harisingh had stated that he was grazing his cattle in Pipli Wali Magri which according to the site plan (Ex. P.3) prepared by the Investigating Officer is situate towards the east of field 'Bera Navoda'. When he was confronted with the aforesaid statement (Ex. D.1) recorded under Section 161 Cr. PC, the witness denied having made such a statement but the Investigating Officer Shri jodhraj (PW 9) has stated that Harisingh had made the statement (Ex. D.1) which was recorded by him under Section 161 Cr.P.C. In this context it may also be noticed that in the First Information Report (Ex. P.1) lodged by Akheysingh (PW. 2) it is stated that while he was returning from Kali Kankar atabout 2.00 P.M. and he had reached near the 'Pipli Wall Magri', he had met Hari Singh who was grazing the cattle To the same effect is his statement (Ex. D.4) which was recorded by the Investigating Officer under Section 161 Cr.P.C. With confronted with this statement in the First formation Report (Ex. P.1) and the statement (Ex. D.4) recorded under Section 161 Cr.P.C., AkheySingh (PW. 2) has also denied having made such a statement but Jodhraj (PW. 9), the Investigating Officer, has proved that in fact Akheysingh had made such a statement. The only inference that can be drawn from the aforesaid statements made by Harisingh (PW. 1) and Akheysingh (PW. 2) with regard to the place where Harisingh was grazing the cattle at the time of the alleged incident is that these witnesses wish to depart from the story originally put forward in the First Information Report and their statements recorded under Section 161 Cr.P.C. so as to make it more probable for Harisingh to have witnessed the entire occurrence which may not have been so if they had claimed that Harisingh was grazing the castle at 'Pipli-Wali-Magri' as stated in their previous statements.
10. The statement of Harisingh (PW. 1) had also been recorded before the Magistrate under Section 164 Cr.P.C. In aforesaid statement (Ex. D.3), Harisingh had stated that after Harisingh had informed Akheysingh about the assault of Smt. Birdi, Akheysingh went towards the appellant and at that time Akheysingh went ahead while the appellant along with Smt. Birdi came back to 'Bera Navoda'. The aforesaid statement recorded under Section 161 Cr. PC is contrary to the version of the incident given by Harisingh (PW. I) and Akheysingh (PW. 2) in the court where they have stated that the appellant placed Smt. Birdi on the foot path near the field of Nagesingh and returned alone. When Harisingh (PW. 1) was confronted with that part of the statement before the Magistrate under Section 164 CrPC, he denied to have made such a statement.
11. Another circumstance which has to be borne in mind while considering the testimony of Harisingh (PW. 1) is his conduct at the time of the occurrence and after the occurrence Harisingh has stated that even though persons were present at the wells of Roopsingh and Ghisusingh at the time when the assault had taken place, he did not sh mt to call any one of them nor did he himself intervene to save Smt. Birdi from being assaulted. He has further stated that after the assault, he continued grazing the cattle and that he did not go near the deceased Smt. Birdi although he states that after she had been placed near the Khejri Tree by Akheydngh she had died. He has also stated that he did not inform any body about the incident till he was examined by the Investigating Officer. The Investigating Officer has stated thut he had sent for Harisingh on the evening of 13th September, 1977 but he was not found and that his statement was recorded under Section 161 Cr.P.C. on the next day i.e. 14th September, 1977 at about 10 A.M. The aforesaid conduct of Harisingh PW. 11 at the time of the alleged assault as well as after the assault does not appear to be natural conduct of a person who is closely related to the deceased
12. Even if the version given by Harisingh (PW. 1) in his statement before the court that he was grazing his cattle on the Tambolion Ki Dang & not on the Pipli Wali Magri is assumed to be true, the question which arises is as to whether he was in a position to see the assault and also hear the talk between the appellant and the deceased from that place. An inspection of the site was made by the learned Sessions Judge and in his inspection report dated 11th March, 1978, the learned Judge has noted (hit there was dispute between the parties as to the place where Harisingh was standing at the time of the incident. According to the prosecution the place where Harisingh was standing was at the place marked 'C' in the site plan contained in the. Inpection Report whereas according to the accused, Harisingh was standing at the place marked 'E' in the said site plan. The Sessions fudge has observed that the distance between the place marked 'A', where the chabutra is situated in the field of 'Bera Navoda' and where the occurrence is said to have taken place and the place marked 'C' is 225 yards, whereas the said place marked 'A' is at a distance of 250 yards from the place marked 'E'. This shows that the distance from where Harisingh (PW. 1) claims to have witnessed the occurrence is about 675 to 750 ft. The learned Counsel for the appellant has submitted that it is not possible for a person to identify the faces from such a long distance or hear the voices. In my view the aforesaid submission of the learned Counsel cannot be rejected as being without any substance.
13. Taking into consideration, the circumstances referred to above & the further fact that Harisingh (PW. 1) is not an independent witness, 1 am of the view that it would not be safe to base a conviction on tire uncorroborated testimony of Harisugh (PW. 1).
14. The only corroboration which has been provided to the testimony of Harisingh (PW. 1) is by the evidence of Akheysingh (PW. 2). As observed earlier Akheysingh (PW. 2) is a highly interested witness & his evidence suffers from the same infirmity as that of Harisingh (PW. 1). Moreover, the said witness has claimed that on the date of the incident, Smt. Eirdi was living with him but this statement of Akheysingh is belied by the evidence of Dudh Singh (PW. 4) who has stated that on the date of incident. Smt. Birdi was living with her daughter in village Lavecha. The said statement undermines the whole basis of the testimony of Akheysingh that Smt Birdi has gone to the field 'Bera Navoda' from his house after informing him that she was going to see the condition of 'Padwa' in the field and that thereafter he had himself gone to look after his 'Til crops' to his field. The conduct of AkheySingh (PW. 2) also appears to be unnatural in as much as afier knowing about the death of Smt. Birdi, he neither called Harisingh (PW. 1) to keep a watch over the dead body even though according to hire Harisingh Was grazing his cattle nearby nor did he call any one from neighbouring fields for that purpose. He says that at that time nobody was present in any of the field although Harisingh (PW. 1) has deposed that people were working on the wells of Roopjingh and Ghisu Singh at that time. Taking into consideration, the circumstances referred to above. I am of the view that the testimony of Akhey Singh (PW. 2) does not inspire confidence and it does not lend any support to the testimony of Harisingh (PW. 1).
15. The other evidence adduced by the prosecution relates to the alleged motive for the assault by the appellant on Smt. Birdi, viz. the dispute with regard to the payment of price for the field sold by her to the appellant, in this regard, it may be noticed that in the registered sale-deed (Ex. D.5) it is Stated that the entire Safe consideration had been received by Smt. Birdi at the time of the execution of the sale deed Hemsingh (PW. 6) and Vijay Singh (PW. 8) who are the two attesting witnesses of the said sale-deed dc not support the prosecution case and have stated that the entire money towards the price of the land had been paid by the appellant to Smt. Birdi in their presence. The prosecution has placed reliance on the report (Ex. P.14) which was filed by the S.H.O. P.S. Raipur on 23rd February, 1977, in the court of S.D.M. Jetafan for initiating proceedings under Sections 107 and 116(3) Cr.P.C against the appellant, wherein it is stated that on 1st November, 1976, a report had been submitted fey Smt. Birdi that she had demanded money from the appellant and that the appellant had assaulted her and had threatend to kill her. The learned Counsel for the appellant has submitted that the said report (Ex. P.14) is inadmissible in evidence in as much as it is a mere report prepared by the S.H.O. of P.S. Raipur which, in the absence of the report submitted by Smt. Birdi herslf, can be of no value. Leaving aside the question as to Whether the report (Ex. P.14) is admissible in evidence or not, we cannot lose sight of the fact that a dispute was also going on between Smt. Birdi and 'Akhey Singh and Hari Singh and Smt. Birdi had lodged a complaint (Ex. D 2) against them also. Thus all that can be sail is that Smt. Birdi was having strained relations with the appellant as well as AkheySingh and HariSingh and therefore, it cannot be said that the appellant alone had the motive for committing the said assault.
16. The only other circumstance which has been relied by the prosecution in support of its case is the recovery of the lathi at the instance of the appellant. The learned Sessions Judge has refused to place any reliance on said circumstances on the view that there was nothing to connect the said lathi with the incident in as much no blood stains were found on the said lathi, nor the said lathi had been got identified for Had Singh (PW 1) For the same reason I am also of the view that no importance can be attached to the aforesaid circumstance.
16. Taking into consideration, the facts and circumstances referred to above, I am of the view that it will not be safe to base the conviction on the petitioner on the partision testimony of Hiri Singh (PW. 1) and Akhey Singh (PW. 2). I, therefore, bold that the prosecute on has failed to establish the guilt of the appellant beyond reasonable doubt.
17. The result is that the appeal is allowed and the judgment of the Sessions Judge, Pali, dared 7th April, 1978, in Sessions Case No. 49/1977, convicting the appellant of the offence under Section 325 IPC. is set aside and the appellant is acquitted of the said offence. The appellant is on bail. He need not surrender The bail bonds shall stand cancelled.