K.D. Sharma, J.
1. This appeal by Tulsi Ram through the Superintendent Central Jail, Jaipur is directed against the judgment of the Additional Sessions Judge, Jhalawar, dated 25th January, 1973 convicting the appellant under Section 302, IPH and sentencing him to undergo rigorous imprisonment for life and to pay of fine of Rs. 500/-, in default of payment of fine to further suffer simple imprisonment for two months.
2. The incident that led to the arrest and prosecution of the appellant may be described in brief as follows: In the evening of 12-9 1972 Tulsi Ram appellant visited the house of Kishna deceased for the purposes of taking him to his house for drinking liquor together. Kishan's wife Mst. Dhanni Bai asked the appellant not to take her husband to his house as she did not like that her husband should take in wine along with the appellant The appellant there upon promised Dhanni Bai that he would send her husband back after a short while. The appellant then went away with the deceased to his house. Later on in the night between 12-9-1972 and 13-9-1972 the appellant was seen by Laxman and Shanker beating the deceased with a short stick and an axe in the court-yard of his house. As a result of beating the deceased fell down in the court-yard. Meanwhile Hiralal brother of the appellant also rushed to the place of occurrence on hearing noise and saw the appellant standing in the court-yard having a short stick in his hand by the side of the deceased who was Wing on the ground. Hiralal asked the appellant why he had beaten Kishna deceased. The appellant resented his intervention and struck a blow on his body with a short stick. After receiving the blow Hiralal ran away from there. The aforesaid evewitnesses also went to their houses after the incident was over. On the next day in the morning Bhanwar Lal, brother of the deceased and other inhabitants of the village found the dead body of the deceased lying on a Chabutara outside the house of the appellant. Bhanwar Lal, brother of the deceased then rushed to the police station Jhalawar along with Bhanwar Lal son of Poorji Bhil and made verbal report to the SH Order, which in Ex. 1 on the record. The SH Order registered a criminal case under Section 302 IPC on the basis of the: report and made usual investigation into the matter He went to the spot and inspected the dead body of Kishna, prepared an inquest report and a site-plan. He seized one short stick and two empty bottles of wine from the place of occurrences The short stick was blood stained which was sealed properly in the presence of motbirs. He arrested the appellant and took his clothes i.e. one Dhoti and 'Baniyan' into his possession, as they were suspected to have plains of blood on them. He arrested the wife of the appellant also vide memo of arrest Ex. P.9 and later on recovered currency notes from the appellant's house at her instance and in consequence of her information recorded under Section 27 of the Evidence Act. He took blood stained earth also into his possession and sent the dead body of Kishna to Jhalawar Hospital for post-mortem examination. Dr. G.D. Sharma conducted an autopsy over the dead body of Kishna on 13-9-1972 and f sund the following injuries:
(1) Lacerated wound 1/2' x 1/4' bone deep on the left frontal eminence with blood clot in it.
(2) Ecchymosis with hoemotama extending from the left perietal region to occipital region including temporal reigon measuring 10'x 4'
(3) Incised wound with blood clot measuring 1'x 1/4' x 1/2' on the front of leg, 4' above ankle.
(4) Punctured wound 1'x 1/2' bone deep on the front of left leg 2' above injury No. 3 with blood clot
(5) Lacerated wound with compund communited fracture of both bones of left leg at the junction of upper 1/4' with lower 3/4' of left leg with blood clots.
(6) Incised wound 2'x 1/2' x 1' on the front of right leg in middle with blood clots
(7) Ecchymosis with swelling and fracture of right femur lower 1/3 measuring 5' x 1 1/2'
(8) Lacerated wound 1'x 1/2'x 1/2' on medial side of right leg 3' below the knee both the legs were smeared with blood and blood was oozing from the wound.
3. On dissection of the body he noticed that there was haemorrhage below the scalp over the vault of skull extending from left frontal region to occipital protuberances on the back with fracture of left frontal, parietal and occipital bones. There was subdural haemorrhage on the whole left side of cerberal hemisphere. The brain was congested. Both the lungs were ischaemic. The enterial tibial artery of left leg was punctured. Liver, spleen and kidney were found ischaemic. All these injuries were ante-mortem in nature and their duration was between 18 and 24 hours prior to the post-mortem examination. In the opinion of the doctor death of Kishna occurred on account of shock caused by haemorrhages as a result of injuries on head and legs of his body. The doctor further opined that the injuries were sufficient in the ordinary course of nature to cause death of the deceased. The SH Order then sent all the articles seized by him in the course of investigation to the Assistant Director, Forensic Science Laboratory GID, Rajasthan, Jaipur who upon analysis, detected blood stains on all of them, except on the currency notes He forwarded the blood stained articles to the Serologist for serological examination also but the report of the Serologist was not placed on the record by the prosecution, during the trial of the case. Mr. D Section Shishodia, Public Prosecutor for the State, no doubt, produced the report before us along with an application for taking additional evidence in the case. The application of the Public Prosecutor was rejected by this Court vide its detailed order dated 3-3-1978, as no case was made out for allowing the prosecution to lead additional evidence in the case at this belated stage.
4. The SHO collected other necessary evidence in the case and eventually aled a challan against the appellant and his wife for the offence of murder in the court of Munsif Magistrate, Jhalawar. The learned Magistrate held an inquiry preparatory to commitment and upon finding prima facie case exclusively triable by the court of sessions, committed the appellant and his wife Mst. Birdhi Bai for trial Section 302 and 302 read with Section 34, IPC respectively. The learned additional Sessions Judge tried the appellant and his wife for the aforesaid offences and found upon evidence that the appellant only was guilty of murder of the deceased. He, therefore, held the appellant guilty for the offence of murder and convicted and sentenced him as stated above.
5. Although the appellant preferred this appeal through the superintendent Central Jail but later on Shri R.S. Purohit appeared on his behalf to argue the appeal.
6. We have carefully perused the record and heard Mr. R.S. Purohit for the appellant and Mr. D.S. Shisodia, Public Prosector for the State. Mr. R.S. Purohit, learned Counsel for the appellant put forward various contentions relating to appreciation of evidence. He brought to ourd notice various contradictions and omissions which, according to him, were found in the prosecution evidence and which themselves were sufficient for entailing total rejection of the prosecution case. We, therefore, propose to deal with them in the first instance along with the argument that have been advanced by the learned Counsel on their basis.
7. To begin with the main the main evidence against the appellant consists of the statements of the three eye-witnesses, namely Laxman Pw. 1 Shanker PW. 2 and Hiralal PW. 4. Mr. Purohit assailed the evidence of these three eye-witnesses, on various grounds and strenuously urged that they have lied on major points. It was further argued that these witnesses did not see the Occurrence and falsely implicated the appellant in the commission of the crime on account of pressure brought to bear upon their minds by the inhabitans of the village who were highly annoyed with the appellant and were evidence of the eye-witnesses is assailed before is that there was paucity of light in the court-yard of the house of the appellant at the time when the crime was committed and so the witnesses were not able to see the occurrence and recognize the appellant. The contention has no force in view of clear definite terms in his examination-in-chief that lantern was burning in the hut of the appellant at the time when the occurrence took place and that its light was falling in the court-yard, also which was sufficient ot enable him to witness in his cross-examination about the presence or absence of light in the court-yard. Consequently the testimony of Shanker PW. 2 remains unshaken appellant was not a stranger to the eye-witnesses who knew him well and lived in the same village in the vicinity of his house prior to the occurrence and who claimed to have seen the occurrence from close quarters. In these circumstances we do not feel persuaded to hold that night was dark and on account of paucity of light, the eye-witnesses were not in a position to see the occurrence and indentify the assailant.
8. Another ground relied upon by the learned Counsel for the appellant in assailing the evidence of the eye-witnesses Laxman PW. 1 and Shanker PW. 2 is that they did not disclose to the SHO at the time of recording the first information report that they had eye-witnessed the occurrence and, therefore, their evidence is highly suspicious and unacceptable.
9. The above contention also is devoid of force. From a bare perusal of the first information report Ex. P.1, it is obvious that Bhanwar Lal, brother of the deceased had gone to the police station for miking the report - along with Bhanwar Lal son of Poorji only. The informant denied in his cross-examination that Sharker and Laxman were with him at the time when he had lodged the report of the occurrence with the SH Order. He, how ever, stated that he had seen them in the market of Jhalawar but did not have any talk with them. It is no doubt true that Laxman and Shanker 'claimed to have been present' at the police station when brother of deceased was making a verbal report of the incident to the SHO. But the mere fact that they did not disclose to the SHO at that time that they had eye-witnessed the occurrence, ii not sufficient to discard their evidence at the, trial especially when it has been found trust-worthy on merits after close scrutiny by us and the trial Judge. There is nothing on the record to show that these two eyewitnesses were examined late by, the police. Shanker PW. 2 stated in his cross examination that at the time when the report was being reduced to writing, he did not disclose to the police that he had eye-witnessed the occurrence because he was not asked by any person to do so but he made a disclosure of the entire facts at the time when he was interrogated by the police in his village. Laxman on the other hand stated in his cross-examination that he had disclosed the, fact of, having seen the occurrence to the police at the time when he had gone-there Any lapse on the part of the SH Order in not recording the statements of these two eye-witnesses soon after, making of the FIR is not a ground in our opinion to discard their testimony which inspires confidence and does not suffer from any infirmity.
10. Another contention raised by the learned Counsel for the appellant is that Hiralal PW. 4, was not aneye-witness as he did not see the appellant beating the deceased and this evidence was highly unworthy of credence.
11. The above contention is not devoid of force. Hiralal no doubt stated in his deposition at the trial that he rushed to the court-yard of the appellant on hearing a noise and saw that the deceased was lying on the ground having a bleeding injury on his head and the appellant was standing in the court-yard it self having a short stick in his hand. He professed to have asked the appellant why he had beaten the deceased. There upon the appellant strucka blow on his body with the short stick. After receiving the below he ran away from there. Hiralal was cross-examined by the learned Counsel for the appellant in the trial court. In his cross-examination he disclosed that out of fear of being ex-communicated by the villagers from his caste, he had given evidence against the brother. He further stated that the villagers thereatened him with dire consequences if he failed to give a statement of their choice the trial court. After stating in clear and definite-terms that he had given evidence against the appellant out of fear, he resiled from his above version in the next breath by stating that the facts disclosed by him in his examination-in-chief were true and there was no fear in his mind at the time of narrating them. No reliance can' be placed upon' the testimony of such a witness like him who has scant regard for truth and easily changes his version' from time to time without slightest reluctance The learned Counselor the appellant further relied upon a discrepancy arising between the two statements of Laxman which he give before' the police and before the trial Judge. The discrepancy counted out by the learned Counsel for the appellant is that in his statement Ex. D I before the police Laxman stated that when he told Bhanwar Lal, brother of the deceased that the appellant was beating the deceased, Bhanwar Lal gave him a reply that the appellant and the deceased daily fought after taking in wine and that in the morning every thing would be ok. In his statement at the trial he resiled from his above statement before the police and stated that the brother of the deceased gave him a reply that he was helpless in rescuing the deceased as he was an old man and the other members of his family had gone to his fields for keeping watch or the crops standing therein. The above discrepancy is not a material one because it does not relate either to the occurrence or to the identity of the assailant. The brother of the deceased, namely, Bhanwar Lal son of Jagarmath has come into witness box and deposed on this point that upon having come to know from Laxman that the deceased was being beaten addicted to liquor daily and picked up quarrel in intoxication and every thing would be (sic) in the morning. It appears that on account of lapse of memory Laxman could not exactly remember what was the reply give to him by the brother of the deceased at the time when he had disclosed to the latter that the appellant was beating the deceased. No other material contradiction of discrepancy has been pointed out to us by the learned consel for the appellant in the two statements Laxman eye-witness. In out opinion the discrepancy pointed out is not sufficient to entail rejection of his entire evidence especially when we have found it worthy of credence on thorough scrutiny. Likewise, Mr. R.S. Purohit learned Counsel for the appellant could not point out any infirmity in the evidence of Shanker eye-witness. No material discrepancy has been brough on the record between his statement before the police and definite terms that they had seen the appellant beating Kishna deceased with a short stick and an exe. Both of them have futher stated that the appellant was moving round the deceased and inflicted blows on his body with the weapons in his hand. Their evidence inspires confidence especially when nothing has been brought on the record show that they bore any ill-will or grudge against the appellant at the time or prior to the occurrence. The trial court rightly placed reliance upon their testimony in holding the appellant responsible for causing injuries to the deceased and we find absolutely no reason to take a different view.
12. Apart from the evidence of the eye-witnesses there is the testimony of Mst. Dhanni Bhi PW. 6 to prove that the deceased was taken by the appellant to his house in the evening some time prior to the occurrence. Mst. Dhanni Bai asked the appellant not to take away her husband, but the latter promised her that he would send her husband back to her house after a short while. The evidence of Dhanni Bai has not been shaken at all in cross-examination by the learned Counsel for the appellant. From her evidence, it is proved that appellant was the person who had taken away the deceased to his house in the evening prior to the occurrence. The prosecution has further led cogent evidence to establish that the dead body of Kishna was found lying on a chabutara outside the house of the appellant having multiple injuries on it. At the time of site inspection the SHO noticed marks of dragging of the body right from the court-yard to the Chabutara and the medical Officer found as many as 8 injuries on the body of the deceased which were sufficient in the ordinary course of nature ot cause his death. The incised wounds found on the dead body could be caused by an axe while the other injuries could be caused by stick. On dissection of the dead body the doctor found that there was sub dural haemorrhage on the whole left side of Crebral Hemisphere. The brain was congested. Both the lungs were ischaemic. The anterior tibial artery of the left leg was puncture. Liver, spieen and kidney were found ischaemic. Hence, it is proved by the prosecution beyond reasonable doubt that deceased died of shock due to haemorrhage caused by the injuries on his head and legs. The medical evidence lends support to the testimony Laxman and Shanker eye-witnesses who categorically stated in their depositions at the trial that the deceased received injuries on his body at the hands of the appellant with an axe and short stick.
13. The appellant's plea at the trial was that Kishna deceased, of his own accord, came to his house with two bottles of country liquor. As the liquor was not good he did not want to take it in but the deceased compelled him to take in wine as a result of which he lost his sense. He regained consciousness at the lime when the police visited his house. In the course of unconsciousness if he had struck blows on the body of the deceased he would deserve leniency. The appellant has led no evidence in support of his above plea. There is nothing on the record to show that at the time of incident he by reason of unsoundness of mind was incapable of knowing the nature of his act or that what he was doing was either wrong or contrary to law. It does not transpire from the prosecution evidence also that the appellant was labouring under such a defect of reason as not to know the nature and quality of the act which he was doing. Voluntary drunkeness is no excuse for killing a person. There is not an iota of evidence on the record that the appellant got into a state of drunkeness without his knowledge or against his will. His plea was, therefore, rightly rejected by the trial court.
14. Mr. R. Section Purohit, learned Counsel for the appellant further contended that the prosecution could not ascribe any motive to the appellant for committing the crime of murder as there was no previous ill-will or bad blood between the appellant and the deceased. According to him the appellant had no intention to cause the death of Kishnia deceased and the trial court committed an error in convicting him under Section 302 IPC.
15. The above contention is devoid of force. It is not incumbent upon the prosecution to prove what particular motive the appellant had in his mind which induced him to kill the deceased. Some times the motive is locked in the heart of the crime-doer. Failure to prove motive cannot justify rejection of the positive evidence of eye-witnesses as to the crime. There is reliable evidence of the Medical Officer that the injuries found on the dead body of the deceased were sufficient in the ordinary course of nature to cause his death. It is established by the evidence of the two eyewitnesses that the appellant was moving round the deceased and was causing injuries to his body with an axe & short stick without any valid excuse till the deceased fell down on the ground. It, therefore, cannot be said that the appellant did not intend to cause such bodily injuiries to the body of the deceased as were sufficient in the ordinary course of nature to cause his death.
16. In this view of the matter, the trial Judge rightly held the appellant responsible for the commission of offence of murder punishable under Section 302, I.P.C.
17. The result of the above discussion is that the appeal filed by the appellant fails and is here by dismissed.