S.N. Deedwania, J.
1. Convict Amra preferred, this appeal against the judgment of the Sessions Judge, Balotra, dated 28th April, 1973, whereby he was convicted and sentenced to life imprisonment & a fine of Rs. 200/-, in default of which, to suffer rigorous imprisonment for two months, under Section 302 IPC By the same judgment, however, accused Deda was acquitted of the offences under Section 302/34, 379 IPC.
2. The prosecution case was as under: In the noon of 5-7-72, deceased Mota was ploughing his field with the help of his nephew Banka. PW 4 Mst. Kohli was clearing the field at a distance of 15 to 20 steps. Appellant Amra was also ploughing his field at a distance of 15 to 20 steps. Deda came there & asked Mota that he should go with him to Amra & compromise the dispute with regard to their fields. When Mota reached near Amra, the latter gave axe blows to the former. Mota was fatally injured and his head was severed from the body. Amra, Mota and Deda were brothers. After the incident, Amra went to PW 5 Bhanwar Singh, Sarpanch of the village, and made an oral confession of the crime. Bhanwarsingh advised appellant Amra to go to the police. On the same night, Devilal, Head Constable Police Out Post, Band came across Amra in the precinct of village Shobhala. The Head Constable took Amra to the place of the incident, where he found 15 to 20 persons and the dead body of Mota. The Head Constable made arrangements to safeguard the deadbody and also kept Amra in his custody. He was informed that Heera and Deda had left for Police Station, Guda-Malani. Deda reached P.S. Guda-Malani on the next day in the morning and reported the matter orally to Himmat Singh (PW 8), S.H.O. of the Police Station at about 10 AM The S.H.O. recorded the First Information Report, registered the case and started the investigation. He reached the scene of occurrence and inspected the site and prepared the Memo (Ex. P. 2) and site plan (Ex. P. 7). He took possession of the dead body. He also recovered the shirt (Ex 4), Adayata (Ex. 5), towel (Ex. 6) and Pagarkhi (Ex. 7) from the dead body. He also seized the blood stained earth and the controlled sample of earth The SHO arrested appellant Amra vide Ex. P. 5 in presence of the witnesses. He also recovered from Amra, an axe (Ex. 1) and a pair of golden-ear-rings (Ex 2) He also seized a covering cloth (Adayata) belonging to Amra vide Ex. P. 4. Blood stained articles were duly sealed and sent to the Chemical Examiner Jaipur. During the investigation, amongst others, the statements of PW 4 Mst. Kohli, PW 7 Banka (eye witnesses) and PW. 6 Bhanwar Singh Sarpanch of the village were recorded. PW 2 Dr. Bhanwarlal preformed the authopsy and prepared the post mortem report Ex,P. 1. After completing the investigation, a challan under Section 302 IPC was presented only against Amra in the court of Munsif Magistrate, Banner. The Munsif Magistrate, after recording the evidence, also took cognizance under Section 302/34 IPC against Deda and committed him and Amra to the court of Sessions Judge, Balotra. The learned Sessions Judge was of the opinion that the eye witnesses could not be believed with regard to Deda and therefore, acquitted him. Regarding Amra, the learned Sessions Judge was of the opinion that both the eye witnesses were reliable and their statements were sufficient to prove beyond doubt offence under Section 302 IPC against him. The learned Sessions Judge was further of the opinion that Amra voluntarily made true oral confessions of the crime to PW 2 Bhanwar Singh, Sarpanch of the village.
3. We have heard the learned Counsel for the appellant & the learned Public Prosecutor for the State and have gone through the record of the case cart fully.
4. It was not disputed that deceased Mota died of fatal injuries. P. W. 2 Doctor Bhanwarlal found the following injuries on the dead body of Mota.
1. An incised wound 10' x 3' x 1 1/2' deep over the left glutial region extending from left hip joint towards posterio lateral aspect of the left thigh.
2. An incised wound 7' x 1/2' x 1' deep over the right side of the scalp extending from the upper border of the neck towards the upper side passing at the 2 1/2' above the upper border on the right ear.
3. An incised wound 7' x 1' x 1' over the face extending from the left cheek towards upper lip with fracture of the left upper joint, with dislocation of the teeth
4. An incised wound 7' x 1/2' x 1/2' deep over the face extending from lobule of the left ear towards the centre of the chin with fracture of the lower jaw and dislocation of all the teeth of left side of lower jaw
5. An incised wound 1' x 1' x 1/2' over the inner part of the right hand thumb
6. A wound 1/2' x 1/10'' over the right lobule of the right ear
7. A wound 1/4' x 1/10' over the left lobule of the left ear
8. One large wound with complete dissection or separation of the neck dividing the skull from the neck and other part of the body at the level of 2nd cervicle vertabrae, posteriorly extending anteriorly along the upper border of the neck towards the surface of the chin above the thyroid cartileage dividing all the blood vessels nerves, muscles, oesophagus treachea of the neck at the level with oozing of the blood from the cut blood vessels. The cervicle vertebreal column was also divided as to level of 2nd cervicle vertebreal with dissection of the spinal cord at the level.
5. The Doctor further opined that the injuries could be caused by a sharp-edged axe and were sufficient to cause death in the ordinary course of nature.
6. It was vehemently argued by the learned Counsel for the appellant, that the learned Sessions Judge was in error in believing the evidence of PW 4 Mst. Kohli and PW 7 Banka. These witnesses deposed falsely against Deda and therefore, they should not be believed against appellant Amra also. We, have considered the argument carefully and find it devoid of any force. It is true that these two witnesses made some improvements over their police statements to implicate Deda but, in our opinion, this fact was Insufficient to destroy their credibility with regard to Amra. Both the witnesses were close relations of appellant Amra and had no motive to depose falsely against him. Their presence at the scene of the occurrence was natural and it could not be said that they could not have witnessed the incident. We have gone through their evidence very carefully but could not find any reason to [disbelieve them. Their statements are natural and both the witnesses stood the test of cross-examination well. Their testimony stood corroborated by various circumstances. Their testimony was available at the earliest opportunity. We have carefully perused the testimony of these two eyewitnesses and we do not find any discrepancy or defect which would justify our rejecting their testimony.
7. It was however, argued by the learned Counsel for the appellant that the incident did not occur in the noon but sometime in the evening. P.W. 5 Bhanwarsingh stated that Amra came to him in the afternoon and confessed the crime, he advised him to go to the police. PW 6 Devilal met Amra in the night at about 10 or 11 PM and therefore, it is positively established that the incident occurred sometime in the evening. The argument has no force PW 5 Bhanwarsingh definitely stated that after the incident Amra came to him in the afternoon. The mere fact that head constable Devisingh met Amra at about 10 or 11 PM could not establish that the incident or the happened in the evening.
8. It was then contended that the eye witness account of the incident did not explain all the injuries found on the dead body of Mota. The argument has little force. No doubt, PW 2 Mst Kohli stated that Amra gave the first blow on the neck of the deceased and then another blow which cut his neck and did not state, how the other injuries were caused to Mota. However, the reason for this is apparent because she stated that then she became unconscious PW 7 Banka deposed that second below by the axe severed the neck of Mota and further stated that, there after, Amra gave a few more blows to Mota This statement, therefore, explains all the injuries caused to Mota.
9. It was then argued by the learned Counsel for the appellant that no foundation was laid as to the dispute with regard to the land. Details regarding the land between the brothers were not brought on record of the case. We could not appreciate the argument because it has no relevance for appreciating the evidence of the eye witnesses. It was urged by the learned Counsel for the appellant that the conduct of Banka was unnatural, as he did not try to rescue Mota. In our opinion, the incident took place suddenly and Banka hardly had any time to intervene.
10. It was then contended that the First Information Report given by Deda was delayed and Heera did not go to the police station. In our opinion some delay in lodging the First Information Report in the case is not very material. It is not known why Heera did not reach the police station but it could hardly affect the prosecution case. Deda is not a witness in the trial but an accused and, therefore, it is difficult to say that the First Information Report was late, in the absence of any explanation from him. The learned Counsel for the appellant has also drawn our attention to the fact that the First Information Report reached the court of the Munsif Magistrate on 10-7-72 However, the Investigating Officer, PW 8 Him mat Singh was not cross-examined on this aspect of the case, and therefore, we are unable to infer any malafides on the part of the investigation in the respect. It may be stated that the First Information Report was nothing but an exculpatory statement of the co-accused and, therefore, inadmissible in evidence. The test provided under Section 30 of the Evidence Act is with regard to a statement of one prisoner proposed to be used in evidence as against another is to see whether it is sufficient by itself to justify conviction of the person making it of the offences for which he is being tried with the other person.
11. We have also gone through the statement of PW 5 Bhanwar Singh very carefully. He stated that Amra came to him in the after noon and told him that he had killed his brother and was going to the police station It was submitted by the learned Counsel for the appellant that the statement of the witnesses was unreliable. He did not apprehend Amra, though he was the Sarpanch of the Panchayat. This argument has no force, because Bhanwarsingh was an important person, being the Sarpanch of the Village Panchayat and therefore, Amra naturally made before him the confession. Under the shock and gravity of his crime. PW 5 Bhanwarsingh had no animus against the appellant or any interest in the prosecution to come forward with a false statement. His evidence was not shaken in the cross-examination and, in our opinion, the statement proves beyond reasonable doubt that Amra made an oral confession to PW 5 that he had killed his brother Mota The evidence of the eye witnesses PW 4 Mst Kohli and PW 7 Banka is, therefore, further corroborated by the extra judicial confession made by the appellant.
12. It is also proved by the statement of P.W. 8 Himmat Singh that a blood stained Adayata and a pair of gold-ear-rings were recovered from appellant Amra By the report of the Chemical Examiner (Ex P 11) and the report of the Serologist (Ex P 12) human blood stains on the Adayata of appellant Amra is proved. This is, therefore, another incriminating circumstance against the appellant. PW 4 Mst. Kohli has further proved the the gold-ear-rings (Murkies) recovered from the possession of appellant Amra belonged to her husband. The two wounds found on the right and left lobules of Mota would indicate that gold-ear-rings were snatched away from his ears. This, in our opinion, was yet another incriminating circumstance against appellant Amra.
13. On consideration of the prosecution evidence, as a whole, we are, therefore, satisfied that the prosecution has proved beyond any shadow of reasonable doubt that appellant Amra caused fatal injuries to Mota with the intention to murder him In any case it is proved beyond reasonable doubt that Amra intentionally caused an injury on the neck of Mota severing his neck from the body. This was an injury which was sufficient to cause death in the ordinary course of nature. The learned Sessions Judge, therefore, rightly found accused Amra guilty of the offence of murder under Section 302 I PC and we could find no reason to take a different view.
14. In the result, the appeal being devoid of any force is dismissed.