S.S. Byas, J.
1. Since these two appeals one by accused Surja Ram and Bhanwru Ram and the other by the State arise out of one and the same judgment of the learned Sessions Judge, Merta dated August 21, 1979, they were heard together and are disposed of by a common judgment. The Sessions Judge convicted accused Surja Ram and Bhanwru Ram under Section 302/34 IPC and sentenced each of them to imprisonment for life and acquitted accused Mangla Ram of the aforesaid offence. Accused Surja Ram and Bhanwru Ram have come up in appeal to challenge their conviction and sentence while the State has come up in appeal against the acquittal of accused Mangla Ram.
2. Briefly stated, the case set-up by the prosecution is as follows. Kishana Ram Jat the deceased-victim was a resident of Khotharon Ki Dhani Police Station, Merta Road (district Nagaur). The three accused Surjaram, Bhanwruram and Mangla Rim are resident of Gotan. At about 7.00 P.M. on January 7, 1978, Kishana Ram Jat left his Dhani to go to Gotan to deliver milk there at the Railway Station Stall. He was on a bicycle and had a drum of milk with him. When he reached the curve of the road, the three accused named above blocked his way and made an assault on him. Kishna Ram left the bicycle and took to heels to escape. The culprits ran after him and caught him, Accused Mangla Ram had a knife while the two others Surja Ram and Bhanwru Ram had lathies. They made an assault on on him and struck blows to him by their respective weapons. Kishna Ram fell dowrt. The beating resulted in multiple injuries. There was profuse bleeding from his wounds and the clothes be was wearing got drenched with the blood of his wounds. P307 and 92 IPC. The investigation was taken up by the Station House Officer Shauansingh (PW. 15). Kishnaram was then conscious. The Investigating Officer recorded his statement Ex. P.20 in which he stated that he was assaulted and belaboured by the three accused Surajaram, Bhanwruram and Mangla Ram Kishnaram was immediately admitted in Government Hospital, Merta City for treatment. But he did not survive and breathed his last at about 3.15 A M. on January, 8, 1978. The police added Section 302 IPC, during investigation. The autopsy of the victim's deadbody was conducted at about 8 00 A.M. on January 8, 1978 by Dr. Tulsaram (PW 12) the then Medical Officer Incharge, Government Hospital, Merta City. The doctor found the following injuries on the victim's deadbody:
(1) Reddish bruise with swelling on dorsum of right hand measuring 3-J/2' x 2-1/2 the underline 3rd and 4th metacarpeal bones
(2) Reddish bruise 3' x 2' on postero-medial aspect of right forearm on middle part. There was fracture of underlined ulna bone.
(3) Reddish bruise on the lateral aspect of right arm on middle part 3-1/2' x 2'.
(4) Reddish bruise 4' x 2-1/2' on the lateral aspect of left arm on middle part.
(5) Incised wound 1-1/2' x 1/3' bone deep on the lower and lateral part of left leg.
(6) Incised wound 1/2' x 1/4' muscle deep on the front and upper part of left leg.
(7) Incised wound 1-1/4' x'/3 'x bone deep in front and middle part of left leg.
(8) Incised wound 1/4' x 1/3' x 1 1/4' on the antero-medial aspect of left leg at the junction of middle and lower one third part,
(9) Incised wound 1/4' x 1/3' x bone deep on the front and lower part of left leg.
(10) Abraded area of skin on front of both knees each about 1/4'x 1/2'.
(11) Incised wound 1' x 1/3' x muscle deep on the frong and middle part of right leg.
(12) Lacerated wound 2-1/2' x 1' x muscle deep on the antero-medial aspect of right on lower part.
(13) Incised wound J/4' x 1/3' on the front and lower part of right leg.
(14) Reddish bruise 3-1/2' x 2' on the lateral and lower part of right leg '(underying febula bone was fractured.)
(15) Reddish bruise 4' x 2' on the lateral and lower part of left leg. (underlying left febula bone was fractured).
16. Two reddish cylinderical bruises each 3-1/2' % 2' and about 2' apart on the right scapular region.
17. Three cylinderical bruises scattered on the left scapular and intra scapular region of back-intermingling each other over 7-1/2 x 5-1/2' area.
18. Multiple bruises inter-mingling each other on the right buttock over 9' x 6' area of skin.
19. Multiple bruises en the left buttock bruised area measured 7-J/2'x 6.'
20. Two cylinderical bruises on the upper and posterior part of right high each about 3-1/2' x 2' and 2 1/2' apart from each other.
21. Reddish bruise with swelling 2' x 1 1/2' on the lower part of the left occipito-mastoid region of head behind the left area.
(1) There was fracture of right third and fourth metacarpeal bones at middle part of shafts of these bones under injury No. 1.
(2) There was fracture of middle part of shaft of right ulna bone under external injury No. 2.
(3) Fracture of right febula bone at its lower one third part under external injury No. 14 with huge hemotoma around it.
(4) fracture of left fibula bone at its lower one third part under external injury No. 15.
(5) the cout section of bruise described under extennal injury No. 21 showed affused blood in the muscle tissues with surrounding echymost. The underneath convering the brain were congested. There was effusion of blood on the under-neath the left half of occipital bone was congested. There were multiple patchy haemorigic spots on the surface of the brain.
Judge accepted these two sets of evidence against the accused Surjaram and Bhanwrurarc, and convicted them thereon.
7. In assailing the conviction, it was vehemently contended by the learned Counsel that both these sets of evidence have been wrongly relied upon by the Court below in convicting the appellants. It was argued that PW 1 Poonaram and PW. 3 shiv Karan are not the witnesses of truth. Their names have not been mentioned in the earlier vers on Ex. P.8 recorded at Police Out Post, Golan. In fact they had not seen the occurrence and were falsely introduced as eye witnesses. It was further argued that the dying declarations were falsely manufactured by the prosecution witnesses. No mention of the oral dying declaration was made in Ex. P.8 and Ex. P.9 which were recorded in the Rojnamchas of Police Out Poot, Gotan though the oral dying declarations were alleged to have been made before these entries were recorded. It was also argued that the written dying declaration Ex. P.20 recorded by the Investigating Officer Shaitansingh is not free from suspicion No in dependent witness was kept present when Ex. P.20 was recorded and no convincing reasons were advanced, for not keeping any independent witnesses present at that time. It was also argued that the First Information Report Ex. P.19 was received in the Court on January 10, 1976 though it was recorded at about 10.00 AM on January 7, 1978. No reasons were forth-coming to explain this delay. This delay is fatal to the prosecution to render the entire case highly suspicious Mr. Singhvi further contended that the learned Sessions Judge disbelieved the eye witnesses and the dying declarations as regards accused Mangla Ram. In view of these circumstances, the same evidence was wrongly taken as reliable and dependable as against accused Surjaram and Bhanwruram.
8. In reply, the learned Public Prosecutor supported the findings of the Court below and submitted that the evidence was properly appreciated and evaluated as against the convicted accused-persons. We have taken the respective submissions into consideration.
9. We shall take the dying declaration to start with. The dying declarations are oral as well as written. The witnesses speaking about the oral dying declarations are PW. 1 Poona, PW. 2 Babualal, PW. 3 Shiv Karan, Police Constable Gangasingh (PW. 5) and PW. 6 Kaluram PW. 1 Poona Ram and PW 3 Shiv Karan are also ocular witnesses of the incident. They deposed that when they heard the cries of the deceased Kishanaram, they went rushing towards him. Seeing them, the appellants and accused Mangla Ram ran away. When they went to Kishanaram, Kishanaram told them that he was assaulted and belaboured by Manglaram, Surjaram and Bhanwruram. Mangla Ram and a knife while the remaining two had latbies. They inflicted blows to him with their respective weapons. Poona Ram remained with Kishna Ram while Shiv Karan went to inform the victim's brother Kaluram (PW 6). They further deposed that Kaluram also came there. Kishnaram stated before him that he was assaulted and be laboured by the three accused persons. Kaluram went to the Police Out Post. PW 6 Kaluram is the real brother of the deceased-victim Kishnaram. He deposed that at about 7.00 P.M. on the day of incident, he was at his house. Shiv Karan (PW. 3) came to him and informed him that his brother Kishnaram had been beaten by Surjaram, Manglaram and Bhanwruram. He took Shiv Karan along with him and went to the place where Kishnaram was lying in injured condition. Kishnaram told with that when he was going to deliver milk at railway station, Gotan, accused Surjarm, Manglaram and Bhanwruram made an assault on him and struck blows to him by lathies and knife. The witness further stated that he thereafter straight way went to Police Out Post, Gotan and reported the matter which was entered into the Rojnamcha. The entry in Rojaamch is Ex. P.8 which was singed by with. Crucially enough, in entry Ex. P.8, there is no mention of the dying declaration. PW. 5 Gangasingh is the Police Bead Constable in the said Police Out Post, Gotan. He deposed that when Kaluram (PW 6) reported the matter to him, he made the entry Ex. P 8 in the Rojnamcha and kft for the place where Kisfana Ram lying He went there and found Kishnaram lying in injured condition with blood ozing out from his wounds. When he asked Kishnnram as to what had happened with him, Kishnaram told him that he was belaboured by accused Surjaram, Manglaram and Bhanwruram with lathies and knife. Accused Manglaram had a. knifs while the other two had lathies, The witness further stated that he returned to the Out Post and made an entry Ex. P.9 in the Rojnamcha. Again, strangely enough, no mention of the dying delaration has been made in Ex.P 9 by PW 5 Gangasingh. When the dying declarations were made in presence of PW 6 Kaluram and PW 5 Gangasingh, on two separate occasions, it was expected that an entry to that effect must have been made Ex. P.8 and Ex. P.9. This omission of mentioning the dying declaration in Ex. P.8 and Ex. P.9 is fatal to the prosecution. No explanation is forth coming from the prosecution as to why the dying declarations were not mentioned in Ex. P.8 and Ex. P.9. The matter does not end here. PW. 6 Kaluram presented the written report Ex. P.7 at Police Station, Merta Road at about 10 00 PM. on the same day. Ex. P 7 is a long document written in separate paragraphs. All the details of the incident have been mentioned in it but again the dying declarations are conspicuously absent in it. When the names of the eye witnesses and the manner of beating, the place of beating, the weapons used by the accused and their names have been disclosed in Ex. P.7, we fail to understand why the alleged oral dying declarations made before PW. 1 Poonaram, PW. 2 Babu Lal, PW. 3 Shivkaran, PW. 5 Ganga Singh and PW. 6 Kaluram were not mentioned in it. In the normal circumstances when the numerous facts have been recited in Ex. P.7, the absence of the oral dying declarations assumes much significance. Kaluram was pointedly cross-examined as to why the dying declarations alleged to have been made before so many witnesses different occasions were not mentioned in FIR Ex. P.7 but he could furnish no satisfactory explanation. He simply stated that he dictated about the dying declaration to the scribe of Ex. P.7 and was unable to adduce any reason as to why they were not mentioned in Ex. P.7. This is virtually no explanation. PW. 4 Sukhram is the scribe of Ex-P.7. He does not state that PW. 6 Kaluram stated him about the dying declarations and that he forgot to me ition them in Ex. P 7. According to him, the whole matter A to B in Ex. P.7 was written by him at the dictation of PW 6 Kalu Ram. In these circumstances, the story of the deceased's making dying declarations before all these witnesses becomes unreliable and incredible.
10. PW. 2 Babula is another witness of the dying declaration. He deposed deposed that he also reached the place of incident where Kishnaram was lying in injured condition. When he asked Kishnaram as to what had taken place with him. Kishnaram told him that he was assaulted and belaboured by the three accused Manglaram, Surjaiam and Bhanwruram with lathies and knife. This witness accompanied Kishnaram when he was taken in a motor to Police Station, Merta Road. The dying declaration was made by Kishnaram to him in presence of the other prosecution witnesses Poonaram, Shivkaran, and Kaiuram, and yet the dying declaration alleged to have been made before him have not been mentioned in Ex P.7.
11. The dying declaration constitutes very valuable piece of evidence and must be proved like any other fact. The value of the evidence as to the dying declaration depends on the veracity of the witnesses to whom it has been made. In the instant case, since no mention of the dying declaration has been made in Ex. P.8, Ex. P.9 and Ex. P.7, we are unable to put any reliance on the above witnesses who were examined to prove it.
12. Coming to the written dying declaration Ex. P.20, the matter does not stand on a better footing Dying declaration Ex. P.20 was recorded by the Investigating Officer Sbaitansingh (PW 15). He was posted as a Head Constable at Police Section, Merta Road. He deposed that Kishnaram was brought at the Police Station in an injured condition by Kalufarh and others. Kishnaram was not in proper sense and spoke very, little, on being persistently questioned. Kishnaram gave the statement. Ex. P.20 before him., Kishna Ram passed away latter on after some hours in the same night. It, was vehemently contended by Mr. Singhvi that a dying decl tration recorded by the Police Officer special in the circumstances in which Ex. P.20 was, recorded, is not entitled to any credit. No witness--was kept present by the Investigating Officer when he recorded Ex. P.20. It was argued that though some of the prosecution witnesses stated that Ex P.20 was recorded in their presence by the Investigating Officer, their signatures-or thumb impressions were not obtained on Ex P 20 and no reasons were stated for not doing so. It was further, argued that the dying declaration Ex. P.20 recorded in violation of the mandatory directions contained in the Rajasthan 'Police' Rules, 1965. Our attention was drawn to Rule 6.22 of 'the' said Rules. Reliance in support of the contention was further placed on Dlipsingh and Ors. v. State of Punjab AIR 1979 SC 1173. We have examined the contention and find considerable force in it Sub-rule (3) of Rule 6.22 reads as under:
3 If no 'Magistrate can be obtained,' the declaration shall, when a gazetted police officer is not present. be recorded in the presence of two or more reliable witnesses unconnected with the police department and with the parties concerned in the case.
Sub-rule (3) clearly lays down that the dying declaration should be recorded by the Investigating Officer in the presence of two or more reliable witnesses not connected with the police department and with the parties concerned in the case. It was, therefore, obligatory on the Investigating Officer Sbaitansingh (PW. 15) to have called two or more respectable persons at the time of recording the dying declaration Ex. P.20. We may point out that Ex. P.20 is not routine statement recorded during investigation. The Investigating Officer knew it well that Kishnaram was in a precarious condition and unconscious when he was brought at the Police Station and yet the Investigating Officer made no efforts to call the two or more respectable persons it the tine of recording the statement Ex. P.20. In Dalip Singh and Ors. case (supra) their lordships observed that the practice of recording the dying declaration by the Investigating Officer should be deprecated and discouraged. Such a dying declaration may be relied upon when there was no time or facility available to the Investigating Officer for adopting any better method. Here in the instant case the Investigating Officer could have easily called two or more reliable witnesses not connected with the police department or with the parties concerned in the case when Ex P 20' was recorded. Merta Road is a railway junction with huge population. It was very easy for the investigating Officer Shaitansingh to call the independent persons and keep them present when Ex. P.20 was recorded.
13. There are again some more suspicious circumstances attached to the dying declaration Ex P 20. It does not bear the singatures or thumb impression of Kishnaram. The explanation that be become unconscious soon after Ex. P.20 was recorded does not go well. The absence of signatures or thumb impression of Kishnaram on Ex. P.20 is an important matter which cannot be lightly brushed aside. Then, no time has been mentioned in Ex. P.20 as to when it was recorded. These omissions again render Ex.P 20 a highly suspicious document.
14. We are, therefore, unable to put any reliance on the evidence relating to oral and written dying declarations. The learned Sessions fudge accepted the evidence of the above witnesses about the using declarations and used them in convicting the accused persons. His approach is not proper. The learned Sessions Judge has failed to take the various aspects of the dying declarations into consideration. He did not propetly appreciate and evaluate the evidence relating to them We, therefore, hold that the evidence relating to the dying declarations is not reliable and the alleged dying declarations should not be used in judging the guilt of the accused persons.
15. We shall next take the direct evidence of the two eye witnesses PW. 1 Poonaram and PW. 3 Shivkaran. They deposed that they used to work in the quarries situate a few miles away from the railway station, Gotan. They used to go to the quarries in the morning and return in the evening. Their attendance was marked in the employer's register Chunnilal Malt was their employer. At about 7.00 P M. on the day of incidert. They were returning to their Dhanies after marking their attendance in the attendance register. When they came near the curve of the road, they heard the cries. Hearing the cries, they went rushing in that direction. They saw the accused Surjaram, Bhanwrurarn and Manglaram striking blows to Kishnaram Manglaram had a knife and the two other had lathes. They were striking: blows to Kishnaram with their respective weapons when they proceeded further and remained nearly 6-7 paundas away from Kishnaram, the accused saw them and ran away. Kishnaram was lying in an injured condition with multiple wounds on his body Blood was oozing out from his wounds. Poonaram remained with Kishnaram and Shivkaran went to> inform' the victim's brother Kaluram (PW. 6).
16. It was streneously contended by the learned Counsel that these two persons are not witnesses of truth and their testimony has been wrongly relied upon by the learned court below, The first contention raised be Mr. Singhvi to cha lenge their reliability is that they were merely chance witnesses-whose very presence on the scene of occurrence is highly doubtful. It was argued that they had no occasion to pass that way where the incident had taken place. We are not impressed by the contention. Both these witnesses have stated that they were returning to their Darsies from railway station, Gotan there they had gone to get their attendance marked in the employer's register. They were cross examined at length on this point but nothing could be elicited from them which may make their testimony on this point incredible or untrust worthy. It is true that the employer Chnnni Lal Mali has not been examined by the prosecution nor the attendance register maintained by him, of his employees has been produced but that is not sufficient to discard the direct testimony of these two witnesses. If the accused felt that what they stated about the attendance register is false or baseless, k was open to the accused to examine Chunnilal Mali and call for the employeer's register in their defence but they did not do so, In these circumstances these two witnesses Poonararm and Shiv Karan cannot be taken to be chance witnesses, as argued by Mr. Singhvi.
17. It was next argued that the names of these two witnesses have not been mentioned by PW. 6 Kaluratn in his report Ex. P.8 recorded at about 8.00 P.M. that is to say within an hour of the occurrence at police Out Post, Gotan. It was argued that the omission of the names in Ex. P.8 strongly suggests that these two witnesses were latter on falsely introduced as occular witnesses of the occurrence. It is true that the names of these two witnesses do not appear in Ex. P.8 the earliest version given by PW. 6 Kalu Ram at Police Out Post, Gotan. But in our opinion that is not fatal to the prosecution and does not induce us to dismiss their testimony. Ex. P.8 cannot be enquated to the First Information Report. The First Information Report is recorded under Section 154 Cr PC by an Officer Incharge of the Police Station where the report is lodged. Officer Incharge of the police Out posts are not officers Incharge of police Station within the meaning of Section 154, Cr. PC and the police officers at such police Out Posts are, therefore, not empowered to record the FIR. We are, therefore, unable to accept the contention of Mr. Singhvi It may be pointed out that the FIR Ex. P.7 was presented at police Station, Merta Road at about 10.00 P.M. on the very day of the occurrence by PW 6 Kaluram. The Police Station is nearly 12 miles away from the place of occurrence. Since Ex. P.7 was presented immediately after the occurrence with out any delay, it has its own importance. In FIR Ex. P.7, the names of both these witnesses Poona Ram and Shivkaran have been mentioned.
18. The next contention raised by the learned Counsel for the accused is that the FIR Ex. P.19 (in the prescribed form prepared on the basis of Ex. P.7) was received in the Court of the Magistrate on January 10, 1978. It is, therefore, not an innocent document. It was argued that Ex P 19 was brought into existence later on. The delay in despatching has not been explained by the prosecution. If Ex. P.19 was brought into existence later on, it renders the whole prosecution story highly doubtful. We have given our thoughtful consideration to the contention and find it untenable. The occurrence took place at about 7.00 P.M. on January 7, 1978. It was Saturday on January 7, 1978. There being Sunday on January 8, 1978 Ex. P.19 could not be despatched. Ex. P.19 shows that it was despatched on January 9, 1978, Naturally, therefore, it was received in the Court of the Magistrate on January 10, 1978. In view of these circumstances, we are unable to give any importance to the contention of Mr. Singhvi. More over, the late despatch of the FIR to the Magistrate is only a circumstance to betaken in to consideration and the prosecution case cannot be thrown away over board only on account of some delay in its despatch. The evidence of the eye witnesses cannot be discarded merely on this account. The contention holds no ground.
19. We have throughly and carefully gone through the testimony of the eye witnesses PW. 1 Poonaram and PW. 3 Shiv Karan. PW 3 Shiv Karan is a Brahmin by caste. Nothing has been brought on record from the side of the secured, that these witnesses have any grudge against them or are otherwise interested in falsely implicating them. Their testimony remained unshaken and unshattered despite long cross-examination on all the vital point Mr. Singhvi could not advance cogent or convincing reasons as to why the direct evidence of these two witnesses should not be believed or acted upon. There is a presurrption that the testimony of a witness given on oath, is true unless it stands discredited in cross-examination Ti ere is nothing in their cross-examination to discredit what they testified on oath against the accused Surjaram and Bhanwaruram.
20. The last contention of Mr Singhvi is that the evidence of these witnesses have not been found reliable as regards the acquitted accused Manglaram. As such it would not be free from risk to accept that part which relates to accused Surjaram and Bhanwruram. We are again not impressed by the contention The law casts a duty to properly scan, scrutinize and evaluate the evidence of the witnesses. In discharging this duty, the Court has a right to accept the part of the testimony of a witness and reject the other part. Simply because the witness has been found false as regards one of the culprits, that cannot be taken to be a sound reason to reject his testimony in respect of the other culprits. It is true that the evidence of these two witnesses was not found reliable and dependable as against accused Mai glaram. But this is due to the evidence led in defence by this accused Mariglarem in suppor of his plea of alibi. His plea of alibi was supported by both oral and document evidence. It may be a case of mis-identity of the third culprit. As such, the testimony of these two eye witnesses does not become doubtful against the accused Surjaram and Bhanwruram simply because their testimony was not found reliable and dependable as against the acquitted accused Manglaram.
21. We find no reasons to distrust the testimony of the two eye witnesses as against the accused Surjaram and Bhanwruram. The finding of the Court below that these two accused made an assault on the deceased-victim Kishnaram and struck blows to him with lathies, appears correct and no interference is called for.
22. The last contention relates to the nature of offence. It was argued with great vehemence by the learned Counsel for the accused that the prosecution has utterly failed to allegal any motive for the commission of the crime. There was neither bad blood nor strained relations between the deceased-victim and the accused Surjaram and Bhanwruram. Though the victim received as many as 21 injuries, 20 of them were found on the non-vita parts. Injury No. 21, which was on the left occipitio-mastoid region was found by the doctor to be sufficient in the ordinary course of nature to cause the death It was argued that according to the two eye witnesses, there were three assailants one of them namely Manglaram has been acquitted, ft is not known as to who caused this injury No. 21 to the victim which ultimately resulted in his death In reply, it was argued by the learned Public Prosecutor that the injury No. 21 in its was sufficient in the ordinary course of nature to cause the death. According to Dr. Tulsaram (PW 12) the other injuries were also cumulatively sufficient in the ordinary course of nature to cause the death. As such the case is covered by Clause 3rdly of Section 300, IPC. We have taken the respective submissions into consideration. We may say at once that the prosecution has alleged no motive good, bad or indifferent for the commission of the crime. We are quite conscious that motive is not an essential ingredient of an offence under Section 302, IPC and the prosecution is, therefore, not required to allege or prove motive for the commission of the crime. The reason is that the motive of human action is inscrutable and is primarily known to the accused himself. But despite that, the importance of motive cannot be altogether ignored. It is after all the motive which prompts a man to form an intention. The motive is generally called in aid for proving the intention of the accused. As such, motive, though not a 'sine qua non' for bringing the offence of murder at the door of the accused, is nevertheless relevant and important on the question of intention.
23. In the instant case, no motive has been alleged or established against the appellants for committing the murder of Kishnaram. It is not shere on record that the relations between them and the deceased-victim were strained before the occurrence. Out of 21 injuries, as many as 20 were on the non vital parts of the victim. According to the eye witnesses, there were three assailants. There is absolutely no evidence on record that injury No. 21 which caused the death of the victim was struck either by accused Surjaram or Bhanwruram. This injury might well have been inflicted by the third accused whose indentity, as we will see later on while dealing with the State appeal has not been established. The accused Surjaram and Bhanwruram, no doubt struck blows to the viciim with lathies but they took to heels as soon as the eye witnesses reached the spot, leaving the victim still alive then. Dr. Tulsiratn (PW 12) admitted in cross-examination that injuries No. 1 to 20 are not sufficient individually and collectively to cause death in the ordinary course of nature provided the patient received the treatment in time. A like situation arose in Diyasingh v. State of Rajasthan 1969 RLW 449. In that case, the victim received 19 injuries. According to the medical opinion, all the injuries were collectively sufficient in the ordinary course of nature to cause the death. Yet the offence was not taken as coveted by Clause 3rdly of Section 300 IPC because the intention to commit the murder was found wanting The case was taken to be that under Section 314 Part II, IPC The circumstances point out that accused Surajram and Bhanwruram intended only to give a severe beating to the victim. In as much as death has been caused, the matter must still come atleast within the meaning of culpable homicide not amounting to murder. The accused Surjaram and Bhanwru Ram did act with the knowledge that by their act they were likely to cause death of the victim. The case is, therefore, covered by the 3rd part of Section 299, IPC and the offence made out is punishable under the Second Part of Section 304, IPC as culpable homicide not amounting to murder. The conviction of these two accused under Section 302/34, IPC, therefore, cannot be maintained. Their convection should be under the Second Part of Section 304, IPC.
24. This disposes of the appeal of accused Surjaram and Bhanwru Ram.
25. We shall next take the Stage's appeal. It was contended by the learned public prosecutor that the acquittal of Manglaram is wholly erroneous and unsustainable. According to direct evidence of the two eye witnesses, PW. 1 Poonaram and PW. 3 Shivkaran Manglaram was one of the assailants of the victim and he caused injurjes to him with a knife. His plea of alibi has beep wrongly accepted by the learned Sessions Judge. It was contended on the other hand by Mr. Singhvi that the plea pf alibi is supported by documentary and oral evidence of the responsible office rs of the State Government. The offence was committed at about 7.00 pan in the first week of January. The San sets at about 6.00 p.m. in January. The night becomes dark at about 7.00 p.m. There may be the third assailant of the victim but it appears that it is a case of mis-identity of the third culprit. We have taken the respective submissions into consideration.
26. Admittedly, it was dark when the crime was committed. According to the two eye witnesses, accused Manglaiam had a knife. Dr. Tulsa Ram (PW 12) in cross-examination admitted that the incised wound found on the victim's body could be caused even by a blunt object. The medical evidence, therefore, does not fully support the prosecution case as against accused Manglaram that he caused the injuries to the victim with a knife. In defence, the accused Manglaram examined seven witnesses and filed the various government and bank records showing his presence at Jodhpur on January 7, 1978. We may point out that the place of occurrence is nearly 40 miles away from Jodhpur. DW 1 Ratnesh Kuanr was the Executive Engineer in the Rajasthan Agricultural Marketing Board, Jodhpur. According to him, accused Manglaram was on duty on January 7, 1978. He also worked up to the evening in the office. The other six witnesses are those persons who came in contact with accused Manglaram while discharging his duty in the office at Jodhpur. The evidence relating to alibi was thoroughly scrutinized and scinned by the learned Sessions Judgs. The learned Public Prosecutor could not point out as to why this over belling oral and documentary evidence adduced by the accused should not be accepted To us, it appears that there were three assailants. The identity of Surjaram and Bhanwruram stands established. But the identity pf Manglaram by the two eye witnesses appears to be a case of mis-impression of the crime was committed in a dark night. In our opinion, the plea of alibi out forward by accused Manglaram stands established and was rightly accepted by the Court below. Tae acquittal of accused Manglaram is, therefore, correct and calls for no interference.
27. In the result:
(1) the appeal of accused Surjaram and Bhanwru Ram is partly allowed. Their conviction and sentence under Section 302/34, IPC are set-aside and instead they are convicted under the Second Part of Section 304, IPC and each is sentenced to eight years rigourus imprisonment with a fine of Rs. 2503/-, in default of the payment of fine to further undergo one year's rigorous imprisonment. In case the amount of fine is realised, half of it will be given to the with and children of the deceased-victim Kishnaram;
(2) the acquittal of accused Manglaram is maintained and the appeal of the State is dismissed;
(3) the appeals shall stand accordingly disposed of.