S.S. Byas, J.
1. This is a jail appeal by accused Chanda Ram against the judgment of the learned Sessions Judge, Bikaner dated January 31, 1979 convicting the appellant under Section 302, IPC and sentencing him to imprisonment for life with a fine of Rs. 200/- in default of the payment of fine to further undergo two months rigorous imprisonment.
2. Briefly stated, the prosecution case, which is short and simple, is that PW 5 Beerma Ram and the deceased-victim Sukha Ram were grazing their live stock in Rohi of Mauja Saduna Tehsil Nokha district Bikaner in the morning of May 2, 1978. At about 8.00 or 9.00 A.M. both of them climbed over a Khejri standing in the field of one Kumb Nath to pluck the fruits. While they were still on the tree, the accused came there with an axe. He asked as to who was there on the tree. Beerma Ram (PW 5) came down and started running. Sukh Ram, who was still on the tree, asked Beerma Ram not to run away. Beerma Ram, thereupon stopped running and remained there in the field. He asked the accused as to why he was picking up quarrel with them. The accused threatened Beerma Ram and Beerma Ram again took to heels. The accused ran after him. In the meantime Sukha Ram got down from the tree. He also started running. The accused ran after Sukha Ram and struck blows to him with his axe. Sukh Ram fell down He raised cries and hearing his out-cries, PW 4 Jetha Ram, who was going in the way situate nearby, came there. Seeing him, the accused ran away taking the axe with him. Jetha Ram went to Sukh Ram. There was profuse bleeding from the wounds of Sukh Ram. Jetha Ram went to the village Saduna and informed some villagers of the incident. PW 1 Moda Ram and some persons of the village came on the spot and found Sukh Ram lying dead in the field of Kumb Nath. Moda Ram went to police station, Nokha and lodged verbal report Ex.P 1 of the occurrence at about 2.15 P.M. on the same day. The police registered a case and took-up the investigation. The investigation was conducted by the Deputy Superintendent H.S. Johri (PW 9). He arrived on the spot in the evening on the same day. Next day, he inspected the site, prepared the site plan and the inquest report of the dead body of Sukha Ram. He found a piece of wooden Danda lying there on the spot. It was seized and sealed. The blood-smeared soil from that place was also seized and sealed. The post-mortem examination of the victim's dead body was conducted at about 7.00 A.M. on May 3, 1978 by PW 2 Dr. Nathmal Dooger, the then Medical Officer Incharge, Primary Health Centre, Nokha. Dr. Dooger noticed the following injuries on the victim's dead body:
1. Incised wound 4' 1' 3' on left parietal bone transversely about 3.2' above left ear, where parietal bone also dural.
2. Incised wound 3' 1' 1/2' oblique left side of back of neck, region about 2' behind ear
3. Incised wound 1' 3' at top skull near (Choti)
4 Incised wound 2' 1' 1' right side of near occipital protuberance.
5. Incised wound 4' 1/2' 2 1/2' in the root of neck in front about 2' above superior aperture of thorax wound is curved by blood clots cord. There is air buble where treaches and Oesophagus and blood vessels is also divided.
6. Oblique 'C' shaped incised wound 1 1/2' 1/2' 1' left little finger where meta-carpal bone also been dural:
1. 'C' shaped division of both parietal bones crossing both side of sadital nature about 4' above the root of nose. Bone place separated.
2. Sickle shaped fracture of the right occipital bone near occipital protuberance of size 4' 1/2'
3. Parietal bone and occipital bones have been fractured.
3. In the opinion of Dr. Dooger, the cause of death of the victim was haemorrhage and shock due the injury No. 1 to vessels of neck and brain. The accused was arrested on May 4, 1978. In consequence of the information furnished by him whilst under arrest, an axe was recovered with a broken wooden handle in an uninhabitated Dhani. It was seized and sealed. The blood-stained clothes of the deceased were also seized and sealed. Various articles were sent for chemical examination. Human blood was detected on the clothes of the deceased-victim. Blood was also detected on the axe but its origin could not be ascertained. It transpired during investigation that in the evening preceding the day of occurrence, the accused had picked up quarrel with the victim's elder brother Bhoma Ram (PW 8). The accused at the time openly held out the threats that he would finish one of his brothers. On the completion of investigation, the police submitted a challan against the accused in the Court of Judicial Magistrate, Bkaner, who in his turn committed the case for trial to the Court of Sessions. The learned Sessions Judge framed a charge under Section 302, IPC against the accused to which he pleaded not guilty. The defence taken by the accused was that of complete denial. In support of its case prosecution examined nine witnesses and filed some documents in defence, the accused examined one witness. On the conclusion of trial the learned Sessions Judge held the charge duly proved against the accused. The accused was consequently convicted and sentenced, as mentioned at the very out set. Aggrieved against his conviction, the accused has taken this appeal.
4. We have heard the learned amicus curiae for the accused and the learned Public Prosecutor. We have also gone through the case file carefully.
5. Before proceeding further it may be pointed out that the cause of death of Sukha Ram was not challenged before us by the learned amicus curiae' nor was he in a position to do so. We have gone through the testimony of Dr. Dooger (PW2) and the post mortem report Fx. P. 13. We find no reasons to distrust the opinion of Dr. Doogar relating to the cause' of death of the victim Sukha Ram. The deceased sustainad as many as six evternal injuries, most of which were on the vital parts. Parietal and occipital bones were got fractured. Severe injury was found on the neck. The death of the victim Sukha Ram was thus homicidal.
6. In order to prove the charge against the accused, the prosecution adduced three types of evidence, (1) the direct evidence of PW 4 Jethu Ram and PW 5 Beerma Ram (2) the strong motive which prompted the accused to finish the deceased and (3) the recovery of axe Article 1 in consequence of the information furnished by the accused whilst under police custody. The learned Sessions Judge did not accept the evidence relating to the recovery of the weapon and in our opinion rightly so: More over, though blood was found on axe (Article,) its origin could not be ascertained. The report of the Serologist Ex. P. 18 does not show that the axe had human blood. The accused was convicted on the remaining two sets of evidence.
7. It was vehemently contended by the learned amicus curiae that the conviction of the accused was wholly unwarranted and unsustainable. In assailing the conviction, two contentions were raised, (1) the evidence of PW 4 Jetha Ram and PW 5 Beerma Ram was wrongly relied upon by the court below in convicting the accused. Though both of them have claimed to have seen the occurrence, their this claim was untrue. It was argued that the accused was not previously known to PW 5 Beerma Rnm and yet no test identification was conducted to establish the identity of the culprit. PW 4 Jetha Rare very clearly admitted that he had not seen the accused inflicting injuries to the deceased Sukha Ram. It was argued that even that the evidence of these two witnesses was relied upon in convicting the accused. It was also argued that the evidence relating to the motive was later on manufactured by the prosecution.
8. It was, on the other hand, streneously contended by the learned Public Prosecutor that there were no cogent and sufficient reasons to disbelieve the direct evidence of PW 4 Jetha Ram and PW 5 Beerma Ram. The learned Sessions Judge accepted what they testified and we should be show in disturbing that finding. We have taken the respective submissions into consideration.
9. We may at once point out that in case PW 4 Jetha Ram and PW 5 Beerma Ram are taken as reliable and dependable witnesses, there is no escape for the accused. So also if their evidence is found not reliable, there is no other evidence to connect the accused with the murder of Sukha Ram.
10. It is true that there is no presumption of perjury against the oral testimony of the witnesses. But before the oral testimony is accepted, rule of prudence does require that the evidence should be thoroughly examined both intrinsically and extrinsically PW 5 Beerma Ram deposed that at about 8.00 or 9.00 A.M. on the day of occurrence, he and the deceased Sukha Ram were plucking the beans of Sangariyans on the Khejri tree standing in the field of Kumb Sidh situate in Rohi. A man came with an axe in his hand and asked, them as to who were there on the tree and said that he would kill them. The witness further stated that he got down from the tree and started running. That man ran behind him. At that time Sukha Ram told that that man was Chanda. Sukha Ram also got down from the tree and that man ran after him. That man struck one blow of his axe un the head of Sukha Ram. The witness further continued that he got frightened and took to heels. At that very time Jetha Ram (PW 4) also came there. He stood there for sometime and went towards the village. The witness also stated that he narrated this incident to one Chuna Ram. In his very examination-in-chief, he stated that he could not identify that man who inflicted the injury to Sukha Ram. We are tempted to quote ihe relevant portion of his statement in his own words:
eSus mldks dgk Fkk fd EkS rks tksV ekuus okys dks ifgpku ugh ik;k ij lq[kk us dgk fd og PkUnk gS eS rks mldks vkSy[k gh ugh ns ik;k A
eS pUnk dks ifgys ls ugh tkurk Fkk A
pUnk dks eq>s okds ds vykok ifgys dHkh ns[kus dk dke ugh iM+k A
11. It can be easily discerned without any difficulty that the accused was not previously known to this witness before the occurrence. He had not even seen him before the alleged incident. He also could not identify that culprit as Ghanda who had landed blow to the deceased-victim. It is strange that the prosecution made no efforts while examining this witness to elicit from him that the man who had inflicted blow to the deceased was the accused standing in the dock. Since the accused was not previously known to him, it was incumbent on the prosecution to get the identity of the culprit established by having a resort to the test identification. No test identification was got conducted. It is also strange that the witness was not declared hostile by the prosecution. If PW 5 Beerma Ram knew the accused before hand and yet he concealed that fact, it was incumbent on the prosecution to declare him hostile and to elicit from him that the accused was the same person who had inflicted the blow to the deceased. The testimony of this witness is, thus, not helpful to the prosecution. We are unable to maintain the finding of the court below that the accused can be convicted on the testimony of this witness Beerma Ranr All that can be said on the basis of the testimony of this witness is that some unknown person who could not be identified landed a blow of axe on the head of the deceased-victim.
12. PW 4 Jetha Ram is the real paternal uncle of the deceased-victim. He deposed that in the morning of the day of incident he was coming from village Kedle, to his village. In the way when he happened to pass near the field to Kumb Nath, he heard some body raising cries. He went running in that direction and saw the accused striking blows to Sukha Ram. Seeing him, the accused ran away towards the South. Beerma Ram was standing nearly 20 paces away from Sukha Ram. Sukha Ram had fallen down. Blood was oozing out from his wounds. He went to the village and narrated to PW 1 Moda Ram and others what he had seen in the field of Kumb Nath. The testimony of this witness, also, is not of much help to the prosecution. In his examination-in-chief itself he admitted that he did not see accused striking any blow to the deceased-victim. He simply saw the accused running away. To quote him in his own words-
esjs lkeus dksbZ pksV ugh ekjh A eq>s ns[krs gh rks og Hkkx x;k A
13. It is, thus, amply clear from his own statement that he had not seen the accused inflicting blows to the deceased-victim.
14. Apart from that, his very presence on the spot is not free from doubt. In his cross-examination he admitted that village Kedli, from which he was coming, is nearly at a distance of eight miles from the place of occurrence. He did not state as to why he had gone to village Kedli. Thus, his very presence on the spot is not free from doubt. He is merely a chance witness. Though the testimony of a chance witness is not necessarily false, it is generally not accepted as much reliable and dependable. Prudence requires that there should be some corroboration to such a witness. The witness made no efforts to catch hold of the accused. Though he found PW 5 Beerma Ram standing not far from the place of incident, he had no talks with him to ascertain as to how the incident had taken place. While assessing and evaluating his credibility we should not forget that he is the real paternal uncle of the deceased-victim. The situation in respect of his witness boils down to this that he had not seen the accused inflicting any blow to the deceased-victim, he made no efforts to catch the accused, had no talks with Beerma Ram (PW 5) to as certain as to how the incident had taken place and did not assign reasons for his coming from village Kedli and reaching the place of incident at the crucial moment. These facts impel us to hold that PW 4 Jetha Ram is not a witness of absolute truth. At any rate it would not be free from risk in convicting the accused on the testimony of what he stated.
15. Thus, on a careful scrutiny of the testimony of these two witnesses PW 4 Jetha Ram PW 5 Beerma Ram we are unable to maintain the finding of the court below that it was the accused who had inflicted blows to the deceased-victim and thereby caused his death. PW 5 Beerma Ram could not identify the culprit and PW 4 Jetha Ram had not seen the accused landing blows to the deceased-victim. In view of this evidence, the conviction of the accused cannot be maintained.
16. Coming to the evidence relating to the motive, the position is still worse. The motive alleged by the prosecution is that in the evening preceding the day of occurrence, the accused and the deceased's brother Bhoma Ram (PW 8) picked up some quarrel and they fell out with each other. The accused at that time threatened Bhoma Ram that he would finish him or one of his brothers. This motive has been disclosed in the First Information Report Ex. P1. PW 8 Bhoma Ram did not immediately come forward with this motive. He was examined by the police on May 13, 1978 i.e. nearly ten days after incident. This fact has been admitted by the Investigating Officer PW 9 H.S. Johri. The silence on the part of this witness for ten days or more is a serious circumstance which heavily speaks against him. It appears that the motive was later on manufactured and introduced to give a support to the prosecution case. Moreover, the motive alleged does not appear to be adequate to prompt or incite the accused to commit the murder of Sukha Ram. After all Sukha Ram had not picked up any quarrel with the accused. The contention of the learned Public Prosecutor that the accused wanted to finish Bhoma Ram or one of his brothers does not go down well. Then, motive in itself, however strong it may be, is not sufficient to seek the conviction of the accused. It is only a circumstance to be taken into consideration while judging the guilt of the culprit.
17. As a result of the aforesaid discussions, we are unable to maintain the conviction of the accused. The appeal of accused Chandra Ram alias Ram Chandra is hereby allowed. His conviction and sentence under Section 302, IPC are set aside and he is acquitted thereof. He is in jail and shall be forthwith set at liberty if not wanted in any other case.