V.P. Tyagi, Ag. C.J.
1. All these three appeals are directed against the judgment of the Additional Sessions Judge, Jalore dated 18th December, 1971 whereby the three appellants, namely, Kaliya, Pabia and Hamiya have been convicted under Section 302 read with Section 34 I.P.C. and sentenced to imprisonment for life. The two accused, Gamely, Dharamsingh and Soniya who were also tried along with the appellant, were however acquitted of the said charge accepting the plea of alibi advanced by them.
2. The facts giving rife to this criminal litigation are as follows : Accused Dharamsingh who has been acquitted by the court had inimical relations with deceased Misriya and it is said that litigations were going on between them. On 15th February, 1971 at about sunset deceased Misriya was going to his field in village Sayala PW. Sardara joined deceased on he road because he was also going in that direction to case himself. It is alleged that Misriya and Sardara saw five accused persons including the three appellants all of sudden appearing on the road. Kaliya was armed with axe and the other four persons had lathies with them. According to the prosecution case Dharamsingh gave a call and at his call accused Hamiya first of all gave a lathi blow on the head of Misriya with the result that he fell down and then accused Kaliya save an axe blow on the face of Misriya Sardara raised an alarm which attracted two persons to the scene of occurrence, namely, Mohaniya who was cultivating the field of Misriya & Kheemsingh who was coming from Sayala towards the place of occurrence. It is said that in the presence of these three persons, namely, Sardara, Mohaniya and Kheemsingh, who were witnessing the occurrence from a distance of 8 panwadas all these accused persons dealt lathi and axe blows on the neck of Misriya when he was lying flat on the floor. These accused persons then left Misriya when they found that he was dead.
3. After the incident Mohaniya was deputed to look after the corpse of Misriya and Kheemsing and Sardara went to village Sayala where Sardara was asked to report the matter to the police station Sayala which is hardly situated at a distances of one mile from the place of occurrence. The report Ex. P. 10 was registered at the police station at 8 p.m. in which all the five accused persons ware named at the assailants. Kaliya and Pabia were arrested on 17th February, 1971. An information was supplied by Kaliya after his arrest about his axe and the same was discovered in pursuance of that information. It was suspected to be blood stained, therefore, it was sealed. The Serologist could not ultimately detact human blood on the axe. Similarly Pabia furnished information regarding the where labours of the lathi which was recovered in persuance of the said informiaion from the Jhupa of Pabia. This lathi was found by the Chemical Examiner and the Serologist to have human blood on it Other three accused persons were arrested later on. As a result of investigation the police put up challan only against Kaliya and Pabia in the court of the Munsiff Magistrate, Jalore for an offence under Section 302 I.P.C. while the other three accused persons were discharged under Section 169 Cr.P.C. During the committal proceedings the learned Munsiff Magistrate summoned the remaining three accused also & started enquiry against them. After enquiry all the five persons were sent to sessions to stand their trial for an offence under Section 302 I.P.C.
4. Three accused namely, Dharamsingh, Hamiya and Soniya pleaded alibi while the other two denied the charge.
5. The prosecution produced apart from the formal witnesses, three eye witnesses, namely Sardara PW. 5, Kheemsingh PW. 6 and PW. 4 Mohaniya who have deposed that in their presence when they were witnessing the occurrence all the five accused persons dealt Kulhari and lathi blows on Misriys before he fell down and even thereafer whan he was lying flat on the road. The story of the prosecution so far as it related to Soniya and Dharamsingh was disbelieved by the trial court on the ground that their presence on the day of occurrence at Jalore was established by the court record and the other reliable evidence and, therefore, they could not have taken part in the incident. But the plea of alibi advanced by Hamiya was rejected mainly on the ground that Hamiya was not present in the court on 15th of February, 1971 and there was no necessity for him to have gone to Jalore with his father Dharamsingh when he was to appear before the court on next day i.e. on 16th February 1971. However the evidence of the eyewitnesses was believed by the court below against Kaliya and Pabia and found all the three of them guilty for is a offence under Section 302 read with Section 34 I.P.C. It is in these circumstances that the present appeals have been preferred by the three convicted persons Kaliya, Pabia and Hamiya.
6. Learned Counsel appearing on behalf of the appellants strenuously urged that the alleged eye-witnesses who are said to have witnessed the scene of occurrence from a distance of 8 Panwadas cannot be believed because. (1) their testimony was discarded to far as it related to Dharamsingh and Soniya Mr. Bhandai urged that the testimony of such unscrupulous witnesses who deliberately implicated the innocent persons on a trial for murder should not only be seen with care but should be discarded totally if it does not stand corroborated by other independent source.
(2) that the statements of the 3 eye-witnesses namely Sardara. Kheemsingh and Mohaniya definitely stand contradicted by the medical testimony and, therefore, gross injustice will be done if such statements are believed by the court to convict the appellants.
(3) that all the three alleged eye witnesses are unscrupulous type of men and, therefore, no credence should have been attached to their statements.
7. Before dealing with the evidence of the alleged eye witnesses, we would like to mention that the plea of alibi of Dharamsingh and Soniya has been accepted by the court below and on perusing the statements of the defence witnesses no doubt is left in our mind that it has been rightly accepted by the trial court. Both Dharam Singh and Soniya whose presence has been marked in the court at Jalore which is situated at about 40 miles away from the place of occurrence on 15th February, 1971 and who stayed over night at Jalore in a hotel, cannot be disbelieved. There is entry in the record of the hotel that Dharamsingh with his son had stayed at Jalore for the night in the hotel, When this record is seen in the background of the fact that Dharam singh had attended the court on 15th February, 1971, there appears no reason, for us not to place reliance on this record Shanker Lal DW. 2 is the person who runs Chandra Vilas lodge in the town of Jalore, He has been examined on bath. This witness has produced a register wherein visitor's name is used to be entered whenever anybody comes to stay at the lodge. After looking to this register, the witness stated that on 15th February, 71 Dharamsingh Rajput of Sayla stayed in that lodge along with Soniya and one son of Dharam singh. It is true that the name of Dhuamsingh's son Hamiya has not been mentioned in this entry but it does indicate the Dharamsingh had visited Jalore accompanied by his son. Dharamsingh accused has come in the witness box under Section 342A Cr.P.C and he has deposed on oath that Hamiya, who had to appear in the court next day, had gone to Jalore with him from his village Sayala, and had stayed with him at the lodge of Shankerlal DW. 2 in the eight at Jalore. If the said entry in the register, as alleged by the prosecution, was concocted later on then it must have definitely mentioned the name of Hamiya for whose defence the entry is alleged to have been fabricated. The absence of Hamiya's name in the side entry indicated that it was not prepared afterwards to prove the alibi of Hamiya, but it was a genuine entry made at the time when Dharamsingh with his son went to stay at the lodge. (sic) to the fact that Dharamsingh and Soniya's presence at Jalore stands established on account of their attendance on that day in the court, it is difficult for us to disbelieve that Dharamsingh had not stayed with his son Hamiya for that night at Jalore in the said lodge especially when Hamiya was to appear in the court the very next day i.e. on 16th February, 1971. These circumstances lead us to infer that Hamiya had accompanied his father Dharamsingh to Jalore on February 15, 1971. We cannot overlook this fact that Hamiya was a lad of 15 only and therefore it was natural for his father to have taken him to Jalore along with aim when be was going to attend the court on I5th February, 1971. These circumstances lead us to believe that Hamiya must have stayed with his father on 15-2-71 at the lodge to attend the court next morning the court did not advance any reason for disserving the statement of Shankerlal and Daaramsingh on this account For these reasons we have no hesitation to accept the plea of alibi as advanced by Hamiya.
8. The case against Kaliya and Pabia depends upon the appreciation of the evidence of the alleged 3 eye witnesses. The report of the incident was lodged by Sardar at the police station within two hours of the occurrence and the respect finds the names of all the 5 accused persons. The report was made by the so called eye-witness PW. 8 Sardara. The distance at which the police station was situate was hardly one mile from the place of occurrence. The first informant took two hours to lodge the report which shows that he must have come in contacts with the other persons before the report was actually lodged by him. It is not denied that there is a long drawn enmity between the party of the accused and the deceased and, therefore, this fact cannot be altogether ignored while assessing the worth of the evidence of the so called eye-witness that the element of enmity could play a role in the matter of implicating the accused persons for a serious crime like murder. The trial court has definitely come to this conclusion that Dharamsingh and Soniya were falsely implicated. We have also recorded our finding that Hamtya who was at jalora was also named by Sardara as one of the assailants of Misriya which shows that Sardara was not prepared to come out with a truthful story at the time when the first version of the incident was disclosed by him to the police. In such circumstances we find it difficult to get corroboration of Sardara's testimony with first infatuation report. We have, therefore, to examine the statements of the eye-witnesses on their own merits.
9. Kheemsingh and Mohaniya who reached the place of occurrence after the alarm was raised by Sardara say that they had witnessed the occurrence from distance of 8 Panwadas. The place where Mohaniya was working at a distance of about 50 Panwadas Mohaniya was working at the well of deceased Misriya and on hearing the alarm raised by Sardara he immediately rushed to the place of occurrence and as he says, he witnessed the incident from a distance of 8 Panwadas. The learned Judge while believing the testimony of this witness Mohaniya worked on a conjecture that he might have seen the incident from the place from where he had started and, therefore, placed reliance on his testimony. When Mohaniya and Khremsingh definitely state that they had seen the incident from a distance of 8 Panwadas, it was not open for the learned Judge to say that, Mohaniya might have seen the incident while coming from the well of Misriya towards the place from where he had heard the alarm raised by Sardara.
10. There is yet another circumstance which totally belies the story given by these two witnesses. Both these witnesses categorically stated that after they reached the place from where they had witnessed the occurrence they saw all the five assailants dealing blows with axe and lathi on the neck of the deceased. This fact cannot be denied that the deceased was lying with his face upward and according to Sardara Misriya fell down on the road after receiving the first blow at the hands of Hamiya and it is only the thereafter that Kaliya gave Kulhari blows. A person who was lying with his face upward cannot receive injury on his neck by the assailants and therefore, it is difficult for this Court to believe that these two witnesses had realty witnessed the actual beating given to Misriya.
11. There is yet another circumstance which totally contradicts the story given by the eye witnesses. Dr. Kishan Gapal, Medical Officer, incharge PHC. Sayala whose statement has been taken on record under Section 510 Cr.P.C. had performed the autopsy on dead body of Misriya the next day and he found the following three external injuries an the body.
(1) Lacerated wound at septem of nose x Cm. bones of nasal septem up to root of nose have broken into pieces, nose has flatened.
(2) Lacerated wound of lower lip (horizontally placed one centiunctre parallel to lower lip size 4 cm. x cm. which is open in the cavity of mouth.
(3) Lacerated wound at chin size 6 cm. x 2 cm. x 3 cm. horizontally placed parallel to lip starting from one angle of Mandibular bone to another angle of same bone. The wound is communicating to cavity of mouth and injury No. 2.
Though no external injury was observed by him on the neck but he found on post mortem examination that the neck was crushed.
12. According to Sardara the first blow was inflicted by Hamiya with his lathi on his head with the result that safa which he was putting on his head, had fallen down. Then Kaliya who had an axe in his hand gave an axe blow en the mouth of the deceased from he sharp side but it hit the deceased from the blunt side and on receiving the axe blow Misriya fell down. It is not in the evidence of these 3 witnesses that after Misriya had fallen down his body was touched by them. It is clear from the inquest report and other evidence that Misriya had fallen down with his face upwards. If Misriya had fallen down after receiving the axe blow from Kaliya then no injury could have been inflected on the neck of Misriya. This fact that Misriya's neck was found crushed suggests that before Misriya fell down he had sustained the injuries on his neck also.
13. In the first information report it was not given out by Sardara that though the axe was used from the sharp side but the blow was received from the back side. In the first information report he says that Kaliya dealt axe blow on the face of Misriya with a result that Misriya fell down. If a formidable weapon like axe was used by the assailant with a view to commit murder then there was no reason why the axe should have been used by the assailant from the wrong side. All these discrepancies in the medical evidence and the made of beating as disclosed by the eye witnesses show that these eye witnesses had actually not seen the occurrence and they were playing on their imagination after they found Misriya dead on the road.
14. All these eye-witnesses have deliberately tried to involve those persons who are inimical to them but two out of the five were found to be innocent by the trial court. The falsehood has been mixed by the witnesses in this case in such a manner that it becomes difficult for the Court to separate truth from falsehood. The Supreme Court in Balaka Singh and Ors. v. The State of Punjab : 1975CriLJ1734 and in Zwinglee Ariel v. State of Madhya Pradesh : AIR1954SC15 has observed that 'the court must make an attempt to separate grain from the chaff the truth from the falsehood, yet this can only be possible when the truth is separable from the falsehood Where the grain cannot be separated from the chaff because the grain and the chaff are so inextricably mixed up that in the process of separation the Court will have to re construct an absolutely new case for the prosecution by divorcing the essential details presented by the prosecution completely from the context and the back ground against which they are made, then this principle will not apply'. In the circumstances obtainable in this case we find it difficult to correctly locate the real culprits who have done this mischief with the deceased.
15. It was urged by the learned P.P. that the recovery of axe at the instance of Kaliya which was found to be blood stained, was a circumstance Which could be read against Kaliya accused. Similarly it was urged that true Blood stained lathi recovered at the instance on accused Pabia should be taken into consideration to fasten the guilt of Pabia. If the testimony of the eyewitnesses is fully discarded by the court then these recoveries alone cannot stand to fasten the guilt on the accused persons. We, therefore, on the basis of these recoveries cannot bold with certainty that the murderers of Misriya were Kaliya and Pabia. The benefit of doubt will go to them in the absence of any reliable evidence of the persons who say that they had witnessed the occurrence with their own eyes. In these circumstances we allow the appeals of Kaliya, Pabia and Hamiya and acquit then of the charge under Section 302 read with Section 34 I.P.C. The sentence of imprisonment for life awarded to each one of them is set aside. Appellants Kaliya and Pabia are in jail. They shall be released forth with if not required in any other case. Appellant Hamiya is on bail and he need not surrender to his bail bonds.