M.L. Shrimal, J.
1. This appeal has been directed against the judgment dated January 24, 1974 of the learned Sessions Judge, Ganganagar whereby the accused-appellant Hardeo Singh, son of Lalsingh was convicted for the murder of Ramkumar under Section 302, I.P.C., and sentenced to imprisonment for life.
2. Shorn of unnecessary details the prosecution story as disclosed at the trial is that some days prior to the date of occurrence the accused had a quarrel with Ramkumar (deceased) in the cinema house. On May 8, 1973 at 8 p.m. near the shop of Bhaguram and the Gandhi Park in the Mandi of Karanpur the accused caught hold of Ramkumar (since deceased), threw him down, sat on his chest, inflicted four injuries with a knife on the person of Ramkumar and took to his heels. PW 5 Hariram witnessed the occurrence, but without helping the injured or informing any body regarding the occurrence he quietly went to his residence. PW 1 Suratsingh, PW 2 Bhogaliya and others reached the site of the occurrence. PW 1 Suratsingh took his brother Ramkumar (since deceased) to the hospital at Karanpur in a jeep. The doctor on duty declared him dead. Thereafter PW 1 Suratsingh went to the Police Station at Karanpur and gave first information report Ex. P. 5 at 8.40 p.m. By the time the first information report was lodged, the name of the assailant was not known to the informant and as such the name of the assailant has not been mentioned in the first information report Ex. P. 5. PW 10 Jagmalram, Station House Officer. Karanpur after registering a case under Section 302, I.P.C., proceeded to the hospital and thereafter went to the scene of occurrence. He prepared a site plan, recovered the sheath Article 1 and handle Article 2 of the knife from the scene of occurrence. The recovery memo is Ex. P. 14. The autopsy on the dead body of Ramkumar was performed by PW 9 Dr. Chanderhash Sharma. The post mortem report is Ex. P. 1. On May 9, 1973 the house the father of the accused was searched. One shirt Article 7 and a 'Chaddar' Article 8 were seized (vide Ex. P. 11) because they were suspected to be stained with blood. None of these articles, however, were sent to the Chemical Analyser or to the Serologist for analysis and as such their recovery is of no avail to the prosecution. On May 10, 1973 the accused was arrested vide Ex. P. 18. The police after usual investigation submitted a challan against the accused-appellant under Section 302, I.P.C. in the Court of Munsiff and First Class Magistrate, Karanpur, who after taking proceedings under Section 207 A, Cr. P.C. committed the accused-appellant to the Court to Sessions Judge, Sri Ganganagar to stand his trial under Section 302, PC.
3. The accused pleaded not guilty to the charge. The prosecution examined ten witnesses in support of their case, out of whom PW 1 Suratsingh is the brother of the deceased and author of the first information report Ex. P 5. PW 4 Omprakash and PW 5 Hariram were examined as eye-witnesses of the occurrence, but both of them turned hostile to the prosecution. They were allowed to be cross-examined. The statement of PW 5 Hariram recorded in the coming court was taken on record of the Sessions Court under Section 288, Cr. P.C., and the same was marked as Ex. P. 9 PW 8 Jaibhagawan was examined to prove the motive for commission of the crime but he did not support the prosecution and was declared hostile. PW 9 Chraderhash Sharma is the doctor who performed autopsy on the dead body of Ramkumar PW 10 Jagmalram is the Investigating Officer of the case. The accused denied his complicity in the crime. He did not examine any witness in his defence.
4. The learned Sessions Judge held that PW 5 Hariram was not a chance witness. He had seen the occurrence and his statement recorded in the committing court marked as Ex. P. 9 was of intrinsic worth. It was taken to be true and reliable. He chose to place reliance on the statement of the witness recorded in the committing court. Placing reliance on the statement Ex. P. 9 the learned Judge found the accused guilty of the offence punishable under Section 302, I.P.C., and sentenced him as mentioned above.
5. Aggrieved by the aforesaid judgment the convicted accused-appellant has challenged his conviction and sentence by this appeal.
6. It cannot be disputed that Ramkumar (deceased) sustained four injuries with a sharp edged weapon at the time and place alleged by the prosecution and which led to his death. PW 9 Dr. Chanderhash Sharma who conducted the autopsy on the dead body of Ramkumar (deceased) found the following external injuries:
1. Incised wound 1' x 1/2' x 1' right second intercostal space 1' from mid line placed transversely.
2. Incised wound 1'x 1/2' x 4' on the right side of the chest 4' from the below injury No. 1.
3. Incised wound 1'x 1/2' x 5' on the right side of chest 3' below injury No. 2.
4. Incised wound 1'x 1/2' x 7' on the left side of chest, 3' from injury No. 3 horizontally.
On opening the body of the deceased, he noticed the following internal injuries:
Pleural cavities full of blood. Left lung perforated at the site of injury No. 4. Pericardium perforated at the site of injury No. 2 and 4 full of blood.
The death of Ramkumar in the opinion of PW 9 Dr. Chanderhash Sharma was caused by shock and haemorrhage due to the injuries to the vital organs. He further opined that the injury No. 2, or 3 or 4 could individually cause death in ordinary course of nature, and the injuries could have been caused by a knife.
7. Mr. Bhimraj, learned Counsel for the accused-appellant has challenged the conviction and sentence of the appellant on a number of grounds which will be dealt by us shortly ad seriatim. Mr. Mathur, appearing on behalf of the State has supported the judgment of the trial court.
8. It is true that there is no evidence on record to hold that the relations between the appellant and Ramkumar (deceased) were strained or that a quarrel had taken place between them in the cinema house. PW 8 Jaibhagwan, who was examined to prove enmity between the appellant and Ramkumar (deceased) has not supported the prosecution case on this point. Thus there is no evidence on record to hold that there was adequate motive for the accused to cause the murder of Ramkumar (deceased). The proof of motive satisfies the judicial mind about the likelihood of the authorship of the crime, but its absence only demands deeper forensic search and cannot undo the effect of evidence, otherwise sufficient. Motives of men are often shrouded in mystery, they are subjective, submerged and unamenable to easy proof. Where there is a clear proof of motive for the crime, that lends additional support to the findings of the court that the accused was guilty, but the absence of clear proof of motive does not necessarily lead to the contrary conclusion. The fact that the prosecution was not able to discover such an impelling motive would not reflect upon the credibility of a witness proved to be a reliable one.
9. Keeping the above principle in view we now proceed to evaluate other evidence in the case. There is considerable force in the contention of the learned Counsel for the appellant that the entire prosecution case against the appellant rests on the oral testimony of PW 5 Hariram, who claims to be an eye-witness to the murder of Ramkumar. The learned Sessions Judge believed his evidence. PW. 5 Hariram stated in the trial court that on the date of the occurrence he was relieved of his duty at 6 p.m. but that he stayed in the office for in hour more before leaving for home. While he was passing through the market and reached near the shop of Jhabarmal, he saw the accused-appellant Hardeo Singh inflicting injuries with a knife on the person of Ramkumar (since deceased). At that time Ramkumar had fallen down on the road. The witness failed to state the number and the particular part of the body of Ramkumar on which the injuries were inflicted by the accused-appellant. There upon he was permitted to be cross-examined by the prosecution During the course of cross-examination the witness admitted that he was examined in the committing court and his statement, marked A to B in Ex. P. 9 wherein he stated 'that the accused-appellant Hardeo Singh threw Ramkumar (deceased) on road, sat on his chest; inflicted 2 or 4 injuries with a knife on him and took to his heels, 'was correct'. He admitted that the afore-mentioned statement made by him before the committing court was correct and being an illiterate man he had forgotten to state the details. He further stated that just after the occurrence Bhaguram, Shivedayal and others appeared on the scene of occurrence but he did not narrate the occurrence to any one of them. On the application made by the prosecution, after hearing the parties, the statement of the witness recorded in the committing court marked as Ex. P. 9 was taken on the record of the trial court under Section 288, Cr. P.C., when in he had supported the prosecution case.
10. The learned Counsel for the appellant has argued by placing relience on Sharnappa v State of Maharastra : 4SCR589 that since PW 5 Hariram, according to the prosecution, resiled from his previous statement made in the committing court and his statement in the committing court has been brought on the record of the trial court under Section 288, Cr. P.C. his evidence cannot be accepted unless the Court is satisfied that it is true and reliable and this requirement that the statement to be acted upon must be proved to be true and reliable is absolutely binding. He further urged that the evidence of this witness suffers from serious infirmities and it ought not to have been relied upon by the learned Sessions Judge for convicting the accused-.appellant or at any rate should not have been acted upon in the absence of its corroboration in material particulars by independent evidence. In support of the above contention he has placed, reliance on Sharnappa v. State of Maharashtra (supra) wherein Hon'ble Das Gupta J., speaking for the Court observed as under:
Where a person has made two contradictory statements on oath it is plainly unsafe to rely simplicity on his evidence. In other words, before one decides to accept the evidence brought in under Section 288 of the Code of Criminal Procedure as true and reliable one has to be satisfied that this is really so. How can that satisfaction be reached? In most cases this satisfaction can come only if there is such support in extrinsic evidence is to give a reasonable indication that not only what is said about the occurrence in genuine but also whit is said against the particular accused sought to be implicated in the crime is true.
PW 5 Hariram in his statement Ex. P. 9 recorded in the committing court stated that on the date of the occurrence at 7.30 p.m. after being relieved of his duty he was going home. When the witness reached near the shop of Bhaguram, he heard a quarrelling noise. Walking 2 or 3 steps he saw that the accused-appellant Hardeo Singh threw Ramkumar (deceased) on the road sat on his chest and inflicted about 4 knife injuries on his person, and thereafter took to his heels. The witness further goes on to state that the accused was known to him. As a result of injuries Ramkumar (deceased) held profusely and could not speak. Bhaguram, Shivedayal, Bhogaliya and others reached the scene of occurrence PW 2 Bhogaliya went to inform Ramkumar's brother Gabbar. The witness PW 5 Hariram did not go to inform Gabbar about the occurrence because there had been some quarrel between them. The witness further goes on to state that he narrated the occurrence before the Panchayat. The witness in his cross examination stated that at the time when the accused inflicted knife blows, the other persons were also present on the scene of occurrence such as Jhabar Hotelwala and his brother-in-law. He neither cried for help nor stated that the accused Hardeo Singh had inflicted the knife-blows. He quietly left the scene of occurrence after the accused had taken to his heels. For the first time he narrated the occurrence before the Panchayat at 12 noon on the next day on the cremation ground. In his cross-examination before the trial court he admitted that he did not raise any alarm for help at the time when the accused Hardeosingh inflicted injuries on Ramkumar. Neither the accused nor the victim uttered any word at the time of occurrence. He stayed at the scene of occurrence for 20 minutes. A large number of persons had gathered there. Some of them asked him as to who had caused injuries to Ramkumar, in reply to which the witness stated that he did not know. The witness further goes on to state that PW 1 Suratsingh and PW 3 Gordhan Das met him, but he did not disclose to them the name of the assailant as they had not asked him about it. It is also admitted that the witness went to the hospital, but there also he did not disclose the name of the assailant to any one. The witness also admitted that a few days prior to the occurrence the accused Hardeosingh had quarrelled with him, when they beat each other with shoes. The witness entered down his statement Ex. P 9 made in the committing court and stated that his relations with PW 1 Surat Singh were not good, but there was no exchange of hot words or blows with each other. Thus it is clear that some facts were introduced in the statement of the witness during the course of cross examination in the trial court which may in fact have the effect of nullifying what he stated earlier.
11. On the basis of the above statement the learned Counsel appearing on behalf of the accused-appellant has urged that the two statements of PW 5 Hariram one recorded in the committing court Ex. P. 9 and the other recorded in the trial court, disclose that his testimony regarding the actual assault by the accused-appellant on Ramkumar (deceased) in both the courts was more or less similar and as such the learned Sessions Judge ought not to have declared the witness hostile and ought not to have allowed the prosecution to bring on trial court's record the statement of the witness recorded in the committing court. Section 288, Cr. P.C. is not meant for permitting the prosecution to use it as a device for bringing the committing court's statement on record of the trial court. When an earlier statement is brought on the record of the trial court under Section 288, Cr. P.C., the accused is given an opportunity to cross-examine the witness and the answers elucidated in cross-examination, at the trial, should be read as an integral to the statement of the witness recorded in the committing court. The learned Public Prosecutor for the State urged that it was open to the trial court to choose between the two statements, because both the statements are evidence of facts stated therein & the tenor of the statements recorded in the trial court shows that the answers given by the witness in cross examination in the trial court were obtained as a result of clever maneuvering on behalf of the defence. A witness may be cleverly tutored as in the case in hand to introduce some facts in a subtle way in a statement which may, in fact, have the effect of washing off what has been stated earlier or which has been introduced with a design to help the party other than the person calling him to make the statement. It was open to the prosecution to show that the answers given by the witness, during the cross-examination in the trial court have been falsely introduced and that the Court should choose to the statement recorded in the committing court & the trial court has committed no error of law placing explicit reliance on the statement Ex. P. 9.
12. We have given our anxious consideration to the rival contentions raised by the parties. The discretion conferred on the Court to allow the party to cross-examine his own witness is unqualified & untrammelled. It is to be exercised whenever the Court from the witnesses' demeanour, temper, attitude, bearing or the tenor and tendency of his answers or from a perusal of his previous inconsistent statement or otherwise thinks that granting such permission is expedient to extract the truth and do justice. Granting such permission does not amount to adjudication by the court as to the veracity of the witness. The purpose of cross-examination of a witness is not only to discredit but also to elicit admission of facts which would help to build the case of the cross-examiner. When a party with the leave of the Court confronts his witness with his previous inconsistent statement, he does so in the hope that the witness might revert to what he had stated previously. If the departure from the prior statement is not deliberate but is due to faulty memory or a like cause, there is every possibility of the witness veering found to his former statement. To Judge which of the two statements is to be chosen a Court is required to compare both the statements. Before acting upon the statement recorded in the committing court, the court must come to a conclusion that the evidence is true and can be safely relied upon. It can no doubt leave a part of the testimony and can place reliance on a part which is acceptable as true and reliable.
13. Now we will consider the material omissions, contradictions and inherent improbabilities in the statement of PW 5 Hariram and consider as to what extent he can be relied upon for maintaining the conviction of the appellant under Section 302, I.P.C.. Two questions arise for our consideration: (i) whether Hariram actually saw appellant Hardeo Singh inflicting injuries on the person of Ramkumar; and (ii) whether PW 5 Hariram told the truth. In both the statements one recorded before the committing court Ex. P 9, and the other recorded by the trial court the witness admitted that he for the first time disclosed the name of the assailant at 12 p m. on May 9, 1973 i.e., after the expiry of nearly 16 hours of the occurrence. He has also admitted that he neither raised any alarm nor rushed for help of the victim at time when the appellant was inflicting injuries on Ramkumar. The learned Session Judge appears to have been impressed by the fact that the villagers are not only afraid of the assailants but are further afraid of facing police investigation & of going to courts several times and this apathy on the part of the witness in this part of the country is well-known. On the basis of the above reasoning the learned Judge held that there was nothing unusual if the witness concealed the name of the assailant from every body untill he was before the Panchayat. We do not feel persuaded to agree with the learned Sessions Judge. The murder in the case on hand was not committed as a result of faction existing in the village or in consequence of family feuds. It was the result of stray quarrel between two persons. There is nothing on record to hold that the accused was gangster or a confirmed criminal of whom people would fear. Moreover, the Police had arrived at the scene of occurrence within a short time and there was no reason for the witness be afraid of the accused. It is also not possible to accept the explanation sought to be given on behalf of the prosecution that as the relations of the witness with PW 1 Suratsingh (Gabbar), brother of the deceased were not cordial he did not like to go to the Police or inform any body regarding the gruesome murder for sixteen hours even though he had a number of opportunities to divulge the secret. Ramkumar (deceased) was a Harijan and a member of his community. The witness had no quarrel with the deceased. The murder was committed in the open market where there were many shops. If the witness would have seen the accused inflicting injuries with a knife on the person of Ramkumar, he would have at least cried for the help even if he did not dare to persue the accused. The witness has further failed to give any cogent reason as to why he kept silent about the gravely incriminating circumstance against the accused for 16 hours. This is a serious infirmity in the statement of this witness Ex. P. 9, recorded before the committing court. Reference may be made to State of Orissa v. Brahmananda : 1976CriLJ1985 . In this case their Lordships of the Supreme Court while considering the effect of delay in disclosing the name of the assailant for a day and a half observed as under:
Where in a murder case the entire prosecution case depended on the evidence of a person claiming to be eye witness did not disclose the name of the assailant for a day and a half after the incident & the explanation offered for nondisclosure was un-believable, held that such nondisclosure was a serious infirmity which destroyed the credibility of the evidence of the witness and that the High Court was correct in rejecting it as untrustworthy and acquitting the accused.
14. A Division Bench of this Court in Tilokaram v. State of Rajasthan 1976 CLR (Raj) 9, while discussing the conduct of the witness observed as under:
The Police Out-post and the Post Office are also situated at a little distance from the place of occurrence, the witnesses neither raised a call for help, nor went to the Police Out-Post. This conduct on the part of the prosecution witnesses creates some doubt regarding their being the eye witnesses to the occurrence.
15. It is also to be noticed that PW 5 Harinam dees not clearly state in his deposition as to where he was standing at the time of the occurrence. The witness has also failed to state as to how the victim behaved when the assailant inflicted injuries on him. It is but natural that the deceased must have tried to save himself. It is a matter of serious consideration whether the witness has seen the actual infliction of injuries. One would expect from an eye-witness that he would describe the part played by the assailant as well as the victim. The witness, however, has not a word to say with regard to what was being done by the deceased while the accused was inflicting injuries on Ramkumar. The sort of statement made by him can be easily made even by a person who has not seen the incident with his own eyes. He has failed to state as to how the quarrel started. The conduct of the witnesses raises a doubt regarding his presence on the spot and a heavy duty lies on the prosecution to dispel all doubts. Reference may be made to a Division Bench decision of this Court in Dhanna v. The State 1950 RLW 357. The witness in his committing court's statement Ex. P. 9 stated that he saw Bhaguram, Shivedayal and Bhogaliya on scene of occurrence. He also stated that at the time of the assault he had seen Jhabar Hotelwala and his brother-in-law. He further stated that besides him there were many other persons at the time when the accused inflicted knife-blows on Ramkumar, (deceased), but none of the witnesses examined on behalf of the prosecution has appeared as eye-witness & none of them has stated that any one of them the saw witness on the scene of the occurrence, either after or prior to the assault or at the time of assault on Ramkumar (deceased). If the witness had seen so many persons on the scene of occurrence, what could have prevented the prosecution from asking a single question to PW 2 Bhagaliya, PW3 Gordhandas and PW 6 Nathuram about the presence of the witness on the scene of the occurrence. Except the bald statement of this witness there is nothing on record to corroborate that the witness was present on the scene of occurrence or near about the scene of occurrence at the time of the assault, or even just thereafter.
16. There is no explanation on record for the above infirmities appearing in the statement of this witness in the committing court. This being the nature of P.W. 5 Hariram's evidence it is, in our opinion, clearly unsafe to accept his testimony unless corroborated by other evidence. In Periyasami v. State of Madras : 1967CriLJ975 Hidayatullah J. as he then was approving the decision given in re Murugan Goundan AIR 1949 Mad 628 observed as under:
But there are cases and cases. If the matter rests upon the statement of a witness, who has changed the version and there is nothing further to connect the accused with the offence with which he is charged, there would be good ground for acquitting him.
Keeping in view the above mentioned facts and the principle of law laid down by their Lordships of the Supreme Court it is not possible therefore to accept the statement of P.W. 5 Hariram as of intrinsic worth, and the statement in itself is not sufficient to uphold the conviction of the accused-appellant without extrinsic support.
17. The learned Public Prosecutor appearing on behalf of the State has urged that the statement of P.W. 5 Hariram Ex. P. 9 recorded in the committing court stands corroborated by the statement of P.W. 4 Omprakash wherein the witness stated that on the date of the occurrence nearly at 7.30 p.m. Ramkumar (deceased) came to his shop for hair-cut, but he refused to oblige him as the shop was observing a weekly holiday. Thereafter another boy came for the same purpose. The witness was declared hostile and was allowed to be cross-examined. In his cross-examination he was confronted with the portion A to B of his committing court's statement Ex. P. 8 wherein it was mentioned that first to come for hair-cut was Ramkumar (deceased), a Harijan boy, but as it was a weekly holiday he could not be obliged and thereafter within 10 minutes a tailor boy came who was identified by the witness as the accused-present in the committing court. The witness admitted to have given such a, statement. On the basis of this statement the learned Counsel for the State urged that the statement of P.W. 5 Hariram recorded in the committing court Ex. P. 9 stands corroborated in material particulars. We do not feel persuaded to agree with this contention. Even if it is held that the aforesaid statement of PW 4. Om Prakash is admissible and reliable, it does not in any way improve the prosecution case. It neither establishes the presence of P.W. 5 Hariram on the scene of occurrence at the time of assault nor does it connect the accused with the crime. The presence of the accused near the scene of occurrence ten minutes prior to the incident cannot connect the accused with the crime.
18. P.W. 5 Hariram in his committing court's statement Ex. P. 9 stated that at the time when the accused inflicted knife-injury, other persons besides the witness were present on the scene of the occurrence. The witness further goes on to state that 'Jhabar Hotelwala' and his brother-in-law also witnessed the occurrence. It is surprising that though the murder was committed in the market which is a busy locality not a single person residing in the locality turned up to support the case of the prosecution. No reason has been advanced why 'Jhabar Hotelwala' and his brother-in-law were not examined by the Prosecution. The material witnesses have been deliberately kept back, which casts a serious reflection on the fairness of the trial. An adverse inference under illustration (g) of Section 114 of the Evidence Act does arise' in the case on hand.
19. Accordingly we allow the appeal, set aside the order of conviction and sentence passed against the appellant Hardeo Singh and order that he be acquitted and released forthwith, if not required in any other case.