Shym Sunder Byas, J.
1. Since these three appeals are directed against one and the same judgment of the Additional Sessions Judge, Sirohi dated July 4, 1980 they were heard together and are decided by a common judgment. Accused Mehriya and Daliya were tried on a charge under Section 302 while accused Bhuri was tried on a charge under Section 302/34, IPC. By the judgment aforesaid, the learned Additional Sessions Judge acquitted the accused Daliya and Bhuriya of the offence they were charged with, but convicted and sentenced them and accused Mehriya as under:
NAME OF ACCUSED OFFENCE UNDER SECTION SENTENCE AWARDED
(1) Mehriya 302, IPC Imprisonment for life with a fine
of Rs. 100/- in default of the payment
of fine to further undergo
one month's rigorous imprisonment
(2) Daliya 326/34, IPC Four years' rigorous imprisonment
with a fine of Rs. 100/-, in default
of the payment of fine to further
undergo one month's like imprisonment;
(3) Bhuriya 326/34 IPC Four years' rigorous imprisonment
with a fine of Rs. 100/- in default
of the payment of fine to further
undergo one month's like imprisonment.
2. The accused have come-up in appeal to challenge their conviction and sentence, while the State challenges the acquittal of accused Daliya and Bhuriya from the offence they were charged with.
3. Briefly stated, the prosecution case, which is short and simple, is as follows. Accused Mehriya and Diliya are father and son while accused Bhuriya happens to be their relative. They are all residents of village Badarpura P.S.Abu Road, district Sirohi. The deceased Shanta was a resident of village Girwar. The distance between these two villages is approximately of two miles. Nearly ten years before the occurrence, the wife of accused Mehriya deserted him and started living with the deceased Shanta in his village. This sowed the seeds of discordance between Mehriya and Shanta. Accused Mehriya started nursing an ill-will against Shanta. In the night between ]0th and 11th April, 1979, the deceased Shanta along with PW 6 Roopa went to attend the 'Gor' in the fair held at Vagera Mata. Many other persons from village Girwar were also present there in the fair. There was a huge collection of nearly five-hundred persons in the fair. The three accused persons Mehriya, Daliya and Bhuriya were also there. After mid-night, Roopa and the deceased Shanta left the fair to return to their village. When they reached near the bus stand of village Chandala, they left the tarred-road and took-up the Kacchi Pagdandi, which goes to their village. They had hardly covered a distance of twenty-five paces that the three accused persons came and restrained them from proceeding further. Accused Mehriya had a sword while accused Daliya had a Lathi. Accused Bhuriya was empty handed. Accused Mehriya and Daliya made an assault on Shanta and struck blows to him with their weapons. Accused Mehriya inflicted blows on the head, neck and other parts of Shanta. As a result, Shanta sustained multiple injuries and he fell down. Accused Mehriya still then did not leave him and struck two or three more blows with sword to him. Roopa (PW 6) raised cries and shouted for help. The accused managed to run away. There was, profuse bleeding from the wounds of Shanta and clothes he was wearing got drenched with it. Shanta succumbed to the injuries instantaneously on the spot. A few minutes later, Kaliya (PW 7) of village Girwar happened to pass that way. Roopa (PW 6) narrated the incident to him and asked him to inform the members of the family of Shanta. Kaliya and to his village and contacted Shanta's nephew Chamna (PW 4), Kaliya also contacted the Sarpanch. who advised him to approach the police. When Chamna (PW 4) was apprised of the incident he collected some persons of his village and went to the place of occurrence. They there found Shanta lying dead and Roopa (PW 6) sitting by his side. Roopa narrated the incident to him as to how the occurrence had taken place and how Shanta was put to death by the accused persons Chamna left the place and reached Police Station, Abu Road at about 7.00 a.m. on April 11, 1979, where he verbally lodged report Ex. P 6 of the occurrence. The police registered a case and proceeded with investigation. The Station House Officer Harisingh (PW 10) arrived on the spot. He inspected the site and prepared the site plan Ex. P 11. He also prepared the inquest report of the victim's dead body. Blood stained soil from the place of occurrence was seized and sealed. The post-mortem examination of the victim's dead body was conducted at about 1.30 p m. on April 11, 1979 by PW 11 Dr. Gupta, the then Medical Officer Incharge, Primary Health Centre. Abu Road. The doctor noticed the following injuries on the victim's dead body :
(1) Incised wound 9' x 4' 2-1/2' over left side of neck oblique in direction extending on front up to middle of chin upwards, 1/2' below left ear, then near the back of the neck up to 1' right to mid-line cutting blood vessels, tissues, muscles, trachea and bones i.e. Mandible and vertebrae. The margins were regular:
(2) Incised wound 5' x 1/2' x 2' 1' below the injury No.1. The margins were regular and clotted blood was present;
(3) Incised wound 4-1/2' x 1/2'xl' oblique over left temporal region of skull, Middle part of injury lay on left ear cutting the ear in the middle into two portions, cutting tissues, blood vessels and ear;
(4) Lacerated wound 1' x 1/4' x 1/2' behind the left ear;
(5) Incised wound 2-1/2' x 1' x 1/2' on the middle of right forearm cutting the bone about 1/4' superfically;
(6) Incised wound 1-1/2' x 1' x 1/2' over base of left index finger cutting the bone and blood vessels;
(7) Incised wound 5' x 2-1/2' x 1-1/2' over left shoulder joint cutting blood vessels, tissues and bone;
(8) Lacerated wound 1/2' x 1/4' x 1/2' and 1/2' x 1/4' x 1/2' with a gap of 1/2' over left parietal region of skull, 1-1/2' left to midline;
(9) Abrasion 2' x 2' over left knee joint;
(10) Lacerated wound 1' x 1/2' x 1/2' over right frontal area of skull, 1' above the middle of right eye brow.
4. The injuries were ante-mortem. Injuries No. 1 to 3 and 5 to 7 were stated to have been caused by some sharp edged weapon like sword while the remaining injuries opined to have been caused by some blunt object. In the opinion of Dr. Gupta, the cause of death of Shanta was shock and haemorrhage due to multiple injuries. He was also of the opinion that injuries No. 1, 2 and 3 were individually and collectively sufficient in the ordinary course of nature to cause death. The post-mortem examination report prepared by him is Ex. P 20. The blood stained clothes of the deceased were seized and sealed after the post-mortem examination was over. Accused Bhuriya and Daliya were arrested on April 11, 1979. In consequence of the disclosure statement made by them, a Lathi and a sheath of the sword were recovered. Accused Mehriya surrendered himself at about 11 a.m. on April 11, 1979 before the Investigating Officer. He was then having a sword with him. The clothes he was wearing were also found stained with blood. He was arrested and aword and his clothes were seized and sealed. The articles were sent for chemical examination. As per reports Ex.Ps 18 and 19 received respectively from the State Forensic Science Laboratory, Jaipur and the Serologist, the clothes of accused Mehriya and of the deceased Shanta were found stained with human blood. On the completion of investigation, the police submitted a challan against the three accused-appellants in the Court of the Chief Judicial Magistrate, Birchi, who in his turn, committed the case for trial to the Court of Sessions. The learned Additional Sessions Judge framed a charge under Section 302, IPC against accused Mehriya and Daliya while a charge under Section 302/34 IPC against accused Bhuriya. The accused pleaded not guilty and faced the trial. They denounced the whole prosecution story as a false and fabricated piece of concoction and claimed absolute innocence. According to them, they have been falsely implicated. In support of its case the prosecution examined 14 witnesses and filed some documents. In defence, the accused adduced no evidence. On the conclusion of trial, the learned Additional Sessions Judge held the charge under Section 302, IPC proved as against accused Mehriya. As regards accused Daliya and Bhuriya, he held that they did not share a common intention with accused Mehriya to kill Shanta. He was of the opinion that as accused Mehriya was armed with sword, it can be well inferred that accused Daliya and Bhuriya shared a common intention with accused Mehriya to cause grievous hurt to Shanta. He, therefore, acquitted them of the offence under Section 302 or 302/34 but convicted them under Section 326/34, IPC. The three accused were thus convicted and sentenced as mentioned at the very outset. The accused persons challenge their conviction while the grievance of the State is that accused Daliya and Bhuriya were wrongly acquitted of the offence under Section 302/34, IPC.
5. We have heard the learned amicus curiae and the learned Public Prosecutor. We have also gone through the case file carefully.
6. Before proceedings further, it may be stated that the cause of death of Shanta was not challenged before us. We have carefully gone through the statement of Dr. Gupta (PW 11). We find no reason to distrust his opinion about the cause of death of the deceased-victim Shanta. The death of Shanta was, thus, not natural but homicidal.
7. Admittedly, the entire prosecution case against the accused persons rests on the testimony Roopa (PW 6). He is the solitary witness of the occurrence. In case he is found to be a witness of truth, there is no escape for accused Mehriya. Roopa (PW 6) stated that he and Shanta went to see the Gor in the fair of Vagera Mata. Many other persons of their village Girwar were also there in the fair. The three accused Mehriya, Daliya and Bhuriya had also come to attend the fair. After the mid-night, he and Shanta together left the fair to return to their village Girwar. When they reached Chandela bus stand, they left the tarred-road and took-up the Kaccha way which goes to their village. They could hardly cover a distance of twenty-five paces that the three accused persons appeared there and obstructed them from proceeding further. Accused Mehriya had a sword and accused Daliya had a Lathi. Accused Bhuriya was empty handed. Accused Dalia gave a Lathi thrust to him and Bhuriya grappled with him. He and Bhuriya fell down. Shanta tried to run away but was over-powered by the accused persons. Accused Daliya struck a blow of Lathi on the head of Shanta. Shanta entreated them not to beat him, but the request fell on deaf ears. Accused Mehriya took out the sword from the sheath and struck blows on the head and neck of Shanta. Shanta fell down. Accused Mehriya even then did not leave him and struck two or three more blows to him with his sword. He (witness) raised cries and shouted for help, but none turned-up for help. The accused persons managed to flee away. There was profused bleeding from the wounds of Shanta. Shanta succumbed to the injuries instantaneously on the spot. The witness further stated that he remained with the dead body of Shanta. After sometime, Kaliya and Cheliya (PW 7) happened to pass that way. He apprised them of the incident and asked them to inform the members of the deceased's family. At dawn, Chamna (PW 4) and some other persons of village Girwar came there. He also apprised them of the incident and told how Shanta was put to death by the three accused persons.
8. The contention of the learned amicus curiae is that this witness Roopa (PW 6) has been wrongly treated and accepted as a witness of truth by the trial judge. It was argued that Roopa was not with the deceased-victim when the occurrence took place and he has been falsely introduced as an ocular witness. It was argued that the conduct of Roopa (PW 6) belies his claim to have seen the occurrence. He raised no cries and called none for help. He did not offer any resistance when Shanta was assaulted and belaboured by the appellants. We have given our thoughtful consideration to the contention and find no force in it. The First Information Report Ex. P. 6 was lodged at about 7.00 a.m. on April 11, 1979 i.e. within a few hours of the occurrence. The distance between the place of occurrence and the police station, Abu Road, is nearly ten kilometres. In FIR Ex. P. 6, the name of this witness Roopa (PW 6) has been mentioned as an eye witness of the occurrence. It has not been brought out in his cross-examination that this witness bears any ill will against the appellants. Simply because he happens to be in some relation of the deceased-victim, his testimony cannot be thrown away over-board. He did state that he raised cries and shouted for help but as it was night nobody could dare to come to help him. There is nothing unusual or abnormal in his conduct which may put his testimony at a discount. He has given a consistent version throughout that accused Mehriya had a aword and he inflicted injuries with it to the deceased-victim Shanta. His testimony on this point stands un-punctured unshaken and unshattered. We are, therefore, unable to accept the contention of the learned amicus curiae that PW 6 Roopa has been wrongly treated as a witness of truth. The trial Court rightly held that it was the accused appellant Mehriya who had inflicted fatal blows to the deceased Shanta and thereby caused his death. Accused Mehriya was, thus, rightly convicted and sentenced under Section 302, IPC. There is, thus, no force in his appeal and it must fail.
9. As regards accused Bhuriya, it was stated by PW 6 Roopa that he (accused Bhuriya) was empty handed. He grappled with him (witness). But this witness did not state this fact in his police statement Ex. D. 1. The allegation that accused Bhuriya grappled with this witness is, thus, completely missing in Ex. D. 1 recorded during investigation. The witness was cross examined to explain this omission in his earlier statement Ex. D. 1 and he could not furnish any satisfactory explanation. There is no allegation that accused Bhuriya helped or assisted the co-accused Mehriya in any manner in the commission of the crime. The role of accused Bhuriya is that of a by-stander. Simply because he was with co-accused Mehriya, it cannot be inferred that he shared any common intention with accused Mehriya in causing the death of the deceased-victim Shanta. In order to make one liable for the main offence with aid of Section 34, IPC, either there should be direct evidence or there should be circumstance leading to the irresistible conclusion that the accused, if more than one, had shared a common intention to commit the offence. The facts and circumstances of the case do not permit us to draw such an inference against this accused Bhuriya. The learned Additional Sessions Judge was in error in invoking Section 34, IPC against him. His conviction and sentence under Section 326, IPC cannot be, therefore, maintained. He is entitled to acquittal.
10. We are then left with accused Daliya. He is a son of the co-accused Mehria. According to PW 6 Roopa, this accused Daliya had a Lathi and he struck two or three blows to the deceased Shanta with it. According to Dr. Gupta (PW 11), one abrasion and three lacerated wounds were found on the deceased-victim. None of these injuries is grevious in nature. There is no reason to disbelieve the testimony of PW 6 Roopa that this accused struck two or three blows to the deceased victim Shanta with a Lathi, causing simple injuries to him. Accused Daliya is,therefore, guilty for an offence under Section 323, IPC.
11. The trial court convicted accused Daliya under Section 326/34, IPC. It was contended that the case of Daliya is not different from of co-accused Bhuria. Simply because he happened to be a son of accused Mehriya, it cannot be inferred that he shared a common intention with him. to kill the deceased Shanta. The contention is not. without force. Accused Daliya, as per his arrest memo Ex. P. 13, was hardly a boy of 18 years at the time of the incident. He did not catch-hold of the deceased victim, nor did anything else to help or assist co-accused Mehriya to facilitate the commission of the crime. Simply because he was with his father, it cannot be said that he shared any common intention with him in causing the death of Shanta. There is nothing unusual for a son to be with his father in going to a fair. The testimony of PW 6 Roopa does not show that accused Daliya, in any way, exhorted or incited his father Mehriya to commit the offence. His testimony, on the contrary, shows that he remained silent throughout and uttered no word. In these facts and circumstances, it cannot be positively held that accused Daliya shared a common intention with his father to commit the offence. The accused are Adivasis and there is nothing unusual for them to carry swords in a fair. The appellants had gone to the fair. Accused Mehriya had a sword, which was not unusual. From this fact alone that accused Mehriya had a sword, it cannot be said that accused Daliya had a reason to believe that the sword would be used by his father Mehriya. His conviction under Section 326/34, therefore, cannot be maintained.
12. It is true that the prosecution case rests solely on the solitary testimony of PW6 Roopa. A conviction can be safely based on the testimony of a solitary witness, provided the witness is of sterling worth and his testimony is above reapproach and inspires confidence. It should be such that it can be accepted and acted upon without reservations. The testimony of PW 6 Roopa belongs to this category which can be safely accepted and acted upon as against the principal accused Mehriya.
13. As we are acquitting the accused Daliya and Bhuriya of the offence under Section 326/34 IPC, the appeal of State against them must fail.
In the result:
(1) the appeals of accused Mehriya and the State are dismissed. The period of detention undergone by accused Mehriya during investigation, enquiry and trial shall be set off against the term of sentence imposed upon him;
(2) the appeal of accused Bhuriya is allowed. His conviction and sentence under Section 326/34, IPC are set aside and he is acquitted thereof. If he is in custody, he shall be immediately set-forth at liberty, if not wanted in any other case; and
(3) the appeal of accused Daliya is partly allowed. His conviction and sentence under Section 326/34, IPC are set-aside. Instead, he is convicted under Section 323, IPC and is sentenced to one year's simple imprisonment. In case he has served out the sentence, he shall be immediately set-forth at liberty if not wanted in any other case.
The appeal shall accordingly stand disposed of.