1. This appeal is directed against judgment and order dated 29.7.1997/31.7.1997 passed by the Sessions Judge,Sonepat, whereby in case FIR No. 426 dated 20.12.1993 Under Section 302/34, 324/34 IPC, Police Station Sadar, Sonepat, the accused-appellants have been convicted under Section 302/34, IPC, for having committed the murder of Shiv Charan and sentenced to undergo rigorous imprisonment for life and also to pay a fine of Rs. 5000/-and in default of payment of fine, to further undergo imprisonment for a period of one year. They have also been convicted under Section 324/34 IPC for having caused injuries to Sama Kaur and sentenced to rigorous imprisonment for one year. Both the sentences were, however, directed to run concurrently.
2. It may be apt to mention that the afore-stated case was registered against three accused, namely, Rajesh, Joginder and Jaipal, but later on, accused Rajesh absconded.
3. In brief, the facts are that Mahabir made statement, Exhibit PM, to the police, to the effect that on 19.12.1993, Satbir brother of Mahabir was irrigating his fields during noon time, situated in the area of village Hassanpur known as Bediwala. At that time, Rajesh and Joginder pushed Satbir from there and abused him asking him to leave the place. On the next day, i.e. 20.12.1993, at about 7/7.30 PM, when he and his younger brother Shiv Charan, since deceased, were going towards the fields in their village to answer the call of nature and when they reached near the house of Roshan, they noticed accused Rajesh,Joginder and Jai Pal. Accused Rajesh was armed with a knife while Joginder and Jai Pal were armed with Lathis. Then accused Jai Pal raised Lalkara saying that Shiv Charan and Mahabir be taught a lesson for forcibly irrigating the field. Upon this, Joginder caught hold of Shiv Charan when Rajesh inflicted knife blows to Shiv Charan out of which one hit in his abdomen while the other in his chest. At that time, Sama Kaur who was going to purchase vegetables and was following them, rushed to the spot in order to save his son Shiv Charan. She too was assaulted by the accused. Accused Rajesh inflicted knife blow to her which hit on her ear and another knife blow on her arm. Accused Joginder inflicted Lathi blow which hit on her fore-head and accused Jaipal inflicted Lathi blow which hit on her hip. He(Mahabir) who was at a little distance away, picked up brick-bats and hit accused Rajesh. In the meanwhile, 4-5 persons from the village appeared including Satbir and Surat. Thereafter, all the accused fled away from the spot along with their respective arms. Sama Kaur and Shiv Charan were removed to Civil Hospital, Sonepat. Shiv Charan succumbed to injuries on the way to hospital whereas Sama Kaur was admitted in Civil Hospital, Sonepat. After the doctor at the hospital had examined Shiv Charan and declared him brought dead, he informed the Incharge Police Post, Civil Hospital, Sonepat, who further informed the local police which reached there. After recording of the statement, Exhibit PM, at 10.40 PM, of Mahabir, the police registered an FIR, Exhibit PK. Thereafter, ASI Sahab Singh conducted inquest proceedings, Exhibit PJ, on the dead-body of Shiv Charan and then gave application, Ex.PJ/1, for conducting of post-mortem examination. On 21.12.1993, at 6.40 AM SHO Police Station Sadar, Sonepat, reached Civil Hospital, Sonepat, and took up the investigation and verified the same. On that day, Constable Daya Kishan produced one sealed parcel containing the clothes and other belongings of the deceased before the said SHO who took the same into possession vide recovery memo., Exhibit PO. On 23.12.1993, ASI Sahab Singh and Constable Daya Kishan were present at Murthal Bus Stand when SHO Chaman Lal reached there. Then they headed for village Hassanpur. PW Balraj, brother of deceased Shiv Charan, met them near the Rajpura minor and he was also joined in the police party. Then they went to the house of accused where Rajesh accused was found present when he was arrested. Upon interrogation by SHO Chaman Lal,SI, he made disclosure statement, Exhibit PQ, to the effect that he had kept concealed one spring actuated knife after cleaning it under the earth in the Kotha meant for tethering the cattle and that he alone knew about it and could get the same recovered. Accused Rajesh then led the police party at the pointed place and got recovered spring actuated knife, Ex.P1. SI Chaman Lal after preparing rough sketch of knife, Ex.PQ/1, took the same into possession vide recovery memo. Ex.PQ/2. Rough site plan, Exhibit PQ/3, of the place of recovery was also prepared. Thereafter, a Ruqa was sent by SI Chaman Lal for registration of case under the Arms Act. Then accused Jaipal and Joginder were produced before SI Chaman Lal by the brother of accused Jai Pal and they were also arrested and interrogated. Both the accused, Joginder and Jaipal,made disclosure statements, Exhibits PR and PS, which led to the recovery of Lathis, Exhibits P2 and P3, which were taken into possession vide memos. Ex.PR/1 and PS/1, after making the same into sealed parcel. M.L.R. of Sama Kaur is Exhibit PF and that of X- ray report is Exhibit PL wherein no fracture was found. Accused Rajesh was also medico-legally examined and the doctor proved his MLR dated 20.12.1993 as Ex.PG. The police got him medically examined and subsequent MLR dated 23.12.1993 is Exhibit PG/1.
4. After completion of investigation, the accused were challaned. After being produced in Court, they charge-sheeted under Section 302/34 and 324/34 IPC to which he pleaded not guilty and claimed trial.
5. The prosecution in order to prove the charge against the accused, examined Anil Kumar Draftsman as PW-1, Dr. O.P.Hooda, Medical Officer as PW-2, Dr.B.D.Chaudhary, Medical Officer, as PW-3, ASI Chand Karan as PW-4, Dr.Promila Jain, Medical Officer as PW-5, complainant-Mahabir as PW-6, Sama Kaur, injured, as PW-7, ASI Sahab Singh as PW-8, and SI Chaman Lal, SHO, as PW-9. Prosecution then closed its evidence after tendering report of the Forensic Science Laboratory, Haryana, Madhuban(Karnal) as Exhibits PE and PE/1.
6. Since accused Rajesh absconded (now stated to have expired), the other two accused, namely, Jaipal and Joginder (present appellants) were examined under Section 313 Cr.P.C. and put incriminating evidence appearing against him to which they pleaded innocence and claimed false implication. In defence evidence, accused-appellants produced Roshan Lal as DW-1.
7. The learned Sessions Judge, Sonepat, vide judgment and order dated 29.7.1997/31.7.1997 held the accused-appellants guilty and convicted and sentenced them in the manner indicated above. Hence, the present appeal by the accused Jaipal and Joginder.
8. We have heard the learned Counsle for the parties.
9. Learned Counsel for the appellants has pointed out that a day prior to the occurrence, Satbir, brother of the deceased, was watering Bediwala fields when Rajesh and Joginder,accused, forced him to leave that place; having no further grudge and as such, there was no motive for the appellants to commit the present crime; rather motive lies on the complainant party to falsely implicate them. This argument does not convince us. The variation in human nature being so vast, murders are known to have been actuated by much lesser motive. How the mind of an assailant react is not possible to be fathomed from a detached reflection. The mere fact that the prosecution failed to translate that mental disposition of the accused into evidence does not mean that no such mental condition existed in the mind of the assailant. Sometimes motive is clear and can be proved and sometimes the motive is shrouded in mystery and it is very difficult to locate the same. So long as other evidence remains convincing and not open to reasonable doubt, the conviction may well be based on this. In Yunis @ Kariya etc. v. State of Madhya Pradesh 2003 Crl.L.J. 817, it has been held that where ocular evidence is very clear and convincing and the role of the accused persons in the crime stands established, the failure to prove motive for the crime is of no consequence.
10. The testimonies of PW-6 Mahabir and PW-7 Sama Kaur have been questioned on account of relationship with the deceased. There is no dispute that PW-6 Mahabir is the brother and PW-7 Sama Kaur is the mother of deceased Shiv Charan but it is not the absolute law that evidence of a relation is not entitled to any weight but this very circumstance would add to the value of his evidence because he would be interested in ensuring that the real culprit responsible for the murder be punished and not the innocent person. In Mundrika Mahto v. State of Bihar 2000(2) RCR (Criminal) 627 (SC), it has been observed that it is not the law that conviction cannot be based upon on the testimony of relations. PW-6 Mahabir is giving the sequence of occurrence, stating that initially, Jaipal gave Lalkara for teaching them a lesson for forcibly watering their fields which led accused Joginder to catch hold of Shiv Charan and then has narrated the manner of the injuries with knife given by Rajesh (PO) to Shiv Charan and then all of them to Sama Kaur with their respective weapons, i.e. Lathis which Joginder and Jaipal were armed with. PW-6 Mahabir in rataliation had given brick-bats which hit Rajesh accused on account of which, on police request he was medically examined and the doctor found one contusion on the chest and lacerated wound on the right thumb and none of the injuries was found to be grievous. His statement is duly corroborated by PW-7 Sama Kaur, who is an injured, having two incised injuries on the face and the right upper arm and the injury on the scalp besides complaining of pain over the right buttock and the said injuries are stated to have been caused by accused Rajesh (PO) and accused Joginder and Jaipal, present appellants. Thus, she is stamped witness. Her presence at the time of occurrence cannot be disputed as it is evident that she had been following Shiv Charan and Mahabir on the date of occurrence and thus, had seen the entire occurrence. They were subjected to cross- examination and they stood firm to their stand. Some minor contradictions so referred in their statements do not carry any significance as it cannot be expected from rustic and illiterate people that they would give photographic version of the events which had taken place about more than two years prior to their deposition in Court.
11. Another argument that though the witnesses claim that the occurrence had taken place near the house of Roshan but Roshan when appeared as DW-1 denied any occurrence having taken place place in front of his house and thus, belies the case of the prosecution, is again not sustainable for variety of reasons; firstly, it is not the case of the prosecution that at the time of occurrence, Roshan, was present at that point of time; and secondly, in case the occurrence had not taken place in front of his house, it was expected of him to approach the police to apprise that the witnesses are not telling the truth and if the grievance not redressed, then to complain to the higher Authorities but admittedly he had not acted in any manner. He is, thus, a got up witness and has deposed at the instance of the defence.
12. It has been further contended that as per case of the prosecution, Satbir and Surat had also arrived there but had not been examined and given up as unnecessary and as such, an adverse inference should have been drawn against the prosecution. The contention is again meritless as what is important is not how many witnesses have been examined by the prosecution but what is the nature and quality of the evidence on which it relies. It is not the quantum of the evidence but the quality and credibility of the witness that lends assurance to the Court for acceptance. PW-6 Mahabir and PW-7 Sama Kaur though have stated regarding the arrival of Satbir and Surat but after the occurrence having taken place but little before the accused had fled away from the spot and as such, they were not the eye-witnesses and in the light of the presence of PW-6 Mahabir and PW-7 Sama Kaur who is also a stamped witness, the non-examination of Satbir and Surat does not affect the case of the prosecution.
13. Undoubtedly, the clothes of Mahabir were stained with blood when he picked up his brother which he had not shown to the police but has submitted an adequate explanation that on account of shock he had not shown those clothes to the police. Even otherwise, mere non-seizure of blood-stained clothes is no ground to discard the evidence of any witness. Normally, no investigating Agency takes the trouble to seize the clothes worn by the witnesses at the time they saw the occurrence merely because their clothes too had collected stains of blood during any post-event activities and such like omission does not discredit the testimonies of the witnesses.
14. Learned Counsel for the appellants has referred to the statement of PW-3 Dr. B.D. Chaudhary who had conducted the post-mortem examination on the dead-body of Shiv Charan who had stated that the injuries on the person of Shiv Charan, deceased, could not be caused by knife, Exhibit P-1, because the weapon was a single edged weapon and that the dimensions of the wounds did not co-relate with the depth of the penetration of weapon and thus, has developed the argument that the medical evidence does not support the case of the prosecution. This argument is again not convincing. It has to be noted that the evidence of a doctor has to be appreciated like that of any other witness and there is no irrebuttable presumption that the doctor is always taken as witness of truth. In Solanki Chimanbhai v. State of Gujarat : 1983CriLJ822 , the Hon'ble Supreme Court has observed in the following manner:
12. Ordinarily, the value of medical evidence is only corroborative. It proves that the injuries could have been caused in the manner alleged and nothing more. The use which the defence can make of the medical evidence is to prove that the injuries could not possibly have been caused in the manner alleged and thereby discredit the eye witnesses. Unless, however the medical evidence in its turn goes so far that it completely rules out all possibilities whatsoever of injuries taking place in the manner alleged by eye witnesses, the testimony of the eye witnesses cannot be thrown out on the ground of alleged inconsistency between it and the medical evidence.
15. In the instant case, knife, Exhibit P-1, was got recovered by accused Rajesh who was declared as proclaimed offender. He had also given injuries with the said knife to Sama Kaur who was medically examined by PW-2 Dr. O.P.Hooda who stated that the injuries on her person were possible if the knife was not used by thrust-wise or from its point and used from cutting edge. This indicates that the accused had not been using the knife from its point but from side-wise. Similarly, to Shiv Charan, injuries might have been given in some other manner which possibly the doctor might not have thought before giving such an opinion. Thus, in the backdrop of these facts, the medical evidence does not go so far that it completely rules out the possibilities whatsoever of the injuries taking place in the manner alleged by the eye-witness.
16. Common intention' is dealt with in Section 34 IPC and it provides that when a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it was done by him alone. 'Common intention' denotes action in concert and necessarily postulates a pre-arranged plan, a prior meeting of minds and an element of participation in action.
17. Thus, in view of the facts and sequence of events discussed above, the present appellants have rightly been convicted under Section 302 with the aid of Section 34 IPC and so as under Section 324/34 IPC. No interference is called for. The appeal stands dismissed.