A.S. Godara, J.
1. This appeal has been preferred against the judgment and order dated 28-11-90 passed by the learned Additional Sessions Judge, Nohar in Sessions Case No. 50/89 whereby the accused-appellant has been convicted under Section 302, I.P.C. and sentenced to undergo life imprisonment besides a fine of Rs. 1000/- and, in default of payment, one month's R. I.
2. Briefly slated, the fads giving rise to the appeal are as follows: P.W. 8 Ramu Ram, lodged Ex/ P. 27 oral report before P.W. 12 Raja Ram, A.S.I., Officer-in-charge, Police Station, Nohar on 20-9-90 at 5.30 A.M. to the effect that they are four brothers. The accused appellant was eldest brother. Gopi Ram (deceased), who was younger than Banwari Lal and Bheem being the youngest brother. Their father is dead. Banwari Lal was residing in a separate house for the last 10 years, prior to the incident. They are residents of Village. Ratanpura. Gopi Ram (deceased), Ramu Ram and Bheem were residing with their widowed mother P.W. 10 Smt. Manohari in their parental house.
3. The incident took place around O hour So 0.30 hour in the night intervening 19th and 20th September, 1989. Ramu Ram (P. W. 8) and Smt. Manohari (P.W. 10) were sleeping in the inner court-yard (chook) of their house. Gopi Ram (deceased) was sleeping in the outer Court-yard on a cot which was placed near the outer gate opening towards eastern side. Banwari Lal is alleged to be drunkard. He came to the house of Ramu Ram etc. at about 4 to 4.30 P.M. on 19-9-89 and he started quarrelling to which Gopi Ram and Bheem objected. This enraged Banwari Lal. As a result he started quarrelling with Gopi Ram and consequently he grappled with him. Banwari Lal bit on the hand of Gopi Ram. Gopi Ram caused some scratches and bruises on the lace of Banwari Lal. Ramu Ram separated them.
4. On the fateful night when Smt. Manohari and Ramu Ram were sleeping in the inner Courtyard and Bheem had gone to the fields, Ramu Rain and Smt. Manohari heard cries and wails of Gopi Rani, they were awaken. They immediately opened the door of the inner gate and saw that the accused Banwari Lal was sitting on the chest of Gopi Ram and he was holding him in his hands. Banwari Lal had something in his hand and he used the same in causing an injury on the neck of Gopi Ram, as a result of which he started bleeding and could not speak. Banwari Lal immediately fled away from there. Gopi Ram succumbed to his injury after a little while. Ramu Ram immediately went to P.W. 6 Phusa Ram and Raja Ram. They came to the spot and saw Gopi Ram lying dead on the cot.
5. Ramu Ram immediately left for Nohar and lodged Ex. P. 27 verbal report before P.W. 12 Raja Ram on which a case under Section 302, I.P.C. was registered and Raja Ram immediately started investigation. He inspected the site and Ex. P. 5 site-plan was prepared. Panchayatnama and inquest report of the dead-body of Gopi Ram Ex. P. 6 were prepared. Blood stained soil as well as control soils were seized from the site. Besides the clothes and mattress etc.. being blood stained were also seized.
6. P.W. 1 Dr. Vinod Kumar performed the autopsy on the dead body of Gopi Ram and he found following injury on his person :
'Incised wound 3' x 1-1/2' x 2' on epiglottis and suprasternal (more on Rt. hall'). There is rupture of Rt. common carotid artery. Rt. Jugular vein, cutting of trachea. Coagulated blood coming out from the wound.'
7. This injury was antemortem and was caused by a sharp edged weapon and the Medical Officer opined that Gopi rain had died due to huemorrhagic shock {due to the wound on the tracheal region) leading to coma and consequential death.
8. In the meantime, P.W. 9 Tara Chand who was on leave, resumed his duty and started further investigation. He arrested the accused and, pursuant to his information under Section 27 of the Evidence Act, he recovered 'Kassi' (Article 11 in consequence of the information given by the accused. All the blood stained articles including 'Kassi' were forwarded to the R.F.S.L., Jaipur for chemical examination. During the course of trial, a report was received from the R.E.S.L.. Jaipur which confirmed human blood on the articles so; seized except the control soils. During the course of investigation it was further revealed that P.W.11 Smt. Guddi wife of Gopi Ram (deceased) was also sleeping in the open inner court-yard by the side of Smt. Manohari.
9. On completion of investigation, accused was challenged in the Court of Addl. Chief Judicial Magistrate, Nohar, who in turn, committed the ease to the learned Additional Sessions Judge, Nohar, who, completed the trial.
10. The prosecution examined as many as 12 witnesses in support of its case and also produced documentary evidence.
11. The accused-appellant was examined under Section 313, Cr. P.C. and he denied the prosecution story. He also pleaded that since he was living separately and his mother Smt. Manohari (P.W. 10) and brother Ramu Ram (P.W.8) do not want to give his share of the agricultural land. Gopi Ram (deceased) wanted to give him his share but since Gopi Ram's wife Smt. Guddi (P.W. 11) had developed illicit relationship with Ramu Ram and so they were all not inclined to give his share of land. He did not adduce any evidence in his defence.
12. After hearing both the sides, the learned trial Judge vide his impugned judgment and order held the accused guilty of commission of murder of his brother Gopi Ram, relying mainly on the ocular testimony of P.W. 8 Ramu Ram, P.W. 10 Smt. Manohari and P.W. 11 Smt. Guddi besides medical evidence as well recovery of 'Kassi' (Article 11) which was found to be blood stained on its chemical examination. Aggrieved, the accused-appellant preferred this appeal.
13. We have heard the learned counsel for the accused-appellant as well as the learned public prosecutor for the State as also the learned counsel for the complainant and have perused and considered the impugned judgment along with the record.
14. The learned counsel for the appellant have vehemently contended that there was not an impelling motive for the accused-appellant to have killed his own brother. P.W. 11 Smt. Guddi wife of the deceased who was living at her parent's house for about five years, was not present at the house of the incident and she was also not named in Ex. P. 27 F.I.R. She has been falsely introduced as an eye-witness. Besides, it was night and, admittedly, P.W. 8 Ramu Ram as well as P.W. 10 Smt. Manohari are stated to have been sleeping in the Court-yard of their house while Gopi Ram (deceased) was sleeping on a cot on the northeastern corner of their outer court-yard being used for cattle etc. They have stated that they were awaken by the cries and wails of the deceased while, as is evident from the medical evidence, the deceased received single injury on his neck which proved to be fatal. The incident took place at about mid-night. It was dark. Since it was a case of single injury, whosoever might have been the assailant of the deceased, he inflicted a single fatal injury on the neck of the deceased who was asleep and, therefore, he did not have any opportunity nor was he in a position to have cried or wailed. Besides, it was reported in Ex. P. 27 and so also deposed to by P.W. 8 Ramu Ram, P.W. 10 Smt. Manohari and P.W. 11 Smt. Guddi that when they opened the northern door of their inner courtyard, they saw that the accused-appellant was holding the deceased while sitting on his chest and thereafter he inflicted injury with something on the neck of the deceased and immediately fled away from there. This part of the prosecution story is most unnatural and improbable. This is a case of single injury as is deposed to by P.W. I Dr. Vinod Kumar. There was no other abrasion, laceration or bruise on any other part of the body of the deceased. There could not have been any justification for the perpetrator of the alleged crime to sit on the chest of Gopi Ram without any resistance from the side of Gopi Ram and then too have straightway inflicted injury on the neck of the deceased while he was sleeping straight on the cot. So, eye-witnesses of the occurrence did not have any time and opportunity to have witnessed the accused appellant while inflicting the single injury on the person of the deceased and it necessitated them to concoct a story of the assailant having been seen on the chest of the deceased so that the witnesses could gain time to be in position to see the assailant before he escaped from there.
15. Besides, all these witnesses have stated that as soon as they opened the gate of the door, they saw the accused-appellant sitting -on the chest and then immediately picking up the' Kassi' and inflicting fatal blow on the neck of the deceased and fleeing away.
16. The conduct of the witnesses has also been assailed on the ground that none of such witness tried to hold or give first aid to the deceased not did they try to bandage the injury to stop its bleeding which proved to be fatal. There was no blood on the clothes of any of the witnesses. No neighbouring witness was attracted since no noise or cries were made whereas, had all these witnesses seen actual occurrence, the natural conduct on their part would have been to immediately give a hot-pursuit to the assailant and, at the same time, to make hue and cry to attract the attention of the neighbours. They did not do so. Besides, all these witnesses have subsequently, since P.W. 1 Dr. Vinod Kumar opined that the fatal injury on the neck of the deceased would be caused by a 'Kassi'. modulating their statement accordingly stated that they saw the accused-appellant picking up 'Kassi' and inflicting a fatal injury on the neck of the deceased. On the contrary, P.W. 8 Ramu Ram had clearly stated in Ex. P. 27 that something was seen in the hand of the accused-appellant who was sitting on the chest of Gopi Ram and, on their appearance, he immediately inflicted the same on the neck of the deceased and ran away.
17. In this view' of the fact, since all these witnesses are closely related interse as well as qua the deceased Gopi Ram and the accused-appellant but, due to the dispute about the land, Ramu Ram, Smt. Manohari and Smt. Guddi wife of the deceased with an ulterior motive to deprive the accused-appellant of his share in the ancestral agricultural land, connived against him and accordingly they gave false evidence against the appellant.
18. P.W. 12 Raja Ram who visited the place of occurrence, did not depict and mark the actual places whereat initially P.W. 8 Ramu Ram, P.W. 10 Smt. Manohari and P.W. 11 Smt. Guddi were sleeping on the cots and their subsequent places of arrival from where they arc alleged to have actually seen the accused-appellant sitting on the chest of the deceased as well as, after inflicting the fatal injury, running away from the place of incident along with the 'Kassi'. Though the alleged 'Kassi' is stated to have contained human blood on the same as per the R.F.S.L. report but, however, this report was never tendered in evidence nor the same was exhibited either by the prosecution or by the learned trial Judge. Not only this, no question under Section 313, Cr. P.C. to explain this circumstance was ever put to the accused-appellant while he was under examination under Section 313, Cr. P.C. Therefore, in absence of the document being tendered in evidence and marked and exhibited, the same cannot be used against the accused-appellant.
19. The learned Public Prosecutor, has clearly contended that since the accused-appellant being the real brother of the deceased Gopi Ram as well as P.W.8 Ramu Ram and the son of P.W. 10 Smt. Manohari, in view of the fact that the accused-appellant had picked up a quarrel with his brother Gopi Ram (deceased) on the previous afternoon and this enraged the accused-appellant to have finished Gopi Ram to death who had caused the scratches on his face. Smt. Manohari could not have volunteered to depose against her own son, had he not been killed by the accused-appellant. Ex. P. 27 F.I.R. was immediately lodged and the medical report lends corroboration to the prosecution and, therefore, the learned trial Judge did not commit any error of fact or law and, therefore, the impugned judgment warrants no interference in this appeal.
20. Before disposing of the aforesaid contentions, we propose to summarize and critically examine the prosecution evidence which has inspired confidence and favour with the trial judge to base conviction of the accused-appellant on the same.
21. As regards the ocular evidence, the statements of P.W. 8 Ramu Ram, P.W. 10 Smt. Manohari and P.W. 11 Smt. Guddi are relevant.
22. P.W. 8 Ramu Ram, P.W. 10 Smt. Manohari and P.W. 11 Smt. Guddi have all alike stated that Banwari Lal accused was living separate from them for last about ten years in a separate house. In the afternoon of day prior to the incident. Banwari Lal came to their house and he was in a state of drunkenness. He started quarrelling as usual to which Gopi Ram (deceased) objected. The accused appellant immediately grappled with Gopi Ram and bit with his teeth on the hand of Gopi Ram. Gopi Ram also caused some bruises and scratches on the face of the accused-appellant. Ramu Ran intervened and then Banwari Lal left for his house. There is nothing to suggest that this part of the prosecution evidence is false or found to be concocted one. This was also clearly mentioned in Ex. P. 27 F.I.R. immediately lodged by P.W. 8 Ramu Ram.
23. As regards the date, time and place of occurrence, there is no dispute. The occurrence is stated to have taken place around 0 hours to 0.30 hour at about midnight of 19th and 20th September, 1989 in the outer Court-yard of Smt. Manohari etc. This is borne out of statement of PW. 12 Raja Ram who inspected the site in presence of P.W. 8 Ramu Ram and P.W. 3 Jaipal etc. He found the deceased lying dead in a straight position on the cot so lying in the outer court-yard in its north eastern corner at a distance of about 20-25 ft. from the gate opening on the eastern side there was blood lying on the clothes, mattress as well as ground. Therefore, there cannot be any valid objection to the fact that Gopi Ram was sleeping on a cot at the place of incident had he was found fatally hurt and killed on the same position.
24. As stated by P.W. 12 Raja Ram who also prepared Ex. P. 6 Panchayatnama and inquest report of the dead-body of the deceased, as supported by P.W. 3 Jaipal and P.W. 8 Ramu Ram, besides P.W. 1 Dr. Vinod Kumar who performed the autopsy on the dead body vide Ex. P.1 Postmortem Report and he also confirmed that the accused was killed to death as a result of the aforesaid injury caused by a sharp weapon on the neck resulting in cutting of the tracheal region rupturing right corner carotid artery, right jugular vein and cutting the tracheal portion of the neck and the same was sufficient in the ordinary course of nature to have caused the death.
25. The accused-appellant could not dispute the factum of violent and unnatural death of his brother Gopi Ram. As a result, there is absolutely no difficulty to hold that Gopi Ram was killed to death and, therefore, his violent and unnatural death resulting from the neck injury is proved beyond doubt and. therefore, no challenge there against is acceptable.
26. In view of this, the prosecution is mainly required to prove beyond reasonable manner of doubt that it was accused appellant alone who had authored such fatal injury of the accused-appellant.
27. P.W. 8 Ramu Ram stated that he was sleeping in the inner Court -yard and P.W. 10 Smt. Manohari as well as P.W. 11 Smt. Guddi were also sleeping by his side on their separate cots while Gopi Ram (deceased) was sleeping on the cot in the outer Court-yard, as above. At around the said time of the occurrence, he heard the cries 'Orey-orey' of Gopi Ram and as a result they were all awaken. He immediately opened the outer gate of the door of his inner court-yard. They saw that the accused was holding Gopi Ram while sitting on his chest. No sooner the gate was opened, the accused-appellant immediately inflicted a blow of 'Kassi' on the neck of Gopi Ram and made good his escape along with 'Kassi' from there.
28. P.W. 10 Smt. Manohari also, while supporting the statement of P.W. 8 Ramu Ram, stated that, on hearing such cries, they were awaken and, on opening of the gate, they saw from the gate that accused-appellant was holding Gopi Ram in his sleeping position sitting on his chest, he immediately inflicted a blow of 'Kassi' on the neck of the deceased and fled away from there along with 'Kassi'.
29. P.W. 11 Smt. Guddi lending support to the statement of Ramu Ram as well as her mother-in-law Smt. Manohari, also stated that, on the previous afternoon, accused-appellant started beating Rami Ram on which Gopi Ram intervened and the accused-appellant bit on the hand of Gopi Ram. She was also so awaken by hearing the cries of Gopi Ram as above and, on opening door of the gate, they found the accused-appellant sitting on chest of Gopi Ram and thereafter standing up and, after picking up 'Kassi' lying towards the head of the deceased, he gave a blow of the same on the neck of Gopi Ram and he fled away from there.
30. They have all stated that Gopi Ram appeared to be agonising with pains for about 15 or 20 minutes who could not utter any word and then he succumbed to his injury.
31. They have all stated that Ramu Ram immediately went to P.W. 6 Phusa Ram and Raja Raj who came to the spot and he was advised to go to the Police Station and lodge report about the incident there.
32. Ramu Ram has stated that he left on a camel-cart for the Police Station of Nohar and lodged Ex. P. 27 verbal report with P.W. 12 Ramu Ram, A.S.I., as is also supported by Raja Raj.
33. Besides, P.W. 6 Phusa Ram who was also informed about the incident by P.W. 8 Ramu Ram, as above, has stated that around mid-night of fateful night Ramu Ram came to him and told him that Banwari Lal had killed his brother Gopi Ram. He immediately accompanied Rami Ram to the place of the incident. After a title while Raja Ram also turned up but Raja Raj has not been examined. He stated that he found Gopi Ram lying on the cot so hurt and dead. He returned to his house and Ramu Rain was advised to go to the Police Station and report the incident. He has stated that no foot-prints were seen there either in the night or in the morning. He did not re-collect the actual time at which he had reached the spot. He stated that it was at about mid-night.
34. As regards the last circumstance of recovery of 'Kassi' (Article 11) by P.W. 9 Tara Chand pursuant to arrest of the accused-appellant vide Ex. P. 28 and his subsequent information Ex. P. 29 consequent upon which he recovered the 'Kassi' from the residence of the accused-appellant vide Ex. P. 12, as is stated by Tara Chand as well as P.W. 7 Balkaran Singh and P.W. 2 Mangatu Khan, Officer-in-charge of the Malkhana of the Police Station, all the blood stained articles including the 'Kassi', were kept in the Malkhana in a securely packed and sealed condition, the same were deposited with the R.F.S.L., Jaipur and as a result of their chertiical examination, except the control soils, all such articles so seized and packed and examined were found to be stained with human blood. However, it is to be noted that though the report of the R.F.S.L., Jaipur which is admissible under Section 293, Cr. P.C. was straight way presented in the Court on 9-8-90 by the prosecution but it was not exhibited. Besides, it was not tendered in evidence subsequently either at the time of examination of P.W. 9 Tara Chand or P.W. 12 Raja Ram as well. Thus, the report was never exhibited nor it was tendered in evidence at the time of examination of any of the prosecution witnesses, as above, it was straight way taken on the record and the same is lying in the record as such.
35. The learned trial judge, since this document was legally admissible in evidence, in absence of a formal proof in respect of the same the same ought to have been immediately marked as a document of the prosecution. Not only this, the learned trial judge committed another serious irregularity by not referring this document while the accused appellant was under examination under Section 313, Cr.P.C and, at the same time, no specific question was framed and asked to the accused appellant about the result of the R.F.S.L. report. It ought to have been asked that since such report received from the R.F.S.L., Jaipur reveals that all the articles duly marked as Article 1 to Article 16, were seized from the place of occurrence and, barring the samples of soils, rest of the articles have been found to be stained with human blood and, at the same time, the 'Kassi' (Article II) alleged to have been recovered from the possession of the accused-appellant, as are the statement of PW-9 Tara Chand and PW-4 Jora Ram, the same has been found to be stained with human blood and, therefore, if he had any explanation to advance in this respect as to how did he come in possession of Article 11 Kassi immediately after the occurrence resulting in killing his own brother Gopi Ram. This was never to happen and therefore, whatever circumstance material and proposed to be used against the accused appellant, has to be put to the accused appellant while examine under Section 313 Cr. P.C. so that he can have fuller opportunity to explain this circumstance, in case he is a position to, and in absence of any plausible explanation, this circumstance can be made use of against him along with other prosecution evidence.
36. That being so, since the learned trial judge failed to make use of the R.F.S.L. report according to law as well as in affording an opportunity to the accused appellant to explain the possession of Article 11 'Kassi' besides presence of human blood on the same and as such the result of R.F.S.L., Jaipur, as above, showing that the 'Kassi' allegedly recovered from the possession of the accused appellant was blood stained, cannot be accepted against the accused appellant. Thus, so far as the alleged recovery of 'Kassi' (Article 11) by PW-9 Tara Chand vide Ex.P. 12, the same has been wrongly admitted in evidence and also relied upon by the learned trial judge.
37. Regarding credit worthiness of the testimony of PW-8 Ramu Ram PW-10 Smt. Manohari and PW-11 Smt. Guddi, apparently, being son, mother and (her) daughter in law inter-se and brother, mother and wife of the deceased Gopi Ram, they are close relations and are also apparently interested against the appellant. Though Ramu Ram being brother and Smt. Manohari being mother of the appellant, specially, mother would not depose falsely against her son yet since the deceased was residing with his mother while the appellant was separated about 10 years prior to the incident and was not feeling satisfied about the distribution of land falling to his share, was not having normal relations with his mother, so the Court has to appreciate the ocular evidence with an extra care and caution. Mere relationship or interested by itself cannot be a ground for an out-right rejection of evidence of such witnesses but the same has to be critically and intrinsically sifted, scanned and appraised before holding the same reliable to conclude finding of guilt of the accused.
38. PW-8 Ramu Ram lodged Ex.P. 27 FIR as also supported by PW-12 Raja Ram, A.S.I., at the Police Station. Nohar at 5.30 a.m. on 20-9-89 and the same appears to have been received in the Court of Addl. Chief Judicial Magistrate, Nohar at 10.40 a.m. on the same day. The Court is situated at a distance of almost 1-1/2 km. from the Police Station, Nohar, as stated by Raja Ram. The place of occurrence is about 14 miles away from the Police Station. Though it is not clear whether Ramu Ram went to the Police Station riding a camel or on a camel-cart, however, on the basis of evidence available, there does not appear inordinate delay in lodging the FIR and forwarding the same to the concerned Court and no objection in this respect is sustainable.
39. However, as regards truthfulness of the version of Ex. P. 27 FIR., the same is seriously disputed.
40. PW-8 Ramu Ram deposed that Smt. Guddi was sleeping in the inner Court yard by their side, on a separate cot but he did mention in Ex. P.27 FIR that he, along with his mother. Smt. Manohari was sleeping in the inner Court-yard but he has clearly omitted mention of presence and sleeping of PW-11 Smt. Guddi, in the same. Had she been there and all was normal and nothing foul was smelt against Smt. Guddi, since she is the wife of the deceased, her name could not have been omitted in Ex. P. 27. Therefore, when Gopi Ram accused was sleeping in the outer Courtyard, normally, she ought to have been in the company or by the side of her husband specially when she had allegedly returned to from her parental house after a long time, though here is a denial. Smt. Manohari stated that Smt. Guddi went to Gopi Ram for a little while and had returned to her side since she was unwell. This is neither supported by PW-8 Ramu Ram nor by Smt. Guddi herself. This is an improvement over the statement of PW-8 Ramu Ram. Smt. Guddi being wife of the deceased, admitted that the deceased had not died till they went nearer to him and was agonizing in a critical and unconscious condition since his throat was cut partially and he died after 15 or 20 minutes. She did not embrace her dying husband nor did she try to tie or bandage the bleeding wound of the deceased to stop the blood. His body lay straight and none appears to have touched the same. There was no blood on the clothes of PW-8 Ramu Ram PW-IO Smt. Manohari or PW-M Smt. Guddi. No mother worth her milk and no wife worth her salt and woman wood would see her son and husband dying standing away as a stranger spectator. Even, on the same ground, conduct of Ramu Ram and Smt. Manohari is also most unnatural and unreliable. That being so, the decision rendered in Angad v. State of Maharashtra (1981 Cri LJ 733) holding that evidence of eyewitnesses cannot be rejected on the ground of their not having intervened to save the deceased, cannot help. However, this sole ground cannot be a valid ground to reject their testimony in case otherwise such testimony is found to be believable.
41. Ramu Ram clearly stated in Ex. P. 27 that on hearing cries of Gopi Ram, both he and his mother woke up, not Smt. Guddi, and they saw that the accused had over powered and held Gopi Ram, who had something in his hand. This report was lodged after due deliberations and after almost five hours of the incident. Had Ramu Ram and Smt. Manohari, and, even if so assumed, Smt. Guddi actually seen the offender, as above, they could have very well named the 'Kassi' (pickaxe) and Ramu Ram could have mentioned the 'Kassi' having been used in the alleged crime. The offender could not have taken chance of sitting on the body of the sleeping deceased (Gopi Rain) whose was a stout body only to disturb his sleep and allow him to cry as staled by Ramu Ram. Smt. Manohari and Smt. Guddi. They have improved upon the version of FIR to depose that they heard the cries of 'Orey Orey' and the omission is not explained. In fact, Gopi Rain as is visible from the photos Ex. P. 14 to Ex. P.18 could not have been awakened before he received the single fatal injury on his trachea region cutting the trachea itself and hence Gopi Ram could not have shouted or even groaned. That being so, he lay in a straight position with his head placed on the pillow in the normal position. Had the offender sat over him, on his sleeping position, there was enough time for the deceased to have woken up and changed his position and he could not have been hurl in the position as borne out of Ex. P. 14 and Ex. P. 15 photos since he could have tried to ward off the blow and. at least, could have acquired semi-sitting position before the fatal blow landed on his neck straight way cutting his trachea and the joining parts thereof. It must have taken a few seconds to enable the assailant to leave to the deceased and taking his position towards the head of the deceased, picking up the 'kassi' and then giving a blow on the neck specially when PWs. Ramu Ram. Smt. Manohari and Smt. Guddi State they had opened their northern gate and come out of the same and, on seeing them, the offender, leaving the deceased, gave the fatal blow in their presence made made good his escape with the 'Kassi.'
42. No offender, in such circumstances, would sit over the body of a young roubst and healthy man to alert him, specially when he surreptitiously commits a lurking house trespass to commit murder to screen himself from the offence and, therefore, though it has been stated in Ex. P. 27, FIR. by PW-8 Ramu Ram and so also supported by PW 10 Smt. Manohari and Smt. Guddi, besides PW-8 Ramu Ram himself, it is most unbelievable that the offender must have held the deceased, sitting over his body and, then on their appearance, inflicted the single blow unless he wanted to enable the witnesses to see him committing the offence. Had they seen and identified the offender, it could not have been reported in Ex. P. 27 that the offender had something (not kassi) in his hand, not placed or lying towards the head of the deceased with which he inflicted injury and went away. Had the offender come armed with a 'Kassi', he could not have kept the same aside, by the head side of the sleeping deceased and instead sat over the sleeping victim (deceased) unless he intended to throttle and strangulate him which he did not. He did not otherwise hurt the deceased and inflicted a single blow from a standing position. Therefore, the theory of having seen the offender sitting over and holding the sleeping Gopi Ram is far from natural and the same appears to have been cooked up to create gap between the alleged cries, which could not have been possibly there since the trachea and so voice cord having been cut speech/cry/sound was impossible, and appearance of the witnesses on the scene of occurrence and the same does not inspire confidence.
43. Ex. P. 13 site plan shows that there is 'Nohra' of Ramu Ram adjoining southern border of the house of the accused Banwari Lal. Ramu Ram could not deny it. PW-6 Phoosa Ram and PW-3 Jaipal have stated that there is house of Ramu Ram on the southern-side of the house of the accused, as shown in Ex. p. 13. Ramu Ram did admit it but he stated that he was living with mother and his wife had gone to her parents house. It again, on the face of allegations of the accused about his alleged illicit relations with the wife of the deceased, in case presence of Smt. Guddi is accepted, raises a finger of suspicion against Ramu Ram as well, Ramu Ram did not mention in Ex. P. 27 FIR that he saw the accused holding and pressing Gopi Ram and then he got up and picking up the kassi, inflicted its blow on the neck of Gopi Ram and so also the same is omitted in Ex. D. 1 police statement as is the case with PW-10 Smt. Manohari. They have modulated their statements according to the finding of Ex. P. 1 P.M.R. subsequently and it again makes their testimony highly suspicious PW-8 Ramu Ram further admitted that by the time they reached the place of occurrence, the offender had already fled away and the distance could not have been estimated since it was a dark then.
44. PW-10 Smt. Manohari admitted that the Medical Officer was present at the site to conduct post-mortem of the dead body and she was examined at that very time. She did admit initially that the Doctor told that the injury must have been caused with a Kassi and then changed her version to State that they had seen the kassi being used in the assault in spite of her omission in Ex. D. 2 police statement. She was aged 55 years, at the time of her statement and her eye-sight could not have been normal as tears were oozing out from eyes at the time of her examination. She stated that the accused was sitting on the chest of the sleeping deceased, when they opened their door and, thereafter, got up, picked up and inflicted injury with the 'Kassi'. As stated by PW-8 Ramu Ram, had they seen the offender sitting on the chest of Gopi Ram, he could have immediately rushed towards them to intervene and it could not have left the assailant free and undisturbed to get up and, picking up a 'Kassi' at ease and landing the blow with such an exactitude on a motionless deceased. This could have been only possible and natural when the offender came to the spot surreptitiously and lurkingly and found the deceased in a sound sleep and he immediately inflicted a forceful blow of the 'Kassi' with the sole intention of killing him and must have left immediately. This gave no chance to the deceased to have cried or shouted and to have made any movement as his condition is sighted in Ex.P.14 to Ex. P. 15 photos. Had the witnesses seen him inflicting the blows, they would have very naturally shouted and cried for help and given a hot pursuit to the offender and attracted the attention of the neighbours. There was nothing so. This is most unnatural and unbelievable conduct. None was attracted except Phoosa Ram and Raja Ram approaching by Ramu Ram. PW-10 Smt. Manohari even stated that Gopi Ram did try to get up but he could not. It is most unbelievable. Had the assailant sat over his chest and then released and picked up the 'Kassi', it left enough time for him to have tried to get up whereas he was found lying in a sleeping position on the straight position on the back. She stated that no sooner they reached near the cot of Gopi Ram, the assailant ran away taking the 'Kassi' with him. She further stated that to which direction he had gone, could not be seen.
45. PW-11 Smt. Guddi has deposed that the accused started quarrelling with Ramu Ram (PW-8) on the previous day and so Gopi Ram intervened while both PW-8 Ramu Ram and PW-10 Smt. Manohari stated, that the accused was quarrelling with Gopi Ram and so Ramu Ram intervened. This also lends to show that Smt. Guddi could not also be present there. She has clearly admitted that Ramu Ram had accompanied police after investigation at the site, to the Police Station and so also PW-10 Smt. Manohari supports her. This shows that Ex. P. 27 must have been post investigation otherwise what could have been purpose of his re-visiting Police Station leaving corpse of his brother at home.
46. PW-12 Raja Ram appears to be highly interested in the prosecution since he admitted that PW-8 Ramu Ram and PW-10 Smt. Manohari did not state in Ex. D. 1 and Ex. D. 2 police statements that they saw the accused assaulting the deceased with a Kassi because they were in a disturbed mental condition.
47. Though PW-8 Ramu Ram did not show the actual position of the alleged three cots in the inner Court-yard on which the three alleged witnesses slept, besides the exact points from where they actually saw the accused at first sight. However, whatever was or could be told by the witnesses to the Investigating Officer, when reduced to writing even in the site plan or memos thereof, the same is nothing but a statement before police, its use is limited by Section 162, Cr. P.C. However, all the material and relevant facts and prevalent state of affairs seen and observed by the Investigating Officer himself at the site should justifiably be mentioned in the site plan and the related memorandum thereof for proper appreciation of the situation at the time of commission of the crime.
48. Having regard to the facts and circumstances discussed above, having bearing on the testimony of the alleged eye-witnesses it is shrouded with great suspicion whether the incident did in fact happen in the manner as reported in Ex. P. 27 FIR and also unfolded by the PWs Ramu Ram. Smt. Manohari and Smt. Guddi. The presence of Smt. Guddi. being omitted in Ex. P. 27, is very doubtful. Both Ramu Ram and Smt. Manohari since were not pulling on well with the accused and some altercations appear to have taken place between the accused on the one hand and rest of his brothers on the other hand and hence, at any time in the night, finding Gopi Ram lying dead, naturally it aroused their suspicion against the accused and hence the case was slapped on the accused, this possibility cannot be ruled out outright.
49. Besides, PW-8 Ramu Ram has admitted that it was dark at the time the accused made good his escape and so the distance he had covered could not be judged in the night, by time of their reach at the cot of the deceased. As is borne out of the statement of PW-8 Ramu Ram. Ex. P. 3 site plan of the place of occurrence, being the outer Court-yard, whereat milch cattle were tethered and fed fodder etc., no exact measurement of the same is shown in Ex. P. 3. PW-3 Jaipal Sarpanch stated that the area of the outer Court-yard measured approximately 150 x 150 feet and the cot on which Gopi Ram deceased was lying dead was plaqed in the north-eastern corner of the yard near the 'kund' (water tank). This was about 20 to 25 feet away from the outer gate abutting eastwards. There is a place of sitting in the entrance gate of the resident having a built up area of 30' x 10/12' and there is also an outergate (exit) towards north abutting the outer Court-yard, measuring about 7-8' x 8' (high). Naturally, this gate was closed in the night, as also admitted by PW-8 Ramu Ram. He stated that hearing cries of Gopi Ram, though the latter could not have cried, he opend doors of this gate and came out into the outer Court-yard. Was it still natural for the offender to keep on sitting on the chest of the deceased without any resistance till the witnesses appeared on the scene He further stated that the cot of Gopi Ram was at a distance of 20 feet from the outer gate of the entrance from where they alleged to have seen the assailant sitting on the chest of Gopi Ram and subsequently running away after having dealt with the deadly blow of a Kassi. This is not borne out of any reliable evidence. PW-11 Smt. Guddi, though her presence is doubtful, stated the same distance to be 15 to 20 feet without any basis therefor.
50. Though it is highly improbable that the incident took place in the manner as is deposed to by Pws. Ramu Ram, Smt. Manohari and Smt. Guddi and also as reported in Ex. P. 27 FIR besides, it must have taken quite some time for them to have got up and opened the door before they could see the offender, if so. This gave quite some time to the assailant to have inflicted a single blow of 'Kassi' on motionless-sleeping Gopi Ram to be out of sight within a spur of moment, leaving no time for the witnesses to challenge, make hue and cry, as there was none, and hence there was no time and opportunity left for the witnesses to have witnesses and identified the asailant specially in the night.
51. Admitting that Gopi Ram was sleeping on a cot at a distance of about 20 to 25 feet away from the outer gate of the outer Court yard, the length/breadth of the same being about 150 feet as stated by PW-3 Jaipal Sarpanch and as is also apparent from Ex. P. 13 site plan, the cot on which Gopi Ram was sleeping must have been at a distance of about 100 feet or so from the door of gate of the inner Court yard opening towards north from where the alleged witnesses are alleged to have seen he occurrence. This distance, even when liberally considered, could not have been of lesser than 75 feet since the cot is clearly shown by points 'A' in Ex. P. 13 site plan which is quite beyond towards north eastern corner from the center of the Court yard and so the witnesses on their coming out of the gate No. 2, could not have identified the assailant. Even if it is held that any person was seen so assaulting any running away, since they failed to identify the weapon and manner of assault by the same as is omitted in Ex. P. 27 FIR though the accused was their close-relation, from a distance of beyond 75 feet, in a part till (quarter) moon-light, as it would fall on the night intervening 19th and 20th September, 1989, even one with his perfect eye-sight could not be able to correctly identify a well known person.
52. It was observed in Kunnummal Mohammed v. State of Kerala, (AIR 1963 Kerala 54 : (1963 (1)Cri LJ 175).
'Even, going by that distance, the situation does not change. Modi (Vide Modi's Medical Jurisprudence and Taxicology-13th Edition page 60) while, dealing with the amount of illumination required for identification observed:
'According to Tidy, the best known person cannot be recognised in the clearest moonlight beyond a distance of seventeen yards. Colonel Barry. 1 M.S. is of opinion that at distances greater than 12 yards the stature or outline of the figure alone is available as a means of identification. To define the features even at a shorter distance is practically impossible by moonlight.'Dr. Vincent in Legrand and Saule's Legal Medicine' says that:
'...presuming the eyesight to be normal by moon-light one can recognise, when the moon is at the quarter, persons at a distance, of 21 ft., in bright moonlight at from 23 to 33 ft; and at the very brightest period of the full moon, at a distance from 33 to 36 ft. In tropical countries the distance from 'for moon-light may be increased.'Even, making allowance for the increase in the distance in tropical countries, the distance of moonlight recognition cannot go from twelve yards or seventeen yards to 45 yeards and 52 yards as in this case. We are not fixing any general standard applicable, in all cases. But in the nature of this case and with due regard to the shadows of the cashewnut forest wherein the scene of stabbing is situated, identification of the accused at a distance of 45 and 52 yeards does not appear to be possible.'
53. It is observed in Criminal Investigation, Fifth Edition, by R.L. Jackson at page 159 as under:
'It is appropriate here to call attention to what has been said about the distance at which we can recognize persons presuming the eyesight to be normal and the light good, one is able in broad daylight to recognise:
(a) Persons whom one knows very well, at a distance of from fifty to ninety yards; when there are particular and very characteristic signs, 110 yards; in exceptional cases up to 165 yards.
(b) Persons one does not know very well and has not often seen, from twenty-eight to thirty-three yards.
(c) People one has only seen once, sixteen yards.
By moonlight one can recognise, when the moon is at the quarter, persons at a distance of from thirty-three feet; and at the very brightest period of the full moon, at a distance of from thirty-three to thirty-six feet. In tropical countries the distances for moonlight may be increased.'
54. In this view of the matter, looking to the time when the (moon could have been at its quarter, though on the clear admission of PW-8 Ramu Ram himself that it was dark, the distance between the cot of Gopi Ram and the door of the inner Court yard from where PWs. Ramu Ram, Smt. Manohari and Smt. Guddi claim to have seen arid identified the assailant the present appellant, even if they are accepted to be eye-witnesses, they could not have been in a position to recognise and identify the alleged assailant correctly beyond a distance well over 50 feet.
55. Therefore, from which ever angle viewed and judged, the testimony of PWs Ramu Ram, Smt. Manohari and Smt. Guddi does not inspire confidence and their reliability that they did actually witness the occurrence and further they had correctly recognised and identified the assailant being the appellant himself and none else.
56. At the same time, it may be noticed that the incident allegedly having taken place on the afternoon of previous day at the house of Gopi Ram was not new and unusual, even as per the prosecution version, and hence the same could hardly furnish an enough motive for the appellant to have done Gopi Ram to death though he still claimed that he did not have any axe to grind against the accused being favourably disposed towards him but PW-8 Ramu Ram and PW-10 Smt. Manohari wanted to deprive him of his rightful claim over the undivided agricultural land hence he was falsely roped in.
57. Be that as it may, there is no other direct or circumstantial evidence to hold beyond reasonable manner of doubt that the appellant is the murderer of Gopi Ram deceased.
58. The learned trial judge did not examine the prosecution evidence critically and objectively in its right perspective before placing reliance on the same.
59. As a result of above discussion, we do not find the prosecution case proved beyond reasonable manner of doubt against the appellant and, therefore, this appeal deserves to be accepted.
60. We, therefore, accept this appeal. The impugned judgment and order thereby convicting and sentencing the accused appellant under Section 302, I.P.C. and imposing a sentence of life imprisonment and a fine of Rs. 1000/- and. in default, one month's rigorous imprisonment on the appellant are quashed and set aside and he is acquitted of offence under Section 302, I.P.C. In case he is undergoing sentence of imprisonment, he shall be set at liberty forthwith, in case no longer required in any other cast.