JUDGMENT M.C. Jain, J.
1. The two accused-appellants Mahraj Singh and Harbhan Singh arc real brothers who have preferred this appeal against the judgement and order dated 15.5.1982 passed by the Sessions Judge, Lalitpur in S.T. No. 13 of 1982. The former has been convicted under Section 302 I.P.C and sentenced to life imprisonment whereas the latter has been convicted under Section 302 read with Section 109 I.P.C. with sentence of life imprisonment.
2. The incident occurred on 20.10.1981 at about 9.00 A.M. near the field of one Banshi in village Binaika Toran, Police Station Jakhaura, District Lalitpur and the F.I.R. was lodged the same day at 11.15 A.M. by an eyewitness Khushal Chand-nephew of the deceased Sunder Lal. The prosecution case as per the F.I.R. and the evidence adduced in the court may be sumarized thus: Sunder Lal deceased had his agricultural land in village Binaika Toran. The day preceding his murder, his cattle had strayed into the field of accused Mahraj Singh and damaged his crop. In the morning of 20.10.1981. Sunder Lal was going on his horse from Haar of village Binaika Toran to his Bhuta field to fetch grass therefrom and he was followed by a bullock-cart carrying his nephew Khushal Chand PW 1 and two labourers, Darai PW 2 and Khuman PW 3. At about 9.00 A.M. he alighted from his horse near the field of Banshi at the outskirts of village Binaika Toran to wait for the incoming cart: But before the cart could reach there, the accused Mahraj Singh with an axe in the company of his brother Harbhan Singh approached him (Sunder Lal) to demand compensation with regard to the damage caused to his field the previous day by the cattle (of Sunder Lal). An altercation ensued between the two sides. Accused Harbhan Singh exhorted the other accused Mahraj Singh to kill Sunder Lal with the result that the latter accused assaulted Sunder Lal with his axe causing injury to him. He fell down on the ground but even thereafter Mahraj Singh gave him axe blow. Noticing the occurrence, Khushal Chand PW 1 and his two said companions rushed to the spot of the occurrence in order to apprehend the assailants, but to no effect. Sunder Lal succumbed to his injuries instantaneously at the spot. Khushal Chand then got report of the incident prepared from a co-villager and went to the police station. There he lodged the F.I.R. A case was registered. Investigation followed as usual at the hands of S.I. Nand Kishore Mall PW 7 who proceeded to the spot to find the corpus of the deceased there. He conducted inquest proceedings. He sealed the dead body of the deceased and sent the same for post mortem. He collected bloodstained and simple earth from the spot. The accused Mahraj Singh was arrested oh 23.10.198!. After his arrest. he allegedly made confessional statement and got recovered the axe ( the weapon of the offence) from nearby bushes. The other accused Harbhan Singh surrendered in the court on 31.10.1981. Ultimately, a charge-sheet was submitted against both of them.
3. It would be relevant to state here that post mortem over the dead body of the deceased Sunder Lal was conducted by Dr. Suresh Shakilya PW 4 on 21.10.1981 at 5.00 P.M. He was aged about 43 years and about 1 1/2 day had passed since he died. The following ante mortem injuries were found on the person of the deceased-Sunder Lal:
1. Incised wound 9 cm x 2 cm x hone deep extending from left nostril to middle of left ear and left eye with underlying fracture of maxilla and left temporal hone.
2. Incised wound 6 cm x 0.5 cm x muscle deep on the back near the post fold of left axilla.
4. The cause, of death was shock and haemorrhage as a result of ante mortem injuries.
5. The defence was of denial and of false implication.
6. The prosecution in all examined nine witnesses. Out of them. Khushal Chand PW 1, Darai PW 2 and Khuman PW 3 were the eye-witnesses. The remaining evidence was more or less of formal nature inclusive of autopsy, registering of the case, recovery of axe at the instance of the accused Mahraj Singh and investigation.
7. Believing the prosecution evidence, the trial judge recorded the impugned judgement of conviction.
8. We have heard Sri P.N. Misra, learned Senior Advocate, on behalf of the accused-appellants and Sri R.K. Singh, learned A.G.A. for the State. The record of the lower court has been summoned before us which we have carefully perused.
9. Arguing for Harbhan Singh first, the learned Counsel urged that he came to be falsely implicated on the alleged role of exhortation and he could not at all be convicted. True, the only role assigned to the accused-appellant Harbhan was that he exhorted the main assailant (Mahraj Singh) to assault Sunder Lal and then Mahraj Singh inflicted axe blows on him. It was so as per the recital of the F.I.R. as also according to the testimonial assertions of eye-witnesses Khushal Chand PW 1, Darai PW 2 and Khuman PW 3. The experience shows that there is a tendency to include the innocent with guilty. It is extremely difficult to guard against such danger. The only real safeguard against the risk of connecting the innocent with the guilty lies in insisting on acceptable evidence which in some cases implicates such accused and satisfies the conscience of the court. In such cases, no doubt the prosecution witnesses claim to have seen the occurrence involving all the accused, but it is sale only to convict those who are said to have taken active part. In the present case, the accused-appellant Harbhan Singh is the real brother of main assailant Mahraj Singh. It was Mahraj Singh who had a grudge against the deceased for the hitter's cattle having grazed his field the previous day. It was also he who had accosted deceased at the relevant time and rebuked him for the earlier incident of the damage caused by his cattle. It was also he who was armed with an axe (deadly weapon). He being armed with an axe hardly needed any exhortation to operate under these circumstances. On consideration of the totality of the facts and circumstances of the present case, it was not safe to convict the accused-appellant Harbhan Singh on the basis of his alleged role of exhorting the real assailant Mahraj Singh. He should, therefore, be afforded benefit of doubt and acquitted. We shall so order.
10. Coming to the case of the main assailant-accused-appellant Mahraj Singh, Sri Misra criticized the testimony of the three eye-witnesses, namely. Khushal Chanel PW 1, Darai PW 2 and Khuman PW 3 that they could not be believed holding him to be guilty. He urged that Khusal Chanel was the own nephew of the deceased whereas the two other eye-witnesses were his labourers and were interested in the success of the prosecution. We do not think that the testimony of these three eye-witnesses could be discarded on such reasoning suggested by the learned Counsel for the appellants. The kin of the victim has to be treated as a normal witness. The simple fact of the two other witnesses being labourers of the deceased could also not be a ground to throw away their confidence inspiring testimony overboard. We have carefully securitized the testimony of these three eye-witnesses and are in agreement with the trial judge that they were perfectly believable on the central question that it was the accused-appellant Mahraj Singh who axed down the victim Sunder Lal on the given date, time and place. The three witnesses vividly described the occurrence. It has to be pointed out that the ocular testimony was in conformity with medical evidence as found on the post mortem of the deceased conducted by Dr. Suresh Shaklaya PW 4. Two incised wounds had been found as ante mortem injuries which could be caused by axe as deposed by the said Doctor. The death had occurred due to shock and haemorrhage as a result of such incised wounds which could have been caused at about 9.00 A.M. on 20.10.1981 and the victim could have succumbed to his injuries within minutes of sustaining them. Incised wounds had been caused on vital parts of the body of the victim.
11. The F.I.R. was prompt one having been lodged at 11.15 A.M. the same day. The distance of the Police Station from the place of occurrence was six kms. Obviously, the F.I.R. was lodged by an eye-witness Khushal Chanel PW 1 without any delay. The names of other two witnesses were also mentioned in the F.I.R. as also the previous background of the grazing of the crop of the field of Mahraj Singh accused-appellant by the cattle of the deceased the previous day. Indeed, the accused-appellant Mahraj Singh had a cogent and immediate reason to commit the crime.
12. The gist of the testimony of Khushal Chand was that the clay preceding the murder of Sunder Lal, the latter's bullock had strayed in the field of Mahraj Singh accused and had grazed his Kodon crop. Me also stated that his uncle Sunder Lal had reached the field later and the accused had not met him at that time. Instead, the accused's uncle had met the deceased and had rebuked him in that connection the previous day. On the fateful time, he along with Darai PW 2 and Khuman PW 3 had been going to fetch grass from Bhata field, The cart was being driven by Khuman. Sunder Lal deceased was going ahead of the cart on his horse. As the cart was moving a little slowly than the horse, Sunder Lal happened to go ahead of him with the result that on reaching Jakhaura-Nanora road nearby the field of Banshi, he stopped to wait for him at about 9.00 A.M. The cart was then moving through a circular passage as at that place a culvert was under construction. He then noticed the accused Mahraj Singh with an axe talking with Sunder Lal in the presence of Harbhan Singh, demanding compensation for the damage caused to him the previous day by the grazing of cattle (of Sunder Lal). Sunder Lal said that he was prepared to compensate him, but Mahraj Singh assaulted Sunder Lal with his axe hitting him on his left temple in between his ear and nose. Sunder Lal fell down. Even then Mahraj Singh again gave axe blow on his back nearby left arm pit. He and his said companion rushed to apprehend the accused but the latter ran away. Sunder Lal became breathless and died. It was there in his evidence that the murder had taken place about 40-50 paces from the spot where the bullock-cart had then happened to be at that occasion. The cart could not be driven fastly because of the Kachcha passage. For this reason it was then moving slowly. He was corroborated in these material particulars by both Darai PW 2 and Khuman PW 3. Both of them were at work as labourers of Sunder Lal for the last two days. At the relevant time, they were going to fetch grass on the bullock-cart. Thus, all the three witnesses were well in a position to see this incident which they truthfully narrated. So. it comes out that the accused Mahraj Singh had a motive to commit this crime. The defence also did not dispute even through any suggestion to Khushal Chand PW 1 that Sunder Lal's cattle had strayed into the field of accused Mahraj Singh damaging his Kodon crop the preceding day, The three eye-witnesses named above saw the deceased being done to death In him In axing on the given date, time and place. Despite searching and gruelling cross-examination, nothing came out to dislodge their testimonial assertions in this behalf.
13. Learned Counsel for the accused-appellants then alternatively urged that it was a sudden quarrel between Sunder Lal deceased and Mahraj Singh accused and that it was culpable homicide not amounting to murder. Learned Counsel has cited two cases in this behalf. First one is Sunder Singh v. State of Rajasthan 1988 Supreme Court Cases (Cri) 905. In that case, the incident was sequel to a dispute between two parties as to who had the turn to use the water pump. It was not clear who in fact had the turn. Under circumstances, it was held that it could be assumed that the appellant in the exercise of his right to use the pump got enraged and tried to prevent the mischief by the deceased. Hence, the conviction was altered from Section 302 to that of Section 304 Part I, I.P.C.
14. The second cited case is of Manke Ram v. State of Haryana 2003 (46) ACC 948. In that case, the conviction was altered from Section 302 I.P.C. to that of Section 304 Part I, I.P.C. under these circumstances: The accused-appellant was in-charge of police post. He invited Head Constable Suraj Mal deceased to have a drink with him in the residential portion. The appellant got infuriated over the deceased getting up on being asked by Raj Pal PW 5. The appellant abused him leading to a brawl. The appellant fired two shots on the deceased from his service revolver which hit right side of his neck and left side thigh. The deceased succumbed to death soon after. It was held that there was no motive to kill and the incident took place when the appellant was in an inebriated condition in a sudden fight in heat of passion. The appeal was allowed to this extent that the appellant's conviction was altered from Section 302 I.P.C. to that of Section 304 Part I of I.P.C.
15. On indepth consideration, we are definite that none of the two cited cases justifies the present offence to be taken as one of culpable homicide not amounting to murder. The facts of the cited cases were entirely different. To invoke help from the cited cases is like inserting a square peg in a round hole in the setting of facts, evidence and circumstances of the present case which are entirely on different footing. In the present case, it was out and out murder. The accused-appellant Mahraj Singh clearly had intention to kill the victim. Me was nursing grudge against the deceased because of the preceding day incident of grazing of deceased's cattle into his field, damaging his crop. It was he who accosted him at the relevant time and questioned him for the previous day's incident when he (deceased) was waiting for the approaching bullock-cart near the field of Banshi. At that time, he was intentionally armed with axe. It is there in the testimony of three eye-witnesses that on being questioned by him. the deceased responded that he would compensate his loss. Thus, the deceased exhibited conciliatory and mollifying gesture. Nevertheless, Mahraj Singh inflicted axe blow on him. Not only this, he gave second blow of axe to him after he had fallen down. Both the axe blows were inflicted on vital parts resulting in instantaneous death of the victim. All these facts clearly indicated that he intended to murder the victim and gave him two axe blows to do the job. There was hardly any question of any sudden quarrel. The damage to the crop had been done the preceding day. There was no continuous proximity between the damage caused by the cattle of the deceased to the crop of the accused-appellant Mahraj Singh and the incident. Furthermore, as we pointed out, even on being questioned, the victim was ready to compensate the loss. So, the argument cannot be accepted that the incident was in consequence of sudden quarrel. The deceased was unarmed. He had done or said nothing to provoke the accused-appellant. Rather, he was in conciliatory mood by offering to compensate him. We. therefore, reject the argument that the offence was culpable homicide not amounting to murder. As we said, it was murder out and out.
16. In the result, we partly allow this appeal. We set aside the conviction and sentence passed against the accused-appellant Harbhan Singh, while affirming the conviction of the accused-appellant Mahraj Singh under Section 302 I.P.C. with the sentence of life imprisonment awarded to him by the trial court. The accused-appellant Mahraj Singh, who is on bail, shall be caused to be arrested and lodged in jail to serve out the sentence of life imprisonment passed against him by the Chief Judicial Magistrate, Lalitpur. He shall report compliance within two months from the date of receipt of a copy of this order which shall be sept by the office immediately.