BADRA Vs. STATE

JUDGEMENT

(1.) THIS is an appeal by two accused Badra and Sawa who have been convicted by the Additional Session Judge Balotra under sec. 325 I. P. C. and sentenced to rigorous imprisonment for four years and a fine of Rs. 1000/- each. In default of payment of fine, they have been sentenced to undergo a further rigorous imprisonment for six months.

(2.) THE prosecution story in this case was that one Ashmal Mahajan, resident of the village Morseem, was a social, worker and President of the local Congress Comittee. He used to interfere with the administration of the thikana an in the jagirdar's right to realise certain taxes from the people. THEre was, thus, some enmity between him and the Thikana Morseem. It was alleged that on the 24th of Oct. , 1951 shortly after sun-rise, Ashmal went out to answer the call of the nature on this side of the village in which Ramdeoji's temple is situated. When he was returning after easing himself, four persons, namely, the two appellants Badra and Sawa and Jodh Singh and Heer Singh, who were incited by the younger son of the Thakur of Morseem, nemely, Ratan Singh and who was also present at the site, made a concerted attack on Ashmal and caused him so many injuries with lathis and sword that he died a few hours after the occurrence. According to the prosecution, one Abhey Singh wast at the time of occurrence, taking his buffalo to Kot-ki-Nadi which is very near the actual site, in order to enable her to drink water. He hard Ashmal's cries and also saw him being beaten. At the same time, Ashmal's brother Manmal and one Leela were taking their bath on Peechka well. THEy also heard the cries and asked Abhey Singh who was crying. Abhey Singh informed them that Ashmal was being beaten. THEreupon these two persons also went to the place where Abhey Singh was standing. THE assailants, however, ran away and could not be caught. Four of the assailants, namely, Badra, Sawa, Jodh Singh and Heer Singh, were challaned by the police under sec. 302 I. P. C. while Ratan Singh was challaned for abetment of the same offence under sec. 302 read with 114 I. P. C.

(3.) I think, the said observation of their lordships does not very much help the prosecution in this case. It is true that the evidence of a certain witness cannot be discarded simply because of his relationships with the deceased or the person in respect of whom an offence is committed. In fact, if an offence is committed in a dwelling place, the person who are most likely to be present are the near relatives. It is also true that ordinarily close relatives and honest friends would rather prefer to get the real offender punished that to screen the real culprit and falsely implicate an innocent person. But at the same time it may be remarked that in a case like the present one where an occurrence takes place for away from the dwelling house of the deceased and when the presence of the near relatives or friend is not necessary or natural in the ordinary circumstances, then the fact that the prosecution is able to get, only relatives or interested persons and no independent evidence, does not go in its favour. What I mean to say is that the deceased in this case had gone out to answer the call of nature and it is not the case of the prosecution that he was accompanied by any of his relatives when he started from his house. According to the prosecution, both Manmal and Leela, who are his relatives happened to be present at the well since they had gone there independently for a bath. At a place like a well, other persons are also likely to be present ordinarily. In fact, Leela had himself stated in the committing Magistral's court that there were several other persons also present at the well. Under the circumstances. If the prosecution produced only relatives of the deceased like Manmal and Leela or a person like Abhey Singh who admittedly is not on good relations with the thikana, then the evidence of such persons, in my opinion, needs a closer examination. It is not a usual phenomenon that allthe persons residing near about the site of occurrence should fail to observe the occurrence while relatives who are normally not expected to be present at such a place should happen to come there. In the present case the prosecution has not produced any of those persons who were living near about the place of occurrence, but only Abhey Singh and two relatives of the deceased happen to witness the incident. Under the circumstances, their evidence cannot be taken unreservedly but it does require a close scrutiny. It is not meant to suggest that they must be disbelieved simply because of their relationship, but their presence not having come in the normal circumstances, their evidence is on no batter footing than those of other chance witnesses who may not be relatives. As observed by their lordships of the Supreme Court in the case of Dalip Singh vs. The State of Punjab (1 ). when feelings run high and there is personal cause for enmity, there is a tendency to drag in an innocent person against whom a witness has a grudge along with the guilty Sweeping generalisations in the matter of believing or disbelieving witness cannot be made and each case should be judge on its own merits. In the present case, the learned Additional Sessions Judge has himself not considered all the three eye-witness as independent persons. His remarks have already been quoted above and he has expressed more than once in his judgment that these witness are not implicitly reliable and some independent corroborative evidence- circumstantial or otherwise - is needed to support their version. It may be pointed out that while the learned Additional Sessions Judge had realised this necessity, he has fallen into an error while seeking corroborative evidence. He says, '•'the circumstances which support the testimony of Abhey Singh are the admitted death of Ashmal by beating and the strain the relations between Ashmal and Thikana Morseem. Further, had there been any other culprit, the relatives of Ashmal would not have preferred to blame the thikana, to the real murderers. " It may be remarked that the mere fact that Ashmal died because of beating is no circumstance to support the statement of these witnesses. Similarly, the mere fact that Manmal and Leela did not name any other offender is no corroboration of their Statement.