JUDGMENT 1. - Appellant Mangla had been tried for the offences under sections 302 Indian Penal Code and appellant Amba for the offences under sections 302/109 and 307 Indian Penal Code. By his judgment dated 2-5-74 the learned Sessions Judge, Sirohi convicted appellant Mangla for the offences under section 302 Indian Penal Code and Amba for the offences under sections 302/109 Indian Penal Code and sentenced them each to imprisonment for life. 2. Being aggrieved by their conviction and sentence the appellants have preferred this appeal through the Superintendent, Central Jail, Jodhpur. As they were not represented by any counsel to plead on their behalf Shri B. Advani was appointed amicus-curiae to argue the appeal on their behalf. 3. Briefly stated the facts of the case giving rise to this appeal are that the two appellants have enmity with Chamna (P. W. 13) on the suspicion that the latter had complained to the Forest Department that they committed theft of wood Chamna is also said to have lodged a complaint against the appellants in the court of Munsif Magistrate, Bali,'and that too was the reason for the ill will between Chamna and the appellants. On 4-9-72 at about 5.00 P. M. Deva (P. W. 3) son of Chamna (P.W. 13) while grazing she-goats was watching the standing crop in his field. At that time appellant Mangla armed with a naked sword and Amba with a gun went to him and asked the whereabouts of his parents. Being frightened, Deva ran away from there and informed his mother Mst. Lachmi (P. W. 2) to run away lest she might be killed by the appellants. Mst. Lachmi took to her heels and raised a cry of "Mare-re-Mare-re" Lacha and Jagga, deceased, coming from the opposite direction enquired of Lachmi as to what the matter was and she informed them that she was followed by Mangla and Amba with an intention to kill her. Jagga and Lachha requested the appellants not to kill a woman. That annoyed the appellants and they threatened to kill him. Mangla inflicted sword blow on Jagga and Lacha. Both of them fell down. Amba remained standing pointing his gun towards Jagga and Lacha and instigated Mangla to kill, them. On account of profuse bleeding from their wounds Jagga and Lacha died instantaneously. That annoyed the appellants and they threatened to kill him. Mangla inflicted sword blow on Jagga and Lacha. Both of them fell down. Amba remained standing pointing his gun towards Jagga and Lacha and instigated Mangla to kill, them. On account of profuse bleeding from their wounds Jagga and Lacha died instantaneously. Kishna (P. W. 1) on hearing the cries of Lachmi had also come out of his house and had eye-witnessed the occurrence from a little distance. When the cries of Lachmi had also come out of his house and had eye-witnessed the occurrence from a little distance. When the appellants left the place Kishna (P. W. 1) went to the place where Jagga and Lacha were lying. He went to Vidage Palani and informed Kesa (P. W. 4) son of Jagga deceased about the occurrence. Both of them again came to the site of the occurrence and thereafter they left for Police Station Bali on foot. On reaching Police Station Bali, Kishna lodged an oral report (Ex. P. 1) on 5-9-72 at 6.30 a. read with Kishoresingh (P. W. 10) Head Constable, Incharge of the Police Station at that time. The report reduced into writing is Ex. P. 1 On the basis of that information a case under sections 302 & 307 Indian Penal Code was registered. Kishoresingh, Head Constable went to Village Danbadli and inspected the site and prepared the site plan Ex. P. 3 and site inspection memo Ex. P. 4. He also prepared the inquest memos and Panchayatnamas of the dead bodies and took into his possession the torn umbrella from the site which is said to be with Lachha at that time and by which he is said to have tried to defend himself. Thereafter, the dead bodies were sent to Bijapur Primary Health Centre, for postmortem examination. Dr. Noor Mohammad (P. W. 8) conducted autopsy over the dead bodies of Lachha E and Jagga on 5-9-72. 4. On examination of the dead body of Lachha the Doctor noted as under; External appearance : Condition of subject:- The body was stout. Rigor ; mortis passed off from all the limbs. All the clothes were stained with blood.External Injuries:- 1. Vertical incised wound 6" x 1/2" x 3" on the occipital parietal (left) " region resulting in protrusion of the brain matter. 2. Rigor ; mortis passed off from all the limbs. All the clothes were stained with blood.External Injuries:- 1. Vertical incised wound 6" x 1/2" x 3" on the occipital parietal (left) " region resulting in protrusion of the brain matter. 2. Transverse incised wound 6" x 1" x 2" extending from tragus of the left ear to the bridge of the nose and damaged the left eye completely. 3. Transverse incised wound 5" x 1/2" x 2" extending from lower part of I left ear to the angle of the mouth. 4. Incised wound 3" x 1" x 1,1/2" on the lower ⅓ part of the left upper arm. 5. Incised wound 3" x 2" x 2" on the back part of the left forearm (in upper ⅓) part. 6. Incised wound 2" x 2" x 1" on the front side of right forearm in the upper ⅓ part. 5. On dissection of the dead body of Lachha the Doctor observed as under. Cranium and spinal cord. Scalp, skull and vertebrae:- 1. Vertical incised wound on occipital parietal (left) region resulted in compound fracture of the occipital and left parietal bone. 2. Transverse incised wound on the left side of face resulted in compound fracture of left temporal sphenoid zygometic and nasal bones. 3. Transverse incised wound resulted in compound fracture of left mandible. Membranes were torn :Brain and spinal cord Laceration of brain at occipita-parietal region (Left) I and profusion of brain matter through wound,Heart was empty. Large vessels were also empty. Stomach contained food material and gases. There was no smell of any poison.Small intestines contained digested food material and gases.Large intestines contained gases and facial material. Liver, spleen andkidneys were pale. Bladder was empty. IMuscles, bones and joints ; 1. Incised wound 3" x 1" x 1, 1/2" on the lower ⅓part of left upper arm. 2. Incised wound 3" x 2" x 2" on the back part of left and upper ⅓part of the forearm. 3. Incised wound 2" x 2" x 1" on front side of right forearm on upper ⅓ part. Fractures: Multiple incised wound resulted in compound fracture of the occipital and left parietal bones, left humerus, radius and ulna and right humerous (simple fracture) and right radius and ulna compound fracture. 6. 3. Incised wound 2" x 2" x 1" on front side of right forearm on upper ⅓ part. Fractures: Multiple incised wound resulted in compound fracture of the occipital and left parietal bones, left humerus, radius and ulna and right humerous (simple fracture) and right radius and ulna compound fracture. 6. In the opinion of the Doctor, the cause of death of Lachha was coma due to injury to the vital organ-brain and multiple fractures. He prepared the postmortem examination report Ex. P. 17. 7. On conducting the postmortem examination of Jagga, the Doctor observed as under: External appearance : Condition of subject stout, rigor-mortis passed off from all the limbs. All the clothes were stained with blood. Pupils were dilated. External Injuries:- 1. Transverse incised wound 13" x 2" x 4" extending from outer angle from right eye-to the back part of the left ear resulted in damage to right ear. 2. Incised wound (oblique) 5" x 1" x 2,1/2" extending from angle of the right mandible upto the centre part of the back of neck. On dissection of the dead body, the Doctor noted as under :Cranium and spinal cord.Scalp, skull and vertebrae : 1. Transverse incised wound 13" x 2" x 4" on right sphendidal region to the left temporal region resulted in compound fracture of right sphenoid temporal, parietal (both) and left temporal bones. 2. Incised wound measuring 5" x 1" x 2,1/2" on the right side of the neck and resulted in compound fracture of 1st, 2nd and 3rd cervical vertebrae. Membranes were torn due to compound fractures and laceration of brain matter. Brain and spinal cord:- Laceration of the brain matter due to compound fractures of the skull bones. Thorax Both lungs were pale, heart and large vessels were empty. Mouth, pharynx and oesophagus : Vomited material tickling from the mouth. Rest healthy. Stomach contained food material and gases. No smell of any poison. Small intestines contained digested food material and gases. Large intestines contained gases and facial material. Liver, spleen and kidneys were pale. Bladder was empty. Muscles, bones and joints. Cutting of the right ear due to incised wound. Fractures Incised wounds resulted in compound fractures of the right sphenoid, temporal parietal (both) and right temporal bones and right temporal bones and cervical 1st, 2nd and 3rd vertebrae. 8. Large intestines contained gases and facial material. Liver, spleen and kidneys were pale. Bladder was empty. Muscles, bones and joints. Cutting of the right ear due to incised wound. Fractures Incised wounds resulted in compound fractures of the right sphenoid, temporal parietal (both) and right temporal bones and right temporal bones and cervical 1st, 2nd and 3rd vertebrae. 8. The Doctor opined that the cause of death of Jagga was coma and syncope due to injury to the vital organ brain, multiple fractures, hemorrhage from large blood vessels of the neck. The postmortem examination report prepared by the Doctor is Ex. P. 18.9 On 6. 9 72 Kapooraram (P W. 12) Head Constable, Police Station, Bali, arrested Mangla vide memo Ex. P. 19 and Amba vide memo Ex. P. 20. During the course of investigation on 9. 9. 72 Mangla furnished information to Kapooraram for getting the sword and the scabbard recovered. The information is Ex. P. 1. In pursuance to that information Mangla got recovered sword Ex. 3 and scabbard Ex. 4 from his `maize' field which were taken into possession by the police vide memo Ex. P. 8,10. On 9 9. 72 appellant Amba while in police custody furnished information for getting recovered the gun from his `maize' field. The informat.on memo is Ex. P. 2.2. In pursuance to that information he got recovered gun Ex. 5 which was taken into possession by the police vide memo Ex. P. 9. The articles recovered during the course of investigation were sealed then and there and were sent for chemical examination. The report of Chemical Examiner is Ex. P. 24 and that of the Serologist is Ex. P. 24 and that of the Serologist is Ex. P. 25. In the opinion of the Serologist the cuttings from the clothes, umbrella and scabbard of the sword were stained with)-human blood. After completion of investigation, charge sheet against the appellants was filed by Khiv Singh (P. W. 11) Station House Officer, Bali, in the court of Munsif and Judicial Magistrate, Bali. The learned Magistrate conducted a preliminary enquiry and upon finding a prima facie case exclusively triable by the court of Sessions, committed Mangla and Amba appellants to the court of the Additional Sessions Judge, Sirohi to stand their trial for the aforesaid offences. The learned Additional Sessions Judge charge-sheeted the appellants for these offences and recorded their plea. The learned Magistrate conducted a preliminary enquiry and upon finding a prima facie case exclusively triable by the court of Sessions, committed Mangla and Amba appellants to the court of the Additional Sessions Judge, Sirohi to stand their trial for the aforesaid offences. The learned Additional Sessions Judge charge-sheeted the appellants for these offences and recorded their plea. Both of them denied the charges and claimed to be tried. To substantiate its case, prosecution examined 13 witnesses in all. In their statements, both the appellants denied the allegations levelled against them. No defence witness has been examined by them.11. Learned Amicus-curiae has assailed the finding of guilt by the learned Additional Sessions Judge on the ground that the two eye witnesses viz. Kishna (P.W. 1) and Lachmi (P. W. 2) are near relatives of the deceased, the former being their nephew and the latter being their niece. It has been strenuously contended that without there being any independent evidence, the testimony of these two interested witnesses should not be relied upon. It has also been contended that there was enmity between Chamna, husband of the eye witness Lachmi, and the appellants and therefore, Mst. Lachmi should not be considered to be a trustworthy witness. It has further been vehemently argued by the learned amicus-curiae that there is no allegation of any overt act by appellant Amba and, therefore, his conviction for the murder of Jagga and Lachha with the aid of section 109 Indian Penal Code is not justifiable.12. The learned Public Prosecutor, controverting these arguments submitted that merely because of the relationship of the witnesses with the deceased their consistent statements cannot be discarded and the conclusion arrived at by the learned trial judge calls no interference.13. We heard the rival contentions and gave anxious consideration to the material on record.14. The evidence ad-ducted by the prosecution against the appellants is direct as well as circumstantial. The direct evidence is that of Kishna and Lachmi. The circumstantial evidence is regarding motive of the appellants to take revenge upon Chamna and his family on account of enmity between them and Champa. Then there is he circumstantial evidence of the recoveries of sword, in pursuance of the information furnished by Mangla and the gun in pursuance of the information furnished by Amba.15. The circumstantial evidence is regarding motive of the appellants to take revenge upon Chamna and his family on account of enmity between them and Champa. Then there is he circumstantial evidence of the recoveries of sword, in pursuance of the information furnished by Mangla and the gun in pursuance of the information furnished by Amba.15. Coming to the direct evidence the testimony of Deva (P. W. 3) may also be taken note of because the appellants Amba and Mangla had gone to him when he was grazing she goats and enquired from him the whereabouts of his parents. Deva has stated that at the time Mangla was armed with a naked sword and Amba was having a gun with him. He then rushed to his mother and asked her to run away on account of fear of being killed. What happened thereafter, Deva was unable to state because he had run away from the place of the occurrence and went to Village-Bedli to his sister's house. So far as the actual occurrence is concerned, prosecution case rests on the testimony of Lachmi (P. W. 2) and Kishna (P.W. 1). Lachmi's contention is that his son Deva came running raising a cry "Mare-re-Mare-re". She on seeing the appellants put down her pitcher and ran away behind her son Deva. According to her, Mangla was having a naked sword with him and Amba was armed with a gun. She also raised a cry "Mare-re- Mare-re". On the way she met Lachha and Jagga and informed them about the intention of Mangla and Amba to kill her. Meanwhile the appellants also reached near them and Jagga and Lachha asked them not to kill a woman whereupon they told that they would kill them. Mangla inflicted sword blows on the persons of Jagga and Lachha. Amba stood there pointing the gun and asking Mangla to kill them. The version of Kishna (P. W. 1) is that about 5.00 p. in. on the day of the occurrence, he was at his house. On hearing the cry "Mare-re Mare-re" raised by Mst. Lachmi, he came out of his house and ascended the hillock. He saw Mst. Lachmi running towards her field and the appellants chasing her. He further stated about Mangla having a sword and Amba having a gun with him. on the day of the occurrence, he was at his house. On hearing the cry "Mare-re Mare-re" raised by Mst. Lachmi, he came out of his house and ascended the hillock. He saw Mst. Lachmi running towards her field and the appellants chasing her. He further stated about Mangla having a sword and Amba having a gun with him. This witness supported Lachmi about her talk with Jagga and Lachha and the latter asking the appellants not to pick up quarrel and kill a woman and the appellants insisting upon their intention to kill Lachmi, and Jagga and Lachha coming infront for the rescue of Mst. Lachmi and then Amba asking Mangla to kill those persons. It has also been stated by the witness that Mangla caused a number of sword injuries to Lachha and Jagga while standing as well as after their falling on the ground. According to the witness Amba remained standing with his gun pointed towards the two victims and instigating Mangla to kill them. Mst. Lachmi is of course an interested witness and must naturally be inimical towards the appellants on account of her husband and the appellants having enmity but that alone is not sufficient to discard her testimony. Deva has also supported the prosecution case up to the stage of the two appellants, being armed with weapons following him and his mother and both of them raising a cry She was cross-examined at length and stood it well. We do not find any thing in her statement so as to brand her as a false witness and therefore, merely because of her being the wife of Chamna, who had litigation with the appellants, it cannot be said that she had tried to falsely implicate the two appellants in this case. It is pertinent to note that the two deceased had no enmity with the appellants and it is only on account of their attempt to rescue the woman that they met with the calamity and, therefore, the presence of Mst. Lachmi at the time of the occurrence cannot be doubted. Apart from it, her statement on all material particulars stands corroborated by the evidence of Kishna, whose house is near the place of occurrence. It was quite natural for him to come out of the house at the time of the occurrence on hearing the cry raised by Mst. Lachmi. Lachmi at the time of the occurrence cannot be doubted. Apart from it, her statement on all material particulars stands corroborated by the evidence of Kishna, whose house is near the place of occurrence. It was quite natural for him to come out of the house at the time of the occurrence on hearing the cry raised by Mst. Lachmi. He admitted that he did not go to the rescue of Lachha and Jagga but that does not detract any thing from the value of his evidence because nobody would have risked his life by intervening when the assailants were armed with sword and gun. Kishna had reached near the victims just after the assailants had left that place and then he had gone to inform Kesha son of Jagga. It is Kishna who had lodged the First Information Report Ex. P.1. In these circumstances, Kishna's presence at the site of occurrence and his seeing what had happened cannot be doubted simply for the reason of his being the nephew of the deceased persons. Kishna had also been cross-examined at length and nothing could be extracted to shatter his testimony. We are therefore, of the opinion that the prosecution case that Jagga and Lachha sustained injuries at the hande of Mangla with a sword stands duly established. It is also noteworthy that the Doctor, who conducted the postmortem examination, has also supported the prosecution case as proved by these witnesses by stating that the injuries sustained by Jagga and Lachha could have been caused by a Weapon like sword Ex. 3. which according to the prosecution, had been recovered in pursuance of the information furnished by appellant Mangla.16. Coming to the motive of the appellants to commit the crime, suffice it to say that from the statement of Chamna and Mst. Lachmi, it is duly established that Chamna and the appellants were at daggers drawn. The deceased of course had no enmity with the appellants, but they had met their death because of their attempt to rescue Mst. Lachmi, which annoyed the appellants. Be that as it may, it is duly established that on account of enmity, the appellants wanted to know the whereabouts of the parents of Deva from him and then armed with the weapons like naked sword and gun chased Deva and Lachmi. Lachmi, which annoyed the appellants. Be that as it may, it is duly established that on account of enmity, the appellants wanted to know the whereabouts of the parents of Deva from him and then armed with the weapons like naked sword and gun chased Deva and Lachmi. Hence even if there be no enmity between the deceased and the appellants, it is clear that they were after Chamna's family at that time and because of Jagga and Lachha restraining them not to pick-up a quarrel and kill the Woman and coming in between them and Mst. Lachmi, appellants became annoyed and warned them that they would kill them and thereafter Mangla actually killed them by inflicting sword blows on the vital parts of their bodies.17. So far as the recovery of the sword and the scabbard at the instance and f in pursuance of the information of Mangla is concerned, there is the evidence of Kapooraram, Investigating Officer to the effect that in pursuance of the information memo Ex. P. 21, appellant Mangla got recovered the sword Ex. 3 and scabbard Ex. 4 from his `maize' field and those articles were wrapped and sealed by him. Shahabuddin (P. W. 5) has supported this version of the Investigating Officer and proved Ex. P. 8, the recovery memo to which he was a motbir. There is the evidence of Bakhtawarsingh (P.W. 7) about the packet containing the sword along with packets containing the articles recovered in the case being sent for chemical examination at Jaipur and receiving the receipt Ex. P. 15 from the office of the Chemical Examiner. The report of the Serologist is that the scabbard and the sword were stained with human blood. Thus this recovery of the blood stained sword in pursuance of the information furnished is a strong circumstantial evidence against appellant Mangla. The prosecution case against Mangla for causing injuries to Jagga and Lachha resulting in their death, thus stands duly established.18. The case against Amba is of different type. This is evident from the version given by Mst. Lachmi that he did not actually participate in the inflictions of blows on the two victims of assault but kept himself standing there pointing his gun towards Jagga and Lachha and asking Mangla to kill them.19. The case against Amba is of different type. This is evident from the version given by Mst. Lachmi that he did not actually participate in the inflictions of blows on the two victims of assault but kept himself standing there pointing his gun towards Jagga and Lachha and asking Mangla to kill them.19. It has been emphatically argued by the learned amicus-cuariae that if there had been any intention on the part of Amba to kill Jagga and Lachha he would have fired the gun or would have at least caused some injuries in any other manner to Jagga and Lachha. According to the learned amicus-curiae, even if prosecution case about his presence at the site with a gun is accepted to be true still he cannot be held guilty for abetment of the offence of murder alleged to have been committed by Mangla.20. It is no doubt true that there is no evidence on the record that Amba also inflicted any injury to Lachha and Jagga, but the evidence of Mst. Lachmi is that Amba was standing at the place of occurrence having his gun pointed towards the two victims of assault and instigating his companion Mangla to kill both of them. Pointing of the gun by Amba towards Jagga aud Lachha while they were being struck by Mangla with naked sword clearly shows that Amba's intention was to facilitate the commission of the crime by his guilty associate Mangla by preventing the two victims of assault from making good their as cape from the place of occurrence.21. While considering the case of abettor it is to be seen whether the abetment involves complicity on the part of the abettor or not. The main ingredient of the offence of abetment is the commission of the crime in pursuance of the abetment. To put it in another words, if a persons has already started commission of the crime and the alleged abettor subsequently instigates him and thereafter the particular offender does not do more than what he had already done, the instigator cannot be held guilty for the offence committed by the person instigated, Keeping this principle in mind we are to examine the casein hand to find out whether prosecution has succeeded in establishing that Mangla's action was at his own initiation or at the abetment of Amba.22. According to Kishna, when Jagga and Lachha came infront of Mst. According to Kishna, when Jagga and Lachha came infront of Mst. Lachmi to rescue her from the appellants, Amba instigated Mangla to kill them and thereafter Mangla inflicted sword blows on the persons of Lachha and Jagga. The matter would have been different if Mangla had started causing sword blows to the victims and Amba having been there would have simply uttered the words that they may be killed. The relevant portion of the statement of Kishna is as under: " os eq0 y{eh dks cpkus ds fy, vkMs vk,A bl ij eqfYte vEck us dgk fd budks gh ( tXxk o yPNk dks ) ekjksA rRi'pkr~ eqfYte eaxyk us vius ikl dh ryokj dh pksV tXxk dh xnZu ds ikl ekjh ------- rRi'pkr~ eqfYte eaxyk us viuh ryokj dh pksV yPNk ds eqgWa ij ekjh------------ " 23. This clearly indicates that Amba had instigated Mangla to kill Jagga and Lachha and therefore, the case of Amba is of abetment at the time of the commission of the crime and is covered by the provisions of section 109 Indian Penal Code. His presence at the spot and pointing out the gun towards the victims while Mangla was busy in causing injuries to them is also a strong circumstance against him denoting his intention.24. In this view of the matter, the conviction of Amba for the offence of murder committed by Mangla with the aid of section 109 Indian Penal Code also stands justified.25. We are, therefore, not inclined to interfere with the findings arrived at by the learned Additional Sessions Judge which are based on sound reasonings.26. Consequently, the appeal having no force is dismissed. Sd/- K.D. Sharma, A.C.J. Sd/- K. Bhatnagar, J.Appeal dismissed. *******