JUDGMENT 1. - This is a jail appeal against the Judgment of the learned Sessions Judge, Pali, dated 30-9-1981 whereby the learned lower Court held accused-appellant Kumbha Ram guilty of the offence Under Section 302 IPC and sentenced him to imprisonment for life together with a fine of Rs. 500/- and in default, to undergo three months rigorous imprisonment. 2. The facts giving rise to this appeal briefly stated are that deceased Malaram was employed in a factory at Sojat. He was the resident of village Rajolakala situated within the jurisdiction of Police Station, Shiv Pura, District Pali. He has been visiting his native place every two to three months. His wife has been residing there. PW 3 Totaram is him real brother. PW I Sukdi in his brother's wife. PW 4 Gajarki is the wife deceased Malaram. It is alleged that before one and half year of the occurrence, Malaram abducted the wife of one Pemaram Meghwal. A case was also registered in this respect. Accused Kumbharam happens to be the nephew of Pemaram. He did not digest the abduction of Pamaram's wife by Malaram. It is alleged that Malaram returned from Sojat to his village Rajolakala on 8-7-1980 at about 10 a.m. After taking his meals, he was sleeping in the Sal of his house. At about 2 p.m. when Malaram was sleeping in his Sal, Mst. Sukdi was also sitting in another Sal and Mst. Gajarki went to clean her clothes at the Nadi, accused Kumbharam came armed with a knife, entered the house of Malaram and gave a kick to him, by which, he woke up and stood up, As soon as Malaram stood up, Kumbharam inflicted several knife blows to Malaram. Mst. Sukdi cried 'MARE RE MARE RE'. Even the injuried himself cried. Some of the children who came there on hearing the cries of Mst. Sukdi also cried, The cries were heard by one PW 3 Bhikaram who happens to be the elder father's son of Malaram and he ran towards the house of Malaram and saw the accused Kumbharam coming out of the house of Malaram. As soon as he went inside the house of Malaram, he found Malaram lying seriously injured and profusedly bleeding. Mst. Sukdi told him that Kumbharam has inflicted these injuries to Malaram and has run away. As soon as he went inside the house of Malaram, he found Malaram lying seriously injured and profusedly bleeding. Mst. Sukdi told him that Kumbharam has inflicted these injuries to Malaram and has run away. Thereafter, PW 2 Khinyaram who happens to be the brother of Malaram and husband of Mst. Sukdi was called. Khinyaram went to the Sarpanch and others and related (he incident and they also came there. It is alleged that on enquiry, they were informed by Malaram that accused Kumbharam has inflicted these injuries to him. Mst. Sukdi also informed her husband Khinyaram that Kumbharam has inflicted these injuries to him. The intestines of Malaram were coming out of the wounds and so, they were put inside the stomach and a cloths was wrapped around the wounds and it was advised by the relations of Malaram that he should be taken to the Hospital, but on the way to the Hospital, he succumbed to his injuries after he was taken one mile away from his house. His dead body was then brought to the village. There after, it is alleged that Khinyaram requested the Sarpanch and others to write a report on their behalf, but they told him to lodge the report orally at the Police Station and thereafter, he went to the Police Station, Shivpura, which is situated at a distance of about 19 kilometers from village Rajolakala and there, he lodged the oral report, which has been marked Ex. P. 13. 3. The Police immediately rushed to the spot and prepared the inquest memo Ex. P 4. The site was inspected and the site inspection memo and the site plan have been marked Ex P 5 and 6 respectively. The blood stained soil was seized vide memo Ex. P 7. The blood stained clothes of deceased Malaram were taken into possession vide memo Ex.P 9. The currency notes which were found inside the pocket of his shirt were seized vide memo E.x.P 8. The postmortem of his deal body was conducted by Dr. K.C. Dube and the post mortem examination report has been marked Ex P 8. The accused was arrested and on his information, the blood stained knife and Dhoti were recovered vide memos Ex. P 10 and 11 respectively. The postmortem of his deal body was conducted by Dr. K.C. Dube and the post mortem examination report has been marked Ex P 8. The accused was arrested and on his information, the blood stained knife and Dhoti were recovered vide memos Ex. P 10 and 11 respectively. The blood stained clothes were sent for chemical and serological examination and the reports of the chemical examiner and serologist have been marked Ex.P 17 and 18 respectively. The copy of the the complaint filed by Pemaram in the court against Malaram and Mst. Mumli wife of Pemaram for the alleged abduction of Mst. Mumli by Malaram has also been filed and it has been marked Ex.P 20. 4. After usual investigation, the case against the accused was challaned in the court of learned Chief Judicial Magistrate, Pali, from where it was committed for trial to the court of learned Sessions Judge, Pali. The learned Sessions Judge changed the accused with the offence Under Section 302 IPC. The accused did not plead guilty to the charge and claimed trial, whereupon, the prosecution examined as many as 15 witnesses in support of its case. The statement of the accused was recorded Under Section 313 Cr. PC. He has pleaded complete ignorance about the occurrence. He has further stated that knife and Dhoti were not got recovered on his information and at his instance. According to him, he has a dispute about the way with Mst. Sukdi and Bhikaram and on account of enmity, they have falsely implicated him. The case of the defence as put forth in the testimony of the five defence witnesses is that actually, somebody else has inflicted these injuries to Malaram and none of the relations of Malaram knew as to who had inflicted these injuries to Malaram. Malaram never regained consciousness as he was seriously injured and, therefore, the accused has been falsely implicated in this case on account of the enmity existing between him and and the family members of Malaram. 5. After hearing the parties, the learned lower court decided the case as aforesaid. Aggrieved against this judgment, the accused-appellant has preferred the appeal. 6. We have heard Mr. J.R. Choudhary, learned Counsel for the accused-appellant and Mr. L.S. Udawat, learned Public Prosecutor for the State. We have carefully gone through the record of the case. 7. Mr. 5. After hearing the parties, the learned lower court decided the case as aforesaid. Aggrieved against this judgment, the accused-appellant has preferred the appeal. 6. We have heard Mr. J.R. Choudhary, learned Counsel for the accused-appellant and Mr. L.S. Udawat, learned Public Prosecutor for the State. We have carefully gone through the record of the case. 7. Mr. J.R. Choudhary, learned Counsel appearing for the accused-appellant has submitted that in this case, PW 1 Mst. Sukdi is a cooked up witness. She has not seen the occurrence at all and actually, when the villagers and the Sarpanch assembled, she did not disclose that accused appellant Kumbhram has injured Malaram. Mr. Choudhary has further submitted that the house of PW 5 Bhikaram is situated at some distance from the house of Malaram. The cries raised by Mst. Sukdi could not have been heard at the house of Bhikaram and, therefore, the arrival of Bhikaram at the place of the occurrence is very doubtful. It is probable that Bhikaram arrived at the place of occurrence alongwith others when the villagers assembled on hearing that Malaram has been injured and he has not seen the accused Kumbharam running away from the house of Malaram. When these two witnesses i.e. PW 1 Mst. Sukdi and PW 3 Bhikaram are disbelieved, the accused cannot be held guilty of the offence Under Section 302 IPC. In this connection, reliance was placed on Karunakaran v. State of Tamil Nadu 1976 Cr.LR (SC) 14 , wherein their Lordships of the Supreme Court held that if the testimony of the sole witness is found to be unreliable or unbelievable then the conviction has to set aside. 8. It was further argued by Mr. Choudhary that according to the prosecution, Malaram abducted the wife of Pemaram and the accused-appellant Kumbhram happened to be the nephew of Pemaram did not digest the abduction of the wife of Pemaram and, therefore, he has inflicted these injuries to Malaram to avenge that abduction. Mr. Choudhary submitted that this motive as pleaded by the prosecution in the FIR has been abandoned by it at the trial. He has submitted that although it is not necessary to establish the motive but when the motive is alleged in a positive manner then it has to he established. According to Mr. Mr. Choudhary submitted that this motive as pleaded by the prosecution in the FIR has been abandoned by it at the trial. He has submitted that although it is not necessary to establish the motive but when the motive is alleged in a positive manner then it has to he established. According to Mr. Choudhary, in this case, the motive has not been proved but actually, the prosecution has abondoned it and, therefore, the case of the prosecution becomes doubtful on that account also. In this respect, he placed reliance on Narain v. State of Rajasthan 1977 Cr.LR (Raj.) 39 wherein P.D. Kudal, J. (as he then was) observed as under: "Though it is not necessary to establish motive, but when the motive is alleged in a positive manner then it has to be established. In the facts and circumstances of the instant case, by no stretch of imagination motive against the accused appellant Narain has been established." Mr. J.R. Choudhary, learned Counsel appearing for the accused-appellant did not challenge the fact that Malaram has died because of the injuries received by him and those injuries were sufficint in the ordinary course of nature to cause his death. This fact also stands amply proved by the evidence of PW 6 Dr. K.C. Dube, who found 11 incised wounds and one abrasion (linear) on the person of deceased Malaram. According to the Doctor, these injuries have caused rupture of epigastric artery. The peritoneal cavity was found full of clotted blood. According to the Doctor, these incised wounds may be caused by a knife and injury No. 2 has caused internal haemorrhage and rupture of epigastric artery. He has stated that actually, this injury has caused the death of Pemaram and the other injuries have contributed in causing shock to him. According to the Doctor, the deceased Pemaram must have remained conscious for about 10 minutes or more. This particular question was asked to him in order to ascertain whether the deceased was in a position to give any dying declaration as has been alleged by PW 5 Bhika Ram and PW 2 Khinyaram. 9. Be that as it may, now it has to be seen whether the testimony of PW 1 Mst. Sukdi, PW 2 Khinyaram and PW 5 Bhikaram can be held reliable or not? Mr. Choudhary, learned Counsel for the accused-appellant has submitted that initially, Mst. 9. Be that as it may, now it has to be seen whether the testimony of PW 1 Mst. Sukdi, PW 2 Khinyaram and PW 5 Bhikaram can be held reliable or not? Mr. Choudhary, learned Counsel for the accused-appellant has submitted that initially, Mst. Sukdi has stated that she became unconscious near the body of Malaram but later on she has stated that she fell unconscious near the main gate of her house. Mr. Choudhary further drew our attention to the fact that initially, it was the case of Mst. Sukdi that firstly, the accused Kumbharam gave a kick to Malaram by which he woke up and stood up and after that the injuries were inflicted to him whereas now she has stated that most of the injuries were inflicted to Malaram while he was not standing. As per PW 6 Dr. K.C. Dube, there is a greater possibility of the injuries being caused to the deceased while he was lying. 10. We have given our most earnest consideration to the submissions made by the learned Counsel for the accused-appellant. In our opinion both these arguments have little force. PW 1 Mst. Sukdi has stated that Malaram was sleeping in the Sal just adjacent to the main gate.She has stated that he was sleeping only 2 to 3 cubits away from the main gate in the first Sal whereas she was sitting in the second Sal, which is just adjacent to the Kotha. The second Sal where she was sitting is at a distance of 20' away from the main gate. If we look at the site plan (Ex. P6.) the whole thing will be clear. It is alleged that Malaram was sleeping at point No 3 in the Sal. The first Sal is situated at point No. 3 and the second Sal is situated at point No. 5. They are connected with each other. It may be that Mst. Sukdi was sitting just behind the house of Harji Meghwal and therefore she was not in a position to see the place where Malaram was sleeping but it is clear from the site plan Ex. P6 that the first Sal and the second Sal are connected with each other and in the entire house, there is only one Kotha and rest of the house is open place. P6 that the first Sal and the second Sal are connected with each other and in the entire house, there is only one Kotha and rest of the house is open place. She has called the open place in two parts: (i) Sal infront of the main gate and the Sal infront of the Ora/Kotha. She has stated that at the time of the occurrance, she was enjoying tobacco and she was not asleep but Malaram was asleep. The accused came armed with a knife. As soon as he came, he put his leg on his (Malaram) neck, by which he woke up and then, the accused started inflicting injuries to Malaram. When Malaram cried, she immediately went towards him. When she reached near Malarm, the accused was in the midst of inflicting injuries to him with the knife. She became frightened and fell near Malaram. Malaram was hardly was hardly 2-3 cubmits away from the main gate of the house. She has stated that she fell near the main gate, which appears to be quite natural because Malaram was not at a great distance from the main gate. He was hardly 2-3 submits away from the main gate and so, if she has fallen near Malaram or near the main gate of the house, it hardly makes any difference because if she falls near Malaram that will be falling near the main gate of the house. PW 1 Mst. Sukdi has stated that as soon as Malaram cried, she came out of the Sal, and on seeing the accused, she also raised hue and cry and then fell down. If a lady observes the blood oozing out from different wounds caused to her close relation, it appears quite natural that she will fall unconscious on seeing the stain of blood. She has categorically stated that her cries attracted the attention of the urchins and the urchins also cried. PW 5 Bhikaram has stated that he heard the cries of a lady from the house of Malaram. It is a guess that her cries cannot be heard by Bhikaram but Bhikaram has categorically stated that he heard the cries of a lady from the house of Malaram. She must have fallen unconscious while crying and that has attracted the attention of Bhikaram. PW 5 Bhikaram has stated that at that time, he was in the lane. Mr. It is a guess that her cries cannot be heard by Bhikaram but Bhikaram has categorically stated that he heard the cries of a lady from the house of Malaram. She must have fallen unconscious while crying and that has attracted the attention of Bhikaram. PW 5 Bhikaram has stated that at that time, he was in the lane. Mr. J. R. Choudhary, learned Counsel for the accused appellants had laid great stress on the fact that initially, it was the case of Bhikaram that he heard the cries when he was in his house. The learned lower court has critically examined the FIR lodged by him and it has come to the conclusion that PW5 Bhikaram has nowhere stated in the FIR that when he heard the cries of a lady, he was in his house. He has only stated that his house is situated near the house of Malaram and when he heard the cries of a lady coming from the house of Malaram, he ran to wards the house of Malaram. It does not mean that he heard the cries when he was inside his house. PW 5 Bhikaram has categorically stated that at the time when he heard the cries of a lady, he was in the lane and was to proceed towards the village for purchasing some grains Thus, it can safely be held that there is no difference in the two versions given by Mst. Sukdi that she fell near the body of Malaram or she fell near the main gate of the house and so, it cannot be said that her testimony is not credible. It is true that Mst. Sukdi has stated in her police statement that as soon as the accused came, he gave a kick to Malaram, by which he woke up and stood up and later, injuries were inflicted but she has clarified her statement before the learned lower Court and has stated that she was sitting in the Sal where she was cooking meals and Malaram was sleeping just near the main gate of the house. He was not visible to her from the place where she was sitting. When she heard the cries of Malaram, it attracted her attention and then she ran towards Malaram. It is natural that before she reached near Malaram, certain injuries have already been inflicted to Malaram. He was not visible to her from the place where she was sitting. When she heard the cries of Malaram, it attracted her attention and then she ran towards Malaram. It is natural that before she reached near Malaram, certain injuries have already been inflicted to Malaram. She has also stated that when she reached near Malaram, the accused was already in the midst of inflicting injuries to Malaram. Under these circumstances, it can safely be held that certain injuries might have been inflicted to Malaram when he was standing. This much is clear that an injured who has received so much of incised wounds cannot remain standing through out the occurrence and he must have fallen down on account of receiving such injuries. It is quite possible that when Malaram was sleeping and was kicked up by the accused and before he could have stood up, certain injuries must have been inflicted to him. Thus, if we examine the testimony of this rustic witness on the touch stone of human probabilities, even then this contradiction does not affect the reliability of this witness. Such minor discrepancies can appear in the testimony of the roost honest witnesses. The occurrence has taken place on 8-7-1980 and the witness has been examined after about 4 months. In such circumstances, certain honest discrepancies are bound to appear in the testimony of such rustic witness. She has however, maintained a ring of consistency in her testimony regarding the participation of the accused in the crime. According to her testimony, she has been consistent about the fact that at the time of the occurrence Malaram was sleeping in the Sal of her house near the main gate. She was all alone in the house and the main gate of the house was opened. The accused entered from the main gate of the house, took out a knife and inflicted injuries to Malaram. She has further been consistent in saying that number of injuries have been inflicted to Malaram by accused Kumbha Ram. She came there on hearing the cries of Malaram and then she also cried for help, may the "MARE RE MARE RE" or "MARE DEVAR KO MARE RE MARE RE" but she cried and then she became unconscious. She has also stated that when Bhikaram came there, the accused was running out of the house. She came there on hearing the cries of Malaram and then she also cried for help, may the "MARE RE MARE RE" or "MARE DEVAR KO MARE RE MARE RE" but she cried and then she became unconscious. She has also stated that when Bhikaram came there, the accused was running out of the house. Thus, on all material aspects of the case, her testimony has been totally consistent. Whether the injuries were inflicted to Malaram, when he was standing or he fell down on the ground hardly matters because it is a case of one assailant and the one victim and she being the closest relation of Malaram, she will be the last person to screen the real offender and substitute some body for the real offender specially when the accused Kumbharam also happens to be the close relative of her husband Khinya Ram. Accused Kumbharam is son of the elder father of Khinyaram. If Malaram or Khinyaram had any enmity, they had it with Pemaram and not with Kumbharam and so, there was no occasion for them to falsely implicate accused Kumbharam. In State v. Bholasingh, AIR 1969 Raj. 219 , it has been held that ordinarily, a near relative will be the last person to screen the real culprit and falsely implicate an innocent person. In Angnoo v. State of U.P., AIR 1971 SC 296 , the witness was the brother of the deceased. Their Lordships of the Supreme Court observed that the fact of his relationship would add to the value of his evidence because he would be interested in getting the real culprit, rather than innocent persons, punished. Thus, the possibility of false implication in this case is completely ruled out. The testimony of PW 1 Mst. Sukdi is fully corroborated by the medical testimony. 11. P.W. 5 Bhikaram has stated that as soon as he heard the cries, he came to the house of Malaram and at that time, the accused was running away from his house. Thus, he has seen the accused running away from the house of Malaram and as soon as he went inside the house of Malaram, he found Malaram seriously injured and profusedly bleeding shivering with pain. On enquiry, he was informed by Mst. Sukdi that accused Kumbharam has inflicted these injuries to Malaram with a knife. Thus, the testimony of Mst. Thus, he has seen the accused running away from the house of Malaram and as soon as he went inside the house of Malaram, he found Malaram seriously injured and profusedly bleeding shivering with pain. On enquiry, he was informed by Mst. Sukdi that accused Kumbharam has inflicted these injuries to Malaram with a knife. Thus, the testimony of Mst. Sukdi is fully corroborated by the testimony of PW 5 Bhikaram. 12. P.W. 2 Khinyaram who is the husband of PW 1 Mst. Sukdi has stated that as son as the urchins told him that his brother has been killed by accused Kumbharam, he came to his house and his wife informed him that accused Kumbram has inflicted these injuries to Malaram. It is true that earlier Khinyaram has stated that on hearing this, he went to the Sarpanch and then came to his house with the Sarpanch but in his statement before the learned lower court; he has stated that firstly he came to the house and verified the facts and then called the Sarpench and others. This statement of PW 2 Khinyaram is fully corroborated by the testimony of PW 1 Mst. Sukdi and PW 5 Bhikaram. 13. Mr. J. R. Choudhary, learned Counsel for the accused-appellants has argued that actually, the assailant was not known and so, the name of the assailant was not disclosed to the Sarpanch and others. In this connection, he placed reliance on the testimony of PW 1 Mangilal PW 2 Mukanram, PW 3 Tikuram PW 4 Venaram and PW 5 Motaram. PW 5 Motaram happens to be the Sarpanch of the village and he has stated that PW 2 Khinyaram came to call him and told him that somebody has inflicted knife blows to his brother Malaram and so, he should accompany him to his house. He then went to the house of Khinyaram and saw that Malaram was lying there unconscious. He has admitted that when Khinyaram tried to talk to Malaram Malaram spoke. PW. Motaram has further admitted that Khinyaram told him that accused Kumbharam has inflicted these injuries to his brother. Later, he has disowned his testimony. He then went to the house of Khinyaram and saw that Malaram was lying there unconscious. He has admitted that when Khinyaram tried to talk to Malaram Malaram spoke. PW. Motaram has further admitted that Khinyaram told him that accused Kumbharam has inflicted these injuries to his brother. Later, he has disowned his testimony. This witness has been declared hostile but this much is clear from his testimony that at the house of Malaram it was disclosed to the Sarpanch and others that accused Kumbharam hos inflicted injuries to Malaram The admission of PW 5 Motaram coupled with the statement of PW 6 Dr. K.C. Dube that Malaram could have remained conscious for about 10 minutes or more after receiving injuries further lends credibility to the testimony of PW 2 Khinyaram that when he enquired from Mslaram, he was told by Malaram that accused Kumbharam has inflicted these injuries to him. If Malaram could talk to his brother Khinyaram in the presence of the Sarpanch then there is greater possibility that he might have talked with Bhikaram when the injuries inflicted were very fresh. Although, the learned lower court has disbelieved the testimony of dying declaration and the learned Public Prosecutor has also not laid much stress on it but we are of the opinion that looking to the testimony of PW 5 Motaram coupled with the testimony of the Doctor, the possibility cannot be ruled out that Malaram was in a position to speak and if he was in a position to speak when the Sarpanch was there, he would have certainly given out the names of his assailant/assailants and hence, to this extent, the testimony of PW, 2 Khinyaram and PW 5 Bhikaram that Malaram gave out to them that accused Kumbharam has inflicted these injuries to him cannot be disbelieved. These two statements appear to be quite probable and credible. 14. So far as the motive is concerned, PW 1 Mst. Sukdi has stated that she does not know why accused Kumbha Ram has inflicted these injuries to Malaram The motive has been alleged in the FIR lodged by PW 5 Bhikaram. PW 5 Bhikaram has catogorically htated that Malaram abducted the wife of Pemaram before about one and half year. Pemaram happens to be the uncle of accused Kumbharam and the accused has killed Malaram because of this enmity. PW. PW 5 Bhikaram has catogorically htated that Malaram abducted the wife of Pemaram before about one and half year. Pemaram happens to be the uncle of accused Kumbharam and the accused has killed Malaram because of this enmity. PW. 2 Khinyaram has also stated that before about one and half year, Malaram abducted the wife of Pemaram but the matter was compromised in the community as well as in the Court and therefore, he cannot say on account of what enmity Kumbharam has killed Malaram. It will be worth while to note here that the copy of the complaint Ex. P.20 filed by Pemaram against Malaram and Mst. Mumli, the wife of Pemaram has also been filed in this case. All these documents and oral evidence lead us to the one and the only inference that really, the cause of enmity between Malaram and Kumbharam was this very incident. No other enmity has been alleged between them and, and therefore, it cannot, be said that the contents regarding motive have been abandoned by the prosecution. 15. PW 12 Hiraram has stated that accused Kumbharam gave information about the recovery of one blood stained knife. On the information and at the instance of the accuseed, one blood stained knife was recovered. Although efforts were made to rule out the blood stains from the knife but still the Chemical Examiner's report Ex. P17 shows that this knife was stained with blood and the report of the Serologist shows that it was stained with human blood. The recovery of the knife with human blood stains is another circumstance which points to the involvement of the accused in the commission of the crime. It further strengthens the submission of the learned Public Prosecutor that it was this very accused who has inflicted these injuries to Malaram with the knife. The defence testimony is a worthless testimony in the light of the findings arrived at by us above. According to us the testimony of Mst. Sukdi (PW 1) and Bhikarsm (PW 5) is fully reliable and they are witnesses of sterling worth. They had no motive to implicate the accused Kumbharam falsely. Actually, the possibility of false implication in this case is ruled out. 16. No other point was pressed before us in this appeal. 17. In this view of the matter, we find no force in the appeal and it is hereby dismissed. They had no motive to implicate the accused Kumbharam falsely. Actually, the possibility of false implication in this case is ruled out. 16. No other point was pressed before us in this appeal. 17. In this view of the matter, we find no force in the appeal and it is hereby dismissed. The accused is already in jail and so, the result of this appeal be communicated to the jail authorities for compliance.Appeal Dismissed. *******