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Rajasthan High Court · body

2005 DIGILAW 1098 (RAJ)

Bhuralal v. State

2005-04-11

B.PRASAD, SATYA PRAKASH PATHAK

body2005
Judgment Satya Prakash Pathak, J.- This appeal under Section 374 of the Criminal Procedure Code has been directed against the Judgment and order dated 10.11.2000 passed by the learned Addl. Sessions Judge No. 2, Chittorgarh in Sessions Case No. 25/1999 -State vs. Bhuralal, whereby the accused appellant has been convicted under Section 302 IPC and sentenced for life imprisonment with a fine of Rs. 2,000/-, in default thereof to further undergo one year simple imprisonment. 2. Briefly stated, the facts giving rise to the present case are that PW. 4 Shankarlal, the son of deceased Kuka), lodged a verbal report Ex.P/13(entered in Rojnamcha) at the police station, Begun on 012.1998 at 7.30 A.M. stating that he and his brother Bhura (accused) live separately and he lives with his father. Their houses are in the same Guwadi (adjacent to each other) and they sleep separately in their respective houses. In the morning of 012.1998 when his wife Sugna got up early at about 5:30 AM and went to the residential house she found his father sitting with her daughter Sushila, aged 7 years on a coat. She let the child remain with his father-in-law and went inside the house. After a little while, she heard a human cry, Mara re, Mara re and on hearing this she immediately came out and saw accused Bhura Lal going out of the house having an Axe in his hand. She (PW. 8) immediately rushed to him (PW. 4 Shankar) and narrated the entire incident to him and told that her Jethji, the elder brother of Shankar, after killing his father has run away. He immediately went there and on reaching there found blood oozing out of the head of his father Kuka, who was dead. Seeing the dead body, he started weeping. His mother PW. 10 Pyari Bai and some villagers viz. Pyara, Megha, Shambhoo and others also assembled there. It was stated that accused Bhura Lal wanted to dispose of the agricultural land of the family to which his father was not agreeable so the accused has killed his father. 3. The verbal report was reduced in writing in Rojnamcha General Diary of Police Station, Begun and a regular FIR Ex.P/14 was chalked out. The report disclosed the offence committed under Section 302 IPC and as such a case under Section 302 IPC was registered and investigation commenced. 4. PW. 3. The verbal report was reduced in writing in Rojnamcha General Diary of Police Station, Begun and a regular FIR Ex.P/14 was chalked out. The report disclosed the offence committed under Section 302 IPC and as such a case under Section 302 IPC was registered and investigation commenced. 4. PW. 23 Panna Lal, SHO, Police Station, Begun inspected the site and prepared memo of site inspection (Ex.P/2), memo regarding seizure of shirt stained with blood (Ex.P/3), memo Panchayatnama of dead body (Ex.P/1) and memo of handing over of dead body (Ex.P/4) in the presence of PW. 2 Laxmi Chand and PW. 3 Meghraj. Postmortem was conducted by PW. 17 Dr. Goru Ram on 012.1998 in PHC, Begun. Postmortem Report is Ex.P/16. The dead body of deceased Kuka was handed over to Shankarlal. The accused was arrested through Arrest Memo Ex.P/23 on 012.1998 at 8 P.M. in presence of PW. 22 Jagna Lal and PW. 21 Sita Ram. The accused gave information under Section 27 of the Evidence Act on 12.1998 at 12 AM in relation to the Axe which was used at the time of crime. The information so given was reduced in writing in Ex.P/25. In pursuance to the information, accused got recovered the Axe on 012.1998 in presence of PW. 11 Shambhoo Lal and PW. 15 Bardichand through Ex.P/12. The articles seized were kept in the Malkhana, the entries in respect thereof of in Malkhana register have been enumerated in Ex.P/15. The same were taken to FSL by PW. 20 Govind Singh Constable. The cycle on which accused ran away was seized through Ex.P/24. The sealed articles were sent for chemical examination through forwarding letter Ex.P/21 of the S.P. Office, Chittorgarh. The FSL report is Ex.P/25 (Ex.P/25 has been marked on two documents). 5. After completing the usual investigation, a challan was submitted in the Court of Magistrate, who committed the case to the Court of Sessions. Thereafter, it came for trial before learned Addl. Sessions Judge No. 2, Chittorgarh. 6. A charge under Section 302 IPC was framed on 08.05.1999. The accused denied the charge and claimed trial. In support of its case, the prosecution examined as many as 23 witnesses and tendered 25 documents in evidence. Accused in his statement under Section 313 CrPC denied to have committed any offence and examined himself on 13.07.2000 as defence witness. He stated that his brother Shankar (PW. The accused denied the charge and claimed trial. In support of its case, the prosecution examined as many as 23 witnesses and tendered 25 documents in evidence. Accused in his statement under Section 313 CrPC denied to have committed any offence and examined himself on 13.07.2000 as defence witness. He stated that his brother Shankar (PW. 4) was never willing to part with the land so on account of enmity he has been involved in the case and that previously also a false case was lodged against him in which he was acquitted. 7. The learned trial Judge after hearing both sides, convicted and sentenced the accused appellant as indicated hereinabove. .8. We have heard the learned Counsel for the appellant and also the learned Public Prosecutor at a great length and carefully examined the material available on record. .9. The following submissions were made by the learned counsel for the appellant: 1. That the statements of PW. 8 Smt. Sugna are full of contradictions and the learned trial Court has committed grave error of law while believing the statements of PW. 8 and thereby convicting the accused appellant. 2. That the statement of PW. 6 Sushila (the child witness) are not of any help to the prosecution but the learned trial Court has placed reliance on the testimony of this witness which infact is not the correct appreciation of the evidence. 3. That recovery of axe in this case is doubtful from the possession of accused appellant. 4. That the brother of the accused has falsely implicated him in order to grab the agricultural land and property as is clear from the evidence available on record but the learned trial court has not correctly appreciated this aspect of the matter. .10. The learned Public Prosecutor made the following submissions: 1. That the findings of guilt recorded by the learned trial Court are based on cogent reasons and only on the basis of minor contradictions, prosecution version cannot be considered to be not proved. 2. That the child witness Kumari Sushila has correctly identified the accused at the time of inflicting Axe blow on deceased Kukaji. 3. That PW. That the findings of guilt recorded by the learned trial Court are based on cogent reasons and only on the basis of minor contradictions, prosecution version cannot be considered to be not proved. 2. That the child witness Kumari Sushila has correctly identified the accused at the time of inflicting Axe blow on deceased Kukaji. 3. That PW. 8 Smt. Sugna, who has seen the incident, and whose statement under Section 161 CrPC was also recorded on the very same day, has stood the test of examination, therefore, the conviction on the basis of the statements of other witnesses deserves to be maintained. .11. We have considered the rival submissions made before us. 12. Before proceeding further, medical evidence adduced in the case requires to be seen which is found in the statement of PW. 17 Dr. Goru Ram. This witness has stated that on 012.1988 he was posted in the Primary Health Centre, Begun as Medical Officer and on the police requisition Ex.P/17 he conducted postmortem examination of the deceased Kuka s/o Krishna. The postmortem report Ex.P/16 prepared by him shows the following injuries: 1. Incised wound 10 cm x 3 cm x bone deep with clear cut margins (horizontal) (on scalp at the junction of occipital and neck) ¾th wound present on right ½ of back of neck, lower margin of the wound is inverted. There is cutting of hair, skin, subcutaneous tissue, muscles, vessels and left mastoid process of skull. There is fracture dislocation of atlas vertebra, fractured sites show clotted blood, upper spinal cord is contused and abraded 2 cm x 1 cm over and compressed. Clotted as well as fluid blood present at the wound. The wound is caused by sharp instrument and is not compatible with life. It is sufficient to cause death in ordinary course of nature. Antemortem - sharp - dangerous to life. 2. Sharp cut 10 cm x ¼ cm x skin deep on left half of back of neck above hairline. Antemortem - sharp - simple 3. Sharpcut 5 cm x ¼ cm x skin deep on back of left ½ of neck above hairline. Antemortem - sharp - simp 4. Abrasion 10 cm x ½ cm on back of mid of neck just below hairline. Antemortem - blunt - simple. 5. Abrasion 3 cm x ½ cm on back of left ½ of neck below hairline. Sharpcut 5 cm x ¼ cm x skin deep on back of left ½ of neck above hairline. Antemortem - sharp - simp 4. Abrasion 10 cm x ½ cm on back of mid of neck just below hairline. Antemortem - blunt - simple. 5. Abrasion 3 cm x ½ cm on back of left ½ of neck below hairline. Antemortem - blunt - simple. 6. Abrasion 2 cm x ¼ cm on mid of back and neck at the level of shoulder. Antemortem - blunt -simple. 7. Abrasion 5 cm x ½ cm on left ½ of back of neck near left shoulder. Antemortem - blunt - simple. 8. Abrasion 8 cm x ¾ cm on proximal ½ of left postero lateral surface of neck horizontally placed. Antemortem - blunt - simple. .13. This witness has further found that the death was caused on account of injury No.1 which was fracture and dislocation of atlas vertebra causing injury to spinal cord resulting in respiration arrest. The doctor has proved Ex.P/16, the Postmortem Report. The statement of this witness proves sufficiently that deceased died an unnatural death and the death was homicidal. .14. It shall be proper to examine the evidence led by the prosecution to assess the guilt of the accused. 15. PW. 8 Smt. Sugna is the wife of PW. 4 Shankar, who has lodged the report in police station, Begun on 012.1998 at about 7 in the morning. The incident is alleged to have taken place between 5:30 & 6:00 AM. Thus, it appears that immediately after the occurrence, PW. 4 Shankar reported the incident to police. The statement of Smt. Sugna was also recorded under Section 161, CrPC on the very same day i.e. on 6th December 1998. She has deposed that her daughter Sushila on the day of incident in morning was with the deceased. She has deposed that she heard the shouting of her son and daughter on that day at about 5.30 AM when she was milking the cows and buffaloes. She has further deposed that she saw that accused inflicted axe blow on the person of deceased Kukaji and on her crying the accused ran away. She has also deposed that she asked the accused not to kill Kukaji but accused did not listen and gave two axe blows in her presence. She has further deposed that she saw that accused inflicted axe blow on the person of deceased Kukaji and on her crying the accused ran away. She has also deposed that she asked the accused not to kill Kukaji but accused did not listen and gave two axe blows in her presence. She has further stated that she went to call her husband and thereafter her husband and other persons of the vicinity came there and the report of the incident was lodged. She further deposed that accused was telling that after killing Kukaji he will get the entire agricultural land in his name in the revenue record. In the cross-examination, she has denied the suggestion that at the time when she cried, the accused after inflicting kulhari blows had ran away. The witness has stated that the axe blows were given in her presence. She has further stated in the cross-examination that she disclosed the incident to her husband. She has denied another suggestion put to her that the accused ran away after seeing her. She has stated that when she cried why he was killing, the accused ran away. She has further stated that accused saw at her also. She has denied the suggestion that on account of land dispute she alongwith her husband connived and falsely implicated the accused in the case. 16. Another witness, PW. 6 Kumari Sushila is a child witness and the Court has found that this witness was ignorant about oath. When question put to the witness, she has of course stated that one should believe the truth. She has stated that she used to sleep in the courtyard near her grand-father Kukaji. She has stated that the accused was grand-father of Sattu. At the time of incident she has deposed that she was sitting on the knees of deceased Kukaji. Accused was having an axe in his hand. He killed her grand-father. She also pointed out the place where the injuries were inflicted on the person of Kukaji. She by putting her palm on the neck stated that the blow was given at the neck pointed out by her. In cross-examination, she has stated that at that time there was darkness. She did know as to that time was of winter. She accepted the suggestion that on account of darkness she could not identify as to who brought the kulhari. In cross-examination, she has stated that at that time there was darkness. She did know as to that time was of winter. She accepted the suggestion that on account of darkness she could not identify as to who brought the kulhari. She has accepted this suggestion that out of fear she hid herself below the coat. .17. PW. 4 Shankar in his statement recorded in the Court has stated that on the day of incident he was sleeping in the Bara. His wife at about 5.30 or 6 AM in the morning came there and informed him that his father Kukaji has been killed by his brother Bhura Lal. He then immediately reached at the house and saw that his father was lying dead. Other persons also assembled there. The witness has stated that in the police station report was lodged Ex.P/13, and a regular FIR was chalked out. The police came at the spot and prepared memos Ex.P/2, P/3 & P/4 in his presence. The memos are respectively of site-plan & inspection, seizure of clothes of the deceased and Fard Superdagi Lash. In his cross examination, he has stated that his wife asked the accused as to why he was killing his father. He has denied the suggestion of accused having been falsely implicated by him in connivance with his wife. He has admitted that some criminal case was .lodged against the accused previously in which the accused was acquitted. The witness has corroborated the statement of PW. 8 Smt. Sugni. 18. After carefully examining the above statements, one thing that emerges out is that on 012.1998 while the deceased was sitting on a coat in the courtyard of the house, he was murdered. PW. 8 Smt. Sugna has stated that she has seen the accused inflicting injuries on the person of deceased Kukaji. The child witness has identified the accused. Her statement as a whole cannot be relied upon but when her statement is examined in the light of the statement of PW. 8 Smt. Sugna, it does appear that she saw the accused with an axe on the day of incident. 19. The prosecution has adduced evidence which corroborates the testimony of PW. 8 Smt. Sugna which is found in the statement of PW. 8 Smt. Sugna, it does appear that she saw the accused with an axe on the day of incident. 19. The prosecution has adduced evidence which corroborates the testimony of PW. 8 Smt. Sugna which is found in the statement of PW. 3 Megh Raj, who has stated that after hearing human cries in the morning on the day of incident he came to the house of deceased Kuka and there he found Kuka dead, who was having injuries on his person. PW. 4 Shankar was weeping there. The witness asked as to who had killed Kukaji. Shankar replied that Bhura had killed Kukaji. Then this witness advised him to lodge a report in the police station immediately. PW. 1 Balu and PW. 2 Laxmichand are the witnesses who have proved Ex.P/2 site plan and memo regarding seizure of a Baniyan, Shirt and bed sheet Ex.P/3. A suggestion was put to the witness in the cross-examination that in that area of Begun thieves while committing crime or theft inflict injuries to the awakened persons by the weapons they possess but the witness have denied the suggestion and stated that in the present incident nothing of that sort happened. 20. PW. 10 Smt. Pyari, who is the mother of the accused, has been declared hostile. The reason appears to be quite obvious that she is the mother of the accused. The witness has denied the suggestion that present incident was one where some unknown person murdered Kukaji. The further evidence of the prosecution is found in the statements of PW. 1 Balu, PW. 2 Laxminchand, PW. 3 Meghraj, and PW. 8 Sugna, who have stated that they reached the place of incident soon after the incident and Ex.P/1 to Ex.P/4 were prepared at the site and the deceased was lying dead there. These witnesses have completely denied the suggestion that some unknown person might have killed the deceased. 21. The other evidence in this case is regarding recovery at the instance of accused. The accused got recovered an axe pursuant to his information under Section 27 of the Evidence Act recorded by the Investigating Officer PW. 23 Panna Lal. This witness has stated that after arrest, the accused gave information Ex.P/27 under Section 27 of the Evidence Act that he was willing to get recovered the axe by which his father was killed by him. 23 Panna Lal. This witness has stated that after arrest, the accused gave information Ex.P/27 under Section 27 of the Evidence Act that he was willing to get recovered the axe by which his father was killed by him. On this information, recovery was effected and the memo prepared in this behalf in presence of Shambhoolal & Birdichand is Ex.P/12. The accused took the police persons at his house and after opening the lock by key went inside and took out the Axe. 22. The FSL report Ex.P/25 makes a mention that the axe (Kulhari) on examination was found to have contained human blood. The other evidence is regarding sending the seized material to FSL keeping the articles intact in the Malkhana and sending the sealed articles for chemical examination to FSL, Udaipur. Malkhana entries and forwarding letter etc. have been proved by the witnesses. The contention of the learned counsel that evidence of PW. 8 & PW. 6 is not reliable and in fact they have not seen the occurrence and some other person might have killed the deceased Kukaji, has no merit and is liable to be rejected for the reason that the cross-examination addressed to PW. 8 Smt. Sugna is suggestive of the fact that the accused Bhura was at the spot. The statement of PW. 8 read with the statement of PW. 6 Kumari Sushila, the child witness and the statement of PW. 23 Pannalal, leads to a conclusion that the houses of accused and deceased are almost near to each other and distance appears to be of few steps between them. It does not appear to be probable that only on account of land dispute the brother of the accused PW. 4 Shankar and his wife will involve him in such a heinous crime like one of the murder of their own father. The accused in his statement under Section 315 CrPC has stated that he was involved in some criminal case earlier where he was acquitted and in the present case he has been falsely implicated by PW. 4 Shankar and his wife PW. 8 Smt. Sugna, in the absence of convincing material placed on record the statement of accused does not deserves to be given any credence. The other witnesses who immediately soon after the incident hearing hue and cry assembled at the house of the deceased, stated that PW. 4 Shankar and his wife PW. 8 Smt. Sugna, in the absence of convincing material placed on record the statement of accused does not deserves to be given any credence. The other witnesses who immediately soon after the incident hearing hue and cry assembled at the house of the deceased, stated that PW. 4 Shankar narrated the incident to them that it was accused Bhura who has killed his father. The postmortem report is also suggestive of the fact that injury No.1 inflicted was the cause of death which resulted into vertebra fracture and arrest of the respiratory system. 9.23. The cases, referred by the learned counsel appearing for accused appellant in support of his submissions; (1) Joseph alias Jose vs. State of Kerala, 2004 SCC (Cr) 93, (2) Sadhu Ram & Anr. vs. State of Rajasthan, 2004 SCC (Cr) 100, State of Madhya Pradesh vs. Ghudan, JT 2003 (Suppl. 2) SC 481, Ravulapalli Kondaiah & Ors. vs. State of Andhra Pradesh, AIR 1975 SC 216 are of no help in the present matter because the facts of the present case are entirely different. .24. In the case of Joseph alias Jose vs. State of Kerala (Supra), which was a case of solitary eye-witness, the circumstances were to the effect that the name of the eye witness was not mentioned in the FIR, name of .the eye-witness was disclosed to I.O. on the next day of the incident, when the occurrence took place there was absence of sufficient light to enable the witness to identify the accused, and there was an unexplained delay in arresting the accused appellant. In those circumstances, the Honble Court held that the conviction of the accused appellant was unsafe on the sole testimony of the eye-witness. 10.25. In Sadhu Ram & Another vs. State of Rajasthan, the solitary witness had given two versions having a great variance in each other. During inquiry under Section 176 CrPC he first stated that the deceased died on account of burn injuries suffered in an accidental fire but subsequently on the same day he gave a completely different version of the occurrence that he had gone to the house of J at his request and found that the two dead bodies were hanging from the hook with rope around their necks and that on account of harassment by the appellants, K had committed suicide. The medical evidence in that case also did not support the version given by him which impeached the credibility of the solitary witness. Considering these facts and circumstances, the Honble Apex Court gave benefit to the accused and held that it was not safe to base a conviction on the testimony of such a solitary witness. 126. In the other case relied on by the counsel for appellant i.e. State of Madhya Pradesh vs. Ghudan (Supra), the accused was given benefit of the lacunae in the prosecution case. In that case the empties recovered at the instance of accused six months ago were not sealed, the recovery and the report were not found reliable and the eye witness giving salient physical features of accused was unable to describe the participants, who all had blankets and hair not visible. 127. In the case of Ravulapalli Kondaiah & Ors. vs. State of Andhra Pradesh, the statements by the witnesses in the court were never disclosed to the investigating officer and this omission was considered as an afterthought. In this very case, the Honble Apex Court further observed that because the witnesses were in relations of the deceased, it does not make their evidence unreliable but it only puts the Court on guard to scrutinize their evidence with more than ordinary care. 128. In the present case, as discussed above, the testimony of PW . 8 Smt. Sugna stands corroborated by the evidence of PW . 4 Shankar and further by the evidence of child witness PW . 6 Kumari Sushila, who has seen the accused at the place of incident having an axe in his hand and she has also stated that she saw the accused giving blow at the neck of the deceased. She is a child witness but atleast she has correctly identified the accused in the Court because the accused is none else but his fathers elder brother (uncle ). In our opinion, a child of 7 year cannot make a mistake in identifying her own near relations. The other witnesses have denied the suggestions made to them that some other person might have killed the deceased. The witnesses have stated that the present incident was not of that type. In our opinion, a child of 7 year cannot make a mistake in identifying her own near relations. The other witnesses have denied the suggestions made to them that some other person might have killed the deceased. The witnesses have stated that the present incident was not of that type. The axe has been recovered at the instance of the accused, the first information report was lodged quickly in the morning of 012.1998 and even the statement of PW . 8 Smt. Sugna under Section 161 CrPC was recorded on 012.1998 itself by the police. .29. The other contentions raised by the learned counsel for accused appellant are also not tenable for the reason that the learned trial Court while discussing the evidence led by the prosecution has given cogent reasons for the acceptance of testimony of the eye witnesses. The learned trial Court has also appreciated the statement of accused recorded under Section 315 of the CrPC. It does not appear that the learned trial Court has not properly appreciated the matter, therefore, in our considered opinion, no interference is called for in the findings of guilt recorded by the learned trial Court. 30. In view of the foregoing discussion, we do not find any merit in this appeal. 2.31. In the result, the appeal stands dismissed.