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2005 DIGILAW 1306 (RAJ)

Raju @ Rajesh Kumar v. State of Rajasthan

2005-05-03

HARBANS LAL, V.K.BALI

body2005
Honble BALI, J.–Raju @ Rajesh Kumar who was tried with his co-accused, Bunti @ Surendra Singh, Pappu @ Bhuria, Hafiz Ali and Habibbula, who have since been acquitted, has filed this appeal challenging the order of learned Addl. Sessions Judge No.2 (Fast Track) Kota dated 17.8.2001, vide which he has been held guilty for offence under Section 302 IPC and sentenced to undergo imprisonment for life as also to pay a fine of Rs. 10000/- and in default of payment of fine, to further undergo Rigorous Imprisonment for six months. (2). The appellant alongwith co-accused who, as mentioned above, have been acquitted, was tried for murder of Avinash. The occurrence leading to death of Avinash, as per the prosecution case, had taken place on 26.1.1989 in the afternoon. FIR with regard to the incident Ex.P6 was lodged by Shiv Pal Rai on the same date at 2:15 PM. It was recording by Jitendra Singh, PW1. The special report with regard to the incident reached the concerned Magistrate on 27.1.1989 at Kota. Shiv Pal Rai while unfolding events leading to death of Avinash stated that on the eventful day on 26.1.1989 there was a function in the Maruti Bal Vidya Mandir, Mahaveer Nagar. I, Private Section. His son Avinash aged about 18 years and daughters Asha Srivastava and Madhuri Srivastava alongwith the neighbour had gone to see the function and at about 1-1.30 PM and when they reached there, Raju @ Rajesh, Bunti @ Surendra Singh, Pappu @ Bhuria & Habbi came and caught hold of his son Avinash and took him to nearby place i.e. in front of house of Deen Dayal. Banti, Pappu & Habbib caught hold of his son and Raju & Rajesh gave 3-4 blows in the chest and stomach. He raised hue and cry that his son is being killed, help, even then they kept giving blows to his son. His friends caught hold of his son and did not allow him to move and they left him thinking that his son has died. He then went near his son and saw that he is not able to speak. He was bleeding from chest and stomach. Thereafter, he took him in the jeep to the hospital and on the way to the hospital he succumbed to the injuries. (3). During the course of trial prosecution examined Dr. I. Haq as PW.11. He then went near his son and saw that he is not able to speak. He was bleeding from chest and stomach. Thereafter, he took him in the jeep to the hospital and on the way to the hospital he succumbed to the injuries. (3). During the course of trial prosecution examined Dr. I. Haq as PW.11. He stated that he had conducted post-mortem on the dead-body of Avinash on 26.1.1989 at 3.45 PM. The dead body was of a person who was aged about 18 years and had died six hours before the post-mortem. The doctor found following five injuries on the dead body on Avinash:- ``1. Stab wound 1"x1/2" cavity deep obliquely sharp edges. Left inter costal space from eternal margin. 2. Incised wound transversely over 3rd lt. inter costal space in nipple line. 3. Stab vertically 11" x 1/2" x cavity deep in epigastrium 1" below chest 1/2" to the right of nipple. 4. Incised wound 1" x 1/2" x 1/4" obliquely over back and lateral side of right forearm wrist. 5. Incised wound 3/4" x 1/2" x 1/3" vertically over right forearm. 3" also lateral side tapering down. (4). In the opinion of the doctor the death was due to syncope as a result of shock and haemorrhage caused by the injuries to chest and abdomen. In cross-examination he stated that injury No.3 was such that a person could die at the spot or at the most could live for 2-3 hours only. Shiv Pal Rai, father of the deceased was examined as PW 4, Asha Srivastava and Madhuri Srivastava, sisters of the deceased were examined as PW5 and 10 respectively. They fully supported the prosecution case. In the cross-examination adverted to Shiv Pal Rai, he stated that the first report lodged by him was written in hospital and the second was written in the police station which was written by Takhat Rai. In so, far as accused other than Raju are concerned, their names were disclosed to him by Jeetu at the place of occurrence and he had disclosed all the names which were told to him by Jeetu to the police. Asha Srivastava PW5 stated in her examination-in-chief that Avinash her brother had gone before they reached there and he had gone in the Maruti School as 26th January were function was to be celebrated. They had departed from their home at 1-1.30 PM. Asha Srivastava PW5 stated in her examination-in-chief that Avinash her brother had gone before they reached there and he had gone in the Maruti School as 26th January were function was to be celebrated. They had departed from their home at 1-1.30 PM. In her cross-examination she stated that Avinash had gone one hour before them. Madhuri Srivastava PW 10 like her sister Asha Srivastava also stated that Avinash had gone before them. Ramesh Chand Sharma, examined as PW 6 stated that police came at the place of occurrence and prepared site-plan Ex.P8 in his presence. The police also seized clothes of Avinash vide seizure memo Ex.P9. The police also collected blood stained sand from the spot in his presence vide Ex.P.10. The seized articles were sealed by the police in his presence. Ram Swaroop Sharma examined as PW 7 stated that on 26.11.1989 he was posted at Bikaner as Senior Draftsman in P.H.E.D. Department. His wife runs the school in the name of Maruti Bal Vidhya Mandir in Mahaveer Nagar, I, Kota. There was a function in the school on 26.1.1989 at about 12:00 in the noon. Shri Pana Chand Jain was to come in the school on that day as Chief Guest. After commencement of the programme at about 1:00 PM noise was heard that knife had been inflicted and the public collected there but he did not come outside. After a while, it was heard that the person who was inflicted Knife and been taken to hospital. They later came to know that the said person had died. They closed the programme and observed silence for two minutes. Santosh Sharma, examined as PW 8 stated that she was managing a School which was run in the name of Maruti Bal Vidhya Mandir in Mahaver Nagar I, Kota. A programme was held in the school on 26.1.1989. Shri Pana Chand Jain was the Chief Guest and the Education officer was Shri Ram Prasad Gupta. The programme was held on a stage prepared on the road in front of the school. They heard at about 12:00 in the noon that knife had been inflicted. It was heard thereafter that the person who was inflicted knife was removed to the hospital and had expired. Asfaq Ahmad PW9 who was a witness with regard to seizure of blood stained clothes turned hostile and was cross-examined by the Public Prosecutor. They heard at about 12:00 in the noon that knife had been inflicted. It was heard thereafter that the person who was inflicted knife was removed to the hospital and had expired. Asfaq Ahmad PW9 who was a witness with regard to seizure of blood stained clothes turned hostile and was cross-examined by the Public Prosecutor. The prosecution also led evidence to show that a knife was recovered at the instance f the appellant pursuant to a disclosure statement made by him. The same was sent to Forensic Science Laboratory and a report Ex.P.26 was received with the opinion that the clothes were stained with human blood of B- Group. The blood stained knife was recovered from the house of the appellant. The prosecution also led evidence to show that the appellant after the incident, had absconded and was arrested on 10.4.1989. He made a disclosure statement on 30.4.1989. The learned counsel appearing for the appellant has brought to our notice statement made by the first informant Ex.P8 on 22.4.1989 wherein he stated that the appellant had received injuries and the same may be with a knife with which he had caused injuries to his son. The counsel also brought to our notice that an anonymous caller had telephoned the police at 1:45 PM giving an information about the incident without disclosing the names of the assailants. Jitendra Dev Sharma examined as PW15, deposed with regard to the steps that he had taken while investigating the case. (5). When examined under section 313 Cr.P.C. The appellant while denying the incriminating material put to him further stated that he had been falsely involved in the case. He however, led no evidence in defence. (6). The counsel representing the appellant contends that none of the alleged eye-witness had actually seen the occurrence and even if it was to be assumed that they were present at the seen of occurrence, none of them knew any of the accused. In these circumstances, a test identification parade has necessary to be held and the same having not been conducted, the entire prosecution, case has to be rejected. In these circumstances, a test identification parade has necessary to be held and the same having not been conducted, the entire prosecution, case has to be rejected. He also contends that there were injuries on the person of the accused and with a view to explain the said injuries, as an after though, a supplementary statement of Shiv Pal Rai, was recorded but the same cannot possibly be believed as the appellant could not have suffered injuries by the same knife with which he caused injuries to Avinash. (7). We have given out thoughtful consideration to the contentions of the learned counsel as noted above but in the context of the facts and circumstances of the present case we find no merit in either of the said contentions. It is indeed true that while lodging the FIR Shiv Pal Rai stated that he alongwith his daughters and Avinash and gone together to attend the function on 26.1.1989 whereas while making statement before the court he had his daughters stated that Avinash had gone to the school some time earlier than him and his daughters but that, in our view is wholly insignificance to discard the prosecution version. Deceased going to attend the function with his father and sisters or going some-time before them would not make any dent in the prosecution case as long as, the present of the father and his two daughters at the seen of occurrence is disbelieved. Further, variation in the statement made by the eye- witnesses from the version given in the FIR in going of all of them together or Avinash going earlier and his father and daughters following him cannot be called an improvement. It is too well settled that variations in the statements made before the police and in the court would assume significance and be called improvements as such only if such variations are made with a view to fill in the lacunae in the prosecution case. As mentioned above, as long as presence of eye-witnesses at the seen of occurrence is believed, it would not make the least difference if Avinash had gone to attend the function some-time before or that he had gone alongwith his father and sisters. Further, the incident had taken place on 26.1.1989, whereas the statement of witnesses were recorded in 1994. As mentioned above, as long as presence of eye-witnesses at the seen of occurrence is believed, it would not make the least difference if Avinash had gone to attend the function some-time before or that he had gone alongwith his father and sisters. Further, the incident had taken place on 26.1.1989, whereas the statement of witnesses were recorded in 1994. Still further, a young son of Shiv Pal Rai was brutally murdered in his presence and if in that state of mind Shiv Pal Rai might have recorded that he alongwith his daughters and Avinash had gone to attend the function, the same has to be for the reason that he was preflxed, anguished and highly charged. (8). There is no merit in the contention of the learned counsel that the accused were not known to the first informant and for that the reason he had inquired their names from his neighbour Jeetu, and therefore, a test identification parade ought to have been held. The consistent evidence of the eye-witnesses would rather reveal that they had seen the accused earlier. They may as such be not knowing the names of the assailants but consistent evidence reveals that they had seen them earlier to the date of occurrence and were familiar with their faces. The inquiry made by them with regard to the names of the accused from Jeetu, their neighbour at the time of occurrence would not mean that they had seen them for the first time. In the circumstances aforesaid, there was no necessity of conducting test identification parade. (9). In so far as the contention of the learned counsel based upon supplementary statement of Shiv Pal Rai pertaining to appellant sustained injuries with the same knife with which he caused injuries to the deceased is concerned, suffice it to say that no question as admitted by the learned counsel was put to Shiv Pal Rai with regard to the same. The appellant even did not plead that he was himself injured during the course of occurrence. In fact, his case is that of a total denied. Further, all that has been urged and that also without any material on record that the appellant who is absconding when arrested was found to have some scratches. Surely, a knife would not cause such scratchs. (10). In fact, his case is that of a total denied. Further, all that has been urged and that also without any material on record that the appellant who is absconding when arrested was found to have some scratches. Surely, a knife would not cause such scratchs. (10). The prosecution in our considered view brought sufficient evidence to bring home the offence committed by the appellant Raju @ Rajesh Kumar. The fact that the appellant absconded and could be arrested only on 10.4.1989 points towards his guilt. Further, blood stained knife was recovered at his house pursuant to the statement made by him, which as mentioned above was found to be stained with human blood. Even though, one of the recovery witness with regard to knife turned hostile but there is noting to disbelieve the statement of Police Officer who two was recovery witness o the knife, as nothing at all has been urged before as that may detract from his sworn testimony. He has no bias against the appellant. No law enjoins the statement made by a police officer/official to be discarded only for the reason that he/they are from prosecution department and interested in success of the case. (11). There is absolutely no merit in this appeal and the same is thus accordingly dismissed upholding the order of conviction and sentence recorded by the learned Addl. Sessions Judge No.2 (Fast Track) Kota dated 17.8.2001.