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2005 DIGILAW 2477 (RAJ)

Jagdish @ Jagoo v. State of Rajasthan

2005-09-15

JITENDRA RAY GOYAL, SHIV KUMAR SHARMA

body2005
Honble GOYAL, J.–This jail appeal under Section 374 of the Code of Criminal Procedure is directed against the judgment dated 24.1.2002 passed by Additional Sessions Judge, Fast Track No. 2, Dholpur in Sessions case No. 118/2001 by which the accused appellant Jagdish @ Jaggo was convicted for the offence under Sections 302 & 307 of Indian Penal Code and sentenced as under:- Under Section 302 IPC : Life imprisonment and fine of Rs. 1,000/-, in default of payment of fine to further undergo six months simple imprisonment. Under Section 307 IPC : Five years rigorous imprisonment and fine of Rs. 500/-, in default of payment of fine to further undergo three months simple imprisonment. Both the substantive sentences were ordered to run concurrently. (2). In short the brief facts giving rise to this appeal are that on 9.6.1996 at 2:15 am `Parchabayan of Mst. Santo (PW. 10), wife of the deceased Rambharosi was recorded to the effect that her widowed daughter Guddi was remarried (nata) with Jagdish but on account of torture by Jagdish she left the house of Jagdish and started living with Ramesh of village Nagar. It is further stated that day before yesterday Jagdish came at her house and stayed with them. Yesterday night, Jagdish went from the house saying that he is going to watch movies. Thereafter she and her husband slept near the door. At about 1o clock in the night Jagdish returned and slept there. About half an hour later, Jagdish got up and inflicted 2-3 blows by `baank (sharp edged weapon) on her husband in order to kill him. When she tried to save her husband, accused jagdish caused injuries to her also by the same weapon. On her hue and cry, Deviram, Gopal, Mukesh came and thereupon Jagdish fled away. Her husband died at the spot. (3). On this Parchabayan, F.I.R. No. 257/1996 Ex. P 4 under Sections 302 & 307 IPC was registered at Police Station Kotwali, Dholpur and investigation commenced. On completion of the investigation charge-sheet came to be filed. In due course, the case came up for trial before the learned Additional Sessions Judge, Fast track No. 2 Dholpur. Charges under Sections 302 & 307 IPC were framed against the appellant who denied the charges and claimed trial. (4). The prosecution in support of its case examined ten witnesses. On completion of the investigation charge-sheet came to be filed. In due course, the case came up for trial before the learned Additional Sessions Judge, Fast track No. 2 Dholpur. Charges under Sections 302 & 307 IPC were framed against the appellant who denied the charges and claimed trial. (4). The prosecution in support of its case examined ten witnesses. In the explanation under Section 313 Cr.P.C., the appellant claimed to be innocent. Learned trial Judge after hearing the final submissions convicted and sentenced the accused appellant as indicated here-in-above. (5). We have heard the arguments of Amicus Curiae for the appellant and learned Public Prosecutor and scanned the entire evidence on record. (6). Before dealing with the contentions, it would be appropriate to take a stock of the injuries sustained by deceased Rambharosi. As per postmortem report Ex. P. 2 and the statement of Dr. R.C. Goyal (PW. 1) who conducted the autopsy on the dead body of deceased, following injuries were found:- External Injuries 1. Incised wound :- Size 8 x 2 1/2 cm x deep to mouth cavity over face. R.V. side below eye & zygomatic bone. 2. Incised wound:- 13 x 4 cm x deep to cervical vartibra (C 7) which is cut & there is also cutting of spinal cord with meninges. R.V. side, asore lindavide with cutting of carotid vessels, nerves & muscles. 3. Amputation of left thumb at meta carpal bone. Thumb is attached with tag of skin with exposure of muscles, bone & tendens which is cut. + 4. Incised wound: Size 2 x 1/2 cm. x deep to muscle overleft femur lower 1/3rd posv... All injuries are antemortem in nature. (7). According to PW1 Dr.R.C. Goyal the cause of death was shock due to excess bleeding caused by cutting of cartridge vessel right side. Thus, from the medical evidence, it is clear that death of deceased Rambharosi was not natural but homicidal one. (8). The prosecution case is founded on the testimony of PW.10 injured witness, Smt. Santo, wife of deceased Rambharosi and her neighbourer witnesses. (9). Learned Amicus Cuariae on behalf of the appellant contended that the evidence of Smt. Santo cannot be relied upon to convict the accused as she is an interested witness being wife of the deceased. (8). The prosecution case is founded on the testimony of PW.10 injured witness, Smt. Santo, wife of deceased Rambharosi and her neighbourer witnesses. (9). Learned Amicus Cuariae on behalf of the appellant contended that the evidence of Smt. Santo cannot be relied upon to convict the accused as she is an interested witness being wife of the deceased. It is further contended that according to prosecution witnesses there was darkness at the place of occurrence, thus in that situation it was not possible for Smt. Santo to identify the person who murdered her husband. It is also submitted that no weapon has been recovered at the instance of the appellant and thus the offences are not proved beyond reasonable doubt. (10). On the other hand, learned Public Prosecutor supported the impugned judgment and contended that incident took place at about midnight inside the house of Rambharosi and thus Smt. Santo being wife of deceased was a natural witness and further she is an injured witness and thus her statement was of sterling worth. It is also contended that her testimony stands fully corroborated by neighbouring witnesses Gopal (PW. 4) and Mukesh (PW. 5) and further finds corroboration by medical evidence. (11). We have given our anxious consideration to the rival submissions. As per the prosecution case the incident took place at about 1:30 am. It has also come in evidence that deceased Rambharosi was living with his wife Smt. Santo (PW. 10) since their daughters marriage. In this fact situation, Smt. Santo (PW. 10) appears to be a quite natural witness. It is well settled position of law that the testimony of witness cannot be rejected only on this ground that he or she was related to the deceased. Honble the Apex Court in the judgment Harijana Narayana and others vs. State of A.P. reported in 2003 (11) SCC 681 ) held that testimony of related witnesses or interested witnesses can provide good and sound basis for conviction of the accused if presence of such witness at the time of occurrence is proved or considered to be natural and the evidence tendered by such witness is found in the light of surrounding circumstances and probabilities of the case to be true. Hon the Supreme Court in the case of Chittar Lal vs. State of Rajasthan, reported in (2003 (6) Supreme Court Cases 397), held that conviction can be based on sole evidence of witness if it inspires confidence. It was further held that it is not the seldom that a crime has been committed in the presence of one witness, leaving aside those cases which are not of unknown occurrence where determination of guilt depends entirely on circumstantial evidence. In the instant case, Mst. Santo who also sustained injuries in this incident categorically stated that her daughter Guddi was remarried (nata) with the accused Jagdish but he used to beat her, therefore, she left his house and started living with Ramesh at village Nagar. She further stated that Jagdish came to her house, took his meals and thereafter in the evening he went to watch the movie and at about 1o clock in the night Jagdish returned and slept at some distance on another coat. At that time, she awakened. She further stated that Jagdish inflicted the blow of `baank on the neck of her husband, that when she resisted, Jagdish inflicted blows on her head and left hand, that on her hue and cry Mukesh, Deviram, Gopal came, that thereupon accused Jagdish fled away. Her statement remained consistent and nothing adverse has come in cross-examination so as to affect her credibility. Her statement further found corroboration from the statements of two neighbouring witnesses namely Gopal (PW 4) and Mukesh (PW 5) who came at the place of occurrence on her hue and cry. Mukesh (PW 5) stated that on hue and cry of Mst. Santo at about 1:30 am in the night he went at the house of deceased Rambharosi, that he saw PW 10 Santo in injured condition and Rambharosi was found dead. Mukesh (PW 5) further stated that on asking Santo she stated that Jagdish killed her husband. PW 4 Gopal stated that after the death of husband of Guddi, she got remarried to Jagdish. He further stated that in the fateful night, on hue and cry of Santo from the house of Rambharosi he rushed to her house where he saw that Rambharosi was dead, his neck and thumb were also found cut by sharp edged weapon, that Santo was also found injured and blood was oozing out from her injuries. He further stated that in the fateful night, on hue and cry of Santo from the house of Rambharosi he rushed to her house where he saw that Rambharosi was dead, his neck and thumb were also found cut by sharp edged weapon, that Santo was also found injured and blood was oozing out from her injuries. It is true that as per the statements of key witnesses there was darknees at the place of occurrence but it is amply proved from the statement of Mst. Santo that appellant Jagdish came at their residence and stayed there, took his meal, went to picture and came back at about 1o clock in the night and slept near them and after half an hour she saw that Jagdish got up and caused injuries to her husband she was also attacked and injured by the appellant Jagdish. Her oral testimony stands corroborated by the medical evidence in the form of injury report Ex. P1 and the statement of PW 1 Dr. R.C. Goyal. In this fact situation, this submission cannot be accepted that Mst. Santo was not able to identify the actual assailant. (12). Honble the Supreme Court in the case of State of U.P. vs. Kishan Chand, reported in ( 2004 (7) SCC 629 ) held that testimony of related witness if inspires confidence cannot be discarded. It was further held that the fact that witnesses sustained injuries at the place of occurrence lends support to their testimony that they were the persons present during the occurrence. (13). It is also significant to note that soon after the incident i.e. within a period of 45 minutes police reached at the place of occurrence and recorded Parchabayan Ex. P.3 of Mst. Santo wherein she narrated the entire incident and clearly stated that Jagdish murdered her husband and on her attempt to rescue she was also injured by Jagdish. This circumstance further lends support to the prosecution case. In the case of Bakuram and others vs. State of M.P., reported in 2002 (10)SCC 35 , Honble the Supreme Court held that sole testimony of wife can be relied to base conviction if her evidence is found categorical. In the instant case, as has been discussed, we are of the firm view that the presence of PW 10 Mst. In the case of Bakuram and others vs. State of M.P., reported in 2002 (10)SCC 35 , Honble the Supreme Court held that sole testimony of wife can be relied to base conviction if her evidence is found categorical. In the instant case, as has been discussed, we are of the firm view that the presence of PW 10 Mst. Santo, at the place of occurrence, who is an injured eye- witness is found to be quite natural and her statement is categorical and of sterling worth which is also supported by medical evidence and the evidence of neighbouring witnesses Gopal (PW 4) and Mukesh (PW. 5). In our view, there is no infirmity in the judgment of the trial Court. (14). For these reasons, we find no merit in the instant appeal, it stands accordingly dismissed.