Research › Search › Judgment

Rajasthan High Court · body

2005 DIGILAW 376 (RAJ)

Satya Prakash Pathak v. Nurti Khan @ Noordin Khan

2005-02-08

B.PRASAD

body2005
Judgment Satya Prakash Pathak, J.-The abovementioned two appeals are decided by this common Judgment and order as both these appeals arise out of the same Judgment and order dated 31.05.2000 passed by learned Addl. Sessions Judge, Bhinmal passed against Accused Nurti Khan @ Noordin who has sent one appeal from Central Jail, Jodhpur being Criminal Jail Appeal No. 343/2000 and has also filed other representative Criminal Appeal No. 344/2000. Facts of Appeal No. 344/2004 .2. The accused appellant Nurti Khan @ Noordin Khan has preferred the appeal against the order dated 31.05.2000 passed by the learned Addl. Sessions Judge, Bhinmal in Sessions Case No. 92/1999 by which he convicted and sentenced the accused appellant as under: Offence under section Sentence awarded 302 IPC Life imprisonment and a fine of Rs. 1,000/-and in default of payment of fine .to further undergo three month, R.I. 447 IPC 3 months R.I. and a fine of Rs. 500/-, in default of payment of fine to further undergo 15 days, R.I. Both the sentences were ordered to run concurrently. .3. Briefly stated, the facts giving rise to the present matter are that on 26.03.1999 at about 5 p.m. in the evening accused Nurti Khan @ Noordin Khan came to the field of PW. 9 Achala S/o. Magna alongwith his ‘Aver’ (animals like she-goats, cows etc.) At that time, Narsi, the brother of PW. 9 was present on the field. In the field itself , there is a Dhani where Narsa deceased and PW. 9 Achala were residing. The animals so brought to the field of Achala started grazing Isabgol and Deshi Zeera which were lying on the field to which Narsa objected and asked the accused to take away his animals from his field but the accused in turn declined to remove the animals from the field, as such when Narsa himself took the task to remove the animals of accused from the field, the accused gave two Lathi blows on his head. Narsa fell down on the ground, accused did not stop there but continued giving Lathi blows on the person of Narsa deceased who had fallen on earth. Smt. Mohini (PW. 4) wife of deceased also came there and saw that accused was beating her husband. It was the further case of the prosecution in the written report that thereafter PW. Narsa fell down on the ground, accused did not stop there but continued giving Lathi blows on the person of Narsa deceased who had fallen on earth. Smt. Mohini (PW. 4) wife of deceased also came there and saw that accused was beating her husband. It was the further case of the prosecution in the written report that thereafter PW. 9 Achala went to the well of Narsa Ram S/o. Haraji and narrated the entire incident which took place on his field and then he alongwith Narsa S/o. Haraji arranged a jeep of Haja Ram S/o Khinda Ram Kalsi, resident of Bagoti. They went to the place of incident in the jeep and Narsa was taken to the hospital situated at Bagoti in the jeep of Haja Ram. The doctor in the hospital told that the injured had died. Thereafter, the body of Narsa was brought to the Dhani - the place of residence of PW. 9. A written report of above facts which was got written by PW. 1 Barwara Ram was presented in the police station Bagoda by PW. 9 Achala who is the brother of .the deceased. 4. On the above report, police registered Ex. P/1 FIR No. 15/1999 under Sections 447 and 302, IPC. 5. Thereafter investigation was conducted by PW. 12 Ratan Lal who was at that time SHO PS Bagoda. During the course of investigation, he prepared site inspection note Ex. P/2 and site plan Exh. P/3 on 27.03.1999 and from the site blood smeared soil and control soil (sample) were taken and seized through Fard Ex. P/6 and the Fard of Panchayatnama of dead body of deceased was also got prepared and the same is Ex. P/5. 6. The Postmortem of dead body of the deceased was got conducted by PW. 10 Dr. Bhanwar Lal Khatri and the Postmortem Report is Ex. P/20, wherein it was opined that cause of death of deceased was fracture of parietal bones of skull and causing intra cranial hemorrhage. 7. The accused appellant was got arrested by PW8 Ratan Lal, SHO PS Bagoda on 28.03.1999 through arrest memo Ex. P/8 and during arrest, accused appellant gave information Ex. P/24 about recovery of Lathi and in pursuance of that information accused appellant got recovered Lathi, which was stained with blood and the same was seized by PW. 12 Ratan Lal through Fard Ex. P/14 in presence of PW. P/8 and during arrest, accused appellant gave information Ex. P/24 about recovery of Lathi and in pursuance of that information accused appellant got recovered Lathi, which was stained with blood and the same was seized by PW. 12 Ratan Lal through Fard Ex. P/14 in presence of PW. 13 Mangilal and the same is Ex. P/15. The recovered and seized articles were sent to Forensic Science Laboratory and the FSL Report is Ex. P/25. 8. After usual investigation, police submitted challan for the offence under Sections 302 and 447, IPC in the Court of Magistrate and from where the case was committed to the Court of Sessions Bhinmal and from there it was transferred to the Court of Additional District Judge, Bhinmal for trial. 9. On 010.1999, the learned ADJ, Bhinmal framed the charges for the offence under Sections 302 & 447 against the accused appellant. The charges were read over to accused appellant, who denied the charges and claimed trial. 10. During the course of trial, prosecution got examined as many as 12 witnesses and exhibited several documents. Thereafter, statement of accused appellant under Section 313, CrPC was recorded. In defence, DW. 1 Haleef has been examined. 11. After conclusion of trial, learned Addl. District Judge through impugned Judgment and order convicted and sentenced the accused appellant as stated hereinabove. 10.12. Aggrieved by the said Judgment and order dated 31.05,2000 passed by learned Addl. District Judge, Bhinmal, accused has preferred these appeals. 113. In this appeal following submissions have been made by the learned Counsel for the accused appellant:- .(i) That, the learned trial Court has not appreciated that the genesis, and/or origin of incident is not brought out from the statements of any of the alleged eye witnesses as none of the eye witnesses are infact witnesses to the incident and as such theory probablised by the prosecution does not stand proved. .(ii) That, the learned trial Court has failed to appreciate that incident has happened at the spur of moment. (iii) That, the statements of the witnesses clearly ruled out a case of motivated murder as no intention can be gathered from the circumstances cited by the prosecution. .(iv) That, the learned trial Court has failed to consider the vital material contradiction in the prosecution story. (iii) That, the statements of the witnesses clearly ruled out a case of motivated murder as no intention can be gathered from the circumstances cited by the prosecution. .(iv) That, the learned trial Court has failed to consider the vital material contradiction in the prosecution story. (v) That, the learned trial Court has wrongly believed the recovery of Lathi from the accused because the same is implanted and not proved. 14. Learned Public Prosecutor for the State has contended:- .(i) that the submissions made by the learned Counsel for the accused-appellant are not tenable as the evidence on record is sufficient to prove the guilt of the accused. .(ii) that plea of alibi taken by the accused by producing defence witness PW1 is neither probable nor proved. According to the learned Public Prosecutor there is no addifice available to accept the submissions made by the learned Counsel for the accused. (iii) that the circumstances brought on record by the prosecution are sufficient to prove sufficiently that it was accused only who has committed the murder of Narsa. Therefore, there is no reason to disturb the findings of conviction and sentence recorded by the trial Court. Postmortem of Dead Body of Deceased: 15. The Postmortem Report of deceased is Ex. P/20 and to prove the same, the prosecution has produced PW. 10 Dr. Bhanwar Lal Khatri. 16. PW. 10 Dr. B.L. Khatri has stated that on 30.11.1999 he conducted the Postmortem of the dead body of deceased and found the following injuries on dead body. .(1) Thereis extensive haematoma measuring 15.00 x 8.00 cms. in size, on mid and Rt. and Lt. parietal regions of scalp with bony crapts. The part of the haematoma having abrasion stained with clotted blood adhered to scalp hairs. On dissection, it reveals collection of dark blood underneath of skin and semilienar fracture of both parietal bones of skull. There is laceration of meninges and pulling of blood on corresponding cerebral parts of the brain. .(2) An abrasion, stained with clotted blood, 2.00 x 1.00 cm in size, on middle of upper part of the forehead. .(3) A bruise with swelling, bluish in colour, measuring 6.00 x 5.00 cms, in size (torn) bony crapts, on lateral aspect of lower 1/3 of left forearm. .(2) An abrasion, stained with clotted blood, 2.00 x 1.00 cm in size, on middle of upper part of the forehead. .(3) A bruise with swelling, bluish in colour, measuring 6.00 x 5.00 cms, in size (torn) bony crapts, on lateral aspect of lower 1/3 of left forearm. Its dissection reveals collection of dark blood underneath of skin, laceration of underlying muscle and fracture of both radius and ulna bones at their lower 1/3 of left forearm. He has further stated that the cause of death of deceased was due to fracture of parietal bones of skull causing intra cranial hemorrhage. He has further stated that injury on skull resulted in fracture of parietal bones causing intra cranial hemorrhage was sufficient in the ordinary course of nature of cause death. 17. PW. 4 Smt. Mohini in her statement recorded in the Court has stated that on the day of incident accused entered in their field in the afternoon along with his animals. The animals of the accused stated grazing the Isabgol and Deshi Zeera crops lying in the field. On making objection by Narsa, the husband of the witness, accused declined to remove his animals from the field and when accused tried to remove the animals from his field, the accused gave one after another two Lathi blows on the head of Narsa, on account of which Narsa fell down on the earth but the accused did not stop beating and further gave Lathi blows on the person of Narsa while he was lying on the earth. 18. PW. 9 Achala, who is real brother of deceased, has stated that on the day of incident accused came to the field of Narsa (deceased) with his animals. Narsa, who was present on the field, objected to it. At that time, the wife of Narsa Smt. Mohini was also there. The accused refused to take away the animals from the field of Narsa. When Narsa tried to remove the animals from the field, accused gave two Lathi blows on the head of Narsa. Narsa fell down on the ground. The accused further gave Lathi blows on the person of Narsa while lying on the ground. .19. The witness has further stated that accused thereafter ran away from there with the Lathi. When Narsa tried to remove the animals from the field, accused gave two Lathi blows on the head of Narsa. Narsa fell down on the ground. The accused further gave Lathi blows on the person of Narsa while lying on the ground. .19. The witness has further stated that accused thereafter ran away from there with the Lathi. The witness has further stated that thereafter he went to the Dhani of Narsa S/o Hara and narrated the entire incident to him. The witness has stated further than thereafter they went to the Dhani of PW. 8 Haja Ram and entire story was narrated to him and he was requested to provide his jeep to take the injured to the hospital to which he agreed. .20. PW. 8 Haja Ram in his statement supported the version of PW9 Achala in its totality. 21. PW. 1 Bhanwara Ram in his statement recorded in Court has stated that he was teacher in a private school. On 26.03.1999 Achala came to him and stated that Narsa has been murdered by Nurti Khan accused in his field. Witness has further stated that he requested to write his report. The witness has further stated that he reduced the oral narration made by Achala in writing in Ex. P./1 was read over to Achala PW. 9, who put his thumb impression on Exh. P/1 at mark ‘x’ place. 22. PW. 3 Mangilal has proved Exs. P/2 to P/15. This witness has stated before the Court that the police had come in the Dhani before 6 months of his recording statement in the Court. Police inspected the site and prepared inspection note, site plan. Control soil and smeared soil were taken and same were sealed at the spot. Panchayatnama of the dead body of deceased was prepared. The Panchas found that the cause of death was the injury on the skull. The clothes of deceased were also seized and sealed through Ex.P/6. The witness has further proved Ex. P/8 arrest memo of the accused and also proved the recovery memo and information to get recovered lathi Exs. P/14 &15. .23. PW. 6 Anju Shamim has stated in the Court that on 08.04.1999 she was posted in the S.P. Office, Jalore (Crime Branch) as a Constable. Shri Bheem Singh, Constable No. 399, PS. Bagoda came there alongwith 4 sealed packets of Case No. 15/1999. P/14 &15. .23. PW. 6 Anju Shamim has stated in the Court that on 08.04.1999 she was posted in the S.P. Office, Jalore (Crime Branch) as a Constable. Shri Bheem Singh, Constable No. 399, PS. Bagoda came there alongwith 4 sealed packets of Case No. 15/1999. The packets were marked A, B, C & D. She .prepared letter on behalf of S.P., Jodhpur in the name of Director, FSL, Jodhpur for the examination of the sealed articles. The sealed articles alongwith letter were handed over to Bheem Singh on the very same day. Carbon copy of the letter so prepared was sent to Police Station Ex. P/16. This bears the signatures of S.P. Shri Chunnilal. 24. PW. 7 Shri Bhagwana Ram in his statement recorded on 011.1999 has stated that on 27.03.1999 he was posted as Head Constable at the Police Station Bagoda, on that day SHO Police Station handed over to him 4 sealed packets, the same were deposited in the Malkhana in the sealed condition. The packets had marks A, B, C & D on them. The entries were made in the Malkhana register Ex. P/17. The packets were handed over to Shri Bheem Singh to take them to S.P. Office, Jodhpur. Bheem Singh when came back, submitted a receipt for the deposition of sealed articles. The sample seal was with the packets. 25. PW. 11 Shri Bheem Singh in his statement recorded in the Court on 30.11.1999 has deposed that on 08.04.1999 he was posted at Police Station Bagoda as Constable. He obtained 4 sealed packets marked A to D from the Malkhana incharge Bhagwana Ram, Head Constable. He thereafter went to S.P. Office, Jodhpur alongwith sealed packets. A letter was prepared by Anju Shamim, PW6 on behalf of S.P., Jodhpur addressed to Director Forensic Science Laboratory, Jodhpur. The articles remained in the custody were sealed and deposited in sealed condition in the FSL. 26. PW. 12 Ratanlal, in his statement recorded on 30.11.1999 has stated that on 27.03.1999 he was SHO, Police Station, Bagoda. On that day, at about 9.05 P.M. Achala Ram presented himself at the Police Station and submitted a written report Ex. The articles remained in the custody were sealed and deposited in sealed condition in the FSL. 26. PW. 12 Ratanlal, in his statement recorded on 30.11.1999 has stated that on 27.03.1999 he was SHO, Police Station, Bagoda. On that day, at about 9.05 P.M. Achala Ram presented himself at the Police Station and submitted a written report Ex. P/1, he made enquiries and endorsement to that effect is at place A to B. A case was registered and for that further endorsement is available at place C to D. The witness has stated that the report so submitted was read over to PW. 9 Achala who accepted it to be correct. Regular FIR Ex. P/22 was chalked out by him and that bears his signature. On that basis he registered Case No. 15/1999. The witness says further that thereafter he inspected site in the presence of Mangilal, Narsa and the complainant PW. 9 Achala. The witness found the dead lying at the site. A little away from where the blood was lying on the soil, the turban of deceased was lying on the earth. The witness says that he collected controlled sample of soil and blood-stained smeared soil, which were separately kept in different cloth bags, the same were sealed. The witness prepared site-plan, site inspection note, Panchayatnama of the dead-body of the deceased and arrested accused through Fard Ex. P/8. The information regarding arrest of accused was given to the father of the accused through Ex. P/23. During the course of investigation, in the police custody, the accused at his own informed that the lathi which was kept inside his house can be recovered and he was prepared for getting it recovered from his house. The information so given by the accused was recorded is Ex. P/24 and read over to him which the accused accepted to be correct. The accused in pursuance to the information so given to the police got recovered the lathi. The Fard in this regard was prepared as Ex. P/14. The witness says that he prepared site-plan Ex. P/15. The lathi was kept in a cloth bag and was also sealed. On the front portion of the lathi there appeared some spots of blood at two places. Packets were sealed and marked ABCD and the same were deposited in the Malkhana on 27.03.1999. In the Court, the witness has identified the Lathi Article 3. P/15. The lathi was kept in a cloth bag and was also sealed. On the front portion of the lathi there appeared some spots of blood at two places. Packets were sealed and marked ABCD and the same were deposited in the Malkhana on 27.03.1999. In the Court, the witness has identified the Lathi Article 3. 27. A perusal of the statements of the witnesses recorded in the Court in the present case clearly indicate that the witnesses have without any manner of doubt supported the prosecution version. The submissions made by the learned Counsel for the accused regarding absence of the eye witness or the reliability of the witness being not trustworthy, cannot be accepted for the simple reason that the witnesses have been cross examined at great length. It does not appear that something concrete has been extracted out from their statements. The accused in his statement under Section 313 CrPC has stated that he has been involved in the case on account of enmity but merely saying so would not be sufficient unless it is corroborated with some material. We find that there is nothing on record to suggest that the witnesses were in any way inimical to the accused. The submissions with regard not to base conviction on the basis of the sole testimony of PW . 4 Mohini, the wife of the deceased, for the reason she being an interested witness has no merit. In fact what is required is to examine the evidence cautiously. 28. It shall be useful to refer here some important decisions of the Supreme Court regarding appreciation of the evidence of related and interested witnesses. 29. In Brathiv vs. State of Punjab, AIR 1991 SC 318 , the Hon’ble Supreme Court held that no doubt Criminal Court has to appreciate evidence given by witnesses who are closely related to the victim and the Court must be careful in evaluating their evidence, but rejection of the evidence on the sole ground that the witness being related to the victim is an interested witness would invariably lead to miscarriage of justice. 30. In Dalbir Kaur vs. State of Punjab, AIR 1977 SC 472 , the Hon’ble Supreme Court has held that a close relative, who is a very natural witness in the circumstances of a case, cannot be regarded as an ‘interested witness’. 5.31. 30. In Dalbir Kaur vs. State of Punjab, AIR 1977 SC 472 , the Hon’ble Supreme Court has held that a close relative, who is a very natural witness in the circumstances of a case, cannot be regarded as an ‘interested witness’. 5.31. Furthermore, for this reason that she happens to be the wife of the deceased she will entangle a person innocent or not connected with the crime is not understandable. There is all the reason to believe the presence of PW. 4 on the spot as she was wife of the deceased and was living with her husband. There is all the more reason to believe that on the day of incident both husband and wife were on the field as Deshi Zeera and Isabgol crops were lying there and it required to be taken care by them. It was a suggestion to the witness by the defence that in fact the incident has taken place when deceased was removing animals from his field, he fell down, and thereafter it is the hoofs of the animals which might have resulted in causing injuries sustained by deceased while lying on the ground. The suggestion put to the witness cannot be said to be probable in the facts and circumstances of the present case inasmuch as that there were only three injuries on the dead body of the deceased and there were no injuries of the nature which may appear to have been caused by the hoofs of the animals. 6.32. It was the submission of the learned Counsel that in fact the accused was not in village Bagoda on the day of incident because he was at his father-in-law’s house, who is DW 1. The submission is without merit for the reason that there is no suggestion available in this regard to any witness of the prosecution. Further in the statement recorded under Section 313 of the CrPC the accused has not stated or taken the plea of alibi. Be that as it may, even the statement of DW 1 does not inspite confidence to remotely believe the statement of Haleef , who is the father-in-law of the accused. Further in the statement recorded under Section 313 of the CrPC the accused has not stated or taken the plea of alibi. Be that as it may, even the statement of DW 1 does not inspite confidence to remotely believe the statement of Haleef , who is the father-in-law of the accused. This witness has deposed on 20.12.1999 in the Court that the accused is his son-in-law and 9 months before recording of his statement in the Court the accused and his wife both had come to meet him at his house and stayed there for 7 or 8 days, the police came there and arrested the accused from his house. In cross-examination, the witness has deposed that he does not remember the day, date, month etc. when the accused came to his house. The witness does not say that he ever disclosed this fact to the police. This statement of DW. 1 coupled with other circumstances that no such suggestion to the witnesses of the prosecution put forth and further no specific mention of the plea of alibi was made by the accused in his statement under 313 CrPC. On the contrary the suggestions given to the witnesses were changed one after another. In our considered opinion, the plea of alibi is not tenable and is an after thought. 7.33. The statements of prosecution witnesses appears to be trustworthy as the witnesses could not be shaken in the cross examination so as to disprove their testimony which is worth credence. It shall also be pertinent to make a mention of the fact that the lathi recovered from the accused was stained with human blood and after FSL examination it was found to contain blood of group ‘B’ on it. The blood smeared soil and clothes of the deceased also contained ‘B’ group blood. This is also a circumstance which shows that the group of the blood found on the lathi matched with the blood group of the deceased. 8.34. The submission of the learned Counsel that it was a case of without motive and the incident if at all happened then it was at the spur of moment, the accused-appellants’s case would be a case where there was no intention or knowledge of the accused to commit murder of the deceased. 8.34. The submission of the learned Counsel that it was a case of without motive and the incident if at all happened then it was at the spur of moment, the accused-appellants’s case would be a case where there was no intention or knowledge of the accused to commit murder of the deceased. We do not find any merit in this submission of the learned Counsel for the accused that for the reason that the incident cannot be said to have taken place at the spur of moment because it was the accused who entered into the fleld of deceased alongwith his animals, there was exchange of talks and the accused not only gave one lathi blow but gave one after other on the head of the deceased which resulted in fracture of the skull bones. Not only this, while the deceased was lying on the ground, he was beaten by lathi and as a result of which there was fracture in the radius and ulna bones of the left forearm. The above injuries without any manner of doubt indicate that accused had the knowledge that by his act of inflicting the injuries with force on the head of the deceased repeatedly by lathi then it was likely to cause death. Thus, in our humble opinion the present case is one where accused committed culpable homicide amounting to murder because the injuries inflicted on the head repeatedly by lathi with force causing fracture of the skull bones are in itself a sufficient circumstance to draw an inference that accused had the knowledge that such act of his was likely to cause death. 1.35. With regard to submission of the learned Counsel regarding absence of motive, prosecution version should not be relief upon, is also not tenable for the reason that the motive lies locked in the heart of a man, and so, it becomes difficult to know the same. Failure to bring on record any evidence regading motive does not, however, weaken a prosecution case, though existence of the same may strengthen the same. 2.36. We are of the opinion that the learned trial Court has in analysing the circumstances of the case committed no illegality and the oral evidence of the witnesses has also been appreciated properly. Failure to bring on record any evidence regading motive does not, however, weaken a prosecution case, though existence of the same may strengthen the same. 2.36. We are of the opinion that the learned trial Court has in analysing the circumstances of the case committed no illegality and the oral evidence of the witnesses has also been appreciated properly. The trial Court reached to the conclusion that accused was guilty of murdering Shri Narsa and the evidence so adduced before the learned trial Court was unimpeachable. Thus, there appears to be no reason why the conviction and sentence awarded to the accused person should in any way be interfered with. 3.37. In view of reasons stated above, we are of the opinion that finding of guilt and conviction recorded by the learned Additional District Judge, Bhinmal through impugned Judgment and order dated 31.05.2000 in Sessions Case No. 92/1999 under Sections 302 & 447 IPC against the accused appellant deserves to be approved and confirmed. 4.38. In view of foregoing discussions, we find no merit in this appeal and the same deserves to be dismissed. 5.39. Accordingly, this appeal filed by the accused-appellant is dismissed after confirming the Judgment and order dated 31.05.2000 passed by the learned Additional District Judge, Bhinmal. Appeal No. 343/2000 40. As we have dismissed Criminal Appeal No. 344/2000 filed by the accused appellant, Jail Appeal filed by him bearing No. 343/2000 also stands dismissed in terms thereof .