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2005 DIGILAW 577 (RAJ)

Waagu v. State of Rajasthan

2005-02-21

BHAGABATI PRASAD BANERJEE, SATYA PRAKASH PATHAK

body2005
Judgment S.P. Pathak, J.-The appellant was the accused on the file of Additional District and Sessions Judge, Banswara bearing Sessions Case No. 119/1999. The learned Judge, vide Judgment dated 13.2001 has convicted and sentenced the accused appellant as under:- Under Section 302 IPC Life imprisonment and a fine of Rs. 500/-, in default of payment of fine to further undergo three months simple imprisonment. Under Section 447 IPC One months simple imprisonment. Both the sentences were ordered to run concurrently. 2. It is the case of prosecution that informant PW. 1 Waliya lodged an oral report Exh. P/1 on 27.6.1999 in the Police Station Patan, District Banswara with the averments that he had gone to the house of Homla in connection with sowing the crops and in the night stayed there. Homla, his wife Kali and Kantu were sleeping in the courtyard of the house and he was sleeping on the roof of the house. At about 11-12 P.M. in the night, he heard the noise of Homla (hereinafter referred to as `the deceased) and saw that one man having sword in his hand was inflicting injuries on the head of Homla, Smt. Kali, the wife of the deceased, cried for help but Waagu ran away from there. It was also stated that Waagu had earlier kidnapped Smt. Kali, the wife of the deceased. The dead body was lying on the cot in the house of Homla. 3. A case under Section 302 IPC was registered and investigation commenced. On completion of investigation, charge-sheet was filed in the Court of Magistrate and in due course, the case came up for trial before the learned Additional District and Sessions Judge, Banswara. Charges under Sections 302 and 447 IPC were framed against the accused, who denied the charges and claimed trial. Prosecution examined as many as 16 witnesses in support of its case and in documentary evidence Exhibited 17 documents. 4. The learned trial Judge, after the close of the evidence of prosecution, recorded statement of accused under Section 313 of the CrPC. The accused denied prosecution evidence and claimed himself to be innocent. He after hearing both sides, convicted and sentenced the accused appellant as indicated hereinabove. 5. We have considered the submissions made by Counsel for the parties and carefully gone through the evidence produced at the trial. 6. The accused denied prosecution evidence and claimed himself to be innocent. He after hearing both sides, convicted and sentenced the accused appellant as indicated hereinabove. 5. We have considered the submissions made by Counsel for the parties and carefully gone through the evidence produced at the trial. 6. Deceased Homla sustained fracture of right parietal, right maxilla and right mandibular bones caused by sharp edged weapon. In the opinion of Dr. Rajendra Ujjainiya (PW. 16), the deceased had died due to hemorrhagic shock resulting from head injury. The injuries on the person of the deceased were found to be ante-mortem in nature. The two injuries, inflicted on the person of deceased, were sufficient to cause death instantaneously. The doctor proved Exh. P/16, the Postmortem Report. Thus, taking into consideration the statement of Dr. Rajendra Ujjainiya (PW. 16) and Postmortem Report (Exh.P/16), it is established that the death of the deceased was homicidal. 7. Coming to evidence, we find that PW . 2 Mst. Kali, who is the wife of deceased, has stated that while they were sleeping in the court-yard of their house at about 11-12 P.M. in the night of the incident, she saw Waagu inflicting sword blows on the head of the deceased. She further says that she knows the accused as she was kidnapped by him earlier and she had remained with him for a year and half . She has stated that two blows were inflicted by the accused by sword, she cried for help and on coming others on the scene viz. Sarva Shri Nanu, Nathu, Kalu etc. the accused ran away. She has further stated that the incident has taken place on account of her returning back to her husbands house, which the accused could not tolerate. The witness has also been cross examined. In the evidence of PW . 3 Kantu, though slight omissions and contradictions have been pointed out by the learned Counsel for accused-appellant but those are insignificant. Kantu has also stated that she had seen the accused inflicting injuries by sword. PW. 6 Nanu, PW. 5 Vergensh, PW. 8 Lal Singh and PW. 9 Nathu are the witnesses of recovery, arrest and other memos and had assembled at the spot just after the incident. These witnesses corroborate the story of prosecution. PW. 11 Rooplal, PW. 12 Dilip Kumar and other police witnesses alongwith the statement of PW. PW. 6 Nanu, PW. 5 Vergensh, PW. 8 Lal Singh and PW. 9 Nathu are the witnesses of recovery, arrest and other memos and had assembled at the spot just after the incident. These witnesses corroborate the story of prosecution. PW. 11 Rooplal, PW. 12 Dilip Kumar and other police witnesses alongwith the statement of PW. 15 Prithvi Singh, who was Investigating Officer of the case and at the relevant time was posted as SHO, Police Station, Patan, have proved the recovery memos of the case and also proved the fact that the sealed articles were kept in proper condition in the Malkhana of Police Station which were thereafter sent through S.P. Office of the FSL for examination. The clothes worn by the accused and the clothes of the deceased were found to contain human blood. 8. It is contended on behalf of the accused appellant that the learned trial Court has not appreciated the evidence properly. According to the learned Counsel there are material contradictions and improvements in the statements of PW. 2 Kali and PW. 3 Kantu inasmuch as Kantu did not know the accused prior to the incident yet no identification parade was held. We do not find any merit in the contention for the reason that PW. 3 Kantu has supported the version of the prosecution and she corroborates the version of PW. 2 Smt. Kali that she had seen a person having sword in his hand inflicting injuries on Homla. It is correct that she did not know accused Waagu prior to the incident but there is PW. 2 Smt. Kali, who has not only seen and identified the accused but has stated that she had remained with the accused for a year and half as she was abducted by the accused earlier. If that is so, then single testimony of PW. 2 Smt. Kali is sufficient to prove that the accused was seen while inflicting injuries on the deceased unless there are cogent reasons to disbelieve the testimony of PW. 2 Smt. Kali. Simply because the identification parade was not held and PW . 3 Kantu had not seen the accused earlier, it cannot be a ground particularly in the circumstances when she fully corroborates PW . 2 on the point that she had seen a person in the night at about 12 PM inflicting sword blows. 9. 2 Smt. Kali. Simply because the identification parade was not held and PW . 3 Kantu had not seen the accused earlier, it cannot be a ground particularly in the circumstances when she fully corroborates PW . 2 on the point that she had seen a person in the night at about 12 PM inflicting sword blows. 9. It was next contended by the learned Counsel that there is no independent witness and as PW . 2 Smt. Kali was inimical to the accused because of her kidnapping by him, therefore, her testimony should not be relied upon. We do not find any merit in this contention also for the reason that there appears to be no reason available on the record and further taking into consideration the statement recorded in the Court of PW . 2 Smt. Kali in which she stated that she had seen the accused inflicting injuries on the accused by the sword and will go to tell lies to the extent of involving an innocent person who has not killed her husband and leave a person who has murdered her husband. On the basis of statements of PW . 2 Smt. Kali and PW . 3 Kantu coupled with the evidence of recovery and also the statement of PW . 16 Dr. Rajendra Ujjainiya which corroborates the testimony of PWs. 2 & 3, in our humble opinion, the learned trial Judge has rightly come to the conclusion that accused was responsible for the injuries sustained by the deceased and it was the accused who killed the deceased by sword. 10. In view of foregoing discussions, we find that Judgment and order dated 13.2001 passed by learned Additional Sessions Judge, Banswara in Sessions Case No. 119/1999 calls for no interference by this Court and the same deserves to be confirmed. 11. According, the appeal of aaccused appellant is hereby dismissed and the Judgment and order dated 13.2001 passed by learned Additional Sessions Judge, Banswara in Sessions Case No. 119/1999 is confirmed.