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2019 DIGILAW 1137 (RAJ)

Subhan Khan v. State of Rajasthan, through P. P.

2019-04-15

SANDEEP MEHTA, VINIT KUMAR MATHUR

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JUDGMENT : SANDEEP MEHTA, J. 1. The instant appeal has been preferred by the appellant Subhan Khan being aggrieved of the judgment dated 26.11.2010 passed by the learned Additional Sessions Judge, Sojat City in Sessions Case No. 17/2009 whereby, he has been convicted as under:- Offences Sentences Fine Sentence in default of fine Under Section 302 IPC Life Imprisonment 2000 Additional Six Months R.I. 307 IPC Life Imprisonment 1000 Additional Three Months R.I. 309 IPC One years imprisonment 500 One Months Additional Imprisonment All the sentences were ordered to run consecutively. 2. Being aggrieved by the above judgment, the appellant has preferred the instant appeal under Section 374(2) Cr.P.C. 3. Brief facts relevant and essential for disposal of the appeal are noted herein below:- Babu Khan (the complainant) lodged a written report Ex.P/1 to Shri Amar Singh, SHO, Police Station, Sojat City at the Government Hospital, Sojat city on 1.11.2009 at 7.15 am alleging inter-alia that his younger sister Seema had been married to the accused appellant herein 15-16 years ago. Two daughters and a son had been born from their wedlock. The daughters were 7 and 5 years old respectively and son was 08 months old. The accused was of a quarrelsome nature and had even assaulted his father 03 years ago. His sister Seema was also tortured by the accused but considering the welfare of the family to be paramount, she did not take any legal action against him. 08 months ago, the informant tried to counsel to Subhan Khan so that the familys affairs could run smoothly. Subhan Khan agreed to shift to Sojat with his family. Babu Khan took a room on rent in the house of Mohd. Hussain and also got Subhan employed. In the previous 08 months, only a few minor skirmishes took place between the spouses and thus, the informant felt that the situation had improved. In the morning of 1.11.2009 at 5.30 a.m. the informant went towards his sisters house on hearing her fervent cries. The witnesses Narpat Singh (PW-23), Champa Lal (PW-24), Jagdish Chandra (PW-25) and Madina (PW-5), wife of the informant followed him and upon arriving in front of Smt. Seemas house, they saw that Subhan Khan had inflicted number of blows by Koont on the head of Seema, due to which, she had fallen down on the floor. The witnesses Narpat Singh (PW-23), Champa Lal (PW-24), Jagdish Chandra (PW-25) and Madina (PW-5), wife of the informant followed him and upon arriving in front of Smt. Seemas house, they saw that Subhan Khan had inflicted number of blows by Koont on the head of Seema, due to which, she had fallen down on the floor. On arrival of the witnesses, Subhan Khan climbed up the terrace of the house with the Koont in his hand. The informant and the other witnesses looked at the scene inside the room and were shocked to see that Seema, her daughters Mst. Mumal and Mst. Musi were lying injured on the floor in a profusely bleeding condition; the entire floor of the room, the bed-sheets etc. were bathed in blood; 108 Ambulance was called. Information was also given at the Police Station. In the meantime, they heard the noise of someone falling from the roof. After coming out, Jamaal Khan and Daud Khan told him that Subhan Khan tried to jump on to the electric lines passing near the terrace but instead he fell down and received injuries. The informant alleged that Subhan Khan first tried to kill his own kith and kin by inflicting innumerable injuries to them and thereafter, he tried to kill himself by jumping on the electric lines. His sister, nieces and nephew were taken to the Government Hospital, Sojat where all the three were being provided treatment for their serious injuries. 4. On the basis of this report, an FIR No. 416/2009 was registered at Police Station, Sojat City for the offences under Sections 307, 323 and 309 IPC and investigation was commenced. The SHO Amar Singh (PW-27) reached the Government Hospital and collected the injury reports Ex.P/13, Ex.P/14, Ex.P/15 and Ex.P/16 of Smt. Seema, Mst. Mumal, Mst. Musi and the boy child Habib from the Medical Officer Dr. Surendra Sharma (PW-12). All the injured were in a very bad shape and thus the Medical Officer referred to them to the MDM Hospital Jodhpur for further treatment. The child Habib expired on the same day at the MDM Hospital Jodhpur, on which, his body was subjected to Post Mortem by Medical Jurist Dr. Jagdish Jugtawat (PW-13) who issued a Post Mortem Report (Ex.P/21) opining that cause of death of Habib was head injury which was sufficient in the ordinary course of nature to cause death. The child Habib expired on the same day at the MDM Hospital Jodhpur, on which, his body was subjected to Post Mortem by Medical Jurist Dr. Jagdish Jugtawat (PW-13) who issued a Post Mortem Report (Ex.P/21) opining that cause of death of Habib was head injury which was sufficient in the ordinary course of nature to cause death. The requisite formalities of collecting the bloodstained clothes etc. of the injured and the deceased were carried out. The site inspection was conducted. The accused was arrested on 1.11.2009 and his blood stained clothes were seized. On 2.11.2009, the accused gave information to the Investigating Officer under Section 27 of the Evidence Act (Ex.P/36) in furtherance whereof, the Investigating Officer claims to have recovered and seized a bloodstained Koont and a bloodstained knife hidden under dried Henna bushes lying inside the rented premises in which the accused and his family members used to reside. The seized articles were forwarded to FSL for serological and chemical examination. The X-Ray reports of the three injured were received. Medical opinion was sought regarding the nature of injuries. Dr. Surendra Kumar Sharma gave his opinion expressing that the injuries caused to the three injured Mst. Mumal, Mst. Musi and Smt. Seema were life threatening/grievous. All the three injured had been subjected to surgical procedure at MDM Hospital, Jodhpur from where, their bed head tickets were collected. 5. After concluding the investigation, a charge-sheet was filed against the appellant for the offences under Sections 302, 307, 323, 324, 326 and 309 IPC in the Court of Additional Chief Judicial Magistrate, Sojat City. Since the offences were sessions triable, the case was committed to the Court of the Additional Sessions Judge, Sojat City for trial. 6. The trial Court framed charges against the accused appellant for the offences under Sections 302, 307 and 309 IPC who pleaded not guilty and claimed trial. The prosecution examined as many as 27 witnesses and exhibited 38 documents to prove its case. 7. Upon being questioned under Section 313 Cr.P.C. the accused denied the allegations set out in the prosecution evidence but did not choose to lead any evidence in defence. 8. Upon conclusion of the trial, the learned trial Court proceeded to convict and sentence the appellant as above. Hence, this appeal. 9. 7. Upon being questioned under Section 313 Cr.P.C. the accused denied the allegations set out in the prosecution evidence but did not choose to lead any evidence in defence. 8. Upon conclusion of the trial, the learned trial Court proceeded to convict and sentence the appellant as above. Hence, this appeal. 9. Shri Bhagirath Bishnoi, learned counsel representing the appellant vehemently and fervently urged that the entire prosecution case is false and fabricated. As per him, the evidence of star prosecution witness Smt. Seema (PW-4) being the wife of the accused is vacillating, contradictory and full of embellishments. Shri Bhagirath Bishnoi also urged that the prosecution did not examine the two injured girls in evidence and thus, the adverse inference deserves to be drawn as the material witnesses were withheld from the Court. He urged that as a matter of fact, Smt. Seema was indulged in extra marital affairs with Narpat Singh (PW-23) and he inflicted the injuries to the injured and the deceased. In arguendo, the contention of Shri Bishnoi was that there was no mens rea on the part of the accused to kill his own son or to injure his wife and daughters. He urged that the fact that the accused tried to end his own life by jumping over the electric supply lines is clearly indicative of the fact that he was not having the mens rea to commit the murder of his own son and the act was committed under frustration and grave provocation. He vehemently and fervently contended that Seema and her two daughters (who have suffered severe mental and physical trauma leaving them disabled) have reconciled their differences with the appellant and they are presently living with him at the Open Air Camp and thus it is a fit case wherein the offence under Section 302 IPC for which the accused has been convicted deserves to be toned down to one under Section 304 Part I IPC and the sentence awarded to the accused deserves to be reduced suitably. On these grounds, he vociferously implored the Court to accept the appeal, quash or suitably alter the impugned judgment dated 26.11.2010. 10. Per Contra, learned Public Prosecutor vehemently and fervently opposed the submissions advanced by the appellants counsel. On these grounds, he vociferously implored the Court to accept the appeal, quash or suitably alter the impugned judgment dated 26.11.2010. 10. Per Contra, learned Public Prosecutor vehemently and fervently opposed the submissions advanced by the appellants counsel. He contended that the witnesses PW-1 Babu Khan, PW-4 Seema, PW-5 Madina (sister of the accused-appellant), PW-23 Narpat Singh, PW-24 Champa Lal have all given clinching, convincing and cogent evidence to the effect that the accused inflicted brutal blows to his three children and his wife (Smt. Seema) by sharp weapons without being provoked and without any justification. He urged that the medical witness PW-12 Dr. Surendra Kumar Sharma, PW-13 Dr. Jagdish Jugtawat, PW-14 Dr. Surendra Gupta, PW-15 Dr. S.P. Singh, PW-16 Dr. Sunil Garg have given unflinching and convincing testimony to prove the fact that the three injured were caused innumerable injuries by dangerous weapons. The injuries caused to Mst. Mumal, Mst. Musi and Smt. Seema were life endangering whereas the injuries caused to the 08 months old child Habib proved fatal. He took us through the statement of PW-13 Dr. Jagdish Jugtawat who stated that while conducting the Post Mortem upon body of Habib, he noticed a cut wound on the abdominal area and a lacerated wound on the parietal region of the child underneath which the frontal and parietal bones were fractured. These injuries were opined to be sufficient in the ordinary course of nature to cause death. He urged that the answer given by the Doctor to the defence suggestion that the injuries could probably be caused by falling with fierce, is totally inconsequential because the accused, who was present in the same room has not set any such theory in defence that the child received the fatal injuries by a fall. He further urged that the cut injuries noticed on the body of the child. He further submitted that the numerous cuts wounds/incised wounds noticed by Dr. Surendra Kumar on the three injured were also life threatening and by no stretch of imagination could these injuries be caused by fall. He submitted that the prosecution witnesses, more particularly, Smt. Seema being the wife of the accused, Babu Khan, being his brother-in-law and Madina being the real sister of accused had no occasion to give false evidence against him. He submitted that the prosecution witnesses, more particularly, Smt. Seema being the wife of the accused, Babu Khan, being his brother-in-law and Madina being the real sister of accused had no occasion to give false evidence against him. He thus, urged that the conviction of the accused as recorded by the trial court is based on an apropos appreciation of evidence and the impugned judgment does not warrant any interference. 11. We have given our thoughtful consideration to the submissions advanced at bar and have carefully and threadbare sifted and re-appreciated the evidence available on record. 12. The first informant Babu Khan PW-1 was married to Smt. Madina PW-5 who happens to be the real sister of the accused appellant. At the same time, Smt. Seema PW-4, sister of Babu Khan was married to the accused appellant. Thus, the parties were into an aata saata relationship. 13. Injured witness PW-4 Smt. Seema being the wife of the accused-appellant herein stated in her evidence in firm and unflinching terms that she was preparing food in the rented house where she lived with the accused appellant in the morning at 5:30 am. She saw her husband brutally assaulting her two daughters and son using a knife and a Koont inside their room. She rushed into the room and tried to intervene and save her children on which, Subhan Khan gave her Koont blows on the head, hand, shoulder, palm, etc. She raised a hue and cry upon which, her brother Babu Khan, Madina, Champa Lal, Jagdish Chandra and other people from the neighborhood came around and thereafter she fell down unconscious. She categorically stated that Subhan Khan inflicted a head injury on her 08 months child Habib Khan, due to which he expired. Because of the knife injuries caused to Mst. Mumal, she was unable to speak and walk. Mst. Musi also suffered from physical and mental disability owing to the injuries caused to her. She stated that her husband was of quarrelsome nature and used to threaten that he would kill them. He had beaten his own father 03 years ago. Nothing significant was elicited in the cross-examination conducted from this witness which could discredit her testimony. A suggestion was given to the witness that Narpat Singh used to visit their house owing to which, Subhan Khan used to quarrel with her. He had beaten his own father 03 years ago. Nothing significant was elicited in the cross-examination conducted from this witness which could discredit her testimony. A suggestion was given to the witness that Narpat Singh used to visit their house owing to which, Subhan Khan used to quarrel with her. However, the witness pertinently denied this suggestion which was aimed at imputing infidelity to her. The witness truthfully stated in the cross examination that it was fairly dark at the time of incident. She explained that when she ran inside the room, she saw that Subhan Khan was stabbing Muskan. Habib Khan and Mumal were lying down in an injured condition. Thus, the evidence of this witness whose presence at the place of incident cannot be doubted even for a moment is in itself sufficient to convince us that the accused appellant brutally and mercilessly assaulted his own wife and children by dangerous weapons and inflicted large number of injuries to them. The injuries caused to Habib Khan proved fatal whereas those caused to the three injured were also life endangering. The evidence of Smt. Seema is fortified and corroborated in material particulars by the evidence of PW-1 Babu Khan, PW-5 Madina (real sister of accused appellant), Narpat Singh (PW-23), Champa Lal (PW-24), Jagdish Chandra (PW-25). The fact that Madina being the sister of the accused has testified against him, leaves no room for doubt regarding the complicity of the accused in the crime. 14. The medical testimony as deposed by Dr. Surendra Kumar Sharma PW-12, who attended the injured initially at the Government Hospital, Sojat; Dr. Jagdish Jugtawat PW-13, Medical Jurist, MDM Hospital Jodhpur who issued the post-mortem report of the deceased Habib; Dr. Surendra Gupta, Resident Doctor Surgical Department who gave evidence about the surgical procedure carried out to treat the injured Mumal and Musi at the MDM Hospital, Jodhpur; PW-15 Dr. S.P. Singh who issued the bed head ticket of the two injured girls; PW-16 Dr. Sunil Garg who conducted neuro surgery on the child Musi corroborates the testimony of the eye witnesses to the hilt. 15. On a perusal of the statement of Dr. Surendra Kumar Sharma, PW-12, Medical Jurist, it is clear that he examined the four injured and issued the injury reports with the following description of injuries:- Injury Report of Mumal: (Ex.P/13) 1. Incised wound 3" x " on left parietal 2. 15. On a perusal of the statement of Dr. Surendra Kumar Sharma, PW-12, Medical Jurist, it is clear that he examined the four injured and issued the injury reports with the following description of injuries:- Injury Report of Mumal: (Ex.P/13) 1. Incised wound 3" x " on left parietal 2. Incised wound 3" x " on right parietal 3. Lacerated wound 2" x 2" on occipital area 4. Lacerated wound cm x cm on chest region Injury Report of Musi: (Ex.P/14) 1. Incised wound 2" x 0.5 cm each x brain deep on the back of the head 2. Incised wound 1 cm x .2 cm on the abdomen Injury Report of Seema: (Ex.P/15) 1. Incised wound 4" x " on the front side of the head 2. Incised wound 2" x " on the forehead 3. Incised wound 2 cm x " on the left side of the neck 4. Incised wound 3" x " on the rear side of the head 5. Numerous cut wounds 1 cm x .2 cm on the back of the right palm 6. Incised wound 1.5 cm x .2cm on left side of back Injury Report of Habib Khan: (Ex.P/16) 1. Incised wound 1 cm x cm on the abdomen 2. Swelling with Haematoma on the right side of skull 3. Haematoma on the left side of head 16. Dr. Surendra Kumar Sharma assessed the nature of injuries of the three injured after examining their x-ray reports and bed-head tickets and opined that Seemas injuries were life-threatening. The injuries of Mumal and Musi were opined to be grievous in nature. Dr. Jagdish Jugtawat (PW-13) conducted postmortem upon the body of boy Habeeb Khan and opined that the head injury noticed in the postmortem report (Ex.P/21) was sufficient in the ordinary course of nature to cause death. Dr. Surendra Kumar Gupta was the resident doctor in the Surgery Department of the M.D.M. Hospital at the relevant time. He stated that Musi was operated upon by Surgeon Dr. Akhilesh Gupta on 1.11.2009. Her abdomen was opened and, the omentum which was protruding was pushed back inside and thereafter wall of stomach was sewed up. He also expressed an opinion that the other internal organs in the abdominal area of Moosi were normal. On the very same day, Mumal was also operated upon for perforations in her abdomen. Akhilesh Gupta on 1.11.2009. Her abdomen was opened and, the omentum which was protruding was pushed back inside and thereafter wall of stomach was sewed up. He also expressed an opinion that the other internal organs in the abdominal area of Moosi were normal. On the very same day, Mumal was also operated upon for perforations in her abdomen. Her stomach was opened up and the intestinal perforations were stitched and repaired. The doctor opined that if the surgical procedures had not been performed, Mumal and Musi, both could have died. 17. Dr. Sunil Garg (PW-16) gave evidence to the effect that he was posted as Associate Professor in the Neurosurgery Department, MDM Hospital, Jodhpur on 01.11.2009. He conducted scalp surgery on baby Musi, aged 3 years. Her right parietal bone was fractured and splintered into pieces and was removed. The membrane above the brain was torn and the brain matter was coming out, which was repaired and protected. He conducted surgical procedure on the scalp of Musi, whose brain was also coming out from the membrane. Her left parietal bone was splintered. The pieces and the excess brain matter were removed and the wound was closed. He also performed surgical procedure on the head of Seema and noted that her parietal bone was fractured and broken into pieces. Nothing significant was elicited in the cross-examination conducted from these medical witnesses. 18. Considering the nature, size and location of the injuries caused to the three injured and the deceased child, we are fully satisfied that the intention of the accused was unexceptionally to murder his own family members as he appeared to be carrying a nagging suspicion in his mind that his wife was involved in some kind of affair with Narpat Singh. We are least convinced and not persuaded even for a moment with the argument advanced by Shri Bhagirath Bishnoi, learned defence counsel that as the accused tried to end his own life by jumping over the electric wires, his act covered by the exceptions provided under Section 300 IPC so as to tone down the charge for the offence under Section 302 IPC for which, accused has been convicted to that under Section 304 Part I IPC. 19. 19. The testimony of the eye witnesses is also corroborated by the factum of recovery of weapons hidden under the dried henna plants lying inside the house of the accused made in furtherance of the information provided by him to the Investigating Officer Amar Singh under Section 27 of the Evidence Act corroborate the testimony of the eye witnesses to the hilt. 20. The contention of the defence counsel that the accused had no mens rea to commit the offence as he tried to commit suicide by throwing himself on the electric wires pales into insignificance when we consider the fact that the accused brutally and mercilessly assaulted his own family members is three minor innocent and tender aged children and his wife by dangerous weapons like knife and Koont. 21. The contention of Shri Bhagirath Bishnoi that the two injured girls were not examined in evidence and hence, adverse inference needs to be drawn against the accused is noted which is to be rejected because the law is well settled by a catena of decisions that it is the quality and not the quantity of witnesses which weighs the Court. Further more, since as per the medical evidence available and as per the statement of Smt. Seema, the girls have been de-capacitated physically and mentally by the ghastly assault, apparently recording of their evidence was not possible. 22. The contention of Shri Bhagirath Bishnoi that Smt. Seema and the two girls are presently living with the accused in the Open Air Camp and thus, he should be treated with leniency is also futile and inconsequential because the factum of compromise between the parties can neither be considered relevant nor acted upon in a case involving the offence of murder. 23. Thus, we are of the firm opinion that the trial court has appreciated the evidence available on record in an absolutely apropos manner while recording the finding of guilt against the accused by the impugned judgment dated 26.11.2010 which does not suffer from any illegality or infirmity whatsoever. 24. In the wake of the above discussion, we do not find any merit in the present appeal and thus, the same fails and is hereby rejected. 25. Before parting, we may refer to the plea advanced by Mr. 24. In the wake of the above discussion, we do not find any merit in the present appeal and thus, the same fails and is hereby rejected. 25. Before parting, we may refer to the plea advanced by Mr. Bhagirath Bishnoi, learned counsel representing the accused appellant, during the course of arguments that both the injured girls Mumal and Musi had been incapacitated for life owing to the injuries suffered by them in this incident. We feel that pain and suffering of the victims can be alleviated to some extent by considering their case for grant of compensation under the Victim Compensation Scheme. Section 357-A Cr.P.C. was inserted in the statute on 31.12.2009. It may be noted here for the sake of reference that the Rajasthan Victim Compensation Scheme was delivered in the year 2012. The judgment of the case at hand was rendered by the trial court in the year 2010. However, the law is well settled that appeal being a statutory right, the trial courts verdict does not attain finality during pendency of the appeal and for that purpose his trial is deemed to be continuing despite conviction of the accused. Reference in this regard may be made to Smt. Akhtari Bi vs. State of M.P. AIR 2001 SC 1528 . When the appeal is decided, the judgment of the trial court merges into the appellate judgment. The accused is said to be a very poor man and thus, there would be no point in considering grant of compensation to the three victims at the cost of the accused by exercising powers under Section 357 Cr.P.C. However, the Victim Compensation Scheme introduced in the State of Rajasthan, in light of Section 357-A Cr.P.C. can be applied to take care of this aspect. The judgment of the case at hand was delivered by the trial court on 26.11.2010 but as an appeal is continuance of trial, the case of the three injured can definitely be considered for grant of compensation under the Victim Compensation Scheme even at the appellate stage. Hon'ble Allahabad High Court in the case of Mohd. Kaleem vs. State of U.P. (Criminal Appeal No. 1726/2012 decided on 24.11.2015) considered the sphere of operation of Victim Compensation Scheme and held at para 31 of its judgment that the court referred to in Section 357-A (2) includes the remand magistrate, trial court, appellate court or the revisional court. Hon'ble Allahabad High Court in the case of Mohd. Kaleem vs. State of U.P. (Criminal Appeal No. 1726/2012 decided on 24.11.2015) considered the sphere of operation of Victim Compensation Scheme and held at para 31 of its judgment that the court referred to in Section 357-A (2) includes the remand magistrate, trial court, appellate court or the revisional court. Hon'ble Allahabad High Court further went out to observe in para 36 of its judgment that Section 357-A Cr.P.C. is retrospective in effect. In this view of the matter and since the incident is of District Pali, we direct the Full Time Secretary, District Legal Services Authority, Pali to make a thorough enquiry regarding the present status of the three victims; extent of disability caused to them because of the injuries suffered in the incident at hand and percentage of their physical disability, if any. For making the assessment, the Full Time Secretary shall be at liberty to take opinion from the Medical Board, if so required. The report of the Full Time Secretary shall be placed for perusal of the court for considering the grant of compensation to the victims under the Victim Compensation Scheme. 26. The victims shall be kept present in the Court on the next date which is fixed for compliance. 27. Copy of this order shall be forwarded to the Full Time Secretary, District Legal Services Authority, Pali. 28. List on 24.5.2019 for receiving the report of the Full Time Secretary.