Research › Search › Judgment

Rajasthan High Court · body

2019 DIGILAW 2290 (RAJ)

Dildar @ Kalu @ Romeo v. State of Rajasthan

2019-08-26

ABHAY CHATURVEDI, SANDEEP MEHTA

body2019
JUDGMENT 1. The instant criminal appeal under Section 374(2) Cr.P.C. has been preferred by the accused-appellant Dildar @ Kalu @ Romeo being aggrieved of the judgment dated 27.04.2016 passed by the learned Sessions Judge, Metropolitan Jodhpur in Sessions Case No. 198/11 (N.C.V. No. 406/11), whereby the learned trial Judge convicted him for the offence under Section 302 IPC and sentenced him to life imprisonment with fine of Rs.2,000/- and in default of payment of fine to further undergo 01 month's Simple Imprisonment. 2. Since the counsel representing the appellant pleaded no instructions, we summoned the convict from the prison and thereafter, appointed Shri Deepak Menaria, Advocate, to represent the appellant as Amicus Curiae under the Free Legal Aid Scheme. 3. Brief facts relevant and essential for disposal of the appeal are noted hereinbelow: The complainant Zakir Khan (PW-1) lodged a Written Report (Ex.P/1) with the SHO, P.S. Pratap Nagar, Jodhpur on 01.09.2011 alleging inter alia that he, along with Mohd. Sadiq, Mohd. Sabir, Mohd. Irfan and Imran went to watch movie Bodyguard at the New Kohinoor Cinema. The show ended at 10:30 p.m. Thereafter, while they were standing outside the cinema hall to go back to their respective homes, Imran requested the informant to drop him off at his house as he had some threat perception and also did not have any means of transportation. While Imran was saying so, Kalu @ Dildar @ Romeo came around with a knife in his hand and threatened that he will kill him and in presence of all the witnesses, the accused inflicted 3-4 knife blows on the chest and abdomen of Imran. Before the witnesses could do anything to save Imran, the accused ran away. The witnesses lifted and boarded the injured Imran on their motor cycle and took him to M.D.M hospital where he expired while undergoing treatment. This report came to be submitted by the informant Zakir Khan to the SHO, Pratap Nagar, Jodhpur at 11:50 pm, at MDM hospital, Jodhpur. On the basis whereof, an FIR No.374/2011 was registered at Pratap Nagar Police Station for the offence under Section 302 IPC. 4. The accused was arrested and usual investigation was conducted. The knife used in the incident was recovered, seized and sealed. The clothes of the deceased, blood stained concrete and control concrete were collected from the place of the incident. 4. The accused was arrested and usual investigation was conducted. The knife used in the incident was recovered, seized and sealed. The clothes of the deceased, blood stained concrete and control concrete were collected from the place of the incident. A blood stained Cotton Gauze collected from the body of Imran was received from the hospital. The knife and the blood stained shirt worn by the accused were recovered from him. All these articles were forwarded to the FSL, from where a report Ex.P/20 dated 30.12.2011 was received with the opinion that the blood stained clothes of the deceased, the blood stained Gauze, the blood smeared soil and the knife and shirt of the accused all tested positive for the presence of "B" Blood Group. 5. Upon conclusion of the investigation, a charge sheet was filed against the accused appellant for the offence under Section 302 IPC. As the offence was triable by court of Sessions, the case was committed to the Court of Sessions, Jodhpur Metropolitan, who framed charge against the accused appellant by order dated 20.01.2012. The accused pleaded not guilty and claimed trial. The prosecution examined as many as 17 witnesses and exhibited 20 documents in support of its case. 6. Upon being questioned under Section 313 Cr.P.C. and when confronted with the prosecution allegations, the accused denied the same and claimed to have been falsely implicated. No evidence was led in defence. 7. After hearing and appreciating the arguments advanced by the prosecution and the defence and evaluating the evidence available on record, the learned Sessions Judge, Jodhpur Metropolitan proceeded to convict and sentence the appellant as above. Hence, this appeal. 8. The learned Amicus Curiae Shri Menaria, representing the appellant, vehemently and fervently urged that the evidence of the eye witnesses PW-1 Zakir Khan, PW-2 Sazid Khan, PW-3 Mohd. Sadiq @ Sonu, PW-4 Babu and PW-7 Raju @ Irfan is not reliable. Their presence at the scene of occurrence is not duly established. The recoveries effected by the Investigating Officer are fake and fabricated. 9. In arguendo, his contention was that the deceased Imran had admittedly assaulted the accused previously by a sword. The members of the complainant party were indulged in harassing the sister of the accused. Their presence at the scene of occurrence is not duly established. The recoveries effected by the Investigating Officer are fake and fabricated. 9. In arguendo, his contention was that the deceased Imran had admittedly assaulted the accused previously by a sword. The members of the complainant party were indulged in harassing the sister of the accused. On the day of the occurrence, the accused and the complainant party came across each other; a sudden quarrel took place and the accused, while trying to save himself from the aggressive overhearing of the complainant party, inflicted the knife blows to the deceased, which unintentionally landed on his vital body parts. As per Shri Menaria, the accused had no intention to cause such injuries to the deceased which resulted into his death. Thus, as per him, the offence would not travel beyond Section 304 Part II IPC. He, thus, implored the court to tone down the conviction of the accused from Section 302 IPC to Section 304 Part II IPC and reduce the sentences suitably. 10. Per contra, the learned Public Prosecutor, vehemently and fervently opposed the submissions advanced by Shri Menaria. He contended that the evidence of the eye witnesses is spontaneous and natural and there is no reason to doubt the version that they, alongwith the deceased had gone to watch the movie. The incident took place just outside the New Kohinoor Cinema Hall. The deceased Imran was feeling threat perception at the hands of the accused and because of that he asked his companions to drop him off at his home. However, before any step could be taken in this regard, the accused came around, exhorted and inflicted multiple stab wounds to Imran by a knife which proved fatal. 11. He referred to the statement of Medical Jurist Dr. Jagdish Jugtawat (PW-15) and urged that not less than 5 stab wounds were found on the body of the deceased at the time of postmortem. As per the postmortem report Ex.P/12, the injuries were located on the left buttock and the chest area. He submitted that the injuries inflicted on the chest area of the deceased were very deep and the underlying organ viz lungs and Pleura were damaged thereby. The repeated blows on these vital organs resulted into excessive bleeding and were opined to be sufficient in the ordinary course of nature to cause death. 12. He submitted that the injuries inflicted on the chest area of the deceased were very deep and the underlying organ viz lungs and Pleura were damaged thereby. The repeated blows on these vital organs resulted into excessive bleeding and were opined to be sufficient in the ordinary course of nature to cause death. 12. He further urged that the articles recovered from the person of the deceased (his apparel), the blood smeared soil, the blood stained concrete piece recovered from the place of the occurrence and the shirt and knife recovered from the accused were forwarded to the FSL, from where a report was received indicating the presence of "B" Blood Group on the said articles. As per the learned Public Prosecutor, the evidence of the eye witnesses is thoroughly corroborated by the FSL report as well. He thus, urged that the trial court was perfectly justified in convicting and sentencing the appellant as above and that the impugned judgment does not warrant any interference whatsoever. 13. We have given our thoughtful consideration to the submissions advanced at bar and have minutely and threadbare re-appreciated the evidence available on record. 14. Suffice it to say that Shri Menaria did not challenge the veracity of the eye witnesses very seriously and rightly so in our opinion. Despite that, we have, threadbare evaluated the evidence of the prosecution eye witnesses of PW-1 Zakir Khan, PW-2 Sazid Khan, PW-3 Sadiq @ Sonu, PW-4 Babu and PW-7 Raju @ Irfan and found that their testimony is absolutely reliable and free from any exaggeration or contradictions. The defence tried to give a suggestion to these witnesses that brother of the deceased was involved in harassing/stalking the sister of the accused. Imran had earlier assaulted Kalu with a sword and for the same a case was also registered in relation to the said incident. The said suggestion gives rise to a story that even the defence admits existence of prior animosity between the parties. Such an enmity would definitely provide a motive to the accused for taking revenge with the deceased. Thus, the suggestion given by the defence counsel in this regard gives evidence regarding motive against the accused appellant. The said suggestion gives rise to a story that even the defence admits existence of prior animosity between the parties. Such an enmity would definitely provide a motive to the accused for taking revenge with the deceased. Thus, the suggestion given by the defence counsel in this regard gives evidence regarding motive against the accused appellant. The testimony of all the eye witnesses referred to supra is free from any exaggeration or vacillation and they have in one voice, stated that after coming out from the cinema hall having watched the movie, while they were standing outside, Imran expressed an apprehension that he might be attacked and requested the witnesses to drop him off to his house as he was not having any vehicle. The witnesses were contemplating upon his request when the accused came around and exhorted that he would kill Imran. Thereafter, he immediately started inflicting repeated blows by the knife on the vital body parts of the deceased. Dr. Jagdish Jugtawat (PW-15) while deposing on oath described the injuries noticed on the body of Imran during autopsy as below : 1. Cut wound 1cm x 1/2 cm. on the left buttock. 2. Cut wound 3 cm x 1 cm. on the left lower side of the chest 3. Cut wound 1 cm x 1/2 cm on the left side of the central area of the chest. 4. Cut wound 21/2 cm x 1/2 cm on the left side of the chest 5. Cut wound 1 x 1/2 cm on the collar bone 6. The pleural cavity was cut between 4th and 6th inter coastal space, 600 cc blood was collected inside the pleural cavity because of excessive bleeding which was caused by the multiple injuries, the deceased went into shock and expired thereby. Dr. Jagdish Jugtawat categorically opined that the injuries were sufficient in the ordinary course of nature to cause death. No significant fact was elicited in the cross examination of the Doctor which can be considered as impeaching his evidenciary worth. 15. The Investigating Officer- Sugan Singh (PW-16) described requisite steps of investigation viz. preparation of the site documents, recording of the statements of the witnesses, arrest of the accused and the recoveries effected at his instance. The evidence of the IO is untainted and worthy of belief. 16. 15. The Investigating Officer- Sugan Singh (PW-16) described requisite steps of investigation viz. preparation of the site documents, recording of the statements of the witnesses, arrest of the accused and the recoveries effected at his instance. The evidence of the IO is untainted and worthy of belief. 16. Thus, from these facts and circumstances as available on record, it is duly established that the accused inflicted the knife injuries as referred above to the deceased Imran without being provoked in any manner. The injuries were sufficient in the ordinary course of nature to cause death and proved fatal. The contention of Shri Menaria that the offence alleged cannot travel beyond Section 304 Part II IPC is absolutely fallacious. The accused inflicted repeated blows by a knife on the vital parts of the body viz. Chest of Imran. The injuries were inflicted with force resulting into punctured wounds on chest area. The lungs were cut. The pleura was also cut. The repeated blows resulted into excessive blood loss which was measured at 600 ml. The deceased died within 15 minutes of having received the fatal blows at the hands of the accused. Thus, we are of the firm opinion that the contention of Shri Menaria that the charge attributed to the accused appellant deserves to be toned down from that under Section 302 IPC to one under Section 304 Part II IPC is absolutely unacceptable. 17. As a consequence of the above discussion, we are of the opinion that the trial court rightly appreciated the evidence available on record and reached to the only possible conclusion of the guilt of the accused. It is our firm view that the impugned judgment dated 27.04.2016 does not suffer from any infirmity, irregularity or perversity whatsoever warranting interference. 18. XXX XXX XXX XXX 19. Resultantly, the appeal fails and is hereby dismissed being devoid of merit. 20. The record of the trial court be sent back forthwith.