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2019 DIGILAW 2479 (RAJ)

Megh Raj v. State of Rajasthan

2019-09-16

ABHAY CHATURVEDI, SANDEEP MEHTA

body2019
JUDGMENT : Sandeep Mehta, J. 1. The appellant herein has been convicted and sentenced as below by the learned Additional Sessions Judge No. 4, Bikaner vide the judgment dated 5.7.2016 passed in Sessions Case No. 88/2012 (Old No. 30/2012): For offences under Sections Sentences and fine Default sentence Section 302 I.P.C. Life Imprisonment & Rs. 10,000/- 3 Months' S.I. Section 323 I.P.C. 6 Months' S.I. & Rs. 1000/- 1 Month's S.I. Section 341 I.P.C. 1 Month's S.I. & Rs. 500/- 7 Days' S.I. Section 4/25(1-B) of Arms Act 1 Year's S.I. & Rs. 1000/- 1 Month's S.I. Section 5/27(1) of Arms Act 3 Years' S.I. & Rs. 1000/- 1 Month's S.I. All the sentences were ordered to run concurrently. 2. Being aggrieved of his conviction and sentences, 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 hereinbelow. 4. The Parcha Bayan (Ex. P3) of one Smt. Meena W/o. Ravishankar, admitted in the casualty ward of PBM Hospital, Bikaner was recorded by the S.H.O. P.S. Kotwali, Bikaner on 28.1.2012 at 8.25 PM. Smt. Meena alleged in her statement that she had long standing relationship with Meghraj @ Magga S/o. Gopal Ram Mali, resident of Near Harsholav Talab, P.S. Naya Shahar, Bikaner. During the previous year, she had left her matrimonial home and had resided with Meghraj for about 3 months. Thereafter, she reconciled with her husband and returned to her matrimonial home. However, she continued to remain in telephonic contact with the accused. In the evening at about 7.30 PM, she had gone to the old Sabji Mandi, Bada Bazar, Bikaner for fetching some household/grocery items etc. When she reached in front of the shop of Heera Lal Panna Lal on the main road, Meghraj came across and stopped her. He pressurized Smt. Meena to accompany him. She refused outrightly upon which, Meghraj became angry, took out a knife from the pocket of his trousers and stabbed her in the abdomen. Her son Yash Mahatma @ Monu (P.W. 6) tried to intervene and save her on which, he too was beaten by Meghraj. She started bleeding profusely and raised a hue and cry on which, her husband, father-in-law and several other persons came there and she was taken to hospital for providing treatment. On the basis of the statement aforesaid, an F.I.R. No. 9/2012 (Ex. She started bleeding profusely and raised a hue and cry on which, her husband, father-in-law and several other persons came there and she was taken to hospital for providing treatment. On the basis of the statement aforesaid, an F.I.R. No. 9/2012 (Ex. P19) came to be registered at the Police Station Kotwali, Bikaner for the offences under Sections 341 and 307 I.P.C. Smt. Meena expired on 29.1.2012 while undergoing treatment. Her dead body was subjected to autopsy by Dr. Indubala Mathur (P.W. 8), who examined the body and noticed a stab wound ad-measuring 1.5 cm on the epigastric region, inflicted by a sharp weapon. The wound was extending upto the anterior wall of the abdominal cavity. The spleen as well as the omentum were damaged. The interior phrenic artery was cut. The diaphragm was also cut. The depth of the wound was about 10.5 cm. The doctor issued the post mortem report (Ex. P13) opining that the cause of death of Smt. Meena was hemorrhage & excessive bleeding caused by the ante-mortem sharp weapon injury, which was sufficient in the ordinary course of nature to cause death. The accused was arrested on 29.1.2012 (Ex. P17). The weapon (knife) used by the accused to assault the deceased was recovered from his house in furtherance of the information under Section 27 of the Evidence Act supplied by him to the Investigating Officer Shri Vishnu Dutt (P.W. 15), (P.W. 6) Master Yash Mahatma @ Monu, son of Smt. Meena was also got medically examined and his medical report (Ex. P16) was procured as per which, he was having a lacerated wound on the lower lip. After concluding investigation, a charge-sheet came to be filed against the appellant herein for the offences under Sections 302, 323 and 341 I.P.C. and Sections 5/27 and 4/25(1-B) of the Arms Act. As the offence under Section 302 I.P.C. was exclusively sessions triable, the case was committed and transferred to the court of learned Additional Sessions Judge (Fast Track), Bikaner for trial. While the trial was underway, the case was transferred to the court of the learned Additional Sessions Judge, No. 4, Bikaner as the Fast Track Courts were abolished. The trial court framed charges against the accused appellant for the above offences. He pleaded not guilty and claimed trial. The prosecution examined as many as 15 witnesses and exhibited 25 documents to prove its case. The trial court framed charges against the accused appellant for the above offences. He pleaded not guilty and claimed trial. The prosecution examined as many as 15 witnesses and exhibited 25 documents to prove its case. The accused, upon being questioned under Section 313 Cr.P.C. and when confronted with the circumstances appearing against him in the prosecution evidence, denied the same and claimed to have been falsely implicated in furtherance of a conspiracy. After hearing the arguments advanced by the prosecution and the defence, and upon appreciating the evidence led by the parties, the learned trial court proceeded to convict and sentence the appellant as above. Hence, this appeal. 5. Shri S.K. Verma learned counsel representing the appellant vehemently and fervently urged that the Parcha Bayan (Ex. P3) of the deceased is totally unbelievable and unreliable. There is no evidence on the record of the case to show that Smt. Meena was in a fit condition to give the statement. He further submitted that presence of the eye-witness Yash (P.W. 6) at the scene of the incident is doubtful. The incident admittedly took place in the broad day light and at a busy market place yet, the prosecution did not examine even a single independent witness from the locality to prove the case and rather tried to create evidence of Ravi Kumar (P.W. 5) husband of the deceased by portraying that he too was an eye-witness of the incident whereas, he was not present at the spot. He thus urged that the impugned judgment is bad in facts as well as law and deserves to be set aside. In arguendo, Shri Verma relied upon the following judgments: Hansaram Vs. State of Chhattisgarh (2018) 16 SCC 614 Atul Thakur Vs. State of Himachal Pradesh & Ors. (2018) 2 SCC 496 Deepak Vs. State of Uttar Pradesh (2018) 8 SCC 228 . and urged that the highest prosecution allegation as against the appellant is of causing a solitary blow to the deceased by a kitchen knife. The incident was not premeditated. There was no repetition of blows. The accused and the deceased had been in a long standing affair. The deceased decided to ditch the accused without any rhyme or reason. The accused was just trying to persuade the deceased to accompany him and resume their relationship. The deceased resisted this attempt in an unjustified manner. The incident was not premeditated. There was no repetition of blows. The accused and the deceased had been in a long standing affair. The deceased decided to ditch the accused without any rhyme or reason. The accused was just trying to persuade the deceased to accompany him and resume their relationship. The deceased resisted this attempt in an unjustified manner. An altercation took place between the two of them. The accused, acting in the heat of passion and at the spur of the moment, took out a kitchen knife from his pocket and inflicted a solitary blow to the victim on her abdomen without ever intending to murder her or to cause such injury which could prove fatal. Thus, as per Shri Verma, the offence, if any attributable to the accused cannot travel beyond Section 304 Part-II or Part-I of the I.P.C. He thus implored the Court to partly accept the appeal, set aside the impugned judgment and alter the conviction of the appellant from under Section 302 to that under Section 304 Part-I or Part-II of the I.P.C. and suitably reduce the sentence awarded to him. 6. Per contra, learned Public Prosecutor, vehemently and fervently opposed the submissions advanced by the appellant's counsel. He urged that the accused acted with extreme cruelty while assaulting the deceased. By carrying the knife with him, he came with prior preparation and with the intention to kill the deceased in case if she would not accompany him. Though the deceased had remained in the company of the accused for some time but later, she realized the futility of the relationship and went back to her matrimonial home and was happily living with her husband and son. The accused could not reconcile with the rightful decision of the deceased and tried to treat her as a chattel. He waylaid the deceased in the open market and pressurized her to accompany him. The deceased did not concede to this grossly unjustified demand of the accused, who acting with extreme cruelty, took out the knife concealed in his trouser's pocket with full preparedness to commit the assault; stabbed the unsuspecting woman on her abdomen, in the presence of her own son. 7. He vehemently submitted that the prosecution case is well proved by the Parcha Bayan of the deceased, which is beyond reproach. 7. He vehemently submitted that the prosecution case is well proved by the Parcha Bayan of the deceased, which is beyond reproach. In addition thereto the allegation that the accused assaulted the deceased has been well and truly corroborated by the evidence of the eye-witnesses Sohan Lal (P.W. 2), father in law of the deceased, Tejkaran (P.W. 3) being a taxi driver, present at the spot, Ravi Kumar (P.W. 5) the husband of Smt. Meena and Yash Mahatma @ Monu (P.W. 6), being the 12 years aged son of Smt. Meena. Referring the evidence of these witnesses, it was the fervent contention of learned Public Prosecutor that the prosecution has proved its case against the accused by leading foolproof and clinching evidence and that the impugned judgment does not warrant any interference whatsoever. 8. We have given our thoughtful consideration to the submissions advanced at the Bar and have gone through the material available on record. 9. The fact that the accused assaulted the deceased and inflicted the sharp weapon blow on her abdomen was not very seriously contested by Shri Verma, Advocate representing the appellant. Though initially, he tried to contend that the Parcha Bayan is not reliable and admissible in evidence but when faced with the unflinching testimony of the S.H.O. Ast Ali Khan (P.W. 13), posted at the P.S. Kotwali, Bikaner, regarding the Parcha Bayan, Shri Verma candidly conceded to the fact that there is hardly any ground to doubt the veracity of the statement of the deceased recorded at the hospital. On going through the evidence of Ast Ali, it is clear that he recorded the Parcha Bayan after ascertaining the fitness of the victim to give such statement and also after verifying her physical and mental condition from the duty doctor. Thus, the Parcha Bayan (Ex. P3) is a document which cannot be doubted on any count whatsoever. Since the Parcha Bayan sets out clear allegations of the circumstances in which, Smt. Meena received the fatal injuries, it falls within the definition of a dying declaration in which, the lady named the appellant as the assailant. Thus, the Parcha Bayan (Ex. P3) is a document which cannot be doubted on any count whatsoever. Since the Parcha Bayan sets out clear allegations of the circumstances in which, Smt. Meena received the fatal injuries, it falls within the definition of a dying declaration in which, the lady named the appellant as the assailant. Even if, for a moment, the evidence of (P.W. 2) Sohan Lal (father-in-law of the deceased) and (P.W. 5) Ravi Kumar (husband of the deceased) is disbelieved, as their names are not mentioned in the F.I.R., manifestly there cannot be any reason to cast a doubt on the evidence of Tejkaran (P.W. 3), taxi driver being an unconnected passerby; and Yash Mahatma @ Monu (P.W. 6) son of the deceased, both of whom gave unflinching and reliable evidence regarding the fact that Meghraj stabbed Smt. Meena with a knife after an oral altercation took place between them. The fact that Yash was present at the spot and received an injury from the hands of the accused, is recorded in the Parcha Bayan (Ex. P3). The injury report of Yash (Ex. P16) lends significant corroboration to his evidence. The allegations in the Parcha Bayan and the statements of the eye witnesses are well and truly corroborated by the medical evidence. Thus, we have no doubt in holding that the evidence of the witness Tejkaran (P.W. 3) and Yash Mahatma (P.W. 6) is of sterling worth and lends significant corroboration to the Parcha Bayan of the deceased. 10. In the backdrop of the above discussion, there is no hesitation for this Court to hold that the accused inflicted the solitary blow by a knife on the abdomen of the deceased Smt. Meena simply because she refused to go with the accused. The fact that the solitary injury caused by the accused proved fatal is well established from the medical evidence led by the prosecution. Dr. Bhupendra Sharma (P.W. 10) was posted as Assistant Professor (Surgery) at the P.B.M. Hospital, Bikaner. He treated the deceased for her stab injuries. Upon opening the external wound, perforations were seen on the spleen and the abdominal cavity of the deceased. The omentum too was damaged. The doctor proved the bedhead ticket and the operation notes of the deceased. Dr. Bhawesh Bohra (P.W. 9) was posted as the medical jurist at the PBM Hospital, Bikaner on the relevant date. Upon opening the external wound, perforations were seen on the spleen and the abdominal cavity of the deceased. The omentum too was damaged. The doctor proved the bedhead ticket and the operation notes of the deceased. Dr. Bhawesh Bohra (P.W. 9) was posted as the medical jurist at the PBM Hospital, Bikaner on the relevant date. He stated on oath that he prepared the injury report of the deceased and proved the same as Ex. P14. The doctor clearly stated that while the injury report was being prepared, the deceased was in her full senses. Dr. Indubala (P.W. 8) who conducted autopsy upon the body of the deceased, proved the post mortem report (Ex. P13) deposing that the external injury resulted in damage to vital internal organs leading to excessive bleeding causing hemorrhagic shock which proved fatal. The injury was opined to be sufficient in the ordinary course of nature to cause death. 11. Thus, we have no hesitation in holding that the death of Smt. Meena was homicidal in nature and that before she expired, she, while being fully conscious, gave the statement Parcha Bayan (Ex. P3) (which tantamounts to a dying declaration) attributing the solitary fatal blow caused to her to the appellant herein. Furthermore, from the testimony of the eye-witnesses (P.W. 3) Tejkaran and (P.W. 6) Yash Mahatma, it is duly established that the appellant was the person, who inflicted knife blow to Smt. Meena which ultimately proved fatal. 12. Now, we proceed to deal with the submission of Shri Verma regarding the nature of the offence. From the Parcha Bayan of Smt. Meena (Ex. P3) and the statement of Ravi Kumar, her husband, it is clear that the lady had left the matrimonial home and had stayed with the accused appellant in a live-in relationship for a significant period of time just the previous year. It is also not disputed that the deceased left the company of the accused and went back to live at her husband's house. The deceased clearly mentioned in the Parcha Bayan (Ex. P3) that even after she had parted company with accused and had resumed the matrimonial relationship with her husband, she was regularly in touch with the accused through mobile. In this background, the possibility of the accused entertaining a genuine expectation in his mind that the deceased would come back to him cannot be ruled out. P3) that even after she had parted company with accused and had resumed the matrimonial relationship with her husband, she was regularly in touch with the accused through mobile. In this background, the possibility of the accused entertaining a genuine expectation in his mind that the deceased would come back to him cannot be ruled out. As per the evidence available on record, on the day of the incident, the deceased was walking down on the street towards the market. The accused approached and asked her to accompany him but the deceased refused on which, an oral altercation took place between the two. Having been peeved by the refusal of the deceased, the accused took out a knife from his pocket and gave a solitary blow thereof on her abdomen. Unfortunately, the blow landed with significant force damaging the internal organs of the victim leading to excessive bleeding and shock which caused her death. As per the recovery memo (Ex. P9), the knife which was recovered at the instance of the accused was ad-measuring 22 cm in all including the handle. The blade of the knife was 12 cm long. Thus, it is clear that the accused used a kitchen knife to stab the deceased. 13. In this background, we are of the firm opinion that the primary intention of the accused was not to kill Smt. Meena but to somehow or the other coerce her to accompany him and resume their relationship. Thus, we are persuaded to accept the argument of Shri Verma that the offence, if any, attributed to the accused would not travel beyond Section 304 Part-I I.P.C. as the act of the accused is covered by Exception 4 of Section 300 I.P.C. However, the conviction of the accused for the remaining offences warrants no interference whatsoever. 14. As a consequence of the above discussion, the appeal deserves to be and is hereby accepted in part. The conviction of the appellant for the offence under Section 302 I.P.C. as recorded by the learned Additional Sessions Judge No. 4, Bikaner vide the judgment dated 5.7.2016 is altered to that under Section 304 Part-I I.P.C. and he is sentenced to 10 years R.I. and a fine of Rs. 20,000/-. In default of payment of fine, the accused shall suffer 6 months' S.I. The impugned judgment is modified to that extent. 20,000/-. In default of payment of fine, the accused shall suffer 6 months' S.I. The impugned judgment is modified to that extent. However, the conviction and sentences awarded to the appellant for the remaining offences by the learned trial court are maintained. The substantive sentences shall run concurrently and the same be set off against the imprisonment already undergone by him. 15. The matter is referred to the District Legal Services Authority, Bikaner for grant of compensation to the legal heirs of the deceased under the Rajasthan Victim Compensation Scheme. 16. The record of the trial court be sent back forthwith.