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2021 DIGILAW 110 (UTT)

Rakesh v. State Of Uttarakhand

2021-02-22

ALOK KUMAR VERMA, RAGHVENDRA SINGH CHAUHAN

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JUDGMENT Alok Kumar Verma, J. - This instant appeal has been filed by the appellant-accused, against the judgment dated 29.09.2014 passed by the learned Ist Additional Sessions Judge, Rishikesh, District Dehradun, in Sessions Trial No.77 of 2012, "State vs. Rakesh", by which the appellant has been convicted for the offence punishable under Section 302 of the Indian Penal Code, and has been sentenced to undergo imprisonment for life along with a fine of Rs. 10,000/- with default imprisonment. 2. Briefly stated the prosecution story as it emerges from re-appreciation of the evidence on record is that an information was given by the informant Ramesh Kumar (PW-1) to the In-charge Kotwali, Rishikesh, District Dehradun, through his written information (Ex-Ka1) that one Vimla Devi lived in his neighbourhood. The accused Rakesh was residing in her house on rent. On 14.03.2012 at around 01:30 p.m., Km. Suman, daughter of the informant, was grinding spice in her house. The accused Rakesh came there and took her to his room saying he had to talk to her. After a while, she screamed. When the informant along with his wife, Smt. Laxmi (PW-2), and his daughter reached at the spot on hearing the shout of Km. Suman, they noticed that in his room, the accused inflicted a pole axe (Gandasa) blowon her neck with intention to kill her. When his daughter, Km. Suman, raised her right hand up in defence, the blow of the pole axe (Gandasa) hit her right hand. In this incident, her hand was cut and swinged. The accused threatened to kill them, and fled from another door of his room with the said pole axe (Gandasa). The injured, Km. Suman was taken to the Government Hospital, Rishikesh, where her injuries were examined by Dr. Harish Driwedi (PW-7). She was referred to the Jolly Grant Hospital due to excessive blood loss. 3. The First Information Report (Ex-Ka11) was registered on 14.03.2012, at 15:20 hrs, by the Constable Roshan Rana (PW-5) against the accused under Section 307 and Section 506 of IPC. 4. The injured Km. Suman died at around 04:40 p.m. on 14.03.2012. The inquest proceedings and the Post-Mortem Examination were conducted on 15.03.2012. 5. The investigation was started by the Sub-Inspector Kundan Singh Rana (PW-8). On the identification of the informant, he prepared a site plan (Ex-Ka20) of the place of occurrence. 4. The injured Km. Suman died at around 04:40 p.m. on 14.03.2012. The inquest proceedings and the Post-Mortem Examination were conducted on 15.03.2012. 5. The investigation was started by the Sub-Inspector Kundan Singh Rana (PW-8). On the identification of the informant, he prepared a site plan (Ex-Ka20) of the place of occurrence. He took simple and blood stained earth and blood stained white bed-sheet (Ex-2) from the room of the accused, and prepared its memo (Ex-Ka3) in the presence of Ramesh Kumar (PW1). A pair of slippers (Chappals) (Ex-4,5) of the deceased was taken by the Sub-Inspector Kundan Singh Rana and prepared its memo (Ex-Ka2). He was informed by the informant that his daughter had died during her treatment in the Jolly Grant Hospital. Therefore, the matter was converted into a case of murder. 6. The Inspector Ravindra Kumar (PW-9) was second Investigation Officer, who took the charge of the investigation from the Sub-Inspector Kundan Singh Rana on 15.03.2012. The accused was arrested at around 20:25 hrs, on 15.03.2012, by the Sub-Inspector Pratap Singh Negi (PW-4). 7. At around 23:20 hrs on 15.03.2012, an pole axe (Gandasa) (Ex-13) was recovered from the bushes at the instance of the accused. The said pole axe (Gandasa) was recovered in the presence of the informant Ramesh Kumar (PW-1), the witness Soti Ram (PW-3), the Sub-Inspector Pratap Singh Negi (PW-4) and the Inspector Ravindra Kumar (PW-9). The recovered pole axe (Gandasa) was sealed in a cloth (Ex-12) and the recovery memo (Ex-Ka6) was prepared by Ravindra Kumar (PW-9) at the spot of the recovery. He prepared a site map of the place of recovery(Ex-Ka21). At that time, there was blood on the shirt worn by the accused. That shirt (Ex-15) was taken by the Police and sealed it. A memo (Ex-Ka10) was prepared by Ravindra Kumar (PW-9). The accused signed on it. 8. The recovered articles were sent to the Forensic Science Laboratory, Uttarakhand, Dehradun through the Chief Judicial Magistrate, Dehradun. These articles were received by the Laboratory on 28.03.2012 in sealed bundles. According to the report of the Forensic Science Laboratory dated 24.04.2012 (Ex-Ka23), human blood was found on the bed-sheet and slippers of the deceased. Human blood was also found on the shirt of the accused, and on the pole axe (Gandasa). These articles were received by the Laboratory on 28.03.2012 in sealed bundles. According to the report of the Forensic Science Laboratory dated 24.04.2012 (Ex-Ka23), human blood was found on the bed-sheet and slippers of the deceased. Human blood was also found on the shirt of the accused, and on the pole axe (Gandasa). After completion of the investigation, the charge-sheet (Ex-Ka22) was submitted by the Inspector Ravindra Kumar (PW-9) for the offences punishable under Section 302 and Section 506 of IPC. 9. The case was committed to the Court of Session. 10. The charges under Section 302 and Section 506 of IPC were framed. The accused pleaded not guilty and claimed to be tried. 11. The prosecution, in order to establish the charges examined, altogether, nine witnesses. 12. The prosecution witness Ramesh Kumar (PW-1) is father of the deceased, and the witness Smt. Laxmi (PW-2) is mother of the deceased. According to the prosecution, these two witnesses are eye-witness of the occurrence. According to Ramesh Kumar (PW-1), on hearing the shout of his daughter, Km. Suman, he along with his wife and his daughters Shivani, Saloni and Sapna reached at the spot. 13. According to the prosecution, the witness Soti Ram (PW-3) had seen the accused running away with a blood stained pole axe (Gandasa), and the said pole axe (Gandasa) was recovered in the presence of this witness. 14. The witness Soti Ram (PW-3) supported the prosecution case. He stated that he was not a neighbour of Ramesh Kumar (PW-1). On 14.03.2012, he was coming to his house. He noticed that the accused was running away with a blood stained pole axe (Gandasa). When he reached his house, he found that the right hand of Km. Suman was injured. She was taken to the Government Hospital Rishikesh. He deposed that at around 10:30 p.m., he and Ramesh Kumar (PW-1) had seen a jeep of Police near Nataraj. The accused was also with the Police at that time. He deposed that two kilometer ahead of Nataraj place, an pole axe (Gandasa) was recovered from the bushes at the instance of the accused. The Police sealed the pole axe (Gandasa) and prepared a recovery memo at the spot. He identified his signature on the recovery memo (Ex-Ka6) and identified the recovered pole axe (Gandasa) (Ex-13) during his oral evidence. He deposed that two kilometer ahead of Nataraj place, an pole axe (Gandasa) was recovered from the bushes at the instance of the accused. The Police sealed the pole axe (Gandasa) and prepared a recovery memo at the spot. He identified his signature on the recovery memo (Ex-Ka6) and identified the recovered pole axe (Gandasa) (Ex-13) during his oral evidence. During the cross-examination, he deposed that he had seen the accused who was running away with an pole axe (Gandasa). He further stated that the pole axe (Gandasa) was recovered at the instance of the accused. The deposition of this witness does not suffer from any material contradiction; his evidence is reliable and trustworthy. 15. The Sub-Inspector Pratap Singh Negi (PW-4) arrested the accused at around 08:25 p.m. on 15.03.2012. He and the Inspector Ravindra Kumar (PW-9) stated that after arrest the accused, the recovery of an pole axe (Gandasa) was made in pursuance of a disclosure statement made by the accused. 16. The Constable Roshan Rana (PW-5) is the scriber of the First Information Report (Ex-Ka11). 17. Dr. K.V. Joshi (PW-6) conducted the Post-Mortem Examination on 15.03.2012. According to this witness, a chopped wound on antecubital fossa of right hand of the deceased, size 45 x 9 c.m. was found and the deceased, aged about 17 years, had died due to excessive bleeding from the ante-mortem injury. He proved the Post-Mortem Report (Ex-Ka17). 18. Dr. Harish Driwedi (PW-7) examined the injury of the injured Km. Suman at around 01:50 p.m. on 14.03.2012. According to this witness, the right elbow of the injured was completely cut-off. The injury was incised wound. Margins were sharp. Blood was oozing. Cut pieces of bones were seen. The injury was fresh and grievous in nature. 19. The appellant-accused was examined under Section 313 of the Code of Criminal Procedure, 1973. He denied the evidence, adduced by the prosecution. 20. The appellant-accused examined Sanjeev Kumar (DW-1) in his defence evidence. 21. Sanjeev Kumar (DW-1) stated that he lived in a rented house near the house of the accused. On 14.03.2012 at around 01:40 p.m., he heard the noise. He reached near the accused's room. He noticed that Km. Suman was hurt. At that time, Km. Suman was in Rakesh's lap and Rakesh was taking her to the hospital. He stated that Km. Suman'smother came there and slapped Rakesh. Then, Rakesh gave some money to Km. On 14.03.2012 at around 01:40 p.m., he heard the noise. He reached near the accused's room. He noticed that Km. Suman was hurt. At that time, Km. Suman was in Rakesh's lap and Rakesh was taking her to the hospital. He stated that Km. Suman'smother came there and slapped Rakesh. Then, Rakesh gave some money to Km. Suman's mother and ran away. According to this witness, he was not an eye-witness of the occurrence. 22. The learned trial court heard arguments, appreciated the evidence, adduced by both the parties, and held that the prosecution had successfully proved its case against the appellant under Section 302 IPC. However, the learned trial court acquitted the appellant for the offence punishable under Section 506 of IPC. 23. Mr. R.S. Sammal, learned counsel for the appellant, made a four-fold submission before us. It is contended by him that the children, who had witnessed the incident were not examined by the prosecution. Therefore, the story of the prosecution is not reliable; the informant Ramesh Kumar (PW-1) was not an eye-witness, and the evidence of Smt. Laxmi (PW-2) is not reliable since she is an interested witness; the appellant was in love with the deceased. Therefore, there was no motive to cause the death; there was only single blow on non-vital part of the deceased, and no attempt was made to repeat the blow. These circumstances itself show that the appellant had no intention to cause death of the deceased. Thus, the instant case falls under Section 304 Part II. 24. Mr. J.S. Virk, the learned Deputy Advocate General, however, argued in support of the impugned judgment and submitted that the FIR was lodged promptly, the injured Km. Suman was taken to the hospital immediately and the prosecution has proved its case beyond all the reasonable doubt. 25. We heard learned counsel for both the parties and carefully assessed the evidence adduced by the parties. 26. Plurality of evidence is not at all required for bringing home the guilt of the accused. Any hard and fast rule that a particular number of witnesses should be required to prove a particular offence, would hamper the administration of justice. Section 134 of the Indian Evidence Act, 1872 lays down that no particular number of witnesses is necessary for proof of any fact. The provision follows the maxim that "evidence is to the weighed and not counted". Section 134 of the Indian Evidence Act, 1872 lays down that no particular number of witnesses is necessary for proof of any fact. The provision follows the maxim that "evidence is to the weighed and not counted". All that the Court is concerned with is the quality and not the quantity of the evidence. 27. In Veer Singh and others vs. State of U.P., 2014 (1) CCSC 218 (SC), the Hon'ble Supreme Court held that legal system has laid emphasis on value, weight and quality of evidence rather than on quantity, multiplicity, or plurality of witnesses. It is not the number of witnesses but quality of their evidence which is important as there is no requirement under the Law of Evidence that any particular number of witnesses is to be examined to prove/disprove a fact. Evidence must be weighted and not counted. It is quality and not quantity which determines the adequacy of evidence as has been provided under Section 134 of the Evidence Act. As a general rule the Court can and may act on the testimony of a single witness provided he is wholly reliable. 28. It is contended by Mr. R.S. Sammal, the learned counsel for the appellant, that no reliance can be placed on the statements of Ramesh Kumar (PW-1), father of the deceased, and Smt. Laxmi (PW-2), mother of the deceased because Ramesh Kumar (PW-1), was apparently not present on the spot and Smt. Laxmi is an interested witness. Therefore, the issue which arises in this appeal is whether the statements of these two witnesses are reliable or not? Hence, we shall refer to the statements of these two witnesses in detail. 29. Mr. Ramesh Kumar (PW-1) stated that on the fateful day, at around 01:30 p.m., when his daughter Km. Suman was grinding spice, the accused came to his house, and took her with him after stating that "he had to talk to her". He heard shout of his daughter, which was coming from the room of the accused. When he along with his wife and his daughters Shivani, Saloni and Sapna went towards the room of the accused, he saw that an pole axe (Gandasa) was in the hand of the accused. The accused inflicted a blow of the pole axe (Gandasa) on her body. When he along with his wife and his daughters Shivani, Saloni and Sapna went towards the room of the accused, he saw that an pole axe (Gandasa) was in the hand of the accused. The accused inflicted a blow of the pole axe (Gandasa) on her body. She raised her right hand up in her defence, the blow of the pole axe (Gandasa) hit her right hand. Blood was oozing from the injury. The accused threatened to kill them, and fled from the spot. She was taken to the hospital. On the way to the hospital, his daughter Km. Sapna stated that the accused wanted to marry with her, and when she refused to marry with him, he assaulted her. He proved his written information (Ex-Ka1). 30. Mr. Ramesh Kumar (PW-1) further stated that a bed-sheet, and a pair of chappal were taken by the Police; on 15.03.2012, an pole axe (Gandasa) was recovered from the bushes at the instance of the accused. He was present at that time of this recovery. He deposed that the recovered pole axe (Gandasa) was sealed, and a recovery memo was prepared by the Police on the spot. He signed the recovery memo. During his examination, he identified his signature on the recovery memo (Ex-Ka6) and identified the pole axe (Gandasa) (Ex-13). The testimony of this witness does not suffer from any material contradiction. 31. Almost similar statement has been given by Smt. Laxmi (PW-3), mother of the deceased. She stated that on the date of the incident, the accused came to her house. Her daughter Km. Suman was grinding spice. The accused took her to his room saying he had to talk to her. After sometime, she heard shout of her daughter Km. Suman. When she along with her husband reached there, she noticed that in his room, the accused inflicted a blow of the pole axe (Gandasa) on her daughter's neck, and when she raised her hand up, the blow of the pole axe (Gandasa) hit her hand. Blood was oozing from the body of her daughter. The accused threatened to kill them, and fled from the spot. She stated that she along with her husband took her to the hospital. She deposed that on the way to the hospital, her daughter Km. Blood was oozing from the body of her daughter. The accused threatened to kill them, and fled from the spot. She stated that she along with her husband took her to the hospital. She deposed that on the way to the hospital, her daughter Km. Suman stated that the accused wanted to marry with her and when she refused to marry with him, he assaulted her. 32. According to Bentham, "Witnesses are the eyes and ears of the justice." A witness is normally to be considered independent unless he springs from sources which are liking to be tainted and that usually means, unless the witness has caused, such an enmity against the appellant, to wish to implicate him falsely. There is no evidence on the record that these two witnesses or the witness Soti Ram (PW-3) are inimical to the appellant. When the witnesses who are not shown to be interested in the prosecution or inimical to the appellant must be held to be disinterested witnesses. Nothing has been brought out by the appellant, which may in any way cast a doubt about the reliability of the evidence of these witnesses. The fact that the eye-witnesses are parents of the deceased is no ground to discard their testimony unless the evidence is shaken in cross-examination or the demeanour of these witnesses are such as to lead to the inevitable conclusion that their evidence are doubtful. The minor variations and contradictions will not tilt the benefit of doubt in favour of the appellant. Therefore, we are satisfied on the perusal of the entire evidence of these two witnesses that their evidence are trustworthy and fully reliable. 33. On examination of the statements of Ramesh Kumar (PW-1) and Smt. Laxmi (PW-2), we have no hesitation in coming to the conclusion that these two witnesses were actually eye-witnesses. They have lost their daughter. There is no reason for them to falsely implicate the appellant. Therefore, being the parents of the deceased, they would be least disposed to falsely implicate the accused, or to substitute him in place of the real culprit. These two witnesses, and the witness Soti Ram (PW-3) also remained very firm during their cross-examination. The testimony of these witnesses is unshakable. We are of the considered view that the testimony of these witnesses are cogent, credible and trustworthy. Therefore, deserve acceptance. These two witnesses, and the witness Soti Ram (PW-3) also remained very firm during their cross-examination. The testimony of these witnesses is unshakable. We are of the considered view that the testimony of these witnesses are cogent, credible and trustworthy. Therefore, deserve acceptance. Their testimony is also corroborated by other evidence, including medical evidence. 34. The prosecution through its evidence proved this fact that the recovery of an pole axe (Gandasa), which was used in the offence, was made in pursuance of a disclosure statement made by the accused. According to the report of Forensic Science Laboratory, human blood was found on the bed-sheet, slippers of the deceased, on the shirt of the accused and on the recovered pole axe (Gandasa). During the evidence of Dr. K.V. Joshi (PW-6) and Dr. Harish Driwedi(PW-7), the recovered pole axe (Gandasa) (Ex-13) was produced. After seeing the pole axe (Gandasa), they opined that the said injury may be caused by the pole axe (Gandasa) (Ex-13). 35. A suggestion was given to the witness Ramesh Kumar (PW-1) by the appellant that the deceased and the appellant were in love with each other. According to the testimony of Ramesh Kumar (PW-1) and Smt. Laxmi (PW-2), on the way to the hospital, a statement was given by their daughter Km. Suman that the appellant wanted to marry her, and when she refused to marry him, he assaulted her. 36. Section 32 (1) of the Indian Evidence Act, 1872 deals with dying declaration when it relates to cause of death. When the statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person's death comes into question, such statements are relevant whether the person who made them was or was not, at the time when they were made, under expectation of death, and whatever may be the nature of the proceeding in which the cause of his death comes into question. 37. A dying declaration may be written or oral. It may be proved by the evidence of a witness who heard it made. 37. A dying declaration may be written or oral. It may be proved by the evidence of a witness who heard it made. In the case of Vijay Pal vs. State (Government of NCT of Delhi), (2015) 4 SCC 749 , the Hon'ble Supreme Court has held that if the dying declaration is absolutely credible and nothing is brought on record that the deceased was in such a condition that he or she could not have made a dying declaration to a witness, there is no justification to discard the same. 38. If a dying declaration is acceptable as truthful even in the absence of corroborative evidence, Court may act upon it. When a question of fact is produced before the accused, he is free to decide it in any way that he thinks proper. In the instant matter, the accused chose not to challenge the dying declaration. In the cross-examination of Ramesh Kumar (PW-1) and Smt. Laxmi (PW-2), even no suggestion has been addressed to these witnesses that the said dying declaration had not given by the deceased. 39. In the above circumstances, the dying declaration, given by the deceased, is found true and voluntary. The declaration was made by the deceased on her own volition and without pressure and persuasion. The said dying declaration is unimpeachable. The oral evidence, adduced bythe prosecution's witnesses, medical evidence and the dying declaration of the deceased corroborate each other. 40. The motive behind the present crime was that the appellant was pressurizing her to accept his proposal for marriage, which she refused. When the deceased resisted, and tried to raise an alarm, the appellant assaulted her. She was taken to the hospital immediately. But her life could not be saved. 41. The instant matter is a case of direct evidence. In R. Shaji vs. State of Kerala, (2013) (3) CCSC 1268 (SC), the Hon'ble Supreme Court observed that motive is primarily known to the accused himself. Therefore, it may not be possible for the prosecution to explain what actually prompted or excited the accused to commit a particular crime. The Hon'ble Supreme Court has held that motive loses all its significance in a case of direct evidence provided by eye-witnesses. 42. Now turning to the last argument of Mr. Therefore, it may not be possible for the prosecution to explain what actually prompted or excited the accused to commit a particular crime. The Hon'ble Supreme Court has held that motive loses all its significance in a case of direct evidence provided by eye-witnesses. 42. Now turning to the last argument of Mr. R.S. Sammal, learned counsel for the appellant where he contended that even if the prosecution version is accepted in toto, the case falls under Section 304 Part II IPC not Section 302 IPC because there was only single blow on a non-vital part of the body of the deceased. Thus, there was no intention of the accused to cause death. 43. The defence witness Sanjeev Kumar (DW-1) was not an eye-witness. However, it is not disputed that the occurrence took place. We have already examined the circumstances in which the death of the deceased was caused. The appellant had an pole axe (Gandasa) in his room. He was pressurizing her to accept his proposal for marriage. The plan was to execute the murder, if the deceased resisted. The appellant in a pre-planned manner had assaulted the deceased with sharp edged weapon. The evidence disclosed that the appellant has killed the deceased by planning out the whole incident in a methodical manner. It cannot be overlooked that the intensity with which he hit the deceased towards her neck is indicative of the fact that he was not oblivious of the consequence which would have resulted from his violent act with an pole axe (Gandasa). Dr. K.V. Joshi (PW-6), who conducted the post-mortem, opined that the blow from the pole axe (Gandasa) (Ex-13) was sufficient to cause the death of the deceased in the ordinary course of nature. Thus, it will have to be inferred that the appellant had intention and sufficient knowledge about the consequence of his violent act. Therefore, he was fully aware of the consequence that this would result in a serious consequence. These circumstances reflect his state of mind that he committed the offence with full knowledge and intention. Therefore, we find no merit in the argument of the learned counsel for the appellant that even if the prosecution version is accepted in toto, the case falls under Section 304 Part II IPC and not Section 302 IPC. 44. These circumstances reflect his state of mind that he committed the offence with full knowledge and intention. Therefore, we find no merit in the argument of the learned counsel for the appellant that even if the prosecution version is accepted in toto, the case falls under Section 304 Part II IPC and not Section 302 IPC. 44. In view of the above detailed discussions, the evidences on record proves that the offence of murder has been committed by the appellant. Therefore, having re-appreciated the entire evidence on record, we concur with the learned trial court. It is not a fit case where impugned judgment requires any interference. 45. For the reasons, as discussed above, the present appeal is liable to be dismissed; the same is dismissed accordingly.