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2021 DIGILAW 1273 (RAJ)

Akhey Singh v. State Of Rajasthan

2021-08-02

MANOJ KUMAR GARG, SANDEEP MEHTA

body2021
JUDGMENT Manoj Kumar Garg, J. - The instant criminal appeal has been filed by the accused appellant under Section 374(2) Cr.P.C. against the judgment dated 20.01.2015 passed by the learned Special Judge, SC/ST (Prevention of Atrocities Act Cases), Barmer in Session Case No. 44/2013 (74/11, 108/11) by which learned Judge convicted the accused-appellant for offences under Section 302 & 450 IPC and sentenced him as under :- OFFENCE PUNISHMENT Section 302 IPC Life Imprisonment with fine of Rs. 5,000/-, in default of payment of fine, to further undergo one years simple imprisonment. Section 450 IPC Three years simple imprisonment with fine of Rs.1000/-, in default of payment of fine, to further undergo six months simple imprisonment. 2. Brief facts of the case are that a written report (Ex.P/6) was filed by one Karan Singh at the Police Station, Dhorimana, District Barmer stating therein that on the night intervening 19th and 20th July, 2011 at about 11:30 PM, his brother Laxman Singh was sleeping in the courtyard of his own Dhani. Upon hearing some clatter, he woke up and saw a person entering house of his brother. When the complainant followed, he saw accused Akhey Singh inflicting an axe blow on the neck of Laxman Singh who raised an outcry upon which the complainant and Mana Ram reached the courtyard. The accused Akhey Singh threatened them saying that he had killed one and if they came near him then he shall kill them too. Thereafter he fled from the place of occurrence. It was stated that since it was a moon night, they could identify the accused Akhey Singh who used to cultivate their land. 3. On the basis of the said report, the Police registered the FIR for offences under Sections 458, 302 IPC and started investigation. After usual investigation, the police filed charge sheet against the accused-appellant for offence punishable under Sections 450 & 302 IPC. 4. The case was committed for trial to the court of Special Judge, SC/ST (Prevention of Atrocities) Act, Cases, Barmer where the charges were framed against the accused-appellant. He pleaded not guilty and claimed trial. 5. At the trial, the prosecution examined as many as 13 witnesses in all. Thereafter the statement of the accused-appellant was recorded under section 313 Cr.P.C. No witness was examined on the defence side. 6. He pleaded not guilty and claimed trial. 5. At the trial, the prosecution examined as many as 13 witnesses in all. Thereafter the statement of the accused-appellant was recorded under section 313 Cr.P.C. No witness was examined on the defence side. 6. At conclusion of the trial, the learned Special Judge, SC/ST (Prevention of Atrocities) Act Cases, Barmer vide judgment dated 20.01.2015 convicted the appellant for offence under Section 450 & 302 IPC and passed the sentence mentioned above. 7. Learned counsel for the appellant Mr. K.R. Bhati submits that the learned trial court has not appreciated the evidence led by the prosecution in the proper perspective. It is argued that there are material contradictions, improvements and omissions in the statement of alleged eye-witnesses. The incident had occurred in the night and there is no way that the alleged eye witnesses could have identified the accused. He further argued that after the arrest of the accused, an axe was recovered at the instance of the appellant but the recovery is also doubtful, therefore, it can be said that the finding of learned trial court for convicting the accused appellant for offence under Section 302 IPC is not sustainable on facts and in law. 8. Per contra, learned Public Prosecutor argued that the occurrence had taken place in the night at about 11.30 PM and at the time of occurrence, PW/4 Karan Singh and PW/9 Mana Ram were present and therefore, their testimony cannot be discarded. After arrest of the accused appellant, an axe was recovered from the possession of the appellant and according to FSL report (Ex.P/28), the blood group found on the axe matched with the blood group of the deceased. He urged that it cannot be said that finding of the trial court holding the appellant guilty for offence under Section 302 IPC is erroneous and therefore, this appeal may kindly be dismissed. 9. We have heard the learned counsel for the appellant as well as learned public prosecutor, perused the impugned judgment passed by the learned trial court and also gone through the record of the case. 10. 9. We have heard the learned counsel for the appellant as well as learned public prosecutor, perused the impugned judgment passed by the learned trial court and also gone through the record of the case. 10. The informant and eye witness Karan Singh was examined as PW/4 and he had specifically stated that when he heard screams in the night, he alongwith Mana Ram reached the spot and saw the accused Akhey Singh inflicting axe blow on the neck of his brother Laxman Singh due to which he expired on the spot. Since it was a moon night, the witness could distinctly identify the assailant. Likewise PW/9 Mana Ram also corroborated the story of Laxman Singh and stated that he reached the spot and saw the accused appellant inflicting an axe blow to the deceased. Both tried to restrain the accused but he threatened to kill them as well. Similarly, PW/8 Lila Kanwar also mentioned that she was sleeping near the cot of deceased and she saw the accused appellant inflicting injury to the deceased. 11. In Nathuni Yadav v. State of Bihar & Ors., (1997) AIR SC 1808, with regard to identification in the dark, Hon'ble Supreme Court observed: "9 ........ Even assuming that there was no moonlight then, we have to gauge the situation carefully. The proximity at which the assailants would have confronted with the injured, the possibility of some light reaching there from the glow of stars, and the fact that the murder was committed on a roofless terrace are germane factors to be borne in mind while judging whether the victims could have had enough visibility to correctly identify the assailants. Over and above those factors, we must bear in mind the further fact that the assailants were no strangers to the inmates of the tragedy-bound house, the eyewitnesses being well acquainted with the physiognomy of each one of the killers. We are, therefore, not persuaded to assume that it would not have been possible for the victims to see the assailants or that there was possibility for making a wrong identification of them. We are keeping in mind the fact that even the assailants had enough light to identify the victims whom they targeted without any mistake from among those who were sleeping on the terrace. We are keeping in mind the fact that even the assailants had enough light to identify the victims whom they targeted without any mistake from among those who were sleeping on the terrace. If the light then available, though meagre, was enough for the assailants why should we think that the same light was not enough for the injured who would certainly have pointedly focussed their eyes on the faces of the intruders standing in front of them." 12. After arrest of the accused appellant, at his instance, an axe (Ex-P/27) was recovered vide recovery memo (Ex.P/23) and according to FSL report, blood group of blood found on the axe matched with that of deceased. 13. Pw/5 Hanuman Ram, who conducted the post mortem of deceased Laxman Singh stated that the deceased sustained an incised wound 18x8x6 cm which almost severed his neck. The cause of death of deceased was opined to be excessive bleeding and cutting of spinal cord. Thus, according to the doctor (PW/5), the cause of death is axe injury. 14. Hon'ble Apex Court in recent case of 'Pruthiviraj Jayantibhai Vanol vs. Dinesh Dayabhai Vala and Ors' (Criminal Appeal No. 177 of 2014) decided on 26.07.2021 held as under :- "17. Ocular evidence is considered the best evidence unless there are reasons to doubt it. The evidence of PW-2 and PW-10 is unimpeachable. It is only in a case where there is a gross contradiction between medical evidence and oral evidence, and the medical evidence makes the ocular testimony improbable and Rules out all possibility of ocular evidence being true, the ocular evidence may be disbelieved. In the present case, we find no inconsistency between the ocular and medical evidence. The High Court grossly erred in appreciation of evidence by holding that muddamal No. 5 was a simple iron rod without noticing the evidence that it had a sharp turn edge. 18. The aforesaid discussion leads us to the conclusion that the acquittal by the High Court is based on misappreciation of the evidence and the overlooking of relevant evidence thereby arriving at a wrong conclusion. It is not a case where two views are possible or the credibility of the witnesses is in doubt. Neither is it a case of a solitary uncorroborated witness. The conclusion of the High Court is therefore held to be perverse and irrational. It is not a case where two views are possible or the credibility of the witnesses is in doubt. Neither is it a case of a solitary uncorroborated witness. The conclusion of the High Court is therefore held to be perverse and irrational. The acquittal is therefore held to be unsustainable and is set aside. In the nature of the assault, Section 304 Part II, Indian Penal Code has no application. The conviction of Respondent Nos. 1 to 4 by the Trial Court is restored." 15. From the appreciation of evidence, it has been proved by the prosecution that the written-report of the alleged incident was lodged without any delay. The evidence on record clearly proves charges against the accused and point to the guilt of only appellant and no one else. The eye-witnesses have supported the prosecution story to the hilt. Their evidence is corroborated by Dr. Hanuman Ram (PW/5) and the Post Mortem Report (Ex-P/16). Thus, the medical opinion and ocular testimony are wholly corroborated by each other. Minor contradictions do not affect the prosecution case. In our opinion, the trial court has not committed any error in convicting the appellant and sentencing him as above. The impugned judgment dated 20.01.2015 does not suffer from any infirmity whatsoever warranting interference therein. There is no merit in the appeal. The appeal is hereby dismissed. 16. Record of the trial court be sent back forthwith.