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2021 DIGILAW 1672 (RAJ)

Sandeep Kumar S/o Mohanlal v. State of Rajasthan

2021-09-09

RAMESHWAR VYAS, SANDEEP MEHTA

body2021
JUDGMENT : MEHTA, J. 1. The appellant herein has been convicted and sentenced as below vide Judgment dated 21.08.2014 passed by the learned Additional Sessions Judge, Suratgarh, District Sri Ganganagar in Sessions Case No.09/2013: Offences Sentences Fine Fine Default sentences Section 302 IPC Life Imprisonment Rs.10,000/- 3 Months’ S.I. Section 382 IPC 5 Years R.I. Rs.5,000/- 2 Months’ S.I. 2. Being aggrieved of his conviction and the sentences awarded, 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: 4. PW-1 Kesra Ram (uncle of the appellant Sandeep Kumar and the deceased Manish) lodged a written report to the SHO, Police Station Rajiyasar on 14.11.2012 alleging inter alia that his brother Mohanlal had two houses which were situated opposite to each other. In one of those, Mohanlal resided with his son Manish and Sandeep. The informant alongwith his family were residing since last two months. His nephew Sandeep, the accused herein, lived a vagabond life and was harrowing his father and his brother for about last 6 months for grabbing the entire chunk of agricultural land. About six months ago, he had tried to eliminate Manish by giving him Samosa stuffed with shredded glass pieces. About 15 days ago, he tried to kill Manish by throttling him with a rope but Manish woke up and raised an alarm on which, Ramkumar came there and saved the victim. Thereafter, Sandeep’s sleeping area had been shifted to a storage for fodder which was built behind the house. On the evening preceding the date of incident, at about 7 O’ Clock, Sandeep and Manish were sitting towards their old house. At about 10.00-10.30 pm., the first informant and his wife, who were at their own house, heard screams on which, they came out and saw that Sandeep was dragging Manish by his feet and was bringing him towards the lane. On seeing the first informant, Sandeep blurted out that he had killed Manish. Mahaveer son of Bhagwana Ram had also seen Sandeep killing and dragging the dead body of Manish. The first informant and Mahaveer warned Sandeep on which, he abandoned the dead body of Manish and ran away. On seeing the first informant, Sandeep blurted out that he had killed Manish. Mahaveer son of Bhagwana Ram had also seen Sandeep killing and dragging the dead body of Manish. The first informant and Mahaveer warned Sandeep on which, he abandoned the dead body of Manish and ran away. The complainant gave information to his brother Bhagwana Ram, Phoosa Ram and Dayalu Ram and checked Manish on which, they saw that he was bleeding from his head, face & body. The cot lying in the Kotha was also stained with blood. Manish’s pant was lying near the cot and his mobile was missing. It was alleged that Sandeep had killed Manish in order to eliminate him so that he (the accused) could acquire the entire agricultural land. Before registration of the FIR, a telephonic information was given to the Police Station Rajiyasar at about 02.30 am. and on the basis thereof, the SHO reached the place of incident where the above complaint came to be submitted to him by Kesra Ram (PW- 1). The SHO undertook the routine steps of investigation. Blood stained rope of cot, blood stained pieces of mud wall, two slippers, a blood stained wooden stick and a trouser and a belt which the informant told was of his nephew Manish, were seized. A blood stained piece of Chunni was also seen lying on the spot which was also seized. The dead body of Manish was sent to the Medical Jurist for carrying out autopsy. Statements of witnesses were recorded. The accused appellant was arrested vide arrest memo (Ex.P/13) on the very day of the incident i.e. 14.11.2012 at about 08.05 pm. The clothes and the slippers worn by him at the time of his arrest were seized and sealed. After being arrested, the accused gave a voluntary information to the I.O. under Section 27 of the Evidence Act (Ex.P/43) regarding concealment of a wooden stick and a mobile inside the Kotha constructed on the agricultural field. Another information (Ex.P/44) was given regarding concealment of a woolen shawl. Acting in furtherance of both these informations, the accused led the I.O. to a Kotha constructed in the agricultural field from where, he took out a wooden stick, a mobile handset and a shawl which were seized. Another information (Ex.P/44) was given regarding concealment of a woolen shawl. Acting in furtherance of both these informations, the accused led the I.O. to a Kotha constructed in the agricultural field from where, he took out a wooden stick, a mobile handset and a shawl which were seized. The blood stained articles and the control articles, seized during investigation, were forwarded to the FSL for analysis from where, reports (Ex.P/51 and Ex.P/52) were received. After concluding investigation, the I.O. proceeded to file a charge-sheet against the accused for the offences under Sections 302 and 382 IPC. As the offence under Section 302 IPC was triable by Court of Sessions, the case was committed to the Court of the Additional Sessions Judge, Suratgarh for trial where, charges were framed against the accused for the above offences. He pleaded not guilty and claimed trial. The prosecution examined as many as 19 witnesses and exhibited 54 documents to prove its case. Upon being questioned under Section 313 Cr.P.C. and when confronted with the circumstances appearing against him in the prosecution evidence, the accused appellant denied the same and claimed to have been falsely implicated. Two documents were exhibited but no oral evidence was led in defence. After hearing the arguments advanced by the learned Public Prosecutor and the defence counsel and, appreciating the evidence available on record, the trial court proceeded to convict and sentence the appellant as above. Hence this appeal. 5. Shri Vikas Bijarnia, learned counsel representing the appellant, did not dispute the conclusion drawn by the trial court that the accused appellant was responsible for inflicting the injuries to the deceased. However, his contention was that the appellant and the deceased were real brothers. They were sitting together and were consuming liquor when a quarrel suddenly flared up. The accused gave a push to his brother who fell down from the terrace and received the fatal injuries. He placed reliance on this Court’s Judgment in the case of Ashok Nath @ Om Prakash vs. The State of Rajasthan, reported in 2020 (1) R.Cr.D. 114 (Raj.) and urged that the conviction of the appellant as recorded by the trial court for the offence under Section 302 IPC deserves to be toned down to one under Section 304 Part II IPC and the sentence awarded to the appellant should be reduced suitably. 6. 6. Per contra, learned Public Prosecutor, vehemently and fervently opposed the submissions advanced by learned counsel Shri Bijarnia. He urged that the appellant brutally assaulted his younger brother with a stick and caused him multiple injuries with the sole intention of murdering him. During the process, the appellant also tried to strangulate the victim which, fact is manifested from the postmortem report as per which, an antemortem ligature mark was noticed on the neck of Manish. He thus urged that the direct testimony of the first informant Kesra Ram (PW-1), Mahaveer (PW-2) and Kalawati Devi (PW-7), the mother of the appellant and the deceased, and the evidence of witnesses Ramkumar (PW-3) and Sudesh Kumar (PW-4), who gave evidence regarding extra-judicial confession conveyed to them by the accused appellant on a mobile call, coupled with the incriminating recoveries, establishes the case of the prosecution, as against the accused appellant beyond all manner of doubt. He urged that from the medical evidence, it becomes clear that the deceased was brutally assaulted and a large number of injuries were inflicted to him on the vital body parts which clearly establishes that the only intention of the accused appellant was to murder the deceased and the case does not fall within any of the exceptions to Section 300 IPC so as to warrant toning down of the charge. He thus implored the Court to dismiss the appeal in entirety. 7. We have given our thoughtful consideration to the submissions advanced at bar and have carefully gone through the impugned Judgment as well as the record. 8. Even though learned counsel Shri Bijarnia did not seriously dispute and rather admitted that strong direct and circumstantial evidence is available on record so as to connect the appellant with the incident but despite that, we have critically analysed the testimony of the first informant Kesra Ram (PW-1), the eyewitnesses Mahaveer (PW-2) and Kalawati (PW-7) who gave categoric evidence to the effect that they heard the fervent cries coming from towards the house of Mohanlal and went there. They saw that Sandeep was dragging Manish from the fodder stacking area and was bringing him out. He was exhorting that he had killed Manish and if anyone intervened, he too would be killed. Saying so, Sandeep ran away. PW-7 Kalawati is the mother of the appellant Sandeep and the deceased Manish. They saw that Sandeep was dragging Manish from the fodder stacking area and was bringing him out. He was exhorting that he had killed Manish and if anyone intervened, he too would be killed. Saying so, Sandeep ran away. PW-7 Kalawati is the mother of the appellant Sandeep and the deceased Manish. She categorically stated in her evidence that the appellant herein was hell-bent upon grabbing the entire agricultural land of her husband and he had made previous attempts on the life of Manish as well with the intention of eliminating him. Thus, the evidence of these witnesses establishes the motive attributed to the appellant for the murder of Manish. They have given unimpeachable testimony to the effect that the appellant herein was seen dragging Manish out of the house. The SHO, Police Station Rajiyasar was informed at 02.30 am. in the night. He reached the place of incident where the FIR (Ex.P/1) was submitted to him by Kesra Ram (PW-1) at 03.30 am. The I.O. examined fodder stacking area and saw that the cot lying there, the walls and the floor were stained with blood. The witnesses Ramkumar (PW-3) and Sudesh Kumar (PW-4) have given unimpeachable testimony to the effect that the accused called them in the night at about 10 O’ Clock and confessed that he had killed Manish. On a perusal of the cross-examination conducted from these two witnesses, it is clear that they could not be shaken from their stance regarding the accused having made extrajudicial confession despite persistent cross-examination. The evidence of the eye-witnesses is unimpeachable and it gets thorough corroboration from the evidence of the witnesses of extra-judicial confession. The accused was arrested on the very next day of the incident i.e. 14.11.2012. The clothes which he was wearing at the time of his arrest were seized and were found to be stained with blood. The accused gave voluntary informations to the I.O. leading to the recoveries of a blood stained stick, a blood stained shawl and a mobile hand set. The blood stained control articles seized by the I.O. during the course of investigation and the weapon of offence, the clothes and slippers, etc. The accused gave voluntary informations to the I.O. leading to the recoveries of a blood stained stick, a blood stained shawl and a mobile hand set. The blood stained control articles seized by the I.O. during the course of investigation and the weapon of offence, the clothes and slippers, etc. seized from the accused, were forwarded to the FSL from where reports (Ex.P/51 and Ex.P/52) were received affirming the fact that the rope of the cot, blood smeared soil, pair of slippers, pant with belt (of the deceased), a piece of Chunni, Kameej, Baniyan, underwear and shirt and pant (of the accused), a pair of slippers (of the accused), a wooden stick and the loi (shawl) recovered at his instance, all tested positive for presence of ‘A’ group human blood. Therefore, it is conclusively established that the clothes and the slippers which the accused was wearing at the time of his arrest, were bearing the same blood as that of the deceased. The stick, which was recovered at his (accused’s) instance, was also stained with the same blood group. These recoveries were effected by the I.O. Shri Rajesh Kumar (PW-19) whose testimony concludes that these recoveries were effected faithfully. 9. The witnesses Ramkumar (PW-3), Sudesh Kumar (PW-4), Banwari Lal (PW-5) and Pawan Kumar (PW-6) were associated as Panch witnesses in the recovery proceeding and they have given unimpeachable testimony inspiring confidence in the procedure undertaken by the I.O. The link evidence which the prosecution has produced in form of the testimony of Tarachand (PW-13), who was the Carrier Constable and the Head Constable Baburam (PW- 14), being the Maalkhana Incharge, conclusively establishes that the case properties which were seized by the I.O. in this case, remained in intact condition right from the time of the seizure till the same were received at the FSL. 10. After a thorough discussion of the evidence available on record, we are of the firm view that the involvement of the accused appellant in the crime is well established. The fervent contention of Shri Bijarnia was that the appellant Sandeep and the deceased Manish were consuming liquor when a quarrel flared up suddenly and Manish received the injuries in a sudden quarrel when he fell down from the terrace of the house. The fervent contention of Shri Bijarnia was that the appellant Sandeep and the deceased Manish were consuming liquor when a quarrel flared up suddenly and Manish received the injuries in a sudden quarrel when he fell down from the terrace of the house. On a perusal of the statements of the eye-witnesses, referred to supra, we find that no such suggestion that the deceased fell from the terrace and received the injuries in this process, was given to them by the defence counsel in the crossexamination. The theory of accidental fall or of injuries being caused in a sudden quarrel under the effect of liquor, is totally untenable. There is no material on record to hold that the incident was perpetrated after a sudden quarrel between the accused appellant and the deceased. 11. In order to appreciate the contention of Shri Bijarnia for toning down the offence, we need to peruse the testimony of the Medical Jurist Dr. Darshan Singh, who carried out postmortem on the dead body of Manish and issued the postmortem report (Ex.P/20). On a perusal of his evidence, it comes to light that he noticed the following injuries on the dead body when autopsy was undertaken: (i) Lacerated wound 3 cms. X 2 cms. bone deep on forehead above the right eyebrow. Underlying frontal and temporal bones were fractured. (ii) Lacerated wound 2 cms. X 1 cm. on the right side of the face. Zygomatic bone was fractured. (iii) Lacerated wound 2.5 cms. X 1/2 cm. on the right corner of the mouth. Bleeding clots were found in the mouth. (iv) Bruise 3 cms. X 1.5 cms. over right mandible bone. Fracture of mandible bone. (v) Ligature mark on neck, on left and back about 1 cm. superficial in nature, no underlying damage. Cause of death was opined to be shock and haemorrhage due to injury to skull bone and brain. All injuries were antemortem in nature. Looking to the location and nature of the injuries, it is clear that the same were inflicted by intense and repeated blows with a blunt weapon. Thus, the theory put-forth by Shri Bijarnia that the incident erupted out of a sudden quarrel between the two brothers, is totally conjectural and has no substance whatsoever. All injuries were antemortem in nature. Looking to the location and nature of the injuries, it is clear that the same were inflicted by intense and repeated blows with a blunt weapon. Thus, the theory put-forth by Shri Bijarnia that the incident erupted out of a sudden quarrel between the two brothers, is totally conjectural and has no substance whatsoever. It is clearly a case of premeditated vicious assault by the accused appellant on the deceased during which, repeated blows were given on the vital body parts viz. head and face. Not only this, the accused appellant also tried to strangulate the deceased, and this fact is fortified from the existence of the ligature mark. Thus, the contention of Shri Bijarnia that the offence deserves to be toned down is noted, just to be rejected as being without any substance. 12. An appreciation of evidence as undertaken by the trial court while convicting the appellant is absolutely balanced and unimpeachable. The impugned Judgment dated 21.08.2014 passed by the learned Additional Sessions Judge, Suratgarh, District Sri Ganganagar in Sessions Case No.09/2013 does not suffer from any infirmity whatsoever, and hence the same does not warrant any interference by this Court. 13. Hence, we find no force in this appeal which is dismissed as being devoid of merit. 14. Record be returned to the trial court forthwith.