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2022 DIGILAW 2437 (RAJ)

Ganesh v. State of Rajasthan

2022-09-13

FARJAND ALI, SANDEEP MEHTA

body2022
JUDGMENT 1. The appellant herein has preferred the instant appeal under Section 374 (2) CrPC for assailing the judgment dated 19.12.2014 passed by the learned Additional Sessions Judge, Dungarpur, Camp Sagwara in Sessions Case No.2/2013, whereby he has been convicted and sentenced as below :- Offence for which convicted Sentence and fine awarded Section 302 IPC Life imprisonment alongwith a fine of Rs.10,000/- and in default of payment of fine, further to undergo two years' additional rigorous imprisonment Section 324 IPC One year's rigorous imprisonment alongwith a fine of Rs.500/- and in default of payment of fine, further to undergo additiona rigorous imprisonment of one month. 2. Briefly stated, facts relevant and essential for disposal of the appeal are noted hereinbelow :- 3. Shri Laxman Lal (P.W.6) lodged a written report (Ex.P/10) at the Police Station Varda, District Dungarpur on 01.11.2012 at 01.15 a.m. alleging inter alia that his elder brother Shri Bhanji had passed away two years ago. His sister-in-law Smt. Hanjana and her two daughters-in-law were residing together in the ancestral home at their Village Nava Padar. Her two sons were living in Bombay for earning their livelihood. In the evening of 31.10.2012 at about 07.30 p.m., his relative Ganesh, son of Punjilal Ahari, entered into the house of Smt. Hanjana. He inflicted blows of a knife on the face and neck of Hanjana, aged 60 years, killing her instantaneously. A small child named Govind was also sitting besides Smt. Hanjana. He too was inflicted injuries by the accused. The incident was seen by Smt. Durga, wife of Ramesh and daughter in law of the deceased. On hearing the hue and cry, the first informant and few other people rushed to the spot. Ganesh, however, escaped after committing the crime. 4. On the basis of this report, a formal FIR No.110/2012 (Ex.P/11) came to be registered at the Police Station Varda for the offences punishable under Sections 302 and 323 IPC. Investigation was undertaken by Shri Dharmilal Meena (P.W.16), SHO, Police Station Varda, who proceeded to the spot, prepared the spot documents, sent the dead body of Smt. Hanjana to the Government Hospital, Sagwara for autopsy. A medical board was constituted, of which, Dr. Kanti Lal was one of the members. Investigation was undertaken by Shri Dharmilal Meena (P.W.16), SHO, Police Station Varda, who proceeded to the spot, prepared the spot documents, sent the dead body of Smt. Hanjana to the Government Hospital, Sagwara for autopsy. A medical board was constituted, of which, Dr. Kanti Lal was one of the members. The board conducted autopsy and issued the postmortem report (Ex.P/25) taking note of the following injuries on the body of the deceased :- (1) Incised wound extending from the right zygomatic bone to angle of right mandible about 10 x 2.5 cm x muscle deep. (2) Incised wound 12 x 2 cm x brain deep from right mastoid to nape of neck with comminuted fracture of right side of occipital bone. (3) Incised wound 15 x 4 cm x muscle posterio-lateral surface of neck on right side edge. (4) Right ear lobe detached from the ear pinna. (5) Lacerated wound with clotted blood over wound 3 x 1 cm x bone deep below ear. 5. The board opined that the cause of death of Smt. Hanjana was coma as a result of head injury. 6. The child Master Govind was medically examined by Dr. Saifuddin (P.W.9), who issued the medico-legal report (Ex.P/1), as per which, the child was having two incised wounds, one on the left hand the other on the left shoulder. 7. The SHO proceeded to arrest the accused, who gave an information (Ex.P/26) to the Investigating Officer under Section 27 of the Evidence act and got recovered the knife, being the weapon of offence, which was seized vide memorandum Ex.P/19. The investigation was concluded and charge-sheet was filed against the accused appellant for the offences punishable under Sections 302 and 324 IPC. As the offence under Section 302 IPC was Sessions triable, the case was committed to the Court of Sessions Judge, Dungarpur, from where it was transferred to the Court of the Additional Sessions Judge, Dungarpur, Camp Sagwara for trial. Charges were framed against the accused for the above offences. He pleaded not guilty and claimed trial. The prosecution examined as many as 16 witnesses and proved 27 documents to prove its case. 8. The FSL report (Ex.P/27) was procured, which established presence of ’O’ group blood on the blood-smeared soil collected from the place of incident, pair of shoes, t-shirt and pant of the accused, blouse of the deceased and Churri. 9. The prosecution examined as many as 16 witnesses and proved 27 documents to prove its case. 8. The FSL report (Ex.P/27) was procured, which established presence of ’O’ group blood on the blood-smeared soil collected from the place of incident, pair of shoes, t-shirt and pant of the accused, blouse of the deceased and Churri. 9. After hearing the arguments advanced by the learned Public Prosecutor and the learned defence counsel, the learned trial court proceeded convict and sentence the appellant as above by the impugned judgment, which is assailed in this appeal. 10. Learned counsel Mr. Shambhoo Singh, representing the appellant, vehemently and fervently contended that the entire prosecution case is false and fabricated. The appellant has been falsely implicated in this case because of oblique motive and because of family enmity. The evidence of witnesses Smt. Durga (P.W.1) and Govind (P.W.2) is not reliable. The recoveries effected from the accused were fabricated by the Investigating Officer. His alternative submission was that even if the prosecution case is accepted to be true on the face of the record, the offence attributed to the appellant would not travel beyond Section 304 Part I IPC and as the appellant has suffered actual imprisonment of nearly 10 years, the sentence awarded to him deserves to be reduced to the period already undergone by him. 11. Learned Public Prosecutor on the other hand vehemently and fervently opposed the submissions advanced by the appellant’s counsel. He contended that the appellant came to the house of the victim in the late hours of 31.10.2012 feigning his visit to be a casual. He was carrying a knife, i.e. the weapon of offence, concealed on his person. Taking the unspspecting victim by total surprise, the accused inflicted repeated blows of the knife to the helpless lady, who expired at the spot. Govind, being the 15 years old grandson of the deceased, was also present there. The child tried to run away in order to save himself, on which the accused inflicted two blows of knife to him also. However, the child managed to raise a hue and cry and the neighbours came around, whereafter the accused escaped from the spot. Learned Public Prosecutor submitted that the witness Smt. Durga (P.W.1) also saw the accused sitting besides her mother-in-law. However, the child managed to raise a hue and cry and the neighbours came around, whereafter the accused escaped from the spot. Learned Public Prosecutor submitted that the witness Smt. Durga (P.W.1) also saw the accused sitting besides her mother-in-law. On hearing the shouts of Govind, she ran into the room and saw her mother-in-law lying down in a pool of blood and Ganesh was nowhere to be seen. Govind told her that Ganesh had inflicted knife blows to Smt. Hanjana. Referring to the evidence of the Medical Jurist Dr. Kanti Lal (P.W.15) and the postmortem report (Ex.P/25), learned Public Prosecutor pointed out that repeated blows of knife were inflicted by the accused on the zygomatic area, head, behind the neck and on the ears of the victim. The injury inflicted on the head caused fracture associated with brain damage, which proved fatal. Learned Public Prosecutor, thus, urged that the prosecution has proved beyond all manner of doubt that the accused inflicted forceful repeated blows of the knife, which he had brought concealed on his person and killed the unsuspecting lady at the spot. The child Govind, who was trying to escape, was also caused two injuries by the knife. Learned Public Prosecutor further submitted that the Investigating Officer Dharmi Lal Meena (P.W.16) proved the factum of recovery of weapon of offence made at the instance of the accused by unimpeachable evidence. The apparel worn by the accused at the time of incident were also recovered. The knife and the clothes of the accused gave positive test for presence of ’O’ group blood when serological examination was conducted. Same blood group was found on the blood stained soil recovered from the spot and the clothes of the victim. Thus, the prosecution has proved beyond all manner of doubt that it was the accused alone, who was responsible for the murder of the victim. He implored the court to dismiss the appeal and affirm the impugned judgment. 12. We have given our thoughtful consideration to the submissions advanced at bar and have minutely reappreciated the evidence available on record. The incident took place in the late hours of 31.10.2012. The FIR (Ex.P/10) came to be lodged by Laxman Lal (P.W.6) at the Police Station Varda in early hours of 01.11.2012, i.e. at 01.15 a.m. The police station is at a distance of 10 km. from the place of incident. The incident took place in the late hours of 31.10.2012. The FIR (Ex.P/10) came to be lodged by Laxman Lal (P.W.6) at the Police Station Varda in early hours of 01.11.2012, i.e. at 01.15 a.m. The police station is at a distance of 10 km. from the place of incident. Thus, the FIR was lodged in the dead of the night without any delay. A pertinent allegation was levelled in the FIR that the accused inflicted fatal injuries by a knife to the deceased Hanjana and also caused injuries to the child witness Govind. Smt. Durga (P.W.1) gave unimpeachable evidence that the accused came to their house in the evening at 7 o’clock and was sitting besides her mother-in-law Smt. Hanjana and child Govind. She heard shouts coming from the room, on which, she rushed there and saw her mother-in-law lying dead. Govind had climbed on the terrace and was raising a hue and cry. The accused was nowhere to be seen. Govind told the witness that Ganesh had inflicted blows of knife on the neck of Smt. Hanjana and that he too had been given knife blows by the accused. The witness could not be shaken from her stand despite prolonged cross-examination. Govind (P.W.2) is the star prosecution witness. He stated that he, his aunt Durga, her small child and his grandmother Hanjana were present in the house. The time was between 7 and 8 o’clock. His aunt Durga was in the room, where grinding mill was placed. He and his grandmother were in the other room. His grandmother was lying on the cot. Accused Ganesh came there. He opened his shoes outside and sat on the cot, on which his grandmother Hanjana was lying down. The accused went to the other room and brought five Vimal (Gutkha). Then he asked his grandmother to rise. The accused took out a knife from his backside and inflicted blows thereof to his grandmother Hanjana on the neck and jaw. His grandmother died at the spot. He tried to run away, on which, Ganesh gave him blows of knife, which landed on his left palm and left shoulder. However, he escaped and climbed to the terrace. On hearing his hue and cry, the neighbours collected and Ganesh ran away from the spot. He told everyone as to how Ganesh had killed his grandmother and he inflicted injuries to him too. However, he escaped and climbed to the terrace. On hearing his hue and cry, the neighbours collected and Ganesh ran away from the spot. He told everyone as to how Ganesh had killed his grandmother and he inflicted injuries to him too. Despite prolonged cross-examination conducted from the witness, nothing could be elicited, which can create a doubt on the truthfulness of his evidence. It is true that from the evidence of these witnesses, no significant evidence of motive if forthcoming against the accused appellant. However, in a case of murder, lack of motive in itself cannot be considered a valid ground to doubt the evidence of otherwise reliable eye witnesses. As we have already held that the testimony of Smt. Durga (P.W.1) and Govind (P.W.2) is unimpeachable, wherein they have clearly levelled incriminating allegations against the appellant for the murder of Smt. Hanjana by inflicting knife blows, the absence of motive cannot be considered a reason to discard the reliable ocular testimony of these two witnesses. Presence of the child witness Govind (P.W.2) at the is duly corroborated by the fact that he himself received two sharp weapon injuries in the same incident, which were examined by Dr. Saifuddin (P.W.9), who proved his injury report (Ex.P/1). Dr. Kanti Lal (P.W.15) proved the postmortem report (Ex.P/25) prepared after conducting autopsy upon the dead body of Smt. Hanjana. We have already narrated the dimensions and nature of injuries caused to Smt. Hanjana supra. As has been stated by the medical jurist, the head injury inflicted to the deceased led to coma and instantaneous death. There is no hesitation for this court to hold that as repeated injuries of a dangerous weapon like knife were caused by the accused to the deceased, he definitely had the intention to commit murder of the victim. There is no merit in the argument advanced by Mr. Shambhoo Singh, learned counsel representing the appellant, that the offence under Section 302 IPC should be toned down to one under Section 304 Part I IPC. It is clearly a case of brutal preplanned assault committed with intention to kill. The factum of recovery of blood stained weapon and the blood stained clothes of the accused, was duly proved by the Investigating Officer Dharmi Lal Meena (P.W.16). It is clearly a case of brutal preplanned assault committed with intention to kill. The factum of recovery of blood stained weapon and the blood stained clothes of the accused, was duly proved by the Investigating Officer Dharmi Lal Meena (P.W.16). It may be reiterated that the clothes of the accused, the weapon recovered at his instance, blouse worn by the accused, blood-smeared soil collected from the place of incident all gave positive test for presence of ’O’ group blood when these articles were examined at FSL, from where report (Ex.P/27) was issued. The ocular testimony is also corroborated by the FSL report (Ex.P/27). 13. Resultantly, we have no hesitation in holding that the appellant was rightly held guilty for the murder of Smt. Hanjana and for causing simple injuries by sharp weapon to child Govind. The learned trial court, appreciated the evidence available on record in an apropos manner while recording the finding of guilt against the appellant on both the charges. The impugned judgment dated 19.12.2014 passed by the learned Additional Sessions Judge, Dungarpur, Camp Sagwara in Sessions Case No.2/2013 does not suffer from any infirmity whatsoever warranting interference. Hence, the appeal fails and is dismissed as being devoid of merit. The record be returned to the trial court.