Cri. Jail Appeal No. 372 of 1984

30th October, 1991.

Petitioner Counsel: Sri. Hemant Choudhary, Public Prosecutor, for the State.

JUDGMENT

SAXENA, J. :-This appeal filed under S. 374(2), Cr. P. C. has been directed against the judgment dated 12-10-1984 of the Sessions Judge, Balotra Camp Barmer, whereby he convicted the appellant for the offences punishable u/Ss. 302 and 379, I.P.C. and sentenced him to life imprisonment for the first count and two years rigorous imprisonment and a fine of Rs. 2,000/- in default to further undergo 6 months' rigorous imprisonment and also directed that the substantive sentences shall run concurrently.

2. Succinctly stated the prosecution case is that in the intervening night of 5th and 6th June, 1984 Smt. Gavari widow of Bhinya Ram was sleeping in her house along with her younger daughter P. W. 19 Kumari Kamla aged 9 years and maternal grand son P.W. 18 Jagdish aged 12 years. In the same Bakhal appellant Sukh Ram's house is also situated. It is alleged that at about 11-12 O'clock appellant armed with an axe entered the house of Smt. Gavari and inflicted an axe blow on her neck. Smt. Gavari screamed, whereupon Jagdish and Kamla awoke. In the moon light as well as in the light of an electric pole, which was situated about 20 ft. away from Smt. Gavari's house, they saw the appellant inflicting another blow causing injury to Smt. Gavari Kamla and Jagdish raised an alarm, which attracted P.W. 3 Mangla Ram, who was sleeping just outside their house. The appellant took gold Timanias and a pair of gold ear-tops (Jhumaris) of Smt. Gavari and ran away. P.W. 3 Mangla Ram saw him going away from the scene of occurrence along with the the axe and stolen ornaments. Mangla Ram immediately went to the house of P.W. 2

Kana Ram, the brother of Smt. Gavari and narrated him the whole incident. Thereupon Kana Ram submitted a written report Ex. P-3 to the S.H.O. Police Station Chohtan at 4-45 a.m. on 6-6-1984. P.W. 22 Bhikham Chand, S.H.O. registered a case u/S. 302, IPC vide FIR Ex. P-4 which was received by the Chief Judicial Magistrate, Barmer on the same day at 6 p.m. The Investigating Officer inspected the site, prepared memo of dead body of Smt. Gavari (Ex.P-5), site Plan (Ex. P-6) and memo of Site Plan (Ex.P-7). He also seized the blood-stained clothes and the ornaments which the deceased was wearing vide seizure memo (Ex. P.8). He also prepared the autopsy report of the deceased. P.W.1 Dr. R.C. Khetawat, Medical Officer. PHC Chohtan (Barmer) conducted the postmortem examination of the deceased on 6-6-1984 at 8-30 a.m. and found 2 incised wounds situated on the anterior later aspect of Smt. Gavari's neck on the right side. Both wounds were ante mortem in nature. On internal examination, the Doctor found that her external juglar, internal juglar and internal cartoid and artery as well as all other small vessels, muscles and nerves were cut. He did not find any ligature mark over the neck. He prepared the post most mortem examination report Ex. P.1 and in his opinion the cause of death was shock and extensive haemorrhage due to cutting of great vessels of the neck by sharp weapon. Bhikham Chand arrested the appellant on 7-6-1984 vide arrest memo (Ex. P. 11) and from his person a pair of golden ear-tops (Art. 25) were also recovered, which were duly sealed in presence of Motbirs. Deceased's elder daughter P.W. 13 Smt.Ghudi, who was undergoing 'Anganwadi Training' in Bhilwara, was informed about the said incident. Smt. Ghudi after taking stock of the various ornaments and articles in her house, found that one gold Nimboli along with Ghedias, one gold Nimloli without bars, one pair of Jhumar (eartops), one Bhawaria with chain and one pair of silver Todas belonging to her (Smt. Ghudi) were also missing from the house. She, therefore, submitted a list of the said stolen articles on 8-6-1984 to the Investigating Officer. On 17-6-1984, she further submitted a supplementary list of stolen property namely one silver bangle to the Investigating Officer.

3. On 10-6-1984, the appellant in pursuance to his information given u/S. 27 of the Evidence Act vide memo Ex. P. 28 got recovered one gold Timania (Art. 21) from his house, which was seized and sealed by the Investigating Officer vide recovery memo (Ex. P. 16).

4. On 11-6-1984, the appellant volunteered information Ex. P.25 u/S. 27 of the Evidence Act, and in pursuance thereof got recovered blood-stained axe underneath a gudra (bedding) from his house. The Investigating Officer seized and sealed the same vide recovery memo (Ex. P-19). On 11-6-1984, the appellant again volunteered information vide memo Ex. P. 30 and in pursuance thereof got 2 gold 'Ghedias' recovered from his uncle P.W. 6 Birdha, which were also seized and sealed on 16-6-1984 by the Investigating Officer vide recovery memo (Ex. P. 12).

5. On 12-6-1984, the appellant in pursuance to his information Ex. P. 31 got recovered one gold 'Bhanwaria' (Article 26), pair of gold ear-tops (Articles 27 and 28) and pair of silver 'Todias' (Articles 30 and 31) from his room under-neath a bedding. Those articles were also seized and sealed by the Investigating Officer vide recovery memo (Ex. P. 18).

6. On 21-6-1984, the appellant volunteered information under S. 27 of the Evidence Act vide memo (Ex. P. 32) and on the same day got recovered one silver bangle from his grandmother P.W. 7 Smt. Teeja, which was seized and sealed by the Investigating Officer vide recovery memo (Ex. P. 15). The recovered ornaments were correectly identified by P.W. 13 Smt. Dhudi, Smt. Hemi and P.W. 11 Dhudaram Soni during the identification parade conducted by P.W. 21 Shri Prashant Kumar, Addl. Munsif and Judicial Magistrate, Barmer.

7. After completing the investigation, the Investigating Officer submitted the charge-sheet against the appellant before the Magistrate, who in his turn committed the case to the learned Sessions Judge, Balotra. The appellant was charged for offences u/Ss.460,

302 and 380, IPC. Who pleaded not guilty and claimed trial.

8. The prosecution examined 22 witnesses. The appellant in his plea u/S.313, Cr. P.C. generally denied the circumstances appearing against him and alleged that Smt. Gavari had illicit relations with his father Mobata Ram. He further alleged that his father had given the ornaments of his (appellant's) grand mother to the police and foisted a false case against him. He further alleged that his father did not feed him after the death of his real mother and that he had protested to his father not to keep Smt. Gavari, which infuriated him. However, in his defence, the appellant did not examine any witness. The learned Sessions Judge after trial found the appellant guilty for the offences u/ Ss. 302 and 379, IPC and sentenced him in the manner detailed ad ultra. Hence this appeal.

9. Shri Nirjan Gaur was appointed as Amicus Curiae to defend the appellant.

10. We have heard the learned Amicus Curiae and the learned Public Prosecutor at length and carefully perused the relevant record of this case in extenso.

11. Shri Nirjan Gaur, has strenuously contended that the learned Sessions Judge has not correctly analysed and evaluated the prosecution evidence and has committed an illegality in relying on the vague and unreliable testimony of child witnesses namely Jagdish and Kamla. According to him, due to darkness it was not possible for them to identify the assailant. He submitted that the alleged recoveries were fake and fabricated and that since the recovered ornaments were not shown to the witnesses in the court an important link in the prosecution evidence is missing. He lastly argued that the doctor has simply deposed the injuries on the person of Smt. Gavari were sufficient to cause death, but has not stated that those were sufficient to cause death in the ordinary course of nature, therefore, the appellant's conviction u/S. 302, IPC was not maintainable.

12. On the other hand, the learned Public Prosecutor asserted that the prosecution has adduced clear, cogent and convincing occular evidence, which has been duly corroborated by the medical evidence as well as from the various recoveries of stolen ornaments at the instance of the appellant.

13. We have given our thoughtful consideration to the rival contentions and carefully peeped into the evidence adduced in this case.

14. There is no dispute that the death of Smt. Gavari was homicidal as is evident from the sworn testimony of P.W. 1 Dr. R.C. Khetaeat.

15. It also stands well proved that Smt. Gavari as well as the father of appellant namely Mobata Ram resided in the same 'Bakhal' but in different houses and that P.W. 18 Jagdish and P.W. 19 Kamla were living with the deceased.

16. P.W. 18 Jagdish aged 12 years and is a student of Vth Class. The trial court has rightly held him as a competent witness. Jagdish has deposed that on the ill-fated night, he and Kamla were sleeping with the deceased on separate cots in their house; that it was a moon-lit night and that one lamp post was also situated a bout 20 ft. away from their house. This fact stands duly corroborated by the testimony of P.W. 3 Mangla Ram, P.W. 13 Smt. Dhudi and P.W. 19 Kamla. From the Calendar it transpires that the incident occurred in the night of Jeth Shukla Saptmi, which indicates that it was a moon lit night. Therefore, there is not iota of evidence to suggest that it was pitch dark night. Hence, we do not find any force in the contention of Shri Gaur that it was a pitch dark night and that the witnesses could not see or identify the assailant.

17. P.W. 18 Jagdish has stated that he was awaken by the scream of his maternal grandmother Smt. Gavari, that he saw appellant Sukh Ram with an axe, who inflicted an injury on Smt. Gavari in his presence and that Kamla had also awakened. He further stated that they raised an alarm, which attracted Mangla Ram, who had come to their

house in the previous night and was sleeping outside about 12 paces away from them. He further stated that the moment of time Mangla Ram came there, the accused ran away along with the axe. He stated that Smt. Gavari moaned for some time and thereafter died. He stated that he did not find the gold 'Temania' and 'Jhumars' (pair of ear-tops) of Smt. Gavari, which she had put on the box at the time when she had retired to the bed. This witness has been cross-examined at length but his testimony has remained unshaken. He specifically stated that the accused did not snatch any ornament from the body of Smt. Gavari in his presence.

18. P.W. 19 Kumari Kamla aged 9 years understands the importance of oath. The trial Court administered oath to her after being satisfied that she was a competent witness. She has fully corroborated the testimony of Jagdish on all material counts. Her testimony has also remained unassailed. The statements of these witnesses are neither vague nor inconsistent nor unreliable. In our considered opinion, the learned Sessions Judge has rightly relied on their testimony.

19. P. W. 3 Mangla Ram has deposed that on the fateful night he had come to Chohtan bazar, which is about 4 kms. away from his house situated in Chohtan Agor. He stated that on that day he had come to see off his brother-in-law and since it had become quite late in the night he went to his aunt (Bua) Smt. Gavari's house and slept there in the 'Dahlij'. He informed that Jagdish and kamla were sleeping with Smt. Gavari and that her elder daughter Smt. Dhudi, had gone to Bhilwara for 'Anganwari Training'. He deposed that at about 11p.m. he was awakened by the alarm raised by kamla and Jagdish. Therefore, he got up and rushed in the court-yard where he got up and rushed in the court-yard where he saw the appellant standing near the cot of Smt. Gavari armed with an axe. He further deposed that thereafter the appellant ran away from there along with the axe and some articles hidden in the arm-pit of his another hand. He stated that Smt. Gavari was lying in a pool of blood; that she had sustained injuries on her neck; and that she was moaning and gasping. Mangla Ram is aged 18 years, he stated that he immediately rushed to Smt. Gavari's brother Kana Ram and narrated him the whole incident. He deposed that the appellant had taken away the ornaments before he reached near the place of occurrence. He stated that since he was frightened, he did not go to the police station for lodging the report, instead he went to his uncle Kana Ram. In our opinion the explanation given by him is quite natural and convincing. He has disowned the portion 'A' to 'B' of his police statement Ex. D. 1, wherein he had stated that the gold 'Timania' which Smt. Gavari used to wear was missing from her neck. We do not find any contradiction or omission in portion 'A' to 'B' of his police statement and his testimony before the trial Court. Thus, P.W. 3 Mangla Ram has substantially corroborated the sworn testimony of Jagdish and Kamla.

20. P. W. 2 Kana Ram has supported the statement of Mangla Ram and proved his written report (Ex. P. 3). It is pertinent to note that the written report (Ex. P. 3) was submitted by him before the S. H. O. at 4-45 a.m. on 6-6-1984 i.e. immediately after the occurrence, and thus, there was no delay for any improvement or embellishment.

21. The ocular evidence is well corroborated by the medical evidence. P. W. 1 Dr. R. C. Khetawat has proved the postmortem report Ex. P. 1. He has specifically stated that in his opinion Smt. Gavari had died of shock and extensive haemorrhage due to cutting of her great vessels of the neck by a sharp weapon. He has testified that the injuries sustained by the deceased could be caused by an axe and that those were sufficient to cause her death.

22. The recovery of pair of gold 'Jhumar (ear-tops) Art.25 from the person of appellant at the time of his arrest on 7-6-1984 i.e. immediately after the incident has been well proved by Motbir P. W. 5 Amolakh Das and P. W. 22 Bhikham Chand, Investigating Officer. P. W. 13 Smt. Dhuri the daughter of the deceased has correctly indentified Art. 25 during the test parade before the Judicial Magistrate. P. W. 14 Shankar Sunar, who had prepared the said ear-tops, has also correctly identified those during the test parade. He

has also proved entries of Khata Bahi (Ex. P24) in this regard. It is noteworthy that PW7 Smt. Teeja the grandmother of the appellant, who has been declared hostile, has neither stated that those ear-tops belong to her nor she had identified those. In such circumstances recovery of article 25 fully incriminates the appellant with the offence levelled against him.

23. Recovery of 'Timania' article 21 vide memo Ex. P16 at the instance of the appellant by digging the court-yard of his house in pursuance to his identifying memo (Ex. P28) has been well proved by PW8 Sri Ram Motbir and Bhikham Chand-Investigating Officer, PW13 Smt. Shuri has correctly identified Art. 21 during the test parade.

24. Similarly recoveries of 'Bhanwaria' article 26, ear-tops article 27 and 28 and silver todias articles 30 and 31 at the instance of the appellant in pursuance to his information given under S. 27 of the Evidence Act vide memo Ex. P31 from underneath his beddings in his house have also been well proved. PW8 Sri Ram Motbir and Investigating Officer-Bhikham Chand have proved its recovery memo Ex.P18. These articles were also correctly identified by Smt. Dhuri and Kana Ram. PW11 Dhuda Ram Sunar has stated that Kana Ram got these ornaments prepared from him. There is not a fringe of evidence to suggest or prove that these articles did not belong to Smt. Dhuri but belonged to Smt. Teeja, the grandmother of the appellant.

25. Recovery of one silver bangle article 29 at the instance of the appellant from his grandmother Smt. Teeja has also been well proved vide recovery memo Ex. P15 by Motbir Jagmal and the Investigating Officer. This article was also correctly identified by Smt. Dhuri during the test parade. PW7 Smt. Teeja the grandmother of the appellant, who turned hostile, has also clearly stated that the said silver bangle given to her by the appellant.

26. Lastly, the recovery of gold 'Nimboli' article 22 and 'Gedias' articles 23 and 24 has also been well proved.

27. The motive for committing murder was obviously the theft of the said ornaments. Apart from it, even as per plea of the appellant, he did not relish the act of his father in keeping Smt. Gavari with him as his kept. Thus, the appellant bore animosity with Smt. Gavari. In our considered opinion, the motive for the crime stands fairly projected and well proved. Moreover in view of the over-whelming ocular evidence, the factor of motive pales into insignificance.

28. In the premise of above discussion, we are of the considered opinion that the learned Sessions Judge has correctly discussed, analysed and evaluated the evidence adduced in this case and rightly held that the accused had intentionally committed murder of Smt. Gavari by an axe. The recovered articles were shown to some of the material witnesses in the court. The appellant has not claimed these ornaments. Hence, even if these ornaments were not shown to Kamla and Jagdish during trial, it was not fatal and the prosecution case cannot be thrown over board on type technical irregularity.

29. We are also not impressed by the contention of Shri Gaur that since the doctor has not stated that the injuries sustained by Smt. Gavari were sufficient in the ordinary course of nature to have caused her death, the offence under S. 302, I.P.C. is not made out. It will suffice to add that the doctor has in most unambiguous, explicit and clear terms deposed that the injuries sustained by Smt. Gavari were individually as well as cumulatively sufficient to cause her death meaning thereby that by those injuries her death was eminent. Admittedly, Smt. Gvari died shortly after sustaining those injuries. Therefore, the act of the accused inflicting fatal blows on Smt. Gvari, who was sleeping, proves without reasonable doubt that he had intentionally committed her murder which was premediated. The recoveries of ornament of the deceased and her daughter Smt. Dhuri at the instance of the appellant successfully bring home the offence under Section 379, I. P. C. against him. Hence, he has been rightly convicted for the offences punishable under Sections 302, and 379, I. P. C.

30. No other argument was pressed before us.

31. The up-shot of the above discussion is that this appeal is meritless and is hereby dismissed.

Appeal Dismissed