1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR. J U D G M E N T Kalu @ Kaliya & Anr. vs. State of Rajasthan D.B.Criminal Appeal No.16/2003 against the judgment dated 28.11.2002 passed by Additional Sessions Judge (Fast Track), Dungarpur, in Sessions Case No.95/2002. Date of Judgment :: 18th March, 2010 P R E S E N T HON'BLE MR.JUSTICE GOVIND MATHUR HON'BLE MR.JUSTICE C.M.TOTLA Mr. Bharat Shrimali] Mr. Shambhoo Singh ] for the appellants. Mr. AR Nikub, PP, for the State. .... BY THE COURT : (PER HON'BLE MATHUR,J.) Kalu @ Kaliya and Prabhu @ Prabhulal have preferred this appeal against their conviction under Section 302 read with 34 Indian Penal Code and sentenced to life imprisonment under judgment and order dated 28.11.2002 passed by learned Additional Sessions Judge (Fast Track), Dungarpur. 2 The prosecution case in brief is that on 27.6.2002 one Haja submitted a written report at police station Dhambola with assertion that his father Kalji aged 50 years went to Karawada on 26.6.2002 for getting “kos” sharpen. He did not return upto 10:00 AM of the next day, therefore, he made search during which Deva son of Dhula Rot informed that Kalji was coming in night while carrying iron “kos” in his hands. On making further search dead body of Kalji was found in the premises of Aanganwari school. On basis of the first information report, a case was registered and after usual investigation accused appellants were charge sheeted, committed to the court of Sessions and tried. They pleaded not guilty. To prove its case, prosecution in all examined 12 witnesses out of whom PW-8 Dinesh and PW-9 Pappu are the witnesses of last seen. They corroborated the prosecution story. PW-3 Dr. Ramswaroop had done autopsy on the dead body on 27.6.2002 and proved his postmortem report (Ex.P/8), according to which he noted following:- Injury :- 1.Incised wound - 10 cm x 2 cm x bone deep on forehead, right side, 2.Incised wound – 5 cm x 1 cm x bone deep head over left parietal bone, 3 3.Incised wound – 4 cm x 1 cm x bone deep head behind left ear, 4.Abrasion – 4 cm x ¼ cm – chest over right clavide, 5.Abrasion – 2 cm x ½ cm – left knee, 6.Abrasion – 1½ cm x ½ cm – right knee, 7.Lacerated wound – 2½ cm x ½ cm x muscle deep, chest back on left side in middle. Injury No.1, 2 3 were caused by sharp weapon and 4-7 were caused by blunt weapon, Injury No.1 and 7 were dangerous while 2-6 were simple in nature. All the injuries were within 24 hours prior to examination. Fracture :- 1.Compound fracture of frontal bone right side above upper eye brow. 2.Fracture of 6,7,8, 9th left rib posteriorly. Opinion :- From above findings I am in opinion that cause of death was haemorrhagic shock as a result of multiple injuries and fractures. 2.Time since death was within 24 hours prior to postmortem examination. 3.All the injuries were ante-mortem in nature. PW-6 Sultan Bux was Investigating Officer and he deposed about various steps taken by him during the course of investigation. PW-10 Kakku is the person 4 before whom PW-8 Dinesh and PW-9 Pappu narrated the fact about last seen of Kalji with accused persons. During the course of investigation the weapon of offence blood stained “kos” was recovered on basis of disclosure statement made by accused Kalu and a 'saria' (iron rod) was also recovered at the instance of accused Prabhu. Ex.P/20 is the report of State Forensic Science Laboratory and as per that shirt of deceased, iron “kos” and blood swab taken from the place where body of Kalji was recovered were found to be stained with “B” group blood. Learned trial Judge believed the prosecution evidence and, thus, convicted and sentenced the appellants as above. In appeal, it has been argued that the prosecution evidence on record was highly suspicious and not worthy of credence, therefore, the conviction and sentence of the appellants is unsustainable. As per learned counsel for the appellants the deceased suffered with a sharp injury and such an injury cannot be received by iron “kos” said to be recovered at the instance of accused Kaliya. He has further stated that the evidence relating to last seen is not trustworthy on the count of existing contradictions and also the witnesses being interested persons. It is also urged that as per PW-8 Dinesh and PW-9 Pappu they saw Kalji with accused persons at about 08:00 PM from the 5 distance of 30 feet, but it was virtually impossible being the time of dark. We have considered the arguments advanced and scrutinised the entire record. The fact that death of Kalji was homicidal and he died within a period of 24 hours from the time of recovery of his dead body on 26.6.2002, as noted by PW-3 Dr. Ramswaroop, and the cause of death given i.e. shock as a result of multiple injuries and fractures is not in dispute. The main question which arises for decision is whether the circumstances and facts marshelled by the prosecution and relied by the trial court are adequate to held the appellants guilty for committing an offence of murder? The prosecution evidence on point is that PW-8 Dinesh and PW-9 Pappu were sitting on a wall for latrine and at that time they saw Kaliya and Prabhu, pulling deceased Kalji towards Balwadi School. This incident was told by PW-8 and PW-9 subsequently to PW- 10 Kakku. PW-8, in totality supported the prosecution case. As per PW-9 Pappu, he alongwith Dinesh was sitting on the wall near a field wherefrom they saw 6 that Kalu and Prabhu were pulling Kalji towards Balwadi. He further stated that Kalji at that time was screaming “MAAR DALA MAAR DALA”. As per PW-10 Kakku, Dinesh and Pappu told him that at about 08:00 PM Kaliya and Prabhu were pulling Kalji towards Balwadi School. PW-11 Deva stated that in the evening of 25.6.2002 Kalji came to his residence and had little dinner with him. The testimony of above witnesses is challenged with contention that it appears highly improbable for PW-8 Dinesh and PW-9 Pappu to witness pulling of Kalji by accused persons in night hours from the distance of about 30 feet, specially looking to the circumstances that the distance aforesaid was covered with 'Ratanjot' and 'Rizka' plants. Learned counsel for the appellants also pointed out that as per PW-8 Dinesh, no screaming was made by Kalji, whereas PW-9 Pappu said that Kalji was shouting “MAAR DALA MAAR DALA”. It is also urged that PW-8 Dinesh, PW-9 Pappu and PW-10 Kakku, if were having any knowledge of some ill-happening, in normal course either they should have conveyed it to informant who is in their relation or should have intervened to save Kalji. 7 On consideration, we find the contention bereft of merit. True it is, PW-8 Dinesh and PW-9 Pappu stated that they saw accused persons pulling deceased Kalji at about 08:00 PM, but mere on that count no inference can be drawn about negative visibility. As a matter of fact nothing was asked in cross examination to the aforesaid witnesses about visibility position. It is pertinent to note that the incident is of the month of June, 2002 and in the month of June it cannot be said that at about 08:00 PM it remains absolutely dark. The obstacles in visibility because of Ratanjot and Rizka plants is also of no consequence in view of the fact that PW-8 Dinesh and PW-9 Pappu were sitting on a wall. PW-9 Pappu also stated that he stood up on seeing accused persons pulling deceased Kalji. So far as contradictions pointed out, are quite minor and are of no consequence. On minute examination we also found that PW-9 Pappu certainly said that deceased Kalji was uttering “MAAR DALA MAAR DALA”, but PW-8 Dinesh remained silent in this regard and he has not said anything contrary to whatever said by PW-9 Pappu. We are also of the view that PW-8 Dinesh, PW-9 Pappu and PW-10 Kakku acted quite normally while not informing to informant Haja or by not proceeding to save Kalji, as they considered it appropriate not to interfere with others issue. Such kind of indifference and ignorance in present set of 8 facts and circumstances cannot be said highly improbable. Beside this, they never apprehended about killing as at that time accused were simply pulling Kalji. It is further submitted that the fatal injury could have been made only by a sharp edged weapon being an incised wound and in the present case no sharp edged article was recovered. As per learned counsel for the appellants the “kos” recovered was not having any any sharp edge. This argument too is having no merit in view of the fact that deceased Kalji as per the first information report left his house only to get “kos” sharpen. It is also relevant to note that the “kos” is a part of plough i.e. the primary equipment used for ploughing the land. The body and wedge of a plough normally possess two pieces and one part of that includes the iron point or share which penetrates into soil and also protects the wooden wedge against wear and tear. This part is called “kos” in the area where the crime in instant matter was committed. The “kos” always have a sharp edge as it penetrates into soil. In view of it, it cannot be said that the article recovered was not capable to give an incised wound. In the case in hand PW-8 Dinesh and PW-9 Pappu quite specifically stated that at about 08:00 PM on 26.6.2002 they saw accused persons pulling deceased 9 Kalji towards Balwadi and they conveyed this fact to PW-10 Kakku. The dead body of Kalji was recovered from Balwadi School and his blood stained kameez was seized. At the instance of accused Kalu @ Kaliya, blood stained “kos” was recovered and as per State Forensic Science Laboratory report Ex.P/20, the kameez of deceased and the iron “kos” were found to be stained with “B” group blood. All the facts stated above were adequately established by the prosecution. Having considered the entire matter from all aspects, we are of the considered opinion that the circumstances existing in present case indicate only one conclusion i.e. commission of crime under consideration by the present accused persons only. The trial court, thus, have not committed any wrong while convicting and sentencing the appellants. The appeal, thus, is dismissed. ( C.M.TOTLA ),J. ( GOVIND MATHUR ),J. Mathuria KK/ps.