1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR. ::: JUDGMENT Chatra. vs. State of Rajasthan. D.B.CRIMINAL JAIL APPEAL NO.307/2003 UNDER SECTION 374 CrPC AGAINST THE JUDGMENT AND ORDER DATED 27.9.2002 PASSED BY SHRI DIGPAL SHARMA, ADDITIONAL SESSIONS JUDGE (FAST TRACK), SIROHI IN SESSIONS CASE NO.10/2002 (1/2002). DATE OF JUDGMENT ::: 14th.2.2008 PRESENT HON'BLE MR. PRAKASH TATIA, J. HON'BLE MR. BHANWAROO KHAN, J. Mr.KR Bhati, Amicus Curiae, for the appellant. Mr.VR Mehta, Public Prosecutor. - - - - - BY THE COURT (PER HON'BLE MR.PRAKASH TATIA, J.): Heard learned counsel for the parties. This appeal has been preferred to challenge the 2 judgment and order dated 27.9.2002 passed by learned Additional Sessions Judge (Fast Track), Sirohi in Sessions Case No.10/2002 (1/2002) by which the learned trial court convicted appellant Chatra s/o Annaji under Section 302 IPC and sentenced him to undergo rigorous imprisonment for life with a fine of Rs.2000/- and in default of payment of fine to undergo 1 year's rigorous imprisonment. As per the prosecution case, on 29.8.2001 in the night at about 1:20 AM, Constable Sujana Ram PW11 received information on telephone that one person by caste Bheel has killed his mother, therefore, come early. Said information was transmitted by QST message to the SHO, Police Station, Mandar. The SHO thereafter went to the place of incident where one Ramesh s/o Jama, by caste Bhil gave oral report which was recorded as Parcha Bayan (Ex.P/1). Said Ramesh informed that his maternal uncle – Chatra (appellant)'s house is situated near his house and in the night, Chatra's daughter Pappi came weeping to his house and told him that her father (Chatra) killed her grand mother Navu. Ramesh immediately went to the house of Chatra and found said Navu lying dead. Ramesh immediately went to call his maternal uncle Deva and told him about the incident. Deva immediately went to bring Chatra's wife from her parental house. In the same night, Ramesh, Deva and 3 Chatra's wife – Smt. Kaku all went to the village from where 5-7 persons accompanied them and they all went to the house of Sarpanch and thereafter informed the police about the incident. On the basis of Parcha Bayan, FIR (Ex.P/17) was registered. The post mortem was conducted and as per the post mortem report (Ex.P/1), Scalp was crushed at posterior part of occipital region and Skull was also crushed. Membraned and brain were also crushed and brain material was oozing from the fractured side. As per the post mortem report, the cause of death was due to brain injury and fracture of skull bone. FSL report was also obtained and as per FSL report (Ex.P/21), weapon of offence – axe was found to be stained with human blood. After investigation, the police filed challan under Section 302 IPC in the Court of Judicial Magistrate, Reodar and the case was committed to the Court of District and Sessions Judge, Sirohi which was transferred to the Court of Additional Sessions Judge (Fast Track), Sirohi by order of learned Sessions Judge, Sirohi. Charges were framed against the accused who denied the charges and sought trial. At the trial, the prosecution produced PW1 Dr.Archana Garg, PW2 Manroop, PW3 Ramehs, PW4 Smt. Kaku, PW5 Pappi @ Sauram, PW6 Pawani, PW7 Ashu Singh, PW8 Kamal Kishore, PW9 Jagaram, PW10 Hardana Ram, PW11 Sujana Ram and PW12 Asu Ram. The prosecution case was 4 supported by two daughters of accused appellant – PW5 Pappi and PW6 Pawani. The prosecution case was further supported by the appellant's wife Smt. Kaku PW4. PW5 Pappi who first informed Ramesh about the incident was of the age of 12 years at the time of incident and is a child witness. The statement of accused appellant was recorded under Section 313 CrPC but he did not produce any witness in defence. The trial court, after appreciation of the evidence, by the impugned judgment held the appellant guilty of committing offence under Section 302 IPC and sentenced him to undergo life imprisonment and imposed fine of Rs.2000/- as referred above. Learned counsel Mr.KR Bhati was appointed as amicus curiae to assist this Court in this jail appeal. Learned counsel Mr.Bhati vehemently submitted that appellant's daughter Pappi PW5 was of the age of 12 years only and she was child witness. The trial court did not examine whether the said child witness can be a competent witness. She has been only asked one question whether one should speak lie or truth, then she replied truth. Only on this basis, the trial court declared Pappi (PW5) as competent witness. Learned counsel Mr.Bhati also tried to submit that the appellant's wife 5 and the appellant's relations were not cordial and she was not an eye witness to the incident. It is also submitted that there was a single blow and looking to the cause shown by the prosecution for inflicting one single blow by the appellant upon his mother, it appears that it was unintentional act and in view of one injury, it is not a case of culpable homicide amounting to murder as the appellant had no intention nor could have any intention to kill his mother on such a small issue as his mother did not stop cutting hair when the accused son was doing pooja and the hair were falling at the place of his worship. Learned counsel Mr.Bhati, therefore, submitted that it may be a case under Section 304 IPC if not only under Section 326 IPC. Learned counsel Mr.Bhati also questioned the recovery of axe – weapon of offence shown from the appellant and pointed out that in view of the statements of all three witnesses PW5 Pappi, PW6 Pawani and PW4 Smt. Kaku, the axe was recovered from the open space and was found near the place of incident. Whereas, as per the statement of the Investigation Officer and the information furnished under Section 27 of the Evidence Act, the recovery of axe was shown from the house of the accused appellant and at that time, the axe was kept hidden under one mat and in contra, the prosecution's own witness PW4 Smt. Kaku, PW5 Pappi 6 and PW6 Pawani all three stated that the weapon of offence was lying near the dead body. The trial court also did not believe the recovery as projected by the prosecution. Learned Public Prosecutor submitted that all the witnesses have supported the prosecution case and there is no reason that two girls of young age and who are daughters of the accused appellant himself, will tell lie involving their own father in an offence of committing murder of their own grand mother. Both the eye witnesses gave true and correct picture of the incident how it happened. They were cross examined thoroughly and they have not shattered in the cross examination rather say, from the cross examination, it is proved that both the daughters are trustworthy witnesses and on the basis of their evidence coupled with all the circumstances and medical evidence, the trial court was fully justified in holding the appellant guilty of the offence under Section 302 IPC. We considered the submissions of learned counsel for the parties and perused the reasons given by the trial court in the impugned judgment as well as the record. After going through the statement of PW5 Pappi as 7 a whole including her cross examination, we are of the view that she is a trustworthy witness and gave complete and true account of the incident. PW5 Pappi clearly stated that the accused appellant cut the neck of her grand mother by the blow of axe. She also stated that immediately, she ran shouting. She also stated that her elder sister PW6 Pawani was just 8 steps away from them and was digging the ground. She also stated that initially the axe was not in the hand of his father but he went inside the house and brought the axe and hit the axe on the neck of her grand mother. Just after this incident, she ran to his brother Ramesh. In cross examination, she stated that because of quarrel between her mother and father, her mother used to remain half of the time at her parent's house. She also stated that the cause of quarrel was that his father was not earning. She was cross examined thoroughly but defence could not demolish the credibility of witness on any of the issue. PW6 Pawani fully supported the prosecution case and corroborated the evidence of her sister PW5 Pappi. She also stated that her father hit axe on the neck of her grand mother and immediately after the incident, Pappi ran towards “Arhat” and at the time of incident, her mother was not at home. Pawani was also cross examined thoroughly but from cross examination, her credibility has not been shattered in any way. 8 However, witness PW3 Ramesh did not support the prosecution case and he denied that he was informed by Pappi about the incident and he further denied that he went to the house of Chatra Ram. However, he admitted that when the police came, then he went to Chatra Ram's house. However, he admitted that when the police came, then he went to Chatra Ram's house and found the old lady lying dead. He also admitted that there was an injury on the neck of the old lady which was caused by the axe. He admitted that the site report, panchnama for body and handing over of dead body report were prepared by the police and he put his thumb on those reports. He also admitted that the police took blood stained clothes and prepared the report. However, he denied his parcha bayan (Ex.P/9). PW3 Ramesh was declared hostile and in cross examination by public prosecutor, he denied that he gave his statement as recorded at A to B in Ex.P/9. At this place, it will be relevant to recapitulate that in the same night when victim was murdered, information was received at police station by witness PW11 Constable Sujana Ram and he was informed on phone that one Bheel has killed his mother. PW11 Sujana Ram has not been cross examined by the accused. Therefore, the statements about the incident as narrated by PW5 Pappi and PW6 Pawani are substantially supported by other surrounding circumstances and evidence. 9 PW4 Smt. Kaku, wife of accused appellant, who reached to the victim's house in the late night stated that she was told by her daughters Pappi and Pawani that how the appellant killed their grand mother i.e. mother-in-law of the PW4 Smt. Kaku. From the trustworthy witnesses produced by the prosecution referred above, we are of the view that witnesses PW5 Pappi and PW6 Pawani are credible witnesses, which is apparent from their statements, and the prosecution fully proved its case of inflicting injury by the appellant on the neck of the deceased Smt. Navu and in view of the FSL report, it is proved that from the axe in question the injury was caused to Smt. Navu and that single blow caused fracture on the posterior part of the occipital region resulting into fracture of skull bone and injury to brain caused death of Smt. Navu. PW1 Dr. Archana Garg clearly stated that the injury was sufficient to cause death in the ordinary course and in the present case, the victim died because of injuries referred in post mortem report (Ex.P/1) which is signed by PW1. How the axe was recovered, lost its significance because of the reason that there is sufficient evidence on the record of the eye witnesses to connect the accused with the offence as well as with the use of axe by him and, therefore, the trial court was right in holding the appellant guilty for committing offence under Section 302 IPC. 10 It is true that in this case, there is a single blow and due to that single blow, the victim died but merely because of this fact that there was a single blow and inference cannot be drawn that the appellant had no intention to cause death. The weapon was sharp edged weapon and the place where it was hit was the vital part of the body and PW1 Dr.Archana Garg clearly stated that the injury was sufficient to cause death in ordinary course, we do not think that there could have been any other intention then to kill the old lady. Looking to the offence, weapon, nature of injury and the place where the injury was caused, we are of the view that accused appellant has committed murder of his mother. Homicide is a murder even in a case where a person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such as aforesaid ; as is given in Fourth Explanation to Section 300 IPC. It has come on record that because of one blow on the neck of the victim, her neck was cut though the head was not severed, then in that situation, if by one blow, the victim died, there could not have been any reason of more injury after seeing the condition of the victim and, therefore, in the present facts of the 11 case, it cannot be said that it was not a case of culpable homicide amounting to murder because of not inflicting second injury or more injuries by the accused. In view of the above reasons, we do not find any merits in this appeal of the appellant and accordingly, the same is hereby dismissed. (BHANWAROO KHAN), J. (PRAKASH TATIA), J. S.Phophaliya