1 IN THE HIGH COURT OF JUDICATUARE FOR RAJASTHAN AT JODHPUR. JUDGMENT Pawanpuri vs. The State of Raj. D.B. Criminal Jail Appeal No.946/2003 against the judgment dated 18.8.2003 passed by the learned Sessions Judge Udaipur in Sessions Case No.372/2001. Date of Judgment: February 27th,2008. PRESENT HON'BLE MR. PRAKASH TATIA, J. HON'BLE MR. BHANWAROO KHAN,J. Mr.P.S. Rajpurohit, Amicus Curiae for the appellant. Mr. V. R. Mehta, P.P., for the State. ... BY THE COURT( Per Hon'ble Mr.Tatia,J): This appeal is against the judgment passed by the learned Sessions Judge, Udaipur in Sessions Case No.372/2001-State v. Pawanpuri, whereby the learned Sessions Judge, Udaipur has convicted the accused under Sections 302, I.P.C. and sentenced him to undergo life imprisonment and also imposed a fine of Rs.5,000/- and in default thereof, to undergo one year's rigorous 2 imprisonment and also convicted the accused under Section 449,I.P.C. and sentenced the accused to undergo 10 years' rigorous imprisonment with fine of Rs.4000/- and in default thereof, to under to 10 months' rigorous imprisonment. Brief facts of the case are that one Ram Chandra s/o Banshi Lal resident of House No.686 Sector No.11, Hiranmagari, Udaipur lodged the written report (EX.P.1) on 17.10.2001 that his sister-in- law (brother's wife) Vimla Devi was residing in upper floor of her House no.6, Sector No.11, Hiranmagari, Udaipur. In the lower portion, tenant J.P. Khare was residing. The complainant Ram Chandra's brother Shanti Lal received one information from cycle shop keeper, whose shop was in front of the said Vimla Devi's house, that Vima Devi is lying injured in the kitchen of her house and the blood is oozing out from her body. The complainant submitted that his sister-in-law was murdered but when she was murdered, he has no knowledge. On this information, a Case No.315/01 under Section 302, I.P.C. was registered by drawing FIR Ex.P.34. During investigation, site was inspected and site Inspection Report (Ex.P.2) was prepared. The body was found lying in the kitchen, in pool of blood and the blood was fresh at that time. The sample of blood was taken in polythene bag and was put in a container and was sealed and report Ex.P.3 was drawn. The 3 broken blood stained bangles of the deceased, bunch of her hairs which were lying on the floor, were also taken in possession and were put in a sealed cover and Ex.P.4 was drawn. The photographs Ex.P.16 to Ex.P.26 of the spot were taken. The body was got examined and Post-mortem Report(Ex.P.29) was given by the doctor. Sari, Blouse and petticoat of the deceased, stained with blood, were also taken and were put in a sealed cover and Ex.P.5 was drawn. On 21.10.2001, after fours days from the date of incident, the accused was arrested and his arrest memo (Ex.P.35) was prepared. The accused was examined by the doctor and he had three injuries as per the medical report (Ex.P.30). The doctor also found some blood on the nails of finger of the accused and, therefore, the portion of the nail was cut and was put in a sealed container and was sent to the FSL and this fact was recorded by the doctor in Ex.P.31. Ultimately, the above articles seized during investigation, were sent to the FSL vide Ex.P.27 and the FSL gave its report Ex.P.38. The accused's pent and shirt which were recovered during investigation and the nails which were sent to the FSL, all were found stained with human blood with Group-A and the clothes of the deceased also had blood stained with A-Group. 4 In addition to blood stained clothes,as referred above, on the information of the accused given on 24.10.2001, blood stained knives were recovered and the report was prepared of said recovery which is Ex.P. 11. The relevant site maps were also prepared. The challan under Sections 302 and 449, I.P.C. was submitted and after committal, charges under Section 302 and 449, I.P.C. were framed against the accused-appellant. The accused denied the charged and sought trial. The prosecution examined as many as 20 witnesses, namely, PW-1 Ram Chandra, PW-2 Pawan Singhal, PW-3 Jwala Prasad Khare, PW-5 Smt. Dropadi, PW-5 Durgesh Nandini, PW-6 Nidhi Khare, PW-7 Panna Lal, PW-8 Shanti Lal Singhal, PW-9 Shanta Bai, PW-10 Iqbal Bhai, PW-11 Goverdhan Lal, PW-12 Smt. Vishakha, PW-13 Mamta Gupta, PW-14 Bhupendra Kumar Agarwal, PW-15 Lalit Kishore Sharma, PW-16 Kalu Lal Meena, PW-17 Dr. Akhilesh Sharma, PW-18 Dr. S.K. Bhatnagar, PW-19 Ram Singh and PW-20 Narayan Singh Sisodia and produced documentary evidence including the documents referred above. The trial court convicted the accused under Sections 302 and 449, I.P.C, against which the accused preferred this jail appeal. 5 It was contended that there is no eye-witness of the incident which took place on 17.10.2001 and the accused was arrested on 21.10.2001 and the alleged recoveries of the accused-appellant's clothes is dated 23.10.2001 and recovery of knife is after three days on 24.10.2001. It is submitted that the accused has nothing to do with the above unfortunate event and the prosecution failed to prove that the appellant was servant working in the house of the deceased Smt.Vimla Devi w/o Mohan Lal Singhal. It is also submitted that no blood can be found in the nails of a person after five days of commission of offence by him, that too of murder, because the accused will try to wash his hands first, if there comes blood on his hands during the commission of offence and in ordinary course, in five days, the blood from nails will wash out. It is also submitted that the accused has been convicted on the basis of the circumstantial evidence but the accused has been in fact falsely implicated. The prosecution supported the conviction and sentence passed against the accused-appellant. We considered the arguments and perused the record. Pw-12 Vishakha is the daughter-in-law of deceased Smt. Vimla Devi and she stated that, in the house in question, Vimla 6 Devi alone was living in the upper portion of the house. Pawan used to sleep in the house of the deceased and since he was not behaving properly, therefore, he was turned out in the year 1999. She stated that Pawan had bad habits. One maid-servant Dropadi was working for deceased Vimla Devi at the time of incident and before said maid-servant, one Manoj was working as servant in the house of Vimla Devi. Manoj left the job about 2-1/2 – 3 years before the incident. She stated that she along with her family were living at Bombay and they used to visit off and on to Vimla Devi. PW-13 Mamta, the daughter of deceased also stated that after Manoj, accused Pawan used to sleep in the house of deceased Vimla Devi and he had bad habits and, therefore, her mother deceased Smt. Vimla Devi removed the accused-appellant from her house and maid-servant Dropadi was engaged . PW-7 Panna Lal though was declared hostile but he supported the prosecution case so far as accused's living in the house of victim Vimla Devi and he stated that he ( PW-7 Panna Lal ) used to put his goods in the house of deceased as he was running his tea-stall near the house of deceased. He stated that the accused Pawan, present in court, also used to work in the house of deceased Vimla Devi and he was also doing his studies and 7 specifically supported the prosecution case about Pawan Kumar's living with Vimla Devi(deceased). PW-1 Ram Chandra, in his statement, stated that after receipt of information from his brother Shanti Lal about the incident, he went to the house of the deceased and found his sister-in-law lying dead. He proved report Ex.P.1 and also is a witness for the seizure memo Ex.P.3 which is the memo of taking possession of the blood of deceased from the place of incident and is also a witness of site report Ex.P.2 and seizure memos Ex.P.4 and Ex.P.5 and stated that articles were seized in his presence. The another witness PW-2 Pawan Singhal also proved seizure memo Ex.P.5 and the report (Ex.P.&) of handing over body of the deceased to Shanti Lal. PW-14 Bhupendra Kumar Agarwal stated that the knife in question was recovered at the instance of accused from the bushes and recovery memo Ex.P.11 was signed by him as witness. Both the knives were put in a sealed cover and he signed the report of seizure and the site report from where the knives were recovered. He also witnessed the recovery of clothes of the accused from House No. 96, Sector-11,Hiran Magari which includes one jean- pent and one T-shirt. He proved Ex.P.13, Ex.P.14, Ex.P.15 and Ex.P.16 and sealing of pent article Ex.3 and shirt 8 article Ex.4. PW-18 Dr. S.K. Bhatnagar, Medical Jurist, examined the accused on 22.10.2001 and found bruise on the right cheek of accused and found dried blood on the cheek and one another abrasion near the same place of the cheek where first injury was there and the third is abrasion on the head. All the above injuries were simple and from blunt object and they were old 4-5 days and proved injury report Ex.P.30. He also stated that he took part of the nails of the accused and that fact is recorded in Ex.P.31.Those nails were sent for the examination by the FSL. It appears from the facts of the case that deceased Smt.Vimla Devi was residing in her house in upper portion and her tenant PW-3 Jwala Prasad with his wife PW-5 Durgesh Nandini and their family members were residing in the ground floor of the house. At the time of incident, one Dropadi was a maid-servant of deceased Vimla Devi who was examined by the prosecution as PW- 4. PW-13 Smt. Mamta is the daughter of the deceased and she stated that before Dropadi, Pawan was working and living in the house of deceased Vimla Devi and before that one Monoj was the servant. PW-12 Smt. Vishakha, daughter-in-law of deceased Vimla Devi also stated so and supported the statement of PW-13 Smt. 9 Mamta. The defence could not demolish these two witnesses-PW- 12 Smt.Vishakha and PW-13 Smt. Mamta. PW-7 Panna Lal though was declared hostile but so far as his statement that he used to put the goods in the house of Vimla Devi after his business hours and Pawan was also living in the house of Vimla Devi, there is no ambiguity and can be relied upon as said statements are fully corroborated by the statements of PW-12 Smt. Vishakha and PW-13 Smt. Mamta. Though there is no eye-witness who saw the incident of inflicting injuries upon Vimla Devi by the accused but the trustworthy witness doctor and the Medical jurist, who is independent-witness, clearly stated that he took part of the nails of the accused with blood stains and those articles were sent to the FLS and the FSL in its report Ex.P.38 certified that the blood stains on the nails sent to it had blood stains of human and of Group-A, which is blood group of the blood found on the sari, blouse and petticoat of the deceased. Two knives, stained with human blood, proved by Ex.P.38, were recovered from the accused in pursuance of the information given by him under Section 27 of the Indian Evidence Act, which fully establishes that the accused was living with deceased Vimla Devi and he was turned out by 10 Vimla Devi and the accused was knowing that Vimla Devi is residing all alone and coupled with this fact, the recoveries of blood stained knives and blood stains nails of the accused, fully connect the accused with the crime. The plea that there could not have been blood stains after about five days on the nails of the accused, may on the face value be attractive but there is direct evidence of the Medical Jurist who himself took the samples of nails of the accused with blood stains and there is no reason to discard the evidence of said witness Dr. S.K. Bhatnagar PW-18 and recovery of knives. When there is no reason to disbelieve the statements of the witnesses, who had no enmity with the accused then the evidence cannot be discarded merely on the basis of some improbability and particularly when witnesses PW-18 Dr. S.K. Bhatnagar has not been cross-examined on the point that blood could not have remained in the nails after five days. PW-17 Dr.Akhilesh Sharma proved that deceased suffered 16 injuries and the injury no.8 was sufficient to cause death in the ordinary course and could have been inflicted by knife. He also stated that all the incised wounds may have been caused by knife. It appears that there are seven incised wounds on the body of the deceased as per the statement of PW-17 Dr. Akhilesh Sharma. He 11 also denied the suggestion of the defence that injury no.8 could have been caused due to fall of victim on some sharp object. In view of the evidence available on record, the prosecution fully established that the accused, who was living with deceased Vimla Devi before some time, inflicted fatal injuries on the body of Smt. Vimla with intention to kill her after committing house trespass with intention to commit offence punishable with death and committed offence of murder. In view of the above discussion, there is no merit in this appeal. Hence, the appeal of the appellant is dismissed. ( BHANWAROO KHAN) ,J. (PRAKASH TATIA),J. mlt.