1 D.B.Criminal Jail Appeal No.1043/2003 (Jasmail Singh v. The State of Rajasthan) IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR. JUDGMENT JASMAIL SINGH V. THE STATE OF RAJASTHAN D. B. CRL. JAIL APPEAL NO.1043/2003 against the Judgment dated December 20, 2002, passed by Shri O.P.Agrawal, RHJS, the learned Additional Sessions Judge, Sangariya in Sessions Case No.52/2002 (29/2002) DATE OF JUDGMENT APRIL 17, 2009 PRESENT HON'BLE MR. JUSTICE N. P. GUPTA HON'BLE MR. JUSTICE C. M. TOTLA Dr.Rakesh Sinha, Amicus Curiae, for Appellant (s). Mr. A.R.Nikub, Public Prosecutor, for the State-respondent. BY THE COURT: (PER HON'BLE TOTLA, J.) Appellant aggrieved of his conviction for offence of Section 302 IPC and awarded sentence of life imprisonment with fine Rs.1000/-; as per judgment dated 20.12.2002 by the Court of Additional Sessions Judge, Sangaria has preferred this appeal. Briefly stated the incident and happenings as per prosecution is that on 29.3.02, at 10.30 p.m. one Kuldeep Singh, aged 16 years, 2 D.B.Criminal Jail Appeal No.1043/2003 (Jasmail Singh v. The State of Rajasthan) accompanied by his mother's sister's husband Najar Singh PW 5 arriving at Police Station, Sangaria orally informed that his father Shri Kaka Singh expired 6-7 years ago and he, his younger brother Mandeep PW/4 and mother Mst. Jaspal Kaur are living in their house at WN 1 Sangaria - Jasmail Singh s/o. Inder Singh r/o. Bhagatpura used to come there house who about 5-6 days earlier when came in a drunken state was asked by mother to not to come in such state and went away angrily. On this night 28.03.2002 at about 9 O'clock they were at their home and as mother went to neighbour Pappu's house for bringing milk, they suddenly heard loud voices of mother, so he and Mandeep came out then saw that just a little ahead in street, Jasmail Singh was inflicting blows to mother with a “Kapa” ( a iron semi-circular edged article with a handle) and when they approached near to their mother, Jasmail Singh ran after them so they crying entered in house of neighbour - then there also came Pappu and Jasmail Singh ran away. Kuldeep further stated that mother who was seriously injured at neck and hand with severe bleeding and on his call, she asked for water and then uttering them for taking care of sister (of Kuldeep) died. The report taken down in Rojnamcha at entry No. 1808 and FIR bearing No. 204/02 registered for the offence of Section 302 IPC. In course of investigation, on 29.3.02, the I.O. SHO PW/11 inspected site where in street body of Jaspal was lying in a pool of blood and nearby were lying her 'chappals' – place of occurrence was 3 D.B.Criminal Jail Appeal No.1043/2003 (Jasmail Singh v. The State of Rajasthan) photographed – samples of blood stained and plain soil collected and sealed, separately sealed were chappals and worn blood stained Salwar and Jumfer clothes of deceased, prepared memos are Exs.P-6 to P-12. Post-mortem conducted at about 12 noon report is Ex.P-1. Accused appellant arrested on 1.4.02 in some other case was arrested in this case in morning of 2.4.02 and on his weared shirt and 'pajjama' received some blood like stains so these seized and sealed vide memos Exs. P-14 and 15. On appellant's disclosure that “Kapa” is in his house below 'bister' (mattress) on the cot, it was recovered at his instance and sealed of memos prepared are Exs. P25, 16, 17 & 17A– keeping packets of above articles safe, the same were delivered at FSL. After recording statements of witnesses and other, usual investigation, charge-sheet filed and on committal, Sessions Case No. 52/02 registered in concerned Sessions Court. Appellant Jasmail Singh when charged of the offence of Section 302-IPC that on March 28th, 2002 in night at about 9 p.m. at Mandi Sangaria near the house of deceased in street, he with intention of causing death of Jaspal Kaur inflicting injuries to her with sharp-edged weapon, caused hear death – pleading innocence claimed trial. Of the 11 prosecution witnesses examined, Kuldeep PW 3 age 16 years and Mandeep PW 4 age 12 years sons of deceased are eye- witnesses who deposed as having seen the incident as above. PW 7 4 D.B.Criminal Jail Appeal No.1043/2003 (Jasmail Singh v. The State of Rajasthan) Najar Singh accompanied Kuldeep to Police station whereas Pappu PW 6 is the neighbour who is declared hostile by prosecution. Surendra Kumar PW 9 is Photographer, PW 8 and PW 5 are 'motbirs'. Ramdev Singh PW 11 SHO is Investigating officer, Head Constable PW 10 and Constable Rajendra Singh relate to keeping packets safe and delivering them to FSL whereas, Dr. Naresh Garg PW 1 is Medical officer who conducted post- mortem and prepared report Ex.P/1 . Article 1 is the recovered “Kapa', article 2 clothes and article 5 'chappals' of deceased, articles 3 and 4 are shirt and pajjama of accused. Accused on examination under Section 313, Cr.P.C., stated that he was arrested in some other case on 1.4.02 and neither his clothes taken nor any recovery made and witnesses telling lie because of enmity. Of the 3 witnesses examined in defence, Hari Ram DW 1, Devi Dan DW2 both ASI are regarding arrest of appellant on 01.04.02. Mani Ram DW 3 deposes that he is neighbour and on that day Kuldeep was on work with him at a field who returned with him at about 8' O clock and than at about 9' O clock in night Kuldeep in street told him that someone has killed his mother. Learned Sessions Judge arriving at conclusion that accused intending and knowing to cause death of M.S. Jaispal inflicted blows and injury of this article to her caused her death and accordingly convicted 5 D.B.Criminal Jail Appeal No.1043/2003 (Jasmail Singh v. The State of Rajasthan) appellant under Section 302 IPC and sentenced him to life imprisonment. Learned advocate for the appellant argued that (1) both eye witnesses - the sons of deceased are child who as per their own deposition cannot be said to have seen the occurrence. (2) Being child witness, their testimony requires careful analysis and examining minutely cannot be safely believed. (3) Najar Singh PW 7 who lives in other village could not have reached there within half an hour – he is admittedly inimical to appellant and on his instigation, is the FIR lodged who also accompanied PW 4 to police station. (4) Pappu PW 6 does in no way, on any point, support prosecution, whereas deceased is said to have gone to his house. (5) No other witness of locality. Learned counsel argued that investigation conducted with sole aim of some how implicating accused appellant and as at least one other case was registered against him and so appears by the fact that he when arrested on 1.4.02 – not stated to be wearing any clothes having blood like stains, whereas when arrested in this case on 2.4.02, such is alleged. Learned counsel relying on following authorities further vehemently argued that no motive or reason whatsoever for the incident appears and in such circumstances, even if appellant is held to have inflicted injuries, the act falls within Part II of Section 304 IPC. In support of contentions, reliance placed on (i) AIR 2007 SC 397, Dharam and Others v. State of Haryana; (ii) AIR 2005 SC 1281, Khuman Singh & Others v. State of 6 D.B.Criminal Jail Appeal No.1043/2003 (Jasmail Singh v. The State of Rajasthan) M.P.; (iii) AIR 1968 SC 1390, Laxman Kalu Nikalje v. The State of Maharashtra; (iv) AIR 1972 SC 955, Chand and Others v. The State of U.P.; & (v) AIR 1998 SC 477, State of Bihar v. Ramnath Prasad and Others, and also judgment of this Court dated 30.3.07 in D. B. Criminal Jail Appeal No.857/2002. Learned Public Prosecutor, countering above arguments, submitted that evidence of PW 4 and PW 3 is completely reliable and trustworthy and from nature of injuries is proved that act falls squarely only under Section 302 IPC. Proved by evidence of Medical Officer PW 1-read with post-mortem report Ex.P-1 and also ocular evidence-is that Smt. Jaspal sustained and died of following injuries : - (1)Incised wound 6” x 2” x bone deep with right year cut with facture of temporal bone. (2) Incised wound 3” x 1-1/2” x bone deep with fracture of underlying bones in center of occipital parietal region. (3) Incised wound 3” x 1” x bone deep with fracture of underlying bone in Rt. Side of perieto occipital region. (4) Thumb of left hand cut in the middle and lost. (5) Rt. Hand cut as wrist joint, bone, muscles and vessels cut in the whole length – hand is united with both with very few muscles. (6) Incised wound 3” x 1” x bone deep on post aspect of Rt. hand. Measurements above are in inches. On dissection of body, it was found that cranial cavity is filled with clotted blood – membranes and brain tissues congested. Death due to intra-crevical and external hemorrhage leading to severe hemorrhage shock as a result of above external injuries. All the injuries ante-mortem. 7 D.B.Criminal Jail Appeal No.1043/2003 (Jasmail Singh v. The State of Rajasthan) Post-mortem was conducted on 29.3.02 at 12 noon. Medical Officer PW 1 mentions in cross-examination that he cannot say if she could have been saved by timely treatment. Though Medical Officer PW 1 stated ignorance about survival possibilities on timely treatment, but looking to above injuries, leaving aside miracles, hardly can be said that in normal course were chances of survival. Also proved by the evidence of Investigating Officer PW 11 – the samples of blood stained and plain soil were taken and sealed - 'chappals' and worn clothes of deceased were also seized and same were sent to FSL. FSL report is Ex.P-26 and proved is that on all articles, except plain soil, were stains of human blood – on clothes of deceased and “Kapa” was blood 'B' group. Contention on behalf of the appellant is that as per IO S. H.O. PW 11, appellant was arrested with pistol in some other case on 1.4.02, thereafter, on April 2nd arrested in this case vide Ex.P-14 and at the time of arrest worn shirt and 'pajjama' were seized and sealed preparing Ex.P- 15 which clothes as per laboratory report Ex.P-26 had human blood. Argued that appellant was arrested on 1.3.02 by ASI Hari Ram DW 1, investigation of which is conducted by Devi Dan DW 2 and these both witnesses do not say that on the worn clothes of deceased, were any blood stains. Submitting that Devi Dan DW 2 admits that if any such stains are found, the same are recorded in the memo of arrest and Hari 8 D.B.Criminal Jail Appeal No.1043/2003 (Jasmail Singh v. The State of Rajasthan) Ram DW 1 states that when that appellant arrested in this case on 2.4.02, he was wearing same clothes as on 1.4.02. Argued that if clothes had no such blood stains upon articles of 1.4.02, the same cannot be on 2.4.02, but as per prosecution so was which clearly indicates whole investigation to be faulty one with aim of implicating accused. Submitted that because of this reason, recovery of “Kapa” as per information too cannot be believed. Considering this argument maximum doubt can be cast about clothes and stains thereto. IO PW 11 deposes that on the disclosure of accused made on April 2nd and reduced in writing as Ex.P-25, “Kapa' was recovered at his instance from his residential house in village Bhagatpura which seized and sealed preparing memos and site plan Exs. P-16, 17 and 17A. Motbirs of this recovery are PW 4 and PW 8 – both support such recovery. Considering their evidence, it stands proved that “Kapa” was recovered from the house of accused on his information. The “Kapa” as per report bears stains of human blood. Here, it may be observed that if for the sake of argument for any reason, if this recovery is not taken into consideration, even then, other ocular evidence is strong and credible to induct appellant. Sons of deceased Kuldeep Singh PW 3 and Mandeep PW 4 depose that the day was of Holi and in the evening around 8-9 O'clock when they and mother were taking meals, Ms. Jaspal went to house of Pappu for 9 D.B.Criminal Jail Appeal No.1043/2003 (Jasmail Singh v. The State of Rajasthan) taking milk and soon came loud voices, so both of them went out. Kuldeep PW 3 states that mother was in street and appellant was inflicting and inflicted injuries of “Kapa” on head and ear of mother and also imputed her hand and thumb and when they tried to intervene, accused ran after them to so both of them entering neighbour's house shouted from there – there gathered people and Jasmail ran away. Mandeep PW 4 too states that when he and brother came out, saw Jasmail inflicting blows of “Kapa' to his mother and inflicted blows at head, hand and also imputed her hand and a hand thumb – then he and brother Kuldeep both entered in the house of Pappu. PW 3 and PW 4 both stated that they went to their mother who asked for water which was given and she telling them to take care of their sister, died. Mandeep PW 4, in cross- examination, states that accused Jasmail used to come to their house and his Mausa Najar Singh and Jasmail Singh were not on good terms, but never quarreled. PW 4 also states that a few days earlier, appellant coming with 2-3 persons asked mother to prepare meals, but mother declined. According to PW 4, house of Pappu is at a little distance. Kuldeep PW 3, in cross-examination, deposes that as stated to him by parents Jasmail was 'Dharmela' (taking or behaving something like brotherly) of his father. P.W. 3 also states that his grand-father, mother and uncle reside at Salempura - also deposed that when they tried to intervene, accused followed them 4-5 steps. PW 3 states that few days 10 D.B.Criminal Jail Appeal No.1043/2003 (Jasmail Singh v. The State of Rajasthan) prior to this occurrence, Jasmail taking two persons with him came to their house in drunken state and asked mother to prepare meals and when mother declined, went away angrily threatening mother. PW 3 and PW 4 both depose that at house of Pappu, the milk was for warming and mother did went to take that. Kuldeep Singh PW 3 deposed that someone phoned Najar Singh who came within half an hour and he went to police station with Najar Singh. In cross-examination to PW 3 and PW 4, some questions are asked about bringing by their mother their sister from in- laws' house by their mother, but the same is neither relevant, nor appear to have any bearing in any way on this incident. Najar Singh PW 7 admits that he and Jasmail are not on good terms, but denies that he deposing untrue. Here, it is to be noted that PW 7 is neither eye-witness nor deposed on any aspect regarding the occurrence and as per him, he simply accompanied Kuldeep Singh to police station which was very very natural as only relative available and informant PW 4 of 16 years. Further, no reason of not being on good terms has surfaced so this fact does in no way affect credibility of PW 3 and PW 4. Argument that Najar Singh PW 7 had no reason or occasion to accompany Kuldeep PW 3 and that grand-father, mother and uncle did not turn up on that day, has no merit. Najar Singh PW 7 being husband of sister of mother of PW 3 and PW 4, who used to come to their house occasionally to look after them, was every reason to be informed. SHO 11 D.B.Criminal Jail Appeal No.1043/2003 (Jasmail Singh v. The State of Rajasthan) Shir Ramdev Singh PW 11 states that at around 10.30 p.m., Kuldeep Singh orally lodged FIR which as stated by Kuldeep Singh before him was written by head constable and FIR Ex.P-6 registered which bears thumb impressions of Kuldeep Singh and Najar Singh. Thus, completely established is the fact that FIR lodged by Kuldeep Singh based on his own knowledge as per he saw the occurrence. Learned counsel argued that PW 3 is 16 years and PW 14 younger to him too 12 years, so their evidence cannot be believed and at least requires some corroboration. Argued that these witnesses are child witnesses who can be easily guided, dictated, prevailed, coerced or impressed by others, particularly by Nazar Singh 7. Pondering over this argument, it will appear that FIR is lodged by PW 3 Kuldeep Singh and is lodged soon after the incident, which not only rules out any manipulation, but also shows his complete and reasonable perfect understanding. Some questions prior to deposition are asked by the trial Court to both of them which find place at the beginning of their statements and Court's satisfaction to the effect that witnesses rightly understanding and replying the questions. PW 3 is 16 years who was deposing only about six months after the occurrence and this age of 16 years is not too tender age, but rather age of sound understanding. Similar is for Mandeep 12 years. The occurrence relates to their mother and obviously, cannot be and not is any reason to depose lie or speak anything not true. PW 3 and PW 4 both 12 D.B.Criminal Jail Appeal No.1043/2003 (Jasmail Singh v. The State of Rajasthan) being natural reach on hearing shouts of their mother rushed out of house and they have seen the occurrence and than whatever they did is perfectly as per normal human behaviour and instinct. Argument that Pappu PW 6 does not support prosecution and no other witness, other than PW 3 and PW 4 is, cannot help appellant. PW 6 is declared hostile - when confronted with his investigational statement Ex.P-18 – denied that on hearing loud voices, he came in the street – PW 3 and PW 4 entering his house as being chased by Jasmail having a “Kapa” in his hand, told him of Jasmail killing mother by “Kapa”. PW 6 also denied that he went near Ms. Jaspal and soon came her sons and she, asking water telling them to take care of sister, succumbed. As he has totally denied his earlier statement, no reliance on his deposition on any aspect can be. House of defence witness Maniram DW 3 is adjacent one as per site inspection memo Ex.P-7 and according to him, on that day, Kuldeep and he were out to work at Dello's field and came together at about 8 pm and he the DW3 did not hear any cries or voices and when came out at 9 pm for procuring 'Biri' at the street, Kuldeep was standing by his mother who when asked by him, stated that someone unknown has killed mother. As per Maniram DW 3, no one till a distance was there and Pappu's house beared lock – he informed member of Panchayat Ms. Rina. As is proved, Jaspal was living there with her two sons PW 3 and PW 4 and incident is of a just out of houses at 9 pm. Even according to 13 D.B.Criminal Jail Appeal No.1043/2003 (Jasmail Singh v. The State of Rajasthan) DW 3, Ms. Jaspal was lying in the street and Kuldeep was by her – given the circumstances, it is almost impossible for Kuldeep to be mum and no else there. In these circumstances, statement of DW 3 too, cannot be in any aspect accepted. Argument advanced is regarding absence of motive, firstly it appears from the evidence of PW 3 and PW 4, as also finds mention in the FIR, that some 5-6 days prior to incident appellant Jasmail came in drunk state to their house who asked when by mother to not to come so went away angrily. Not necessarily motive is to appear or proved for every incident and if at all required appears in this case as above. According to evidence, appellant had some 'Dharmela' with husband of deceased. Neither reasons, if any, for need of coming or not coming of appellant need be examined, nor is there any material on it. Even if no motive is or proved or appears, even then, if evidence is fully trustworthy and proved are the facts, then absence of motive is not at all relevant or significant. Last contention is about intention of accused and/on nature of injuries to the knowledge of accused. Learned counsel submitted that accused used to visit their house – was on some what inimical terms with Najar Singh – as per PW 3 and PW 4 ran after them, at least for few steps, so certainly brawls something like occurred above which made accused to inflict injuries. 14 D.B.Criminal Jail Appeal No.1043/2003 (Jasmail Singh v. The State of Rajasthan) A culpable homicide amounts to murder, if death caused by an act committed with (i) such intention to or (ii) intention to inflict such injury as is sufficient in the ordinary course to cause death or (iii) knowledge that so imminently dangerous to cause death in all probabilities. Intention broadly is a mental stage to be gathered from proved facts and surroundings, and very often than not by arms, nature and number of injuries, vitality of organ injury caused. Knowledge of likely effect of injuries is all the more dependent upon arms, number of injuries and parts where inflicted. In the instant case, injuries caused are six - all of sharp object - incised wounds of big dimensions-at vital parts, 3 on head at temporal bone, centre occipital parietal region, right parietal occipital region, - 2 at right hand and one left hand. With these injuries, were fracture of temporal bone and occipital region. Not only thumb of left hand was completely cut and lost but right hand too, completely cut as amputated from wrist joint. All the six injuries are of sharp edged weapon and one at head of 15 cm length and 5 cm width and others at least 7.5 cm length and 2.5 – 3 cm width. As above, injuries are of sharp edged heavy object – incident occurred in a street with a person who just came out of her house. No exchange at least material one of words – the injuries itself prove intention to cause death and also the knowledge that the injuries are so grave and sufficient enough to certainly cause death in normal 15 D.B.Criminal Jail Appeal No.1043/2003 (Jasmail Singh v. The State of Rajasthan) natural course of events. So it stands proved that accused inflicted above mentioned injuries to deceased Ms. Jaspal with intention to cause death and as consequence of injuries, she died within minutes almost spontaneously. The causing of above injuries itself (in absence of just exceptions) not one proves knowledge of appellant that the act being committed by him is of such nature and dangerous enough to cause death in all probabilities but also proves that that act caused (by appellant) with intention to cause death of Mst. Jaspal. This act of accused constitutes offence of murder punishable under Section 302, IPC, and the appellant is rightly convicted. For the above reasons, the appeal, being devoid of merit, is to be rejected. Rejecting the appeal, the conviction of appellant for the offence of Section 302 IPC and sentence awarded of life imprisonment with fine of Rs.1,000/- in default as per judgment dated 20.10.2002 by the Court of Additional Sessions Judge, Sangaria is upheld. The appeal dismissed. (C. M. TOTLA), J. (N. P. GUPTA), J.