DB Criminal Appeal No.59/2003 [Bhaga Ram Vs. State of Rajasthan] {1} IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR **** :JUDGMENT: Bhaga Ram Vs. State of Rajasthan D.B. Criminal Appeal No.59 of 2003 under Section 374(2) Cr.P.C. against the judgment dated 16.11.2002 passed by the learned Additional Sessions Judge (Fast Track), Sirohi in Sessions Case No.30/2002 (15/2002). Date of Judgment :::: 16 July, 2010 PRESENT Hon'ble Mr. Justice Prakash Tatia Hon'ble Mr. Justice Kailash Chandra Joshi Mr. P.N. Mohnani, for the appellant. Mr. K.R. Bishnoi, Public Prosecutor. By the Court(per Hon'ble Joshi,J.) Being aggrieved by the judgment and order of sentence recorded in Sessions Case No.30/2002 (15/2002) by Additional District & Sessions Judge (Fast Track), Sirohi dated 16.11.2002 accused-appellant Bhaga Ram S/o Shri Kana @ Kaniya, r/o Kailash Nagar, Police Station Barloot, District Sirohi preferred this appeal. The brief facts of the case as unfolded by the prosecution story is that Smt. Sita, the deceased was the wife of the appellant Bhaga Ram and the incident took place on 02.03.2002 at about 7 pm in the hut of Tammar Wala Khet situated at Kailash Nagar. However, as per prosecution story, it was alleged that the appellant came in the hut with an axe in his hand and inflicted number of blows on her neck. Hira, who was present at the place of incident, saw the occurrence along with Ramiya and DB Criminal Appeal No.59/2003 [Bhaga Ram Vs. State of Rajasthan] {2} his blind father was also there. Eye witness Hira, soon after the incident rushed from the place as the accused appellant also ran after him. On the way, Anda met Hira who also came on the spot and found the neck of the deceased cut and he went to the Police Chowki, Kailash Nagar and lodged the FIR (Ex.P/7) at about 09:30 p.m. on the same night. On the basis of Ex.P/7, case was registered in the Police Station Barloot. The investigating officer arrested the accused and on the basis of information recorded under Section 27 of the Indian Evidence Act, recovered an axe and Angocha (towel). After usual investigation, challan was filed against the accused for the commission of offence under Section 302 IPC in the court of Munsif and Judicial Magistrate, Sheoganj from where the case was committed to the court of Sessions Judge, Sirohi and ultimately transferred to the court of Addl. Sessions Judge (Fast Track), Sirohi for trial. The accused was charged for commission of offence under Section 302 IPC. The accused did not plead guilty and claimed to be tried. The prosecution examined as many as 11 witnesses in support of prosecution story. The accused was examined under Section313 Cr.P.C. and he examined one witness in his defence as DW-1. Learned trial Judge, while holding the accused-appellant guilty for commission of offence under Sectio 302 IPC, sentenced him for life imprisonment and fine of Rs.5,000/- and further to undergo one year's imprisonment in default of payment of fine. DB Criminal Appeal No.59/2003 [Bhaga Ram Vs. State of Rajasthan] {3} In this case, the prosecution examined PW-2 Hira and PW- 3 Ramesh as the eye witnesses of the offence and PW-1 Rata Ram was examined as the witness of Memo of Panchnama of dead body of Sita and taking the blood stained soil and other soil by the police and he is also the witness of execution of memo (Ex.P/4) by which the blood stained clothes of deceased were taken in possession by the investigating officer. PW-2 Hira and PW-3 Ramesh both the witnesses deposed that they along with their sister Sita and father Devaji were sitting in their house, which was situated in the agricultural field of well of Tammarwala. In the evening, at the time of sun set, his sister Sita was collecting sticks, at that time accused appellant Bhaga came there. He was having an axe in his hand. Bhaga inflicted 6-7 injuries on the neck of deceased Sita. PW-2 Hira cried and at that time, Bhaga ran after him. After running some away, his cousin brother Anda met him. He immediately told him the entire incident. He along with Anda came to the place of incident. At that time, Bhaga already ran away from that place. Anda went to the Kalash Nagar, Police Chowki and informed about the incident. PW-4 Moda Ram corroborated the evidence of PW-1 Rata Ram. PW-5 Laxman Singh deposed that he was posted at Police Station, Barloot as Head Constable. On dated 2.3.2002, Hari Kishan Gaur, SHO, sent a report (Ex.P/7) with constable Hanuman Singh from Kailash Nagar, Police Chowki for registration of the case. On the basis of that report, he registered FIR No.13/2002 under Section 302 IPC and he further DB Criminal Appeal No.59/2003 [Bhaga Ram Vs. State of Rajasthan] {4} executed a Parcha (Ex.P/3) and sent the FIR for further investigation to Hari Kishan Gaur, SHO. On 3.3.2002, as the Mal Khana Incharge of Police Station Barloot, he received three sealed packets, which were deposited by him. PW-6 Hanuman Singh deposed about bringing FIR Ex.P/7 from Kailash Nagar, Police Chowki to Police Station, Barloot and further deposed about the evidence of bringing the sealed packets. PW-7 Dr.Bhanwar Lal Bishnoi is the Medical Officer concerned, who conducted the autopsy on the body of deceased Sita and he found the following external injuries on the body of the deceased:- (i)Lacerated wound – round shape about 1x1x2 cm. deep just below the right angle of mouth. (ii)Lacerated wound – at chin in between and involving upper neck flap of skin and vessel hanging down, size 5X4X3 cm deep and injury under mandible bone and having large blood vessel of neck. (iii)Incised wound on the shoulder 3X0.5X0.5 cm. (iv)Collection of large amount of blood below skin at upper neck supra clavicle region and involving upper chest. As per his opinion, the cause of death of Sita was shock because the bleeding from incised large blood vessel of neck. Further he deposed that injuries found on the body of Sita were sufficient to cause death in the ordinary course of nature and injuries were 12-16 hours earlier to death. The contention of the learned counsel for the accused – appellant is that PW-2 Hira and PW-3 Ramesh cannot be termed as eye witnesses and it cannot be said that they have seen the occurrence because their names do not appear in Ex.P/7, which was lodged by Anda in Police Chowki, Kailash Nagar. The next DB Criminal Appeal No.59/2003 [Bhaga Ram Vs. State of Rajasthan] {5} contention of the learned counsel for the accused-appellant is that as per the ocular evidence produced by the prosecution, 6-7 blows with sharp side of the axe were given on the neck, which is inconsistent with medical evidence and postmortem report Ex.P/14 because PW-7 Dr. Bhanwarlal Bishnoi did not find any injury by sharp weapon on the neck of deceased Sita. The learned counsel for the accused-appellant also argued that as Anda, who reported the matter in Police Chowki, Kailash Nagar, has not been produced by the prosecution in evidence, therefore, FIR cannot be termed as proved one and the whole prosecution story becomes suspicious. Counsel for the accused-appellant also argued that the motive on the part of the accused-appellant has not been proved. The angochha (towel) and the axe were recovered from the open place, therefore, they do not connect the accused-appellant with the crime. In support of his arguments, learned counsel for the accused-appellant cited the following decisions:- (1)Daulat Trimbak Shewale & ors. Vs. State of Maharashtra, [2004 Cr.L.J. 2825] (2)Raj Pal & Anr. Vs. State of Haryana, [2007 Cr.L.J. 2926] (3)Devatha Venkataswamy @ Rangaiah Vs. Public Prosecutor, High Court of A.P., [2003 Cr.L.J. 4332] (4)Jagir Singh & ors. Vs. State of Haryana, 2004 SCC (Cri) 1162. (5)Ramesh Baburao Devaskar & ors. Vs. State of Maharashtra, [2008 Cr.L.J. 372] Per contra, learned Public Prosecutor vehemently defended the judgment of the learned trial court and argued that the statements of two eye witnesses PW-2 Hira and PW-3 Ramesh cannot be termed as untrustworthy for the reason that the first information report Ex.P.7 finds the names of these two witnesses DB Criminal Appeal No.59/2003 [Bhaga Ram Vs. State of Rajasthan] {6} along with the name of the father of deceased Sita , who was blind and there is no contradiction even in the cross-examination of these two witnesses and the presence of these two witnesses at the place of incident is natural and further the statements of these two witnesses are corroborated by the evidence of recovery of blood-stained odhni of deceased and blood-stained axe as a weapon of offence and angochha (towel) wore by the accused-appellant at the time of incident and further the fact that the blood was found on the odhni, axe and angochha is corroborated by the report of State Forensic Science Laboratory Ex.P/38. As per that report, the odhni, axe and angochha, all the three articles are stained by “AB” Group of blood. So far as the motive is concerned, the learned Public Prosecutor argued that the FIR Ex.P/7 itself contains this fact in part G to H which is further interrogation by the Station House Officer from the lodger of the FIR and it contains that the accused used to beat Sita and in view of the fact that 2-3 days ago from this incident, Sita was beaten by her husband and that is why she came to the residence of her father. This fact proves motive on the part of the accused-appellant to commit offence. We have pondered over the evidence produced by the prosecution and also the arguments advanced by both the parties and also carefully gone through the authorities cited by learned counsel for the accused-appellant. The main contention of the accused-appellant is that there is emphatic statement of both the witnesses that the accused- appellant caused injuries by axe whereas as per the postmortem DB Criminal Appeal No.59/2003 [Bhaga Ram Vs. State of Rajasthan] {7} report, only one incised wound was found on the right shoulder of the deceased and rest of the injuries were lacerated wounds, which could not be caused by sharp edged weapon like axe. While controverting this argument, learned Public Prosecutor argued that there is no statement of the eye witnesses PW-2 Hira and PW-3 Ramesh who deposed only that accused-appellant caused injuries on the neck of the deceased. In absence of specific evidence regarding causing injuries by the sharp edged side of axe, it cannot be presumed that the injuries were caused by the accused – appellant from the sharp edged side of the axe. In our view, the contention of the learned counsel for the accused-appellant cannot be sustained and it can very well be said that the injuries on the neck of the deceased might have been caused by the blunt side of the axe. Another contention of the learned counsel for the accused- appellant is that there is contradiction in the statements of the witnesses and the medical report but as we have discussed in earlier para, this argument is also not sustainable. The next argument of the counsel for the accused- appellant is that as per the medical opinion, the cause of death is due to shock because of bleeding from incised large blood vessels of neck and this injury was caused by blunt weapon, therefore, offence cannot go beyond the purview of Section 325 IPC but in view of the statements of the eye-witnesses PW-2 Hira and PW-3 Ramesh coupled with the postmortem report and the evidence of PW-7 Dr. Bhanwarlal Bishnoi, the cause of death DB Criminal Appeal No.59/2003 [Bhaga Ram Vs. State of Rajasthan] {8} was bleeding from the incised large blood vessels of neck and the causing of fatal injuries by the accused-appellant on the neck of the deceased is well proved. The weapon of offence, i.e. axe is certainly a deadly weapon and, therefore, accused-appellant Bhaga must be knowing the consequences of giving bodily injuries by such a deadly weapon particularly injuries on the neck of the deceased which caused deep wounds causing bleeding from the neck of the deceased and it clearly establishes the intention on the part of the accused – appellant to cause death of deceased Sita. The testimonies of the eye-witnesses PW-2 Hira and PW-3 Ramesh coupled with the postmortem report and the evidence of PW-7 Dr. Bhanwarlal Bishnoi clearly establish the fact that the accused-appellant has certainly given bodily injuries which were eminently dangerous and in all probability may cause death and the intention to do so is well established by the above facts. As per the statement of PW-7 Dr. Bhanwarlal Bishnoi the external injuries were antemortem in nature. The contention of the learned counsel for the accused-appellant that the intention of the accused-appellant was not to cause death of deceased because had there been any such intention, the injuries might have been caused with the sharp side of the axe, cannot be accepted simply for the reason that the neck is the vital part of the body particularly while causing the injuries even from the blunt side of the axe were sufficient in the ordinary course of nature to cause death of the deceased. DB Criminal Appeal No.59/2003 [Bhaga Ram Vs. State of Rajasthan] {9} Further, we have scanned and evaluated the corroborative piece of evidence of recovery of blood stained odhni, axe and angochha. The fact of taking into possession the odhni of the deceased had further been corroborated by the evidence of PW-4 Moda Ram. PW-5 Laxman Singh, PW-6 Hanuman Singh and PW- 9 Kana Ram had proved the fact that all the articles, which were sent to the Forensic Science Laboratory for examination remained sealed and intact. Forensic Science Laboratory report Ex.P/18 clearly shows that the odhni wore by the deceased, axe used as weapon of offence and angochha wore by the accused were found stained with blood of same group, i.e. “AB”. Regarding the evidence of DW-1 Lasa Ram, the learned trial Judge, while appreciating his evidence, disbelieved his statement and the reasons as mentioned in the judgment are reasonable one. So far as the authorities cited by the learned counsel for the accused-appellant are concerned, we have perused the judgments cited by the learned counsel for the accused-appellant but the facts of the above authorities are different from the facts of the present case. In view of the aforesaid discussion made, there are two sets of evidence available against the accused-appellant; (i) uncontroverted evidence of two eye witnesses PW-2 Hira and PW-3 Ramesh and (ii) recovery of blood stained odhni, axe and angochha bearing the same blood group of “AB” and it clearly establishes the guilt of the accused-appellant under Section 302 DB Criminal Appeal No.59/2003 [Bhaga Ram Vs. State of Rajasthan] {10} IPC. Accordingly, on the basis of the evidence available on the record, there is sufficient evidence to sustain the judgment of the learned Additional District & Sessions Judge (Fast Track), Sirohi. Resultantly, the appeal of the accused-appellant Bhaga deserves to be rejected and is rejected and the judgment of conviction and sentence dated 16.11.2002 passed by the learned Additional Sessions Judge (Fast Track), Sirohi in Sessions Case No.30/2002 (15/2002) is maintained. [Kailash Chandra Joshi],J. [Prakash Tatia],J. /skm/