1. IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR :: J U D G M E N T :: D.B. CRIMINAL APPEAL NO.617/2003 (Ajij Mohd. Vs. The State of Rajasthan) D.B. CRIMINAL APPEAL AGAINST THE JUDGMENT DATED 16.01.2003 PASSED BY THE LEARNED ADDITIONAL SESSIONS JUDGE (FAST TRACK), RAJSAMAND IN SESSIONS CASE NO.11/2002. DATE OF JUDGMENT : 20th October, 2008 P R E S E N T HON'BLE MR. JUSTICE A.M. KAPADIA HON'BLE MR. JUSTICE DEO NARAYAN THANVI Mr. R.S. Chouhan ) for the accused-appellant. Mr. V.R. Mehta ) Public Prosecutor. BY THE COURT : (PER HON'BLE THANVI, J.) 1. This criminal appeal is directed against the 2. judgment dated 16.01.2003 passed by the learned Additional Sessions Judge (Fast Track), Rajsamand, whereby, he has convicted accused appellant Ajij Mohd. for offence under Section 302 IPC and sentenced him for imprisonment of life and to pay a fine of Rs.2000/-, in default of payment of fine to further undergo six months' simple imprisonment. 2. Facts leading to this appeal are that on 1.11.2001, at 5.50 P.M., one Ayaj Mohd. son of Nijamuddin Silawat submitted a written report Ex.P.1 at Government Hospital, Rajsamand that at 5.30 P.M., when he was standing outside his house, he saw Jabbar Ali alias Saiyad Ali aged 60 years, resident of Mama Bhanej Road, Rajnagar Dargah, standing opposite Dargah, which is in-front of his house. Meantime, accused appellant Ajij Mohd. son of Noor Mohd., retired police constable came there and threw the stick from the hand of Jabbar Ali alias Saiyad Ali and abused him by saying that he has killed his son, 3. hence, he will decide him now. Upon this, he inflicted knife blows on the person of Jabbar Ali. He went to intervene and caught hold left hand of accused appellant Ajij Mohd., then he tried to inflict blows with knife on him, which was in his right hand, whereby, he felt down. Thereafter, accused appellant Ajij Mohd. inflicted four to five knife blows on the person of Jabbar Ali. On call, neighbourers and family members of Jabbar Ali namely Chhotu son of Jabbar Ali, Munna alias Hamid son of Jabbar Ali etc. came there. On seeing them, accused appellant Ajij Mohd. left the spot. They took Jabbar Ali in the car of Guddu son of Yusuf Khan to the hospital and telephoned to police. Jabbar Ali died in the hospital. Police reached at the hospital to whom the FIR was handed over. Thereafter, a case was registered for offence under Section 302 IPC and investigation was commenced. After investigation, accused appellant Ajij Mohd. was challaned in the court of Chief Judicial Magistrate, Rajsamand, who committed the case to the court of Sessions. Before 4. framing of the charge, accused appellant moved an application under Section 329 Cr.P.C. for his medical examination on account of his unsoundness of mind. The report was obtained from Maharana Bhopal Government Hospital, Udaipur, which referred the matter to the Mental Hospital, Jaipur, from where, it was reported that accused appellant is not suffering from any mental disease. Accused appellant Ajij Mohd. was charged for offence under Section 302 IPC, to which he pleaded not guilty. Prosecution examined 17 witnesses. Statement of the accused appellant was recorded under Section 313 Cr.P.C. He led no defence. After hearing the arguments, the learned trial court convicted and sentenced the accused appellant as above. 3. We have re-appreciated the evidence on record and considered the arguments put forth by learned counsel for the accused appellant as well as by learned Public Prosecutor. 5. 4. It is contended by learned counsel for the accused appellant that the testimony of the sole eye witness Ayaj Mohd. PW-1 is not sufficient to connect the accused appellant with the commission of crime. According to him, this witness has told that there were eight knife blows on the stomach inflicted by the accused appellant, but as per the Post Mortem Report Ex.P.23, there are only four injuries of knife, which too is of someone else because the name of the deceased in the Post Mortem Report Ex.P.23 has been given as Rahman Ali son of Rahmat Ali and not of deceased Jabbar Ali. According to the learned counsel, this sole eye witness Ayaj Mohd. PW-1 has named Amna, Chhotu, Hamid, Yajul and Munna as witnesses of the seen of crime, but according to him, they reached at the later stage and their testimony is not reliable. In alternative, he has pleaded that if the conviction is proved, it should be altered to Section 304 Part-I or Part II IPC and the accused appellant Ajij Mohd. be 6. released for the period already undergone, which is more than seven years. 5. Per contra, the learned Public Prosecutor has supported the judgment of the learned trial court. 6. We have closely scrutinized the evidence on record. Ayaj Mohd. PW-1, who first saw the accused appellant Ajij Mohd. inflicting the knife blows has clearly stated that initially accused appellant inflicted four to five knife blows on the stomach and when he intervened, he further inflicted four to five blows on the back side of deceased Jabbar Ali. Thereafter, Munna and family members of the deceased came. We have seen the statement of this witness in the light of the Post Mortem Report Ex.P.23 and the statement of Dr. B.L. Verma PW-17. In the Post Mortem Report Ex.P.23, of-course, there are four injuries both on the back side and on the chest of deceased Jabbar Ali. When the injuries are both on the back side and on the stomach 7. then, cause of death on account of penetrating wound on the chest clearly shows that deceased died due to these multiple injuries. After a considerable lapse of time, it is not possible for a witness to remember as to how many injuries were inflicted and on which part of the body. 7. The contention of learned counsel for the accused appellant that this Post Mortem Report Ex.P.23 is not of the deceased is devoid of force in the light of the statement of Dr. B.L. Verma PW-17, who has stated that he prepared the Post Mortem Report on seeing the photo Ex.P.18 and conducted the post mortem on 1.11.2001 between 6.20 to 7 P.M. Further, the Investigating Officer Harsh Ratnu PW-14 has stated that by mistake, the name of Rahman Ali was entered instead of Jabbar Ali, and in rest of the inquest memos and the reports etc., the name of Jabbar Ali has been entered. During cross examination, he stated that by mistake, this wrong name was entered because there 8. was a crowd of 100 to 150 persons and somebody spoke the name as Rahman Ali, that is why by mistake, it was stated to be Rahman Ali in the Post Mortem Report, whereas, no such dead body of Rahman Ali was lying in the mortuary on that day. According to him, only one FIR was lodged on that day and post mortem of one dead body was conducted i.e. of Jabbar Ali. In our view, this explanation of the Investigating Officer coupled with the evidence of the Doctor is sufficient to hold that the post mortem was conducted of Jabbar Ali and by mistake, it was entered as Rahman Ali. 8. So far as other witnesses are concerned, PW-4 Chhotu, PW-7 Hamid Ali alias Munna and PW-8 Yajul Hussain have also supported the testimony of Ayaj Mohd. PW-1 and have stated that three to four knife blows were inflicted by accused appellant Ajij Mohd. on the stomach and back side of Jabbar Ali. They reached on the spot on hearing the cry of Ayaj Mohd. PW-1. Nothing has come out from their cross examination 9. that they are not the eye witnesses. 9. Apart from this, it is also proved from the testimony of Harsh Ratnu PW-14 that accused appellant Ajij Mohd. was arrested vide Ex.P.8 and upon his information, his clothes and knife were recovered vide Ex.P.21 and Ex.P.12 respectively. These recoveries have also been proved by Hameed Khan PW-10. Photographer Daulat Singh PW-11 has also proved the photos Ex.P.13 to Ex.P.18. Manohar Lal PW-12 is the Malkhana Incharge, who handed over the knife and clothes to constable Durga Shanker for depositing them in the malkhana. In the FSL Report, human blood was found on the clothes and the knife. The clothes of the accused appellant and knife were of the same blood group 'A' i.e. of the deceased. 10. Thus, the direct evidence of eye witnesses supported by the corroborative evidence of recovery clearly demonstrates that it was accused appellant Ajij 10. Mohd. who inflicted repeated knife blows on the front and back portion of Jabbar Ali, whereby, he died. These repeated blows does not bring the case either under any of the exception of Section 300 IPC or with knowledge about likelihood of death. The act of the accused appellant clearly falls under the category of causing intentional injuries with knife to cause death of deceased Jabbar Ali by saying that he will decide his fate to take revenge of his son's killing. Therefore, the learned trial court has rightly convicted the accused appellant for offence under Section 302 IPC and its finding requires no interference by this Court. 11. Consequently, we dismiss this appeal. The judgment dated 16.01.2003 passed by the learned Additional Sessions Judge (Fast Track), Rajsamand, convicting accused appellant Ajij Mohd. for offence under Section 302 IPC and sentencing him for imprisonment of life and to pay a fine of Rs.2000/-, in default of payment of fine to further undergo six 11. months' simple imprisonment is confirmed. Accused appellant Ajij Mohd. is in jail, he will serve out the remaining part of the sentence. (DEO NARAYAN THANVI), J. (A.M. KAPADIA), J. ms rathore