D.B. Criminal Appeal No. 847/2007 D.B. Criminal Revision Petition No. 1030/2008 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR JUDGMENT Anand Versus The State of Rajasthan D.B. CRIMINAL APPEAL NO. 847/2007 AND Manoj Bagadia Versus The State of Rajasthan & Anr. D.B. CRIMINAL REVISION PETITION NO. 1030/2008 Date of Judgment : 21.07.2010 PRESENT HON'BLE MR. JUSTICE PRAKASH TATIA HON'BLE MR. JUSTICE KAILASH CHANDRA JOSHI Mr. J.S. Choudhary alongwith Mr. M.K. Garg for the accused- appellant Mr. A.R. Nikub – Public Prosecutor Mr. Sandeep Mehta alongwith Mr. Vineet Jain for the complainant BY THE COURT (PER HON'BLE JOSHI, J.) This order will decide D.B. Criminal Appeal No. 847/2007 preferred by accused appellant Anand S/o Dhanraj by caste Gadodiya and D.B. Criminal Revision Petition No. 1030/2008 preferred by the complainant Manoj Bagadia against the State as well as respondent No. 2, accused Anand. D.B. Criminal Appeal No. 847/2007 and D.B. Criminal Page 1 of 15 D.B. Criminal Appeal No. 847/2007 D.B. Criminal Revision Petition No. 1030/2008 Revision Petition No. 1030/2008 both arose out of the same judgment of the Additional District and Sessions Judge, Sujangarh, District Churu, dated 27.08.2007 passed in Sessions Case No. 1/2007. The accused appellant in the above Sessions Case was convicted for the offence under Section 302 IPC and sentenced to undergo life term imprisonment upto his life time alongwith a fine of Rs.1000/-. The nub of the prosecution story is that the complainant Manoj Bagadia S/o Motilal submitted a written report Ex.P.11 before the Station House Officer of the Police Station, Sujangarh, District Churu stating that he himself was a resident of Village Nechava and had gone to visit his maternal uncle Dhanraj S/o Indrachand, resident of Gopalpura, on 10.08.2002. He stayed there for the night. On 11.08.2002, while he was standing on a nearby shop, he heard loud cries coming from his uncle's place. He rushed to the spot and saw that both his uncle and aunt had been seriously injured by the accused appellant Anand, resident of Sujangarh and son of the uncle's first wife. The accused appellant used a knife to inflict injuries upon the deceased Dhanraj and his wife Shakuntala, who succumbed to death, soon after the incident. The uncle's Page 2 of 15 D.B. Criminal Appeal No. 847/2007 D.B. Criminal Revision Petition No. 1030/2008 daughter and the neighbours saw the incident happening. The neighbours caught the accused Anand and informed the police, but till that time both the injured succumbed to the injuries. On the aforesaid report, a criminal case No. 141/2002 under Section 302 IPC was registered and investigation was commenced. During the course of investigation, the accused appellant Anand was arrested and statements of the witnesses were recorded under Section 161 CrPC. Autopsy was conducted on the dead bodies of both the deceased. A knife was recovered from the possession of Bhikamchand who had snatched that knife from the accused appellant just after the incident. After usual investigation, a charge-sheet was presented in the court of Civil Judge (Junior Division) and Judicial Magistrate, Sujangarh, from where the case was committed for trial to the court of Additional District and Sessions Judge, Ratangarh and later on after creation of the post of Additional District and Sessions Judge, Sujangarh, the case was transferred to the court of Additional District and Sessions Judge, Sujangarh for trial. The accused appellant was charged for commission of offence under Section 302 IPC. To prove the alleged offence, the prosecution examined 15 witnesses, namely, P.W.1 Ila, Page 3 of 15 D.B. Criminal Appeal No. 847/2007 D.B. Criminal Revision Petition No. 1030/2008 P.W.2 Bhikamchand, P.W.3 Mangilal, P.W.4 Satish Gadodiya, P.W.5 Bheem Singh Rathore, P.W.6 Vijay Kumar, P.W.7 Manoj Bagadia, P.W.8 Nathu Singh, P.W.9 Pawan Pareek, P.W.10 Dr. Narendra Kumar Pradhan, P.W.11 Hunataram, P.W.12 Girdharilal, P.W.13 Sharwanram, P.W.14 Kundanmal and P.W.15 Jagdish Bohra. The incriminating evidence produced by the prosecution during the course of trial was put to the accused for explanation under Section 313 CrPC and the accused appellant produced no evidence in his defence. However, the injury report of the accused appellant Anand was admitted by learned Public Prosecutor and on the basis of the above admission, it was marked as Ex.D.3. The learned trial court convicted the accused appellant for commission of offence under Section under Section 302 IPC and sentenced him as narrated above. Hence, this appeal. The learned trial judge while relying on the statements of the eye-witnesses P.W.1 Ila, P.W.2 Bhikamchand, P.W.3 Mangilal, P.W.4 Satish and P.W.7 Manoj, convicted the accused appellant for commission of offence for which he was charged. The prosecution examined P.W.1 Ila, P.W.2 Bhikamchand, P.W.3 Mangilal, P.W.4 Satish and P.W.7 Manoj Bagadia as eye-witnesses. P.W.5 Bheem Singh is the witness of recovery. P.W.6 Vijay Kumar is the witness of recovery as well Page 4 of 15 D.B. Criminal Appeal No. 847/2007 D.B. Criminal Revision Petition No. 1030/2008 as Supurdgi of dead body. P.W.7 Manoj was examined as an eye-witness as well as the lodger of the first information report. P.W.8 Nathu Singh deposed about the registration of FIR. P.W.9 Pawan Pareek was examined as a Photographer. P.W.10 Dr. Narendra Kumar Pradhan conducted autopsy on the dead bodies of the deceased. P.W.11 Hunataram deposed about depositing of Malkhana articles. P.W.12 Girdharilal deposed about carrying of Malkhana articles in a sealed position. P.W.13 Sharwanram and P.W.15 Jagdish Bohra are the Investigating Officers and also deposed about the filing of charge-sheets. P.W.14 Kundanmal is the motbir witness of arrest memo. The prosecution further produced 38 documents in support of prosecution story. P.W.1 Ila, P.W.2 Bhikamchand, P.W.3 Mangilal, P.W.4 Satish and P.W.7 Manoj Bagadia are the eye-witnesses to the alleged crime. All these 5 eye-witnesses deposed that on the date of incident, i.e. 11.08.2002, at about 11.00 a.m. the accused appellant Anand came to the residence of the deceased Dhanraj and caused injuries to the deceased Dhanraj and Shakuntala with a knife and at that time all of them tried to rescue the deceased from the grip of the accused, but they could not do so. During the course of the incident, the knife fell down from the hand of the accused appellant and it was kept by P.W.2 Bhikamchand under his possession. Further all the witnesses Page 5 of 15 D.B. Criminal Appeal No. 847/2007 D.B. Criminal Revision Petition No. 1030/2008 also deposed about the parts of bodies of the deceased injured by the accused appellant. Further all these witnesses also deposed that when the accused appellant tried to run away from the place of incident, he fell down at the door and got injured due to that. P.W.10 Dr. Narendra Kumar Pradhan deposed that on 11.08.2002 when he was Medical Officer at Government Medical Hospital, Sujangarh, he conducted an autopsy on the dead body of Dhanraj S/o Indrachand, aged 42 years and he found the following injuries on the dead body of the deceased Dhanraj :- (1) Penetrating wound 1.0 x 0.5 x 2.0 left shoulder joint towards left infraclavicular region (2) Incised wound 4.0 x 0.5 x Bone deep semi lunar in shape left parietal bone of scalp (3) Penetrating wound 0.8 x 0.5 x 2.0 on neck above xypni sternum which pierced to trecrea (4) Penetrating wound 3.0 x 0.6 x 3.0 on chest right side on 4th intercostal space (5) Incised wound 0.5 x 0.5 x 0.5 supra axillary region right side (6) Penetrating wound 0.5 x 0.5 x 0.5 infra axillary region left side towards medial and upward (7) Penetrating wound 0.5 x 0.5 x 4.0 infra axillary right side of chest (8) Penetrating wound 1.0 x 1.0 x 5.0 left hypochonone region Page 6 of 15 D.B. Criminal Appeal No. 847/2007 D.B. Criminal Revision Petition No. 1030/2008 of abdomen (9) Incised wound 0.8 x 0.5 x 0.5 left forearm 2” below elbow joint (10) Incised wound 1.0 x 0.5 x muscle deep infra lateral quadrant at right gluteal region (11) Abrasion 5.0 x 0.2 lateral aspect at right thigh 2” above knee joint P.W.10 Dr. Narendra Kumar Pradhan further deposed that he had also conducted autopsy on the dead body of Shakuntala and had found the following injuries on the body of Shakuntala :- (1) Penetrating wound 0.5 x 0.5 x 1.5 submandibular region left side 3” below left ear (2) Penetrating wound 2 in number (to and fro) 0.5 x 0.5 x 3.0 at left shoulder joint, 0.5 x 0.5 x 3.0 supraclavicular region left side interconnected to each other (3) Penetrating wound 0.5 x 0.5 x 6.0 supra axillary region left side (4) Penetrating wound 0.5 x 0.5 x 4.0 supra axillary region left side (5) Abrasion 0.5 x 0.5 supra clavicular region left side In the opinion of the P.W.10 Dr. Narendra Kumar Pradhan, all the injuries were ante-mortem in nature and the cause of death of the deceased Dhanraj and Shakuntala was hemorrhagic shock due to multiple injuries. Page 7 of 15 D.B. Criminal Appeal No. 847/2007 D.B. Criminal Revision Petition No. 1030/2008 The main contention of the learned counsel for the accused appellant in this case is that all the eye-witnesses examined by the prosecution are interested witnesses and they are more or less related to each other, therefore, on the evidence of partisan witnesses, conviction of the accused appellant cannot be sustained. Learned counsel further argued that there were four injuries on the body of the accused appellant and the injury report Ex.D.3 was admitted by the learned Public Prosecutor, thus, the non-explanation of the injuries on the body of the accused appellant also creates serious doubts about the genesis of prosecution story. Further the learned counsel for the accused appellant also argued that the motive so alleged by the prosecution is very weak and it is again a double edged weapon because due to this motive, the accused can also be falsely implicated in the crime. Learned counsel for the accused appellant also argued that the act of the accused appellant does not come within the purview of Section 302 IPC and in the heat of passion or sudden provocation the accused appellant had caused the injuries, but the act of the accused does not come within the definition of Clause (3) of Section 300 IPC. We have considered the rival contentions as argued Page 8 of 15 D.B. Criminal Appeal No. 847/2007 D.B. Criminal Revision Petition No. 1030/2008 by the learned counsel for both the parties and also evaluated and scanned the evidence available on record. The case arises basically out of enmity between the deceased and the accused appellant. As per the allegation of the prosecution, the incident took place on 11.08.2002 at about 11.00 am. in Village Gopalpura at the residence of the deceased Dhanraj. At that time both the deceased Dhanraj as well as his wife Shakuntala, who was the step mother of the accused appellant, were at their residence and the accused appellant came there and stabbed both the deceased with a knife. At that time P.W.1 Ila, P.W.2 Bhikamchand, P.W.3 Mangilal, P.W.4 Satish and P.W.7 Manoj were there and they saw the incident, thus, they are the ocular witnesses of the crime, in which due to the knife blows on the body of the deceased Dhanraj and Shakuntala both died on the spot. Both were taken to the Government Hospital, Sujangarh, where an autopsy was conducted on the dead bodies of both the deceased. We have carefully gone through the evidence of all the five eye-witnesses and found that their statements are consistent and virtually unfolding the prosecution version. The presence of these witnesses at the place of occurrence (within the house) was natural and their evidence was found acceptable by the learned trial court after exercising due care and caution considering the Page 9 of 15 D.B. Criminal Appeal No. 847/2007 D.B. Criminal Revision Petition No. 1030/2008 fact that they were related/partisan witnesses and there was no delay on the part of the prosecution in lodging the First Information Report. In our view, the relationship of the eye- witnesses in itself cannot be a ground to discard their evidence when the occurrence took place within the house at the instance of the close relatives and in such a situation, only relatives could be the eye-witnesses. Admittedly there was some dispute between the deceased and the accused appellant, but that by itself cannot be a ground to discard the ocular evidence of the related witnesses which is cogent and credible. It is a settled principle of law that the evidence of the partisan witnesses requires close scrutiny and scanning, but their evidence cannot be discarded outrightly on the ground of their relationship, therefore, the argument advanced by the learned counsel for the accused appellant regarding the examination of the interested witnesses or partisan witnesses cannot be sustained. So far as the second argument regarding the explanation of injuries on the body of the deceased is concerned, there is no general principle that non-explanation of injuries on the body of the accused in all cases vitiates the prosecution case and it would depend on facts and circumstances of each case. In the instant case, no right of private defence was pleaded by the accused appellant before the learned trial Judge. The injury Page 10 of 15 D.B. Criminal Appeal No. 847/2007 D.B. Criminal Revision Petition No. 1030/2008 report Ex.D.3 bears four injuries, out of which two are lacerated wounds, one is an abrasion and one is a bruise, but it can very well be explained by the prosecution because this fact has already been narrated in the First Information Report that when the accused tried to run away just after the incident, he fell down and the natural consequence of that falling was the injuries as narrated in Ex.D.3. In view of the above discussion, the non- explanation of the injuries on the body of the accused is inconsequential and accordingly, the argument as advanced by the learned counsel for the accused appellant is not sustainable. The argument advanced by the learned counsel for the accused appellant that the act of the accused appellant did not come within the purview of Section 300 IPC, we have perused the statement of P.W.10 Dr. Narendra Kumar Pradhan where he has mentioned 11 external injuries on the body of the deceased Dhanraj and 5 external injuries on the body of the deceased Shakuntala and as per his opinion, the injuries on the bodies of both the deceased were ante-mortem in nature and as per his opinion, the cause of death of both the deceased was hemorrhagic shock due to multiple injuries. Thus, it is a well proved case of the prosecution that the accused appellant entered the residential house of deceased Dhanraj and Shakuntala and stabbed both the deceased with knife and Page 11 of 15 D.B. Criminal Appeal No. 847/2007 D.B. Criminal Revision Petition No. 1030/2008 injuries were found on parietal bone, respiratory canal, on the right chest, under the right shoulder, left hypochondic region of abdomen, right arm and left thigh of the deceased Dhanraj and penetrating wound on the supracondulor region of left side of ear, shoulder joint and penetrating wound under the left shoulder of the deceased Shakuntala. There is ample evidence on record that the accused appellant was carrying a knife with him when he entered the place of the incident. The weapon of offence, i.e. the knife, is certainly a deadly weapon and therefore, the accused appellant Anand knew the consequence of giving penetrating bodily injuries by such a deadly weapon. The accused appellant inflicted repeated blows on the bodies of both the deceased and penetrating wounds were found on the bodies of both the deceased on vital parts like parietal region and abdomen, which were responsible for their deaths. Looking to the nature of the injuries inflicted by the accused appellant, it can safely be said that he also had knowledge that such bodily injuries were imminently dangerous and in all probabilities may cause death. Further the intention to cause death can also be gathered from this fact that while entering the residence of the deceased, he was carrying a knife with him, therefore, there is sufficient evidence on record that the accused appellant committed an offence not less than offence under Section 302 Ipc. The accused appellant is alleged to have inflicted knife Page 12 of 15 D.B. Criminal Appeal No. 847/2007 D.B. Criminal Revision Petition No. 1030/2008 blows on the body of deceased Dhanraj and when deceased Shakuntala came to rescue her husband, accused appellant Anand inflicted knife blows on the chest of Shakuntala also and these knife blows resulted in the deaths of both the deceased. The testimony of the eye-witnesses inspires confidence and nothing is brought on record to impeach their credibility nor is there any major contradiction or omission and is discernible in nature. Thus, this cannot be said to be a case of sudden quarrel within the meaning of Explanation 4 to Section 300 IPC at all. The accused appellant had taken advantage of the situation in the sense that when Shakuntala came to the rescue of her husband Dhanraj, the accused appellant inflicted injuries on the body of Shakuntala also. Pre-meditation to cause the death of both the deceased is thus proved. Thus, the 4 requirements for applicability of Explanation 4 to Section 300 IPC is not satisfied. Further we have also considered the report of the Forensic Science Laboratory which also proves the presence of the same blood group on the knife, blood stained clothes of both the deceased and the blood stained clothes of the accused appellant. In view of the discussion aforesaid, the judgment of conviction of the accused appellant Anand under Section 302 IPC Page 13 of 15 D.B. Criminal Appeal No. 847/2007 D.B. Criminal Revision Petition No. 1030/2008 passed by the Additional District and Sessions Judge, Sujangarh in Sessions Case No. 1/2007 is maintained. So far as the sentence portion is concerned, there is a revision petition filed by the complainant Manoj Bagadia before this court and which is also being decided by this judgment. Learned counsel for the complainant contended that the offence committed by the accused appellant is so heinous and cold-blooded that the sentence of life term imprisonment awarded by the learned trial Judge requires to be substituted by death sentence. Per contra, learned counsel for the accused appellant contended that the learned trial Judge while awarding the sentence of life imprisonment also mentioned that the accused will remain in jail till he is alive and this part of sentence requires to be substituted by only life term imprisonment because it also curtails the rights of the State Government as well as the authorities concerned who can pardon the accused appellant under constitutional powers. We have considered the rival contentions of both the parties and in our view, this is not the rarest of the rare cases in Page 14 of 15 D.B. Criminal Appeal No. 847/2007 D.B. Criminal Revision Petition No. 1030/2008 which punishment of death should be imparted. So far as the contention of the learned counsel for the accused appellant regarding the sentence portion is concerned, we modify the sentence of the accused appellant for the offence under Section 302 IPC to life term imprisonment instead of life term imprisonment till the accused is alive, alongwith a fine of Rs.1000/- and in default of payment of fine, the accused will have to further undergo a simple imprisonment of three months. Accordingly, the conviction of the accused appellant Anand under Section 302 IPC is maintained, however, the sentence awarded by the learned trial Judge is modified as mentioned above. Resultantly, the D.B. Criminal Appeal No. 847/2007 filed by the accused appellant Anand against the judgment and sentence dated 27.08.2007 passed by the learned Additional District and Sessions Judge, Sujangarh, District Churu in Sessions Case No. 1/2007 is partly allowed in the aforesaid terms. The revision petition filed by the complainant Manoj Bagadia bearing D.B. Criminal Revision Petition No. 1030/2008 is dismissed. [KAILASH CHANDRA JOSHI],J. [PRAKASH TATIA],J. Pramod Page 15 of 15