1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR J U D G M E N T MANIYA @ MANI RAM V/S The State of Rajasthan D.B. CRIMINAL APPEAL No. 544 of 2003 Date of Judgment : 2nd March, 2009 PRESENT HON'BLE SHRI N.P.GUPTA,J. HON'BLE SHRI C.M.TOTLA,J. Mr. NL JOSHI, amicus curie for the appellant. Mr. ANIL UPADHYAY, P.P. BY THE COURT: (Per Hon'ble Gupta, J.) This appeal has been filed by the appellant, against the judgment of the learned Sessions Judge, Udaipur dt. 24.4.2003, convicting the appellant for offence under Section 302 IPC, and sentencing him to undergo imprisonment for life, and a fine of Rs. 100/, and in default of payment of fine to undergo seven days rigorous imprisonment. The necessary facts are, that according to the prosecution, on 28.2.2002, Rupa Bai (P.W.1) gave an oral report to the police in M.B. Hospital, Udaipur, to the effect, that at about 9.30 in the morning, the appellant who is their neighbour was 2 harassing her mother in law, the deceased Deu Bai, on the pretext, that she is a witch. Being fed up with the harassment, at about 12 in the noon the deceased went to the police station to lodge the report, and in that process, when she reached near Bawari of Samiti, the accused came from behind, and threw a big stone on her head as a result of which the victim fell down. Thereafter the accused inflicted more injuries with stones, one of which landed on ear, and other on the leg. At that time Jamna, her younger sister in law (Devrani) P.W.2 also came. The victim fell unconscious. Then, they telephoned to their respective husbands. Then, the victim was carried to hospital, where she died. On this report a case for the offence under Section 302 IPC was registered. Necessary investigation was conducted, including post mortem examination etc., and ultimately challan was filed, where-from the case was committed. The learned trial court charged the accused for the offence under Section 302 IPC, who denied the offence, and took a stand of being falsely implicated. During trial the prosecution examined 9 witnesses, which include P.W.1 Rupa Bai and P.W. 2 Jamna, the daughters in law of the deceased, being eye witnesses, P.W.3 Bheru Lal and P.W. 5 Ganesh Lal, being their respective husbands, then P.W. 4 Dev 3 Kishan Sharma, being the carrier, P.W. 6 Mana Gameti being the Motbir of recovery, P.W. 7 Dr. Anis Ahmed being the doctor, who conducted the post mortem, and P.W. 9 Akhilesh Tripathi the Investigation Officer. After so completing the trial, the learned trial court convicted, and sentenced the accused as above. Arguing the appeal it was contended by the learned amicus curiae, that the learned trial court was in error in placing reliance on the evidence of P.W. 1 and 2, who have come forward as eye witnesses, while they were not the eye witnesses, they had not seen the incident, and the deceased being their mother in law, are simply projecting themselves to be the eye witnesses. Likewise, it was also submitted that the place of occurrence is thickly populated, and as had come in the evidence of P.W. 1, that so many people had collected there, but then no independent witness has been produced by the prosecution, and the case is sought to be rested only on the evidence of the relative and interested witnesses. Then, it was submitted that the evidence of the two witnesses P.W. 1 and P.W.2 is self contradictory, inasmuch as P.W.1 has claimed that she was following the deceased, while in cross examination she stated that she was cleaning utensils at the house, and some children informed, that the old lady is shouting, whereupon she went, and 4 regarding P.W.2 she has deposed, that she had also ran along with the witness, while P.W.2 was taking her lunch. As against this P.W. 2 has stated in examination in chief, that they were following the victim, and they had seen the incident, and in cross examination she has stated, that at the time of happening of the incident, some 40-50 people had collected, and that, before they reached the spot some 10-20 persons had already collected. Likewise, contradicting P.W. 1 she has deposed, that she was at the house, and her elder sister in law was arranging the fire woods. It is submitted that this witness has not stated about P.W.1 cleaning utensils, or about herself taking lunch. It was then submitted that according to the eye witnesses only three injuries were caused, being two on the head, and one on the leg, while according to the post mortem the deceased had as many as 6 injuries, out of them five were on the head, which shows that the witnesses had not seen the incident. Then, it was submitted that the story of recovery of weapon of offence, being stone, is a total myth, inasmuch as it is nobody's case that the accused had carried away those stones from the place of incident, while they have been recovered from the Nohra of Gameti community. It was submitted that this Nohra is accessible to all and sundry, and therefore, exclusive possession cannot be attributed to the 5 accused. Learned Public Prosecutor, on the other hand, supported the impugned judgment, and submitted, that P.W.1 and 2 are natural and reliable witnesses, though they are close relations, but then, there is no infirmity in their evidence, and since the report was received by the police in the hospital, where the victim was carried, obviously by then, the people said to have been collected on the spot must have disbursed, and there is nothing to show their identity, so as to enable the investigating agency to spot them, and produce. We have considered the submissions, and have gone through the record very closely. A look at the evidence of P.W. 1 and 2, even together, shows that the place of incident is just near their residential house, inasmuch as in between there are some 20-25 houses. The accused and the victims are the tribal, obviously therefore, the houses are not expected to be so spacious, that the distance should be taken to be so high, as to discard their evidence. Even the way, where the incident had occurred, is shown to be only 5 ½ ft. wide. True it is that there are some inconsistencies, on the aspect, as 6 to whether the two ladies had accompanied the deceased, when she was going to police station to lodge the report, or that they had rushed on hearing the cries, or on being told by the children about the old lady shouting. However after going through the statement of two witnesses very closely, and in conjunction with the post mortem report, and the evidence of the doctor, we are inclined to infer, that as a matter of fact they did not accompany the deceased, when she left for lodging the report, but then, since the accused was annoying the deceased on the ground of her being a witch, for last quite some time, and being fed up, she was going to lodge the report. In such circumstances, this is more convincing and reliable, that these two witnesses were at their house, which was in the vicinity, and on learning about the accused throwing stones on the deceased, they immediately reached, and they saw the man causing only three injuries, obviously the other injuries had already been caused, by the time they reached. It is not the suggestion to the witness in cross examination that some unknown person, or some one or more other persons, had caused the injuries to the deceased, and they, being annoyed with the accused, on any count, had falsely implicated the accused. The accused is their neighbour, and no motive has been shown in the form of any suggestion to any of the witnesses, for 7 the accused being falsely implicated. The evidence of the two witnesses P.W.1 and 2 is very natural. These two are tribal girls of the age of 26 and 22 respectively, from whom it cannot be expected, that they would indulge in prevarication, and in manipulation in the matter of evidence in the Court, apart from the fact, that there is no such suggestion given to either of them. Then by their conduct of calling their respective husbands P.W. 3 and 5, and immediately narrating whole thing to them also corroborates the fact, that P.W. 1 and 2 were the eye witnesses. We may notice here, that the statements of P.W. 1, P.W. 2 and P.W. 3 were recorded on the same day, and P.W. 3 has been suggested, that he had a dispute with Maniya since earlier, and has cooked up a false case in collusion with his family members. Ofcourse this suggestion was denied. Then, P.W. 5 has been examined on the next day, and to him it was suggested, that the victim died in an accident, and the accused is falsely implicated. Thus, this shows that the accused was simply cooking up defences, without there being any. Thus, in our view, learned trial court was right in relying upon the testimony of P.W. 1 and 2, duly corroborated by the evidence of P.W. 3 and 5. Then, the doctor P.W. 7 Anis Ahmed has clearly deposed, that there being five injuries on the head, 8 and injury no. 1 and 5 were sufficient in the ordinary course of nature to cause death, and that, there were fractures corresponding to these injuries. At this place we may observe, that injury no. 1 is a lacerated wound 4 x 0.5 cm. bone deep behind left ear with clotted blood, and injury no. 5 is lacerated wound 2 x 2 cm. bone deep on the right side of the forehead with clotted blood, and the doctor in his examination in chief has deposed, that on opening of the skull, he noticed a 5 cm. long fracture on the right temporal, and on the right frontal bone, while there is no corresponding injury on the right temporal bone, but then it clearly appears, that it was an accidental slip on the part of the doctor, inasmuch as a look at the post mortem report Ex. P-13 shows, that therein fracture on left temporal bone has been noticed, and not on right temporal, of course fracture of right frontal bone is there. The injury had caused sub-dural haemorrhage over the brain, and the deceased died of comma, due to the above ante mortem injuries. Then as appears from Ex.P-10, that the stones weighed about 3 Kg., and 1 Kg., i.e. they were sufficient lethal. Thus, from an over all comprehension of the evidence, it is writ large, that the accused was annoying the deceased on the ground of her being a witch, and being fed up, she was going to lodge a 9 report at the police station, and in order to get rid of the witch, the accused repeated multiple injury on vital part of the deceased, two of which caused fractures on the skull, resulting into haemorrhage on the brain, and the deceased died shortly after receiving the injuries. In such circumstances, we do not find any error on the part of the learned trial court in finding the accused guilty of the offence under Section 302 IPC as well. The net result of the aforesaid discussion is, that we do not find any force in the appeal. The same is, therefore, dismissed. ( C.M.TOTLA ),J. ( N P GUPTA ),J. /Sushil/