-1- IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR J U D G M E N T Narendra Yadav & others Vs. State of Rajasthan (1)D.B. CRIMINAL APPEAL NO.523/2000 Vijay Kumar alias Lucky & ors. Vs. State of Rajasthan (2) S.B.CRIMINAL APPEAL NO.480/2000 against the judgment dt.19.8.2000 passed by Special Addl.Sessions Judge(Women Atrocities), Sri Ganganagar, in Sessions Case No.29/1999. Date of Judgment: August 24,2006 P R E S E N T HON'BLE MR.JUSTICE N.N.MATHUR HON'BLE MR.JUSTICE R.P.VYAS Mr.HSS Kharlia, Mr.Ramandeep Singh, Mr.S.S.Dhillon, Mr.Digvijay Singh, for appellants. Mr.JPS Choudhary, Public Prosecutor. Mr.Mahesh Bora, Mr.D.L.Rawla, for complainant. BY THE COURT : (PER HON'BLE MR.MATHUR J.) 1. The facts of the case disclose an act of unparallel evil and brutality in the intervening night of 11t h and 12t h -2- October, 1998, when two members of the family viz; Mst.Nirmala and her son Ajay were bettered to death by none other than a family friend viz; appellant Monu alias Virendra Singh and his associates appellants Narendra Yadav alias Hariyanvi and Reenu alias Narendra Singh. The occurrence is alleged to have witnessed by the only surviving member of the family viz; PW 1 Miss Shweta aged 18 years. Her father and brother PW 3 Amit were at far distance in Europe serving the Merchant Navy. Deceased Nirmala lived with her deceased son Ajay and injured witness PW 1 Miss Shweta in the locality known as Chawla Chowk, Purani Abadi, Sriganganagar. Receiving a telephonic information of the incident at about 8 AM on 12.10.1998, the incharge of the Police Station, Purani Abadi, Sriganganagar rushed to the spot and found PW 1 Shweta lying in seriously wounded condition. She was immediately removed to the hospital. The police inspected the site, prepared the inquest report and sent the dead bodies for post mortem. At about 10.30 AM on the same day, PW 13 Surendra Kumar, the incharge of the Police Station recorded the statement of PW 1 Ms Shweta in the hospital. She disclosed that on the preceding day i.e. 11.10.1998 at about 8 P.M., his brother's friend viz; appellant Monu visited their house. Her deceased brother Ajay after taking permission from mother deceased Nirmala went to see a movie with his friend Monu. Her mother closed the door and went to sleep. -3- She engaged herself in studies. In the night at about 3.00 when she came out of the bathroom after getting fresh, appellant Monu alongwith two boys aged 25-26 years entered into the room. One of the two miscreants was carrying knife in hand with face pasted by medical band-aid and other with muffled face. The miscreant with band-aid face inflicted number of stab wounds to her mother resulting into instantaneous death. He also inflicted injuries to her by knife. Monu and his associates collected the valuables from the house i.e. jewellery, cash. They also removed the ornaments from the body of her mother. In the morning, she was rescued by her neighbours. On this information, police registered a case for the offence under sections 302, 460, 307, 380 IPC. The statement of Ms Shweta was again recorded by PW 15 Yogendra Kumar, Judicial Magistrate, vide Ex.P.2. 2. During investigation on 17.10.1998, appellant Vijay Kumar Rana alias Lucky was arrested and in pursuance of the information given by him, some of the stolen articles were recovered. On 27.10.98, two other appellants viz; Inder Singh and Krishna Kumar were arrested and in pursuance of their information, certain incriminating articles were recovered. Appellant Inder Singh is the real brother of one of the main accused Narendra Yadav alias Haryanvi. Appellant Krishna Kumar is cousin of Narendra Yadav alias -4- Haryanvi. Appellant Narendra Yadav alias Haryanvi was arrested on 1.2.1999. In pursuance of the information given by him, the weapon of offence viz; a blood stained dagger was recovered. On the same day, appellant Reenu alias Narendra Singh, Monu alias Virendra Singh, both brothers, were also arrested. In pursuance of the separate informations given by them, part of the looted property was recovered. On the request of the police, the identification parade was arranged on 10.2.1999. PW 1 Shweta identified the unnamed miscreants i.e. Narendra Yadav alias Haryanvi and Reenu alias Narendra Singh as associates of Monu alias Virendra Singh, in the presence of PW 15 Yogendra Kumar, Judicial Magistrate. 3. After usual investigation, police laid chargesheet against the appellants for various offences. Appellants A-1 Monu alias Virendra Singh, A-2 Reenu alias Narendra Singh and A-3 Narendra Yadav alias Haryanvi were charged for the offences u/ss.302, 307, 460, 380, 201 and 120B IPC, while other appellants A-4 Vijay Kumar alias Lucky alias Rana, A-5 Inder Singh and A-6 Krishna Kumar for the offences u/ss.302/120B, 201, 411, 414 IPC. The prosecution in support of the case adduced oral and documentary evidence. The appellants in their statements u/s.313 CrPC denied the correctness of the prosecution evidence appearing against them. Monu alias Virendra Singh stated that he has been -5- falsely implicated at the instance of PW 4 Deepak Pathak, who was running a P.C.O. A quarrel for excessive telephone billing was the cause of his displeasure. Reenu alias Narendra Singh pleaded alibi. He stated that prior to 15 days of the incident, he alongwith his brother Monu had gone to Pithanpur in the State of U.P. to meet his maternal uncle. He also stated that he has been falsely implicated in the case. He was shown to Shweta at the Police Station. He further stated that before their arrest, police had flashed their photographs in the newspaper. The third appellant Narendra Yadav alias Haryanvi also pleaded alibi. He stated that at the time of incident, he was at his parental house in the State of Haryana. He also stated that he has been falsely implicated in the case. He also took the plea that his photographs were flashed in the newspaper before he was shown to Shweta at the Police Station. The other accused persons also pleaded innocence. The defence examined DW 1 Sanjay Sethi and DW 2 Ajay Khugar. Learned Special Judge (Additional Sessions Judge) Women Atrocities, Sriganganagar, by judgment dated 19.8.2000, convicted the appellants Narendra Yadav alias Haryanvi, Reenu alias Narendra Chauhan and Monu alias Virendra Chauhan for the offence u/s.302 IPC and sentenced each of them to imprisonment for life and to pay a fine of Rs.5000/- & in default, to further undergo one year's simple imprisonment. For the offence u/s.460 IPC, each of them has been -6- sentenced to undergo ten years' R.I. and a fine of Rs.2000/- & in default, to further undergo six months' simple imprisonment. For the offence u/s.307 IPC, each of them has been sentenced to seven years' rigorous imprisonment and to pay a fine of Rs.1000/- & in default, to further undergo six months' S.I. For the offence u/s.380 IPC, each of them has been sentenced to three years' R.I. and to pay a fine of Rs.1000/- and in default, to further undergo three months' S.I. The appellants in S.B.Cr.Appeal No.480/2000 viz; Vijay Kumar alias Lucky, Inder Singh and Krishna Kumar have been convicted of the offence u/s.411 IPC and each of them has been sentenced to six months' S.I. and to pay a fine of Rs.500/- and in default, to further undergo 15 days' S.I. 4. In the instant case, it is not in dispute that deceased Nirmala and deceased Ajay died of homicidal death. PW 7 Dr.Indrapal Singh Pooniya conducted the autopsy on the dead body of Mst.Nirmala vide Ex.P.49 and noticed the following injuries: “1. Incised wound 1/2” x 1/5” bone deep left thigh upper 1/3 antr; 2. Incised wound 1” x 1/5” muscle deep left thigh antr. Upper 1/3; 3. Stab wound incised 1” x ½” cavity deep below umbilicus; -7- 4. Stab wound incised 1 1/2” x 1/4” cavity deep lateral to above left side; 5. Stab wound incised 1” x 1/2” cavity deep below umbilicus left side; Fracture of 4t h, 5t h Rt. side ribs of chest antr. 6. Incised wound 1/2” x 1/5” cavity deep above umbilicus; 7. Incised wound 1 1/2” x 1/2” cavity deep above the above injury 6; 8. Incised wound 1 1/2” x 1/2” cavity deep above the above injury 7; 9. Incised wound 3/4” x 1/2” cavity deep Rt. lumbar region antr; 10. Incised wound 1 1/2” x 1/2” cavity deep below Rt. costal margin antr; 11. Incised wound 1/2” x 1/4” cavity deep below and medial to injury 10; 12. Incised wound 1/2” x 1/4” cavity deep lateral to injury No.11; 13. Incised wound 3/4” x 1/5” cavity deep Left lumbar region antr; 14. Incised wound 1” x 1/2” cavity deep Rt.lower lateral chest; 15. Incised wound 1” x 1/2” cavity deep medical to injury No.14 postr; 16. Incised wound 1” x 1/4” cavity deep below injury 15; 17. Incised wound 1” x 1/5” x muscle deep Rt lumbar region postr; 18. Incised wound 1” x 1/5” x muscle deep below the above injury 17; 19. Incised wound 1” x 1/5” x muscle deep below the injury 18; 20. Incised wound 1 1/2” x 1/2” x muscle deep below -8- right iliac crest; 21. Incised wound 1” x 1/2” x cavity deep Rt Breast medially; 22. Incised wound 1” x 1/2” x muscle deep Rt breast upper side; 23. Incised wound 3/4” x 1/2” x muscle deep Rt breast lateral side; 24. Incised wound 1/2” x 1/5” muscle deep Rt auxilla; 25. Incised wound 3/4” x 1/2” x muscle deep left lower chest; 26. Incised wound 1 1/2” x 1/2” x bone deep Rt forearm near elbow laterally; 27. Incised wound 1 1/2” x 1/2” x bone deep above Rt elbow laterally; 28. Incised wound 2” x 1/5” x bone deep Rt forearm postr. Middle 1/3; 29. Incised wound 3” x 1” x bone deep Rt wrist antr; 30. Incised wound 1” x 1/5” x muscle deep Rt forearm antr. Upper 1/3; 31. Incised wound 1” x 1/2” x muscle deep left breast medially; 32. Incised wound 1/2” x 1/5” x muscle deep left breast near to nipple medially; 33. Incised wound 3/4” x 1/5” x muscle deep left palm; 34. Incised wound 1” x 1/2” x bone deep left index finger laterally; 35. Incised wound 1/2” x 1/5” muscle deep left hand dorsally.” In his opinion, the cause of death was shock due to haemorrhage. All the injuries were reported to be ante -9- mortem in nature. 5. He also conducted the autopsy on the dead body of Ajay and noticed the following injuries on his person vide Ex.P.47: “Rigor mortis developed, frothing from nose, black colour lips, lateral side mouth & lower face, bluish colour of nails of fingers, thumbs, palms of both hands.” The doctor observed that the cause of death shall be given on receipt of report of chemical examination of viscera. On the F.S.L.Report being received, the doctor opined that the cause of death was asphyxia by smothering. 6. He also examined the injuries on the person of PW 1 Ms Shweta vide Ex.P.44 as follows: “1. Incised wound 1/4” x 1/5” not ascertained, below umbilicus; 2. Incised wound 1/4” x 1/5” not ascertained, left lumbar region laterally; 3. Incised wound 4” x 1” x muscle deep Rt upper neck; 4. Incised wound 1” x 1/5” x muscle deep on lumbar spine; 5. Incised wound 1” x 1/4” x muscle lateral to above Rt side; 6. Incised wound 1/2” x 1/5” x muscle deep Rt lumbar region postr; -10- 7. Incised wound 1/4” x 1/5” x muscle deep above the above injury; 8. Incised wound 2” x 1/5” x muscle deep upper back Rt lateral to spine; 9. Incised wound 2” x 1/5” x muscle deep below the above injury; 10. Incised wound 1/2” x 1/4” x not ascertained Rt lower chest postr; 11. Incised wound 2” x 1/2” x muscle deep Rt. side above the above injury 10; 12. Incised wound 1” x 1/4” x muscle deep Rt gluteal region; 13. Incised wound 1” x 1/4” x muscle deep medial to above injury; 14. Incised wound 1” x 1/5” x muscle deep below the above injury; 15. Incised wound 1/4” x 1/5” x muscle deep Rt breast lateral; 16. Incised wound 1/2” x 1/5” muscle deep left breast medially.” 7. Assailing the conviction, Mr.H.S.S.Kharlia learned counsel for the appellants has severely criticized the testimony of PW 1 Ms Shweta, the only witness of occurrence. It is submitted that there are number of material infirmities in the statement of PW 1 Shweta, thus, it will not at all be safe to uphold conviction of the appellants solely on the testimony of PW 1 Shweta. It is further submitted that the account of the occurrence given by her does not find corroboration from independent and -11- material evidence. Learned counsel has also pointed out number of infirmities in the identification proceedings of the persons and the property. On the other hand, learned Public Prosecutor has supported the judgment of the learned trial Court. 8. While referring to the main features of the prosecution case in earlier part of the judgment, we have indicated that how the assault on deceased Nirmala is said to have been mounted by the appellants and how the said incident was allegedly witnessed by the injured witness PW 1 Ms Shweta. The prosecution case hinges on her testimony. She has provided the details of the occurrence in her statement. She deposed that on the fateful day i.e. 11.10.98, appellant Monu Chauhan, a friend of his younger brother deceased Ajay visited their house at about 8.00 or 8.30 PM. She knew her well. Her younger brother deceased Ajay sought permission from the mother for going to see movie alongwith Monu Chauhan. Her mother asked him to bolt the gate of the gallery from inside and put a lock on the main gate from the outside. He was also advised to take a key with him. Thereafter, Ajay left the house in the company of Monu Chauhan to see the movie. She alongwith her mother after taking supper, went upstairs. While her mother went to bed, she got busy in her studies. In the midnight at about 3.00 when she returned after getting fresh to the room, she -12- found appellant Monu alongwith two boys in the room. She could identify Monu Chauhan as he was a frequent visitor to their house being friend of his brother. One of two associates of Monu Chauhan had pasted a medical band-aid on his nose and cheeks. The other boy had muffled his face. Appellant Monu Chauhan forcibly closed the mouth of her mother pressing by hand. The boy with band-aid face inflicted knife injuries to her mother. Other boy caught hold of her and forcibly closed her mouth by putting his palm. Monu Chauhan abused her mother and exhorted his associate to finish her. Her mother was struggling to get out of the clutches of Monu Chauhan. In the struggle, the hand of Monu slipped from her mouth and she cried for her younger brother Ajay on which Monu Chauhan retorted that he would not respond as he had already been killed downstairs. The bed room of Ajay was on the ground floor. The assailants continued to inflict knife injuries to her mother, till she died. Thereafter, the boy with band-aid face and Monu Chauhan moved towards her. The band-aid boy inflicted knife injuries to her as well. The other boy with muffled face inflicted injuries on her neck. While she was struggling, the towel from which the third assailant had covered his face, slipped. Before making assault on her, Monu uttered, "इस मर , इसन मर इनसल क ह ". He also exhorted the other two assailants to kill her, otherwise she would be the material witness of the occurrence before the -13- police and the court. As a result of the injuries, she fell down. Monu Chauhan asked the other associates to check if she was dead. They pulled hair and kicked her. She withheld her breathing and became motionless to pretend, as if she was dead. The assailants disconnected the telephone connection by removing the wires. Thereafter, they entered into the Store-room attached to the bed room and changed their clothes. They put on apparels of her younger brother and put their clothes in a bag. Thereafter, they collected the ornaments, valuables and cash from the almirah. The ornaments were brought in the house for her marriage. While the said ornaments were new, her mother's ornaments were artificial. They put the looted property in the suitcase and bag. Appellant Monu and boy with band-aid face removed the ornaments from the body of her mother. The boy earlier with muffled face, removed ornaments from her body. Her mother was wearing two golden chains. She has given the details of the ornaments which her mother was wearing at the time of the incident. She also gave the details of the ornaments she was wearing. The band-aid boy was also having a pistol. He inquired if she was to be shot dead? The idea was not approved on the ground that the same will attract the neighbours. The duration of the entire occurrence was estimated as about one and half hour. While leaving, the assailants put off the lights and bolted the room from outside. She identified both the two unnamed -14- appellants in the identification parade as well as in the Court. The band-aid boy was identified as Narendra Yadav and other boy with muffled face as Narendra Chauhan. In the morning, she heard the movements of some of the labours on the terrace. Hearing her squall, one of the labours opened the gate and entered inside. She asked the said labour to call her neighbour Indra Aunty. After sometime, PW 2 Indra entered into the room. After seeing her, she quickly went out. Thereafter, the police arrived and she was removed to the hospital. The police recorded her statement Ex.P.1 in the hospital. The learned Magistrate also recorded her statement as Ex.P.2 in the hospital. The list of the stolen articles Ex.P.3 was also given by her. She deposed that she had identified the appellants during identification proceedings Ex.P.4 and Ex.P.5. She also identified the ornaments recovered from the accused persons during identification proceedings Ex.P.6. She identified two jackets recovered from the accused persons. She has given complete details as to the identification of the properties. According to her, apart from the ornaments and other valuables, the assailants had taken away the cash amount in the sum of Rs.70,000/-. She also deposed that at the time of incident, her father was posted in Europe serving the Merchant Navy. Her brother Amit was also in Europe serving Merchant Navy. Appellant Monu Chauhan was the friend of both the brothers. In the cross examination, -15- mostly she was confronted with certain omissions in her earlier statements Ex.P.1 and Ex.P.2 pointing out certain details which she gave in the court. She has given explanation for such omissions. She stated that while her statements Ex.P.1 and Ex.P.2 were recorded, she was in the wounded condition in the hospital, as such, it was not possible to give complete details. The other part of the cross examination pertains to the identification of the persons and the property, which we shall deal with while discussing the evidence of the identification. She has been confronted with one of the letters Ex.D.2 alleged to be in the handwriting of her deceased mother. She has denied the signature of her mother Nirmala on the said letter. She also denied the letter Ex.D.2 in the handwriting of her mother. She has also stated that when she gave her statement in the hospital, she was in a fit condition to make statement. It was suggested that she had given the statement in the hospital as per the advice of advocate Mamta Chaudhary. She denied the correctness of the suggestion. Thus, none of the criticism levelled against her is of any substance. It is significant to notice that her statement commenced on 17.8.99 and continued upto 19.8.99 i.e. for three days. She had witnessed the trauma in which she herself and her mother were brutally assaulted. She herself sustained 16 to 17 injuries. Still, she has stood to the cross examination by different lawyers for three days. Nothing substantial has -16- been brought-in to discredit the testimony of this witness. She has given the truthful account of the entire occurrence. 9. PW 2 Smt.Indra deposed that on the fateful day, she went to the house of Nirmala Bhardwaj on being called through Mistri named Raju. On entering into the house, she found Nirmala Bhardwaj lying dead on the bed. Her body was smeared with the blood. Shweta was lying on the floor right side the bed. There was profuse bleeding from her wounds. She was screaming out of pain. She got terrified seeing the scene inside the house. She immediately went out of the house and made known to the people of the locality by shouting to the effect that Nirmala and Shweta Bhardwaj were killed. Large number of people assembled on the spot. Somebody informed the police on telephone. Soon, the police was on the spot. After the police arrived, it revealed that Ajay alias Babloo was also killed and his dead body was lying in a room on the ground floor. Nothing substantial has been elicited to discredit the testimony of the witness. 10. PW 3 Amit, the elder son of deceased Nirmala at the relevant time, was posted in Greece serving Merchantile Navy. He stated that on 13.10.98, he came to know of the shocking news from his father. Receiving the information, he alongwith his father rushed to Sriganganagar. They met -17- PW 1 Shweta in the hospital. She narrated the incident as to how their mother Nirmala and brother Ajay were killed by Monu and his two other associates in the intervening night of 11t h and 12t h October, 1998. Later-on, he came to know about participation in the crime of Monu's two other associates viz; Narendra Chauhan who is brother of Monu and another one was Narendra Haryanvi. He identified appellant Monu Chauhan as his school friend. He deposed that Monu was also a close friend of his deceased brother Ajay alias Babloo. He was a frequent visitor of their house. In the cross examination, he denied the suggestion that his father collected money from various people in the city of Ganganagar for getting them employed abroad. He denied the letter Ex.D.2 to be in the handwriting of his deceased mother Nirmala. He also denied the correctness of the contents made in the letter Ex.D.2. He denied to have seen the photographs of the accused persons in the newspaper or on T.V. 11. It is submitted by Mr.H.S.S.Kharlia learned counsel for the appellants, that while it is true that in the normal course, the Court will be loath to reject the testimony of an injured witness, there is no rule of appreciation of evidence that the evidence of injured witness should be mechanically accepted as a gospel truth, for the injuries may only be, at best, show the presence of the witness but are no guarantee -18- of his or her credibility. It is pointed out that PW 1 Shweta has not been consistent in her statement as to the narration of the occurrence. We are unable to agree with the submission of the learned counsel for the appellants. In the matter of appreciation of evidence of an injured witness, the normal rule is that if the witness is injured, then his or her presence on the spot at the time of occurrence is prima facie established, unless there is material infirmity in the statement of such witness, his/her credibility cannot be suspected . In the instant case, inspite of lengthy cross examination, learned counsel has failed to point out any material infirmity in her statement, which may persuade us to discredit her testimony.