1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR JUDGMENT LIMBA RAM @ LIMBA V/S STATE OF RAJASTHAN D.B. CRIMINAL JAIL APPEAL NO. 01/2004 Date of Judgment : 21.07.2010 PRESENT HON'BLE MR. JUSTICE PRAKASH TATIA HON'BLE MR. JUSTICE KAILASH CHANDRA JOSHI Mr. Eklavya Bhansali for the appellant Mr. K.R. Bishnoi – Public Prosecutor BY THE COURT (PER HON'BLE JOSHI, J.) This criminal jail appeal preferred by appellant Limba Ram @ Limba S/o Joga, by caste Garasia, resident of Jogivad, Police Station Kotada, District udaipur is directed against the judgment and sentence dated 05.12.2003 passed by the Additional Sessions Judge [Fast Track], Rajsamand in Sessions Case No. 46/2003. The nub of the prosecution story is that complainant Mahendra Kumar who is Sarpanch and resident of Gram Panchayat Dharavan, submitted a written report to the Station House Officer of the Police Station Panarwa, at the place of incident, that on the previous night he had heard that in his Panchayat area at Katawali Jair Jungle Jogeshwar Mahadev Nala, dead body of a lady was lying. He himself went to the site of the incident, where a few other villagers were already present. After inquiring it came to his knowledge that on the previous day 2 Limba Ram @ Limba S/o Joga and his wife Smt. Manudi had left for Jogiwad from Kawel. Mahendra Kumar had a strong suspicion that it was Limba himself who had taken wife Manudi to the Jogeshwar Mahadev Nala in the jungle and caused her death by causing injuries with a sharp edged weapon, on her neck. The body of the deceased was first noticed by the students and teachers of the Arbabi School. On the basis of this report, a Criminal Case No.8/2003 was registered in Police Station Panarwa and investigation commenced. During the course of investigation, a site plan was prepared and blood stained clothes of the deceased Smt. Manudi were recovered. Blood stained soil and control soil were recovered. The Accused was arrested in pursuance of the information recorded under Section 27 of the Indian Evidence Act. The weapon of offence and the blood stained clothes of the accused were also recovered. Autopsy was conducted on the body of the deceased Smt.Manudi. The clothes of the deceased and those of the accused were sent to the Forensic Science Laboratory alongwith weapon of offence in a sealed state. After receiving the report of Forensic Science Laboratory and other usual investigation, a charge sheet was presented in the Court of Munsiff and Judicial Magistrate, Ist Class, Kotada, against the accused appellant for commission of offence under Section 302 IPC. From there the case was committed to the Sessions Judge, Udaipur and ultimately, the case was transferred for trial to the Additional District & Sessions Judge, [Fast Track], Rajsamand, Camp Udaipur. The learned trial judge charged the accused appellant for 3 the commission of the offence under Section 302 of the IPC. Prosecution examined 20 witnesses. The incriminating evidence available against the appellant was put for explanation under Section 313, Cr.P.C. to which the accused produced no evidence in his defence. After conclusion of the trial, the learned trial judge found the accused appellant guilty for the commission of offence under Section 302 of the IPC and awarded a sentence for life and a fine of Rs.1,000/- and further to undergo three months simple imprisonment in default of payment of fine. The learned trial judge also ordered to get the benefit of Section 428 of the Cr.P.C. P.W. 1 Mahendra Kumar, is the Sarpanch of Gram Panchayat Dharavan. He deposed that in the month of March, 2003 he received an information that in his Panchayat area near the Jogeshwar Mahadev Nala a dead body of a woman is lying. When some other persons were called then Smt. Mani identified the dead body of Smt.Manudi. It was further told by Mahendra Kumar that two days before the incident Smt.Manudi alongwith her husband Limba had gone to the residence of Smt. Mani because her husband and Limba were real brothers. Thereafter Limba and the deceased Manudi started for Jogiwad from Kawel. On the basis of suspicion, Mahaendra Kumar lodged First Information Report Ex.P-1. He also admitted the signature on the site memo, fard surat haal Ex.P-2, and site memo Ex.P-3, fard panchnama of dead body Ex.P-4 and memo of recovery of the blood stained soil and control soil on the spot vide Ex.P-7, the blood stained clothes and he also deposed that after the incident Limba escaped from the spot. 4 P.W. 3 Kalaji Das, is the witness of the execution of Fard Surat haal of dead body Ex.-P2 , Site Plan Ex.P-3, Panchnama of dead body Ex.P-4, blood stained stones Ex.P-5, Fard Supuradgi Ex.P-6 and blood stained clothes Ex.P-7. P.W.4 Smt. Mani is the only witness who saw the deceased as well as the accused appellant together while they started from Kawel for Jogiwad. She further deposed that fifteen days before Holi, the accused appellant Limba Ram alongwith his wife had come to her residence and had halted for the night at her place. In the morning, between 8.00 and 9.00, Limba alongwith the deceased Smt. Manudi started for Jogiwad. They had two breads with them and there was an axe with Limba Ram. They both told her that they were going to the maternal house of the deceased. After two days Sarpanch of the village informed her that in the forest of Katawali, dead body of a lady was lying. She went there alongwith her father and identified the dead body to be that of Smt. Manudi. P.W. 5 Bhana, the father of Smt. Mani, also deposed that Limba Ram and his daughter Manudi met him while starting for Jogiwad from Kawel and at that time an axe was in the hands of the accused appellant. P.W. 6 Dhuli, the mother of deceased Manudi, also deposed that in the morning while the accused appellant Limba Ram and Manudi started for Jogiwad, they met her and two days after their departure, she heard the news regarding lying of a dead body of a lady in the forest. P.W. 7 Kamala is the witness of arrest memo Ex.P-8 and further the memo of taking into possession of blood stained shirt of the accused appellant vide memo Ex.P-9. 5 P.W. 8 Laxman is the witness of execution of memo Ex.P- 10 and Ex.P-11. P.W. 9 Lalu Ram corroborated the evidence of recovery of blood stained axe at the instance of the accused vide Ex.P-12. Further he also deposed that Investigating Officer executed Memo Ex.P-13. P.W. 10 Banshi Lal also corroborated the evidence of P.W. 9 Lalu Ram. P.W. 11 Shanker corroborated the evidence of P.W. 8 Laxman regarding the execution of memo Ex.P-10 and Ex.P-11. P.W. 12 Kalu and P.W. 13 Moti are the formal witnesses of memo Ex.P-4. P.W. 14 Dr.Gurmeet Singh conducted the autopsy on the body of the deceased, he found the following injuries:- “Injury and fracture:- Muscles covering the interior side, right lateral side, posterior side of the neck were found incised and margins were clear cut. Thyroid, para thyroid and thyroid bones were found incised.” Cause of death according to P.W.14 Dr.Gurmeet Singh was shock and excessive haemorrhage due to incision of carotid artery vein and subclavian artery and vein by sharp weapon. P.W. 15 Gova, the father of the deceased Smt.Manudi, deposed that he had a suspicion that Limba Ram had killed Manudi as he used to often beat her in a drunken state. P.W. 16 Bharma is also a witness to this fact for whenever Manudi came to his residence, she informed him that Limba Ram beat her in a drunken state. P.W. 17 Dalchand, P.W. 18 Abdul Razaak and P.W. 19 6 Chhoga Ram are the police officers who conducted the investigation and kept the sealed packet intact in Maalkhana. P.W. 20 Narayan is the witness of the execution of memo of arrest Ex.P-8 of accused appellant Limba Ram and memo Ex.P-9 vide which the shirt of the accused appellant was taken into possession by the Investigating Officer. The accused appellant in his statement under Section 313, Cr.P.C. denied the allegations and stated the evidence of prosecution is false. The main contention of the learned counsel for the appellant is that the evidence against the accused is of a circumstantial nature and the circumstances so adduced in evidence do not constitute a chain of incidents which can lead only to the guilt of the accused. He further argued that the learned trial Judge committed serious mistakes in appreciating circumstantial evidence and there are serious contradictions and infirmities in the prosecution evidence, therefore, the judgment of the learned trial judge deserves to be set aside and the appeal deserves to be accepted. Per contra learned Public Prosecutor vehemently defended the judgment of the learned trial judge and argued that appreciation of evidence made by the learned trial judge does not suffer from any illegality or infirmity and the judgment of the conviction and the order of sentence passed by the learned District Judge does not require any interference by this Court. We have considered the rival submissions and scanned and scrutinized the oral as well as documentary evidence available on record. So far as the evidence of last seen is concerned, there is an evidence on record of P.W. 4 Smt.Mani which establishes the fact that two days before the incident, 7 accused appellant alongwith his wife deceased Smt.Manudi started from Kawel for Jogiwad and further this evidence is corroborated by the evidence of P.W. 5 Bhana and P.W. 6 Dhuli. There is no contradiction in the cross examination of these three witnesses and the evidence of P.W. 4 Smt. Mani inspires confidence because of the fact that she was the wife of her brother-in-law and there was every reason for the deceased as well as for the accused appellant to stay at her residence. All the three witnesses further deposed that there was an axe in the hand of the accused appellant while starting from Kawel. The conduct of the accused appellant is also relevant for appreciating evidence of the prosecution that just after the incident the accused absconded from the place of the incident and his residential house and there is no reasonable explanation on the part of the accused appellant regarding the steps he undertook to search for his missing wife. It is true that cordial principle of the criminal jurisprudence is that accused has right to keep mum but when the prosecution had led the evidence regarding the guilt of the accused then in the statement under Section 313, Cr.P.C., he must have explained the steps which he took to search her wife. The corroborated evidence of these three witnesses are not impeachable and inspire faith, further the fact of recovery of the blood stained axe at the instance of the accused and the report of the Forensic Science Laboratory Ex.P-21 also corroborate the prosecution story. As per the Post Mortem Report, there were grievous injuries on the dead body of the deceased and there were incised wounds on the thyroid, para thyroid and thyroid bones and on the neck and all these injuries were caused by a sharp edged 8 weapon and the cause of the death was shock and haemorrhage. Causing of injuries by a deadly weapon like an axe on the body of the deceased proves the intention on the part of the accused appellant to cause the death of his wife Manudi. In view of the aforesaid discussion, from the prosecution evidence the charge of commission of offence under Section 302 IPC is proved beyond doubt and therefore, the appeal filed by the accused Limba Ram deserves to be dismissed. Accordingly, the appeal filed by the accused appellant Limba Ram is dismissed and the judgment of conviction and order of sentence passed by the Additional District & Sessions Judge, [Fast Track], Rajsamand dated 05.12.2003 in Sessions Case No.46/2003 is affirmed. [KAILASH CHANDRA JOSHI],J. [PRAKASH TATIA],J. mamta