- 1 - IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR J U D G M E N T Heera Vs. State (D.B. CRIMINAL JAIL APPEAL NO.143/2007) ****** D.B. CRIMINAL JAIL APPEAL UNDER SECTION 383 Cr.P.C. AGAINST THE JUDGMENT DATED 8.9.2006 PASSED BY THE ADDITIONAL DISTRICT & SESSIONS JUDGE (FAST TRACK), JALORE IN SESSIONS CASE NO.22/2006(10/2006). ******* DATE OF JUDGMENT JANUARY 15,2008 P R E S E N T HON'BLE MR.JUSTICE BHAGWATI PRASAD HON'BLE MR. JUSTICE BHANWAROO KHAN Mr.B.P.Bohra, for the appellant Mr.J.P.S.Choudhary, Public Prosecutor BY THE COURT (PER HON'BLE MR KHAN J.): This is a Jail Appeal under Section 383 Cr.P.C. by accused Heera against the judgment dated 8.9.2006 passed by the Additional District & Sessions Judge (Fast Track), Jalore in Sessions Case No.22/2006(10/2006) whereby the accused was convicted under Section 320 I.P.C. for causing matricide and was - 2 - awarded sentence for life imprisonment and a fine of Rs.5000/-; in default thereof to further undergo 1 year's rigorous imprisonment. Briefly stated the facts of the case are that on 10.3.2006 at about 4:30 P.M. a written report was lodged by Goma Ram stating therein that on 10.3.2006 at about 12 noon when he was sitting in his Dhani, he heard a hue & cry from the neighbouring Dhani of Heera to which he ran towards the spot and found Smt.Rambha mother of accused Heera lying in the chowk. The blood was oozing from her head and he saw Heera running from the spot having an axe in his hand. Heera was not having cordial relations with his mother. She has been killed by accused Heera. The police after registering case under Section 302 I.P.C. against the accused and after completing investigation submitted challan against the accused Heera. The accused denied the charge levelled under Section 302 I.P.C. against him and claimed trial. The prosecution in all produced 11 witnesses and got exhibited Ex.P1 to Ex.P23 documents. The accused in his statement under Section 313 Cr.P.C. denied about all the allegations and statements given by the prosecution witnesses. The accused stated that because of family dispute of partition, he has been falsely implicated. No - 3 - defence was led. The learned lower court after hearing and going through the oral as well as the documentary evidence found the appellant guilty and punished him as stated hereinabove. Both the parties were heard and file was gone through. The learned counsel pleaded that there is not a single eye-witness who has seen Heera committing the offence or striking blows on his mother Smt.Rambha with an axe. The only eye-witness, who reached on the spot immediately after commission of offence, had seen him running from the spot having an axe in his hand. There is no corroboration of such statement from the evidence produced by the prosecution and further the extra judicial confession, which is made before P.W.3 Suresh Kumar the owner of the STD Booth is not at all reliable. Extra judicial confession being a weak piece of evidence needs corroboration and the same is made to a total stranger, which cannot be relied at all. There is contradictions about the dress of the accused, as, as per Suresh Kumar the accused was wearing shirt and Dhoti, whereas the Investigating Officer has revealed that the accused was wearing a terrycot T-shirt & Dhoti smeared with blood. So this major contradiction discards the evidence of P.W.3 Suresh Kumar and in absence of corroboration of extra - 4 - judicial confession, there is no other evidence which links the accused with the commission of the offence charged. The learned Public Prosecutor pleaded that the only eye-witness P.W.1 Goma Ram is reliable and trustworthy as he has stated what he has seen. As per statement of P.W.1 Goma Ram, he reached on the spot after commission of the offence and saw Smt.Rambha lying, having injuries on her head and he had seen accused Heera running from the spot having an axe in his hand. There is nothing in the cross examination, which casts doubt about his statement. In his cross examination, he has admitted that he has not seen striking blows by the accused but he saw the accused running from the spot having an axe in his hand. There was none other available witness at that time and whatever extra judicial confession (statement) given by the accused to P.W.3 Suresh Kumar is reliable because at the relevant time the accused wanted to inform the police which he did and the same was entered in the Rojnamcha in clear terms. The accused has given his extra judicial confession to P.W.3 Suresh Kumar without any inducement, threat or coercion. The statements of these two witnesses clearly establish the offence charged against the accused. The contradiction as pointed out about the dress of the accused is not at all relevant as the seizure memo and also further cross examination of the - 5 - Investigating Officer wherein he has stated that shirt and Dhoti were recovered at the instance of the accused having blood stains on them. Hence the learned lower court has rightly convicted the accused. It is true that the only evidence against the accused is P.W.1 Goma Ram and P.W.3 Suresh Kumar before whom the accused made the extra judicial confession. As per statement of Goma Ram, he simply saw the accused running from the spot having an axe in his hand and saw Smt.Rambha lying, having head injury bleeding profusely. There is nothing in the cross examination of the witness which casts any doubt about his statement. He is closely related with the accused and the real brother of the father of the accused. He has not exaggerated and also from his conduct and the statement it cannot be believed that he is falsely implicating the accused in the commission of the crime. He is reliable and trustworthy witness and deposed only what he had seen. Now, comes the question of extra judicial confession, which is indeed a very weak piece of evidence and requires corroboration. But before a court can act upon extra judicial confession, the circumstances of each case has to be seen. It is not necessary that extra judicial confession should be detailed - 6 - one. If extra judicial confession made or found to be untrue, then and then only it can be rejected out-rightly. The extra judicial confession should connect the accused with the crime. The extra judicial confession must be made in terms of the offence. If seen the statement of P.W.3 Suresh Kumar in the light of the observations then it is found that accused Heera came to the STD Booth and asked that a telephonic message is to be given to the Police Station and in clear terms accused Heera told that he has killed his mother. On telephone he informed the police that a woman has been killed in the Dhani of Virma and same information was recorded in Ex.P13 Rojnamcha of the Police Station. In the cross examination of P.W.3 Suresh Kumar nothing has been elucidated to cast any doubt about his statement. He has also seen that the accused was wearing shirt and Dhoti having blood stains on them. It is natural that a person, who wants to inform on telephone has to go to a STD Booth in absence of any private facility of his own and if he there voluntarily narrated to a person about the commission of the offence then it cannot be said that the extra judicial confession is not voluntary or given under some threat or inducement. The information given by the accused to P.W.3 Suresh Kumar is corroborated by the document Ex.P13 Rojnamcha entry of the police station, in which the same entry was made by the prosecution. Hence this corroboration completely establishes the - 7 - fact that accused rang up from the STD Booth of Suresh Kumar and he made the extra judicial confession about the commission of the crime. Coupled with all these testimony, the recovery of the axe at the instance of the accused by giving information under Section 27 of the Evidence Act through Ex.P19 and recovery thereof through Ex.P8 establishes that a blood-stained axe was recovered at the instance of the accused and which when sent to the Forensic Science Laboratory, as per FSL report Ex.P21 found the human blood on the same. The clothes of the accused which were having blood stains were also sent to the Forensic Science Laboratory and as per FSL report Ex.P21, they were also found to be stained with `A'`B' human blood group. The recovery of the bloodstained axe and bloodstained clothes which belonged to the accused, when found stained with human blood, it was for the accused to have explained how his clothes were stained with human blood for which no explanation is coming forward. So the statement of P.W.1 Goma Ram and P.W.3 Suresh Kumar establishes that the accused immediately after commission of the offence was seen running from the spot having an axe in his hand and thereafter he informed the police without mentioning the name of the accused about the commission of the crime and also made extra judicial confession to P.W.3 Suresh Kumar which - 8 - all leads to the only conclusion that Smt.Rambha the mother of the accused was given injuries with an axe by the accused himself. P.W.9 Dr.Mukesh Gupta, conducted the post-mortem of the dead body of Smt.Rambha and prepared Ex.P10 report, which reveals that Smt.Rambha deceased received 3 incised wounds and her brain matter was oozing outside the brain. The incised wound with such severity on the occipital region clearly reveals the ratihabitio of intention of the accused to commit the offence of murder. For the proof of offence of murder, the Apex Court has observed in Virsa Singh vs. State of Punjab reported in AIR 1958 SC 465, that, “The prosecution must prove the following facts before it can bring a case under S.300 “thirdly”; First, it must establish, quite objectively, that a bodily injury is present; Secondly, the nature of the injury must be proved. These are purely objective investigations. Thirdly, it must be proved that there was an intention to inflict that particular bodily injury, that is to say, that it was not accidental or un- intentional, or that some other kind of injury was intended. Once these three elements are proved to be present, the enquiry proceeds further and, fourthly, it must be proved that the injury of the type, just described, made up of the three elements set out above, is sufficient to cause death in the ordinary course of nature. This part of the enquiry is purely objective - 9 - and inferential and has nothing to do with the intention of the offender.” These four elements are to be established by the prosecution for the offence of murder. It does not matter that there was no intention to cause death and there was any intention even to cause an injury which is sufficient to cause death in the ordinary course of nature. Once the intention to cause the bodily injury actually found to be present is proved then it is sufficient for the offence of murder that the injury caused should be sufficient in the ordinary course of nature to cause death. Here, in the instant case, the axe injury i.e. incised wound received by the deceased on her head was so severe that brain matter was oozing out of the brain and there was fracture of the occipital region. As per post-mortem report, the bodily injuries are present, the nature of the injury is serious or dangerous and the intention to inflict such a severe injury is also established. The injury so given was neither accidental nor unintentional is sufficient in the ordinary course of nature to cause death. From the evidence oral as well as the documentary produced by the prosecution, it is found that the accused has - 10 - been linked with the commission of the crime and he inflicted the head injury on the head of his mother by which she died instantaneously. The accused voluntarily made the extra judicial confession and got recovered the bloodstained clothes and an axe the weapon of the commission of the crime, which were found to be proved stained with human blood having `A' `B' Group. From all this discussion, the only conclusion is that the guilt has been brought home against the accused and the learned lower court has not committed any illegality or irregularity while holding the accused guilty of the charge of murder of his mother. Consequently, the jail appeal filed by Heera is hereby dismissed. (BHANWAROO KHAN) J. (BHAGWATI PRASAD) J. BKS/-