Page No. 1 S.B. Crl. Appeal No. 603/2003 (Satyaveer Singh Vs. State) IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR J U D G M E N T Satyaveer Singh Vs. State of Rajasthan D.B. CRIMINAL APPEAL NO. 603/2003 Against the judgment & order dt. 02.04.2003 passed by Additional Sessions Judge (Fast Track), Sriganganagar in Sessions Case No. 68/2002. Date of Order : 22nd May, 2008 PRESENT HON'BLE MR. JUSTICE PRAKASH TATIA HON'BLE MR. JUSTICE CHAND MAL TOTLA Mr. HSS Kharlia, for the appellant. Mr. V.R. Mehta, Public Prosecutor. BY THE COURT: (PER HON'BLE TOTLA, J.) This appeal challenging the conviction and sentence of the appellant is preferred for judgment dated 02.04.2003 in Sessions Case No. 68/2002 by the court of Additional Sessions Judge (Fast Track), Sriganganagar whereby, the appellant has been convicted under Section 302 IPC and sentenced to life imprisonment with fine Rs. 1000/- indefault three months simple imprisonment. The alleged incident, as per prosecution, is that on 24th May, 2001 at about 6:35 PM in the evening an information received on wireless from control room at P.S. Purani Abadi, Sriganganagar that a person is seriously injured in Purani Abadi Sabji Mandi. After making entry No. 147 in Roznamcha, SHO Bhanwar lal alongwith some police personnel proceeded to Sabji Mandi where came to know that injured Mukesh is already taken to hospital. At around 7 o' clock, one Amarjeet presented a Page No. 2 S.B. Crl. Appeal No. 603/2003 (Satyaveer Singh Vs. State) written FIR Ex.P/5 at Police station stating that in the evening at about 6:15 PM, he at sabji mandi was purchasing tomatoes when Satyaveer Singh, J.En. Electricity Department came from direction of Hanuman temple and at that time, Mukesh coming out of his house was going slowly in the street- When Satyaveer Singh crossed near the complainant, he saw axe in his hands on back and Satyaveer Singh inflicted injuries of axe on neck and on head of Mukesh and when Mukesh fell down, third blow inflicted on his head. Ajeet, Shiv kumar, Devendra Singh and other rushed and Ajeet Singh caught hold of Satyaveer Singh who ran away with axe towards home saying that he will not let live (Mukesh) soon police vehicle arrived and Mukesh taken to Government Hospital where he died of injuries. On this report FIR NO. 167/01 Ex.P/6registered for offence of Section 302 IPC read with 201 IPC. In course of investigation, at 1:35 AM, on 25.05.2001 the appellant arrested vide memo Ex.P/10. On next morning 25.05.2001, police inspected site and prepared memos Ex.P/7 & 7A where on the road was blood -sample of which and of plane soil taken and sealed separately memo prepared is Ex.P/8. Memos of dead body are Ex.P/12 & Ex.P/13 and memo of seizure of worn shirt of deceased is Ex.P/14. The photographs of body taken, positives and negatives of which are Ex.P16 to Ex.P/25. On request of SHO Ex.P/3, postmortem conducted at 9:15 AM, report prepared is Ex.P/4 - deceased died within 24 hours as consequence of three incised wounds at parietal region – also are mentioned other injuries. Body handed over to father at 11:15 AM on 25.05.2001. On information Ex.P/39, furnished by appellant, an axe having blood stains recovered and sealed memo and site plan of place of recovery prepared are Ex.P/1, 2 & 2A. All the articles deposited in malkhana and in due course delivered to FSL- malkhana register entries and forwarding letters of which are Ex.P/26, 27,28, 32 & 33, receipt of FSL is Ex.P/29 and report of FSL Ex.P/41. As per police report submitted, statements of informant eye witness Amarjeet also recorded under Section 164 Cr.P.C and after usual investigation and procedure, charge- Page No. 3 S.B. Crl. Appeal No. 603/2003 (Satyaveer Singh Vs. State) sheet submitted and committed to Sessions Court on September 10th. The accused when charged for murder by inflicting injuries of sharp edged weapon on head and neck of Mukesh claimed trial. Of the prosecution witnesses, Amarjeet Sing PW/4 is eye witness who also lodged written FIR Ex.P/5 at police station and Devendra PW/5 and Shiv Singh PW/10 are eye witnesses named in FIR. Kishori lal PW/6 a vegetable seller and Shiv Singh PW/10 son of owner of the house in which the appellant was residing are eye-witnesses. Smt. Vandana PW/7 is wife of accused appellant who reached at the spot soon after the incident. Vijay Singh PW/1 and Vijay Singh PW/2 are said to be witnesses of recovery of axe and Om Prakash PW/9, father of the deceased. PW/13 Head constable and PW/14 constable relates to malkhana and PW/12 Inder lal is the photographer. PW/3 Dr. Inderjeet conducted postmortem who proved report Ex.P/4 whereas SHO Inspector Bhanwar Singh PW/15 is the Investigating officer. The appellant when examined under Section 313 Cr.P.C. stated that witnesses telling lie and he is ignorant of what is done during investigation. Nothing recovered from him or at his information and he is falsely implicated. No defence witness produced. Learned Sessions Judge inferred (i) just before the incident warm exchanges between appellant and deceased at house of appellant in presence of his wife PW/7. (ii) trustworthy direct evidence of eye witnesses. (iii) axe recovered at the instance and information of the appellant (iv) blood stains found on clothes and axe (v) reason and motive- difference with wife proved and deceased there for some reconciliation. Accordingly convicted and sentenced the appellant, Here it is significant that deceased and accused were not only relatives but both were Junior Engineers in Electricity department. Learned counsel for the appellant at length drawing attention to the deposition of witnesses contended that :- 1. Occular evidence and medical evidence contradictory- difference in what is narrated in FIR and oral evidence Page No. 4 S.B. Crl. Appeal No. 603/2003 (Satyaveer Singh Vs. State) 2. Conflict between how many injuries and how stated to be caused and found on body. 3. Evidence of alleged eye-witnesses not reliable certainly not safe to believe, contradictory and different from each other on material facts. 4. Opposite versions as to in what manner and from where appellant coming and why and how the deceased reached there and how axe blows inflicted. 5. Witness PW/5 declared hostile. Accused can rely upon his testimony and also of witnesses not declared hostile. Evidence of such witnesses may be binding on prosecution. 6. Very material named witness Ajit Singh not produced- adverse inference to be. 7. Recovery cannot be believed- contradictory evidence. 8. As per prosecution, axe snatched or remained at the spot. Accused arrested same night 1:30 AM - after 35 hours of arrest axe recovered on 26.05.2001 -that too from own house of appellant where he was residing with wife and kids. 9. Plenty of infirmities in version of eye-witnesses. In support of above contentions, reliance is placed on following which respectfully perused in context of appeal at hand:- (i) JT 1994(3) SC 440- Meharaj Singh Vs. State of U.P. - about nature of injuries and use of different weapons. (ii)1992 Cr.L.R. (Raj.) 92 Banwari lal Vs. State of Raj. - Improbable conduct of witnesses and also infirmities in testimony – non-inspiration of confidence. Also about evidence of recovery. (iii)2005 SC (Cri.) 1050 Raja Ram Vs. State of Raj. - Prosecution witness not declared hostile, his evidence may be binding on prosecution. (iv)JT 2003 (Suppl) 2 SC 556 Sohan lal & ors. Vs. State of Punjab – Defence can rely on testimony of hostile witnesses as per version and circumstances. (v)2003 SCC (Cri) 1469 If on a fact two pieces of evidence, then benefit Page No. 5 S.B. Crl. Appeal No. 603/2003 (Satyaveer Singh Vs. State) of doubt to accused – in this case interested witnesses two girls contradicted their own statements on material fact and both of these witnesses offered the chance witnesses. (vi)AIR 2007 SC 144 State of Raj. Vs. Kanshi Ram – regarding recovery. (vii)1996 SCC (Cri) 919 State of M.P. Vs. Surbhan – Eye witness telling about one blow from behind but medical evidence disclosing three incised injuries on three different places. Learned Public Prosecutor argued and stated that : 1. FIR lodged soon after the incident. 2. Incident happened just near the house of appellant in a Sabji Mandi which obviously is crowded. 3. Many persons present in that Mandi. 4. To appellant's wife also occurrence visible. 5. Proved is hot exchanges just or some time prior to occurrence. 6. Medical and oral evidence corroborative. 7. Minor variations if any, are irrelevant and the case proved. We have perused the record carefully and have given thoughtful consideration to the rival contentions. First of all it will be appropriate to examine how the deceased was there and in this context, evidence of relations (strained) between appellant husband and his wife PW/7 is also very relevant and simultaneously it will be worthy to briefly mention the incident as narrated by witnesses. As per wife of accused appellant Smt. Vandana PW/7, she was married to appellant for about 12 years- having two children, -elder 8 years daughter and younger 5 years son - and they residing since one year in back portion of house of Shri Raghunath Singh Rathore. As per deposition of Smt. Vandana, her husband physically and mentally tortured her, his behaviour was not proper, always asked for 3-4 lacs and a notice through Advocate was given to husband who at that time was posted at Jhunjhunu as Jr. Engineer, Electricity Board. As per wife PW/7, a day Page No. 6 S.B. Crl. Appeal No. 603/2003 (Satyaveer Singh Vs. State) prior the incident, husband tried to kill her by compressing her neck and her real Mama's son (mother's brother's son) Mukesh with his friend Vinod came there on this day for taking her to her parents residing at Chirawa. In cross-examination, narrates that she asked her husband that they (deceased with friend Vinod PW/11) have come to take her and husband appellant in anger asked her to go and voluntarily agreed to her going but she did not go. PW/7 also states that due to incident that happened previous night (of compressing neck), she also ran away and informed her family but did not deem it proper to lodge any report (of night's incident) with police. As per wife PW/7, Mukesh and Vinod tried to make her husband Satyaveer Singh to be understanding. On this he got annoyed and went out of house so she asked Mukesh also to go away as anything can happen. So Mukesh and his friend also went from home and after 4-5 minutes, on hearing shouts and noises, she came at main gate and observed that at 30-35 ft, Mukesh was fallen and husband Satyaveer Singh inflicting blows of axe on him. Amarjeet Singh, Ajit Singh and others of nearby shop came and intervened to protect and she being afraid, ran away towards neighbour as Satyaveer Singh moved towards home. Police arrived after 15-20 minutes and carried Mukesh in jeep to hospital where he died. As per PW/7, she herself did not intervene or hold Mukesh and ran away as husband was coming towards her. As per PW/7 landlord's son Shiv Singh was also present and on next day at about 10-11 forenoon, she came back and went in the evening to her parents having locked her house and telling landlord. Afterwards neighbours told her that on next day, police came. She came after a month and collected keys from landlord. Vandana PW/7 herself is a lecturer in Government Girls College, Sriganganagar. As above, Smt. Vandana ran away and came next day to her house and again went to her parent's house. As per this witness, police came on next day after she left. The incident is of 24th -she left her house locked on 25th evening leaving keys with landlord and as per prosecution Page No. 7 S.B. Crl. Appeal No. 603/2003 (Satyaveer Singh Vs. State) axe recovered from house on 26th forenoon. It may also be mentioned that soon after the incident as appealnt was coming towards her, she ran away. Amarjeet Singh PW/4 lodged information and he deposes the incident to have occurred as stated by him in FIR and as per PW/4, he is tailor and owns shop near Sabji Mandi and in the evening about 6 pm went to Sabji Mandi to purchase tomatoes - Accused came from the side of Hanuman Mandir whose both hands were at back having an axe and from opposite house, came a person (afterwards came to know name 'Mukesh') towards Sabji mandi. Mukesh inflicted blow of axe at shoulder and then on head to Mukesh who fell down and third blow on his head- on shouting of this witness, Ajit Singh, Shiv Singh, Devendra Singh came and Ajit Singh caught hold of Satyaveer Singh (appellant) who -telling that he will kill- ran into his house. In next 15-20 minutes police arrived and took Mukesh to hospital. As per PW/4, then he went to police station to lodge report Ex.P/5 which bears his signature. Statement recorded of this witness PW/4 during investigation is Ex.D/1 which do not contain that first blow was on shoulder and he shouted though as per this witness, he disclosed so. But this is too minor and absolutely negligible. Ajit Singh, who as per FIR and PW/4, caught hold of Satyaveer Singh is not produced but certainly, there can be no reluctance to hold that it does not make any affect as other much and believable trustworthy evidence is on record. Kishori lal PW/6 though not named in FIR -but he is a vegetable seller doing so near transformer. So his presence is very very natural. As per this witness PW/6, at about 6:15 in the evening on May 24th, he was selling vegetable then came a person running from the side of Sabji Mandi whose name was being spoken as Mukesh and appellant having axe was after Mukesh. This witness states that appellant inflicted blow of axe on head of Mukesh from behind. Mukesh fell down and appellant inflicted another blow. Then came several persons and caught hold of Satyaveer Singh. As per PW/6, he knows Satyaveer Singh because Satyaveer Singh is residing in nearby house on rent- In cross- Page No. 8 S.B. Crl. Appeal No. 603/2003 (Satyaveer Singh Vs. State) examination, he states that police came in 10-20 minutes and Satyaveer handed over to police then and there. Till then, Satyaveer Singh was not allowed to run away. This witness was selling vegetable at about 5-6 ft from the place of incident. PW/6 Kishori lal further states that three injuries of axe caused to deceased of which two on head and one on neck and do not know any of the person who snatched axe from Satyaveer Singh. Similarly, as per Devendra Singh PW/5, though declared hostile, people were running towards Sabji mandi so he went away and then crowd gathered and gathered people were telling that Satyaveer Singh has done so and Satyaveer Singh was removed by Ajit Singh but no axe or anything was in hands of Satyaveer Singh at that time-statement of this witness during investigation is Ex.P/9 which contains that Satyaveer Singh ran away to his house having axe in his hand- This witness when contradicted has accepted it but simultaneously also stated that as people made axe to fall of appellant's hands, it was on the road. This witness PW/5 further states that he was standing just out of his shop opposite to his own residential house and soon after reached at the place of occurrence. As such inference is that he lived and was in near vicinity and importantly this witness also says that appellant accused used to quarrel with his wife Smt. Vandana and on this day, Mukesh and his friend had came to take Vandana so the accused got annoyed. PW/11 Vinod is the person accompanying the deceased. As per this witness he is of 26 years of age- and as per postmortem report, age of deceased was around 28 years. As per PW/11, he and deceased both studied Law (LL.B) together and so also knows Smt. Vandana and on May 24th, he and Mukesh reached residence of Smt. Vandana at about 4:15 PM where Smt. Vandana told them that her husband Satyaveer Singh is harassing her for last 2-3 days and on last night tried to kill her so Mukesh told Satayaveer Singh that he has a good job and post so why he is doing so then Satyaveer Singh got annoyed and began abusing Mukesh and went away. Then at about 5:45 P.M. Smt. Vandana told Page No. 9 S.B. Crl. Appeal No. 603/2003 (Satyaveer Singh Vs. State) Mukesh that her husband is in anger so may do anything, therefore, they should go from there . So this witness and Mukesh came out of the house and reached at about 30 ft . At that moment Satyaveer Singh came from behind and inflicted axe blow on head and then another blow to Mukesh and Mukesh fell down. When this witness verbally intervened, appellant threatened him to ran away and many persons came there. As per this witness Vinod, he went to bus stand informed father of Smt. Vandana on telephone and went back to Chirawa. This witness did not inform police. In his statement of investigation Ex.D/2, he has not mentioned blow on head and similarly finds no mention that police jeep arrived and Mukesh carried to hospital which this witness admits. But again these are too too minor variations and obviously looking to the incident, it is but natural that witness will return back to his own village. It is very much natural and normal that this witness was with Mukesh. Shiv Singh PW/10 named eye-witness in FIR and statements of witnesses and PW/7 Smt. Vandana also states so, so his presence become fully acceptable. As per Shiv Singh PW/10 this family was residing on rent in their house. Appellant Satyaveer Singh a Jr. Engineer in Electricity department used to beat wife and on May 24th, Mukesh and his friend came around 4'o clock in evening and in the evening at 6'o clock when he (witness PW/10) was standing at gate of house saw appellant coming from the side of Hanuman temple about 60-70 ft from his house- Satyaveer Singh was having an axe in his hands of which gave a blow on head of Mukesh - Mukesh fell down and then gave blows of axe on neck and head. Then Amarjeet Singh Ajit Singh, Devendra Singh came and intervened and Satyaveer Singh went towards his own house and then where Satyaveer Singh went, they don't know. Shiv Singh PW/10 stated that Ajit Singh snatched axe from the hands of appellant and police came after 15-20 minutes. As above, ocular evidence is very straight and fully trustworthy- There is absolutely no reason to doubt trustworthiness. As per evidence of Dr. Indrapal Punia PW/3, who conducted Page No. 10 S.B. Crl. Appeal No. 603/2003 (Satyaveer Singh Vs. State) postmortem and prepared report Ex.P/7, following injuries were found- all antemortem on the body of Mukesh :- 1. Incised wound 4 inch x 1 inch cavity deep at back occipital region on head. 2. Incised wound 3 inch x ½ inch cavity deep on occipital region back vertical. 3. Incised wound 4 ½ inch x ½ inch cavity deep on left parietal region. 4. Lacerated wound ½ inch x 1/8 inch skin deep on nose 5. lacerated wound 2/12 inch x ¾ inch muscle deep left side upper neck 6. lacerated wound 1 ½ inch x 1 inch muscle deep on left side 7. Abrasion ½ inch x ½ inch rt side upper lip 8. Abrasion ½ inch x ¼ inch rt side cheek 9. Abrasion 1 inch x ½ inch on rt upper lid 10.Abrasion ½ inch x ½ between both eye bros 11.Contusion 3 inch x 1/8 inch medial side of rt scapula 12.Contusion 3 inch x 1/8 inch cross the injury above. Also found was fracture of parietal and occipital bones- and death caused due to head injuries. As per doctor PW/3, injures No. 5 to 9 cannot be caused by sharp object like axe. On the strength of above injuries and on the narration of witnesses that only three injuries were inflicted by the accused appellant, it is forcibly argued that medical and oral evidence are opposite to each other. Considering this point, certainly this appears that as per ocular evidence, three major blows of axe inflicted. But as per postmortem report all three big incised wound of substantial dimension on head, occipital and parietal region. Rest other are three lacerated wounds of which one only skin deep and other two on scapular region. It may be noted that deceased fell down and many persons came to try to intervene so certainly it is very likely that injuries other than those of sharp weapons caused in course of this whole incident. Rest injuries are abrasions and contusions insignificant looking to other injuries- Even lacerated wound insignificant considering three major injuries incised wound on parietal and occipital region. So there is no difference and conflict between oral Page No. 11 S.B. Crl. Appeal No. 603/2003 (Satyaveer Singh Vs. State) and medical evidence. Thus also stands proved that appellant was having axe and he inflicted blows of axe on deceased. So recovery becomes comparatively less relevant. As per Investigating Officer, in the night at 1:35 AM -that is after seven hours of the incident accused arrested and then worn shirt having blood stains seized. As per Investigating Officer PW/15 and memo Ex.P/39 and Ex.P/1, on May 26th at 10:15AM appellant informed that axe is concealed in clothes in his house which can be shown by him- then at 11 AM accused appellant in his residential house Ward No.13 took out axe, having blood stains, from clothes lying in north west corner of house. The axe having blood stains on 8 cm sharp edge portion and having 70 cm on wooden handle seized and sealed memo being ExP/1. Wintesses of this recovery are PW/1 and PW/2 signatures of both are on memos Ex.P/1 and P/2. As per PW/1 Vijay Singh, he and police alongwith accused went to the house of the accused from where axe recovered and sealed. In cross-examination, he states that landlord was not present and all the rooms of the house were already open. As per PW/2 Vijay Singh, he alongwith another Vijay Singh PW/1 went with the police to house of Raghunath Singh (landlord) where Satyaveer Singh resided. The appellant took out axe from the corner of hall having blood stains which seized and sealed. In cross-examination stated that key was procured prior to his arrival and lock opened before him. The appellant's house was having a room, hall and a kitchen. Argument advanced is that when axe was snatched and lying on the road and accused after said incident could not have gone to his house then there is no question of any recovery and this recovery is completely falsely implicated. So the entire prosecution becomes doubtful. We see no merit in this argument- wife of deceased ran away soon after the incident. She came next day and in the evening again left locking the house and keeping keys with landlord. Evidence is that Ajit Page No. 12 S.B. Crl. Appeal No. 603/2003 (Satyaveer Singh Vs. State) Singh and other snatched axed but simultaneously Smt. Vandana has deposed in definite terms that accused her husband was coming in aggressive way towards her so she immediately ran away towards neighbour. This fact definitely indicate that accused came to house. If axe was snatched or made to fall on road, it does not make a definite effect because certainly when deceased was so bodily injured as to be on the verge of death, then naturally everyone shall pay attention towards him and so it happened that accused kept axe back with him, so recovery