Case: Malti Sahu &amp; Anr Vs. Rahul &amp; Anr

has reversed the conviction and thereby has acquitted the accused, it is prayed not to interfere with the same in exercise of the powers under Article 136 of the Constitution of India. 5. We have heard the learned counsel appearing on behalf of the respective parties at length. 6. We have perused, considered and gone through the judgment and order passed by the Trial Court convicting the accused for the offence under Section 302 IPC and the impugned judgment and order passed by the High Court acquitting the accused. 7. In the present case, the prosecution has been successful in proving the motive so far as the accused is concerned. Though, PW-8 initially made a statement before the Police that he had seen the accused alongwith the deceased going to their house, but before the Court, he turned hostile. However, he had been cross-examined by the Public Prosecutor and during the course of cross-examination, he has stated that Kavita Sahu - deceased alias Kimi, a few days before the incident had disclosed to him that accused Rahul had made some obscene gestures at her. He has further stated that Kavita alias Kimi used to often confide with him regarding her personal matters. He has also stated that he felt bad when Kimi disclosed to him about the activities of Rahul. He has also stated that Kimi disclosed to him about the behaviour of accused Rahul on 4th and 5th December, 2011. As per the settled position of law, even the evidence of a hostile witness can be considered to the extent, it supports the case of the prosecution. Therefore, prosecution has established and proved the motive to that extent. 7.1 Another link in the evidence, which establishes and brings home the guilt of the accused person is the recovery of the knife in three pieces, recovered from the place of occurrence, which was used for commission of the offence. During the course of investigation and on a thorough inspection of the spot, a knife in three pieces was found lying on the floor in the room, where dead body of Kavita was lying. On the knife, the word Glare was engraved. The prosecution has been successful in establishing and proving that it was the accused, who purchased the said knife from one Ravi Mittal, PW-9. The witness PW-9 had not only identified the knife purchased by the accused, but he has also clearly stated that the knife (which was found in three pieces) is the same, which was purchased by the accused. He has also identified the accused. As per the medical report and the post-mortem report, the cause of death was a result of hemorrhage and shock consequent upon slitting of the throat. Thirteen ante mortem injuries were found on the person of Gaurang and eight injuries on the body of Kavita. It was opined that the same could have been caused by a sharp-edged weapon. PW-3, who was one of the members of the Board, which conducted the post-mortem also stated in her evidence that the injuries could be possible with the weapon examined when taken as a whole. i.e., single weapon. She stated that even the throat injury was possible with three pieces and it was possible that the weapon might have broken during the process. The knife in three broken pieces was recovered from the place of occurrence having blood stains and it has been established and proved that during the use of the weapon, i.e., knife, in commission of the offence, the same might have broken. 7.2 The next link in the chain of evidence is the recovery of Loi having blood stains of the deceased Kavita as well as of the accused, which Loi was recovered on the basis of the disclosure statement made by the accused himself. Though, Panchas to the recovery panchnama/disclosure panchnama had turned hostile, still the prosecution has proved the same through the I.O. However, unfortunately, the High Court has doubted the DNA/CFSL report on grounds, which are not germane, namely, the human hair in the hands of Kavita was not examined; blood stains were not properly presented. However, the High Court has not gone in the detailed discussion of the CFSL Report on record. Having gone through the CFSL Report as well as the depositions of the witnesses from the CFSL, we are of the opinion that the blood on the Loi was found to be matching with that of Kavita and the accused. 7.3 One another circumstance, which will go against the accused would be that an injury on the ring finger of the left hand of the accused was found, which was treated by PW-20, Dr. Davinder Kapil. He stated in his evidence that accused came to his clinic in December, 2011 and disclosed his name; he had injury over ring finger of his left hand and came to him for first aid; the finger was already covered by accused with handkerchief; on removing the same, he found an injury over ring finger of his left hand; when he asked about the injury, he disclosed that he suffered the aforesaid injury by some iron bar. He also stated that on seeing the injury, he found it could be happened due to a sharp-edged weapon. The accused has failed to explain the injury on him. On the contrary, he has come out with a false case that the injury was caused by some iron bar, which has not been established and proved. 8. Considering the aforesaid overall facts of the case and evidence on record, the High Court has committed a grave/serious error in observing that the prosecution has failed to prove the link evidence, which could establish and bring home the guilt of the accused. The findings recorded by the High Court are perverse. The High Court has not properly appreciated the entire evidence on record, more particularly, the findings recorded by the Trial Court, which as such were on appreciation of the entire evidence on record.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]6. We have perused, considered and gone through the judgment and order passed by the Trial Court convicting the accused for the offence under Section 302 IPC and the impugned judgment and order passed by the High Court acquitting the accused.7. In the present case, the prosecution has been successful in proving the motive so far as the accused is concerned. Though, PW-8 initially made a statement before the Police that he had seen the accused alongwith the deceased going to their house, but before the Court, he turned hostile. However, he had been cross-examined by the Public Prosecutor and during the course of cross-examination, he has stated that Kavita Sahu - deceased alias Kimi, a few days before the incident had disclosed to him that accused Rahul had made some obscene gestures at her. He has further stated that Kavita alias Kimi used to often confide with him regarding her personal matters. He has also stated that he felt bad when Kimi disclosed to him about the activities of Rahul. He has also stated that Kimi disclosed to him about the behaviour of accused Rahul on 4th and 5th December, 2011.As per the settled position of law, even the evidence of a hostile witness can be considered to the extent, it supports the case of the prosecution. Therefore, prosecution has established and proved the motive to that extent.7.1 Another link in the evidence, which establishes and brings home the guilt of the accused person is the recovery of the knife in three pieces, recovered from the place of occurrence, which was used for commission of the offence. During the course of investigation and on a thorough inspection of the spot, a knife in three pieces was found lying on the floor in the room, where dead body of Kavita was lying. On the knife, the word Glare was engraved. The prosecution has been successful in establishing and proving that it was the accused, who purchased the said knife from one Ravi Mittal, PW-9. The witness PW-9 had not only identified the knife purchased by the accused, but he has also clearly stated that the knife (which was found in three pieces) is the same, which was purchased by the accused. He has also identified the accused. As per the medical report and the post-mortem report, the cause of death was a result of hemorrhage and shock consequent upon slitting of the throat. Thirteen ante mortem injuries were found on the person of Gaurang and eight injuries on the body of Kavita. It was opined that the same could have been caused by a sharp-edged weapon. PW-3, who was one of the members of the Board, which conducted the post-mortem also stated in her evidence that the injuries could be possible with the weapon examined when taken as a whole. i.e., single weapon. She stated that even the throat injury was possible with three pieces and it was possible that the weapon might have broken during the process.The knife in three broken pieces was recovered from the place of occurrence having blood stains and it has been established and proved that during the use of the weapon, i.e., knife, in commission of the offence, the same might have broken.7.2 The next link in the chain of evidence is the recovery of Loi having blood stains of the deceased Kavita as well as of the accused, which Loi was recovered on the basis of the disclosure statement made by the accused himself. Though, Panchas to the recovery panchnama/disclosure panchnama had turned hostile, still the prosecution has proved the same through the I.O. However, unfortunately, the High Court has doubted the DNA/CFSL report on grounds, which are not germane, namely, the human hair in the hands of Kavita was not examined; blood stains were not properly presented. However, the High Court has not gone in the detailed discussion of the CFSL Report on record.Having gone through the CFSL Report as well as the depositions of the witnesses from the CFSL, we are of the opinion that the blood on the Loi was found to be matching with that of Kavita and the accused.7.3 One another circumstance, which will go against the accused would be that an injury on the ring finger of the left hand of the accused was found, which was treated by PW-20, Dr. Davinder Kapil. He stated in his evidence that accused came to his clinic in December, 2011 and disclosed his name; he had injury over ring finger of his left hand and came to him for first aid; the finger was already covered by accused with handkerchief; on removing the same, he found an injury over ring finger of his left hand; when he asked about the injury, he disclosed that he suffered the aforesaid injury by some iron bar. He also stated that on seeing the injury, he found it could be happened due to a sharp-edged weapon. The accused has failed to explain the injury on him. On the contrary, he has come out with a false case that the injury was caused by some iron bar, which has not been established and proved.8. Considering the aforesaid overall facts of the case and evidence on record, the High Court has committed a grave/serious error in observing that the prosecution has failed to prove the link evidence, which could establish and bring home the guilt of the accused. The findings recorded by the High Court are perverse. The High Court has not properly appreciated the entire evidence on record, more particularly, the findings recorded by the Trial Court, which as such were on appreciation of the entire evidence on record.