Rajasthan High Court - Jaipur
Golu @ Nakul vs State Of Rajasthan on 22 April, 2002
Equivalent citations: 2002(3)WLC217
JUDGMENT Bansal, J.
1. This appeal is directed against the judgment dated February 20, 1996, passed by the learned Sessions Judge, Kota, whereby the appellant-Golu @ Nakul has been convicted for offence under Section 302 I.P.C. and sentenced to undergo imprisonment for life with a fine of Rs. 500/-, in default of payment of fine to further undergo six months rigorous imprisonment.
2. The brief facts of the prosecution case are that PW-1 Babulal submitted a written report Ex.P-1 at Police Station, Rampura Kotwali, Kota on October 16, 1994 at about 10:15 p.m. It was, interalia, stated in the report that today at about 10:00 p.m., he and his maternal grand-mother were sitting on the 'Chabutara', outside his house. At hat time, his brother-Shyam was coming on his Bajaj-M-80 from the side of the market with a slow speed. The appellant Nakul S/o Babulal Mehar was standing in front of his house. As soon as Shyam reached near him, the appellant-Nakul inflicted a Gandasa blow on the temple of Shyam. Shyam fell down. Thereafter the appellant caused injuries on his cheek and neck. When he and Mathri Bai made hue and cry and ran to rescue Shyam, the appellant fled away towards the lane of Gammu Bhai. It was also alleged in the report that prior to this incident, an altercation had taken place between the appellant and Shyam and because of this enmity the appellant committed murder of Shyam. The dead body of Shyam was lying at the spot. On the basis of this report Ex.P-1, the SHO registered a formal First Information Report-Ex.P-2 under Section 302 IPC against the appellant and investigation commenced. On the said day the Investigating Officer reached at the spot and prepared the inquest report Ex.P-3 at 10:45 p.m. Site plan Ex.P-4 was also prepared at 11:-00 p.m. The blood stained stone was seized from the place of occurrence and it was sealed by the Investigating Officer vide Ex.P5. In the same night, at 2:30 a.m. the appellant was arrested vide Ex.P7. Blood stained Pent (Trouser) & Shirt which the appellant was wearing at the time of his arrest, were also seized and sealed vide Ex.PS. Autopsy on the dead body of the deceased Shyam was conducted by PW.9- Dr. Rakesh Sharma on October 17, 1994 at 10:15 a.m. and he prepared the post-mortem report Ex.P15. On the information and at the instance of the appellant, blood stained Gandasi was recovered from a room owned by the appellant on October 17, 1994. Recovery memo is Ex.P.10. Statements of the witnesses under Section 161 Cr.P.C. were recorded. On completion of the investigation, a chargesheet was laid against the appellant in the Court of learned Additional Chief Judicial Magistrate No. 3 Kota, who committed the case to the Court of learned Sessions Judge.
3. The learned Sessions Judge framed a charge under Section 302 IPC against the appellant, which was denied and the appellant claimed trial. The Prosecution examined as many as 9 witnesses in support of its case. In the statement recorded under Section 313 Cr.P.C., the appellant claimed innocence and stated that he was falsely implicated because the deceased used to sell smack and to give to to children for use. When he objected to it, he was given knife blow by the deceased, whereupon a case had been ^registered against the deceased. In defence, the appellant examined as many as 3 witnesses.
4. The learned trial Judge, after hearing the final submissions, convicted and sentenced the appellant as indicated here-in-above.
5. We have heard the learned counsel for the parties and scanned and scrutinized the material on record.
6. There is no dispute that the deceased met with homicidal death and this fact is established by the medical evidence on record. Dr. Rakesh Sharma PW-9 stated that he was the Medical jurist posted at M.B.S. Hospital, Kota. On October 17, 1994 at about 10:15 a.m., on the request of SHO Kotwali, Kota, he conducted the post-mortem examination of the deceased Shyam S/o Chhitar Lal and found the following injuries on the dead body:-
EXTERNAL INJURIES (1) Incised wound 4" x 1" x 2" transverse, lateral aspect of the Rt. Temporal region, cut the ear and bone, extending to face infront of Rt. ear. (2) Incised wound 3" x 1" x 1", transverse, middle of Rt. Cheeck, cutting the maxillary bone, muscles, vessels. (3) Incised wound 3" x 3/4" x 1" transverse, 1/2 m. below the injury No. 2, cutting the muscles, vessel and right mandible. (4) Incised wound 1/2" x 1/8" x 1/8", transverse, middle of the neck infront. (5) Incised wound, 2" x 1/4" x 1/2", transverse, in front of neck, lower aspect, cutting the muscles. (6) Stab wound- 1" x 3/4" x 1-1/4", middle area upper, part of chest Left side, cutting the medial end of left clavicle. (7) Incised wound- 3/4" x 1/8" x 1/8" on the left side of the chest, oblique, 3" below the Injury No. 6. (8) Incised wound 3" x 1/8" x 1/8" transverse, Rt. upper part of the chest.
(9) Incised wound, 3/4" x 1/4" 1/4", oblique, dorsum of the Index finger of Left hand.
INTERNAL INJURIES (1) Fracture of right temporal bone, which was the effect of external injury No. 1. Laceration of brain matter underneath the fractured bone, brain matter peeping out through wound.
(2) Fracture of the mandible, right side.
7. Dr. Sharma further stated that all the injuries were ante- mortem in nature. Injury No. 1 was sufficient in the ordinary course of nature to cause death. It was also stated by him that all the injuries could have been caused by Gandasa and collectively they were sufficient in the ordinary course of nature to cause death. He also stated that the cause of death was shock as a result of the multiple ante-mortem injuries. He prepared the post-mortem report Ex.P.15, which bears his signatures. The details of the injuries were given in Ex.P. 15A, which is part and parcel of the post-mortem report Ex.P.15.
8. The learned counsel for the appellant did not challenge the testimony of Dr. Sharma. In our opinion, the statement of Dr. Sharma is trustworthy and it has been proved beyond reasonable doubt by the prosecution that the deceased Shyam met with the homicidal death.
9. The prosecution cases rests upon the testimony of PW-1 Babulal and PW-2 Mathri Bai, who are real brother and maternal grand-mother of the deceased respectively. No other eye-witness was produced by the prosecution.
10. PW-1 Babulal stated that the deceased was his younger brother. On October 16, 1994, at 9:00 p.m., he and his maternal grand-mother were sitting on the 'Chabutara', which is situated in front of his house. Shyam was coming from the market on his Bajaj-M-80. As soon as he reached near the appellant Nakul, who was standing near the gate of his house, inflicted injury with Gandasa on the neck of Shyam. Thereafter, within 1-2 minutes, the appellant caused 8-10 injuries to the deceased. When he tried to chase him, the appellant fled away in the lane of Gammu Bhai. Thereafter, he went to the Kotwali and submitted a written report Ex.P.1. It was also stated by Babu Lal that prior to this incident, there was a dispute between the deceased and the appellant. He further stated that Shyam died at the spot and police reached at the spot and took away the dead body of the deceased to Hospital in its 'Van1, In his cross-examination, he stated that his house is situated at a distance of 15 to 20 feet from the place of occurrence. He further stated that at the time of incident street light was on. PW-2 Mathri Bai supported the version of PW-1 Babu Lal. She stated that at the time of the incident, she was sitting on the 'Chabutara' with Babu Lal, Light was on. When Shyam was coming after taking betel, the appellant Nakul gave a Gandasa below on the neck of Shyam. The appellant inflicted 7-8 injuries to the deceased and fled away. Shyam fell down. Shyam died instantaneously.'The incident took place in front of the house of the appellant. When they made hue and cry, 2-5 persons came there.
11. It was contended by the learned counsel for the appellant that the evidence of PW-1 Babu Lal and PW-2 Mathri Bai, who are the real brother and maternal grandmother of the deceased respectively, be not accepted as sufficient in the absence of corroboration from an independent evidence, which is lacking in the instant case. Therefore, the prosecution has failed to prove its case against the appellant.
12. We have given our thoughtful consideration to the submission made by the learned counsel for the appellant. The Apex Court in Hukam Singh and Ors. v. State of Rajasthan (1), held "that the Sessions Court refused to believe the testimony of those witnesses on the erroneous perception that they are "Interested Witnesses". The only premise for dubbing them as "Interested Witnesses" is that they were the kith and kin of the deceased. Why should such witnesses be termed as interested witnesses? If they had seen the occurrence they would certainly have the interest to bring the offenders of the murder of their bread earner to took. Normally the kith and kin of the deceased, if they had seen the occurrence would not absolve the real offenders and involve innocent persons for that murder vide; Dalip Singh v. State of Punjab (2), Gulichand v. State of Rajasthan (3) and Dalvir Kaur v. State of Punjab (4). That Court also expressed the same view in Sukhdeo v. State of Rajasthan (5), In its recent judgment in 'Lehna v. State of Haryana (6), the Apex Court has reiterated the same view.
13. We have carefully read the statement of PW-3 Babu Lal and PW-2 Mathri Bai. Both were cross-examined at length and nothing had been pointed out to discard their testimony. Their presence on the spot is natural. Even the defence witnesses admitted that Babu Lal and Mathri Bai reached at the spot just after the incident. There is no reason as to why they would falsely implicate the appellant. The testimony of these witnesses cannot be discarded for the reason that they are real brother and maternal grand-mother of the deceased respectively. We have no doubt in our mind that they are the witnesses of sterling worth and their testimony can be relied upon. Moreover, they get corroboration from the medical evidence as discussed above. On post-mortem examined on the dead body of Shyam, Dr. Rakesh Sharma found as many as 9 ante-mortem external injuries of sharp weapon. He also found fracture of right temporal bone, laceration of brain matter underneath the fractured bone, brain matter peeping out through wound which were effects of external Injury No. 1. Fracture of the mandible right side was also found. In his opinion, all the injuries collectively and injury No. 1 individually were sufficient in the ordinary course of nature to cause death. He also opined that the cause of death was shock as a result of the multiple ante-mortem injuries. Thus, Dr. Sharma, being an independent and trustworthy witness has corroborated the evidence of the aforesaid eye-witnesses.
14. The learned counsel further contended that as there was material discrepancy between the Written Report Ex.P1 and the statement of PW-1 Babulal regarding number of injuries and therefore the testimony of PW-1 Babulal could not be relied upon by the trial Court. In written report Ex.P1, it was stated by PW-1 Babulal that only four injuries were inflicted on the person of the deceased. Whereas in his statement, he deposed that 8-11 injuries were caused. In our opinion, this contention is devoid of force. When the appellant was inflicting injuries on the person of the deceased indiscriminately and without interruption, PW-1 Babulal who is the real brother of the deceased, could not be expected to count the injuries and mention the number in his Written Report Ex.P 1 and thus, discrepancy stated by the learned counsel is not material one and does not effect the truthfulness of PW-1 Babulal. Apart from that, F.I.R. is not an encyclopedia of the entire case and minute details need not to be given in it.
15. The learned counsel also contended that as per the statement of PW-9 Dr. Rakesh Sharma, 9 external injuries were found on the dead body on post-mortem examination whereas PW-1 Babulal stated that when his brother Shyam reached near the appellant, he inflicted an injury with Gandasa on the neck of the deceased and thereafter the appellant caused 8-10 injuries and therefore, looking to this material contradiction, PW-1 Babulal could not be relied on. This contention also deserves to be rejected. As already observed, PW-1 Babulal could not be expected to count the injuries inflicted by the appellant on the person of the deceased and there is no material contradiction between the ocular and medical testimony of the prosecution. It was also contended by the learned counsel that no independent witness residing near the place of occurrence was produced by the prosecution and so, on the basis of the testimony PW-1 Babulal & PW-2 Mathri Bai, who are related to the deceased, the appellant could not be held guilty. This contention was also raised on behalf of the appellant before the learned Sessions Judge, which was rejected by him. In his judgment the learned Sessions Judge observed that the incident had taken place on Sunday and the (serial) 'Alif Laila' was being screened on T.V. and so some of the residents of the locality might have been busy in viewing the serial. It was also observed by the learned Sessions Judge that as there was Dashera Fair also in Kota, some of the residents of nearby residential area might have gone there, and no independent witness had seen the occurrence. Moreover, the incident had taken place within three minutes and therefore it was possible that no other person had witness it. We agree with the view taken by the learned Sessions Judge.
16. The Apex Court in Munshi Prasad and Ors. v. State of Bihar (7), held that "A complaint focused that except the interested witnesses none else from the nearby residential areas has been examined this is so: it is the quality of the evidence and not the quantity, which is required. The crux of the issue being has the prosecution been able to bring home the charges with the evidence" available on record-if the evidence on record is otherwise satisfactory in nature and can be ascribed to be trustworthy, an increase in the number of witnesses cannot be termed to be a requirement for the case."
17. In another case, Sheelam Ramesh and Anr. v. State of Andhra Pradesh (8), the Apex Court observed that "Having examined all the eye-witnesses even if other persons present nearby not examined, the evidence of the eye-witnesses cannot be discarded. Courts are concerned with quality and not with quantity of evidence and in a criminal trial, conviction can be based on the sole evidence of a witness if it inspires confidence."
18. Again in Paramjit v. State of Haryana (9), it was observed by the Apex Court that "Also there is no substance in the submission that independent witnesses were not examined. The prosecution only needs to lead evidence sufficient to prove its case.
19. In view of the aforesaid observations of the Apex Court, it cannot be held that the prosecution has failed to bring home the charge levelled against the appellant merely on this ground that no independent eye-witness of the occurrence was produced by the prosecution. Assuming for arguments sake that the independent witnesses who has seen the occurrence were not produced by the prosecution, in our opinion, the evidence of PW-1 Babulal and PW- 2 Mathri Bai is acceptable as competent and truthful and there is no need to look for any other evidence to prove the guilt of the appellant.
20. It was also contended on behalf of the appellant that the trial Court erred in placing reliance on the evidence of PW-1 Babulal and PW-2 Mathri Bai in as much as the incident in question had occurred at about 10:00 p.m., without there being any light to identify the assailant. This argument has no force. The appellant was known to PW-1 and PW-2 prior to the incident and in their statements, they deposed that they had identified the appellant as there was light of street pole near the place of occurrence. The challenge to the evidence of both these witnesses was considered by the learned Sessions Judge, who in the course of their evidence stated that they could identify the appellant because there was light of electric pole near the place of occurrence, and he came to the conclusion that the testimony of both the witnesses was trustworthy with regard to identification of the appellant. So far as the statements of DW-1 Gopal, DW-2 Hanuman & DW-3 Premchand, to the effect that as there was darkness at the place of incident, they could not identify the assailants, are concerned, we are of the opinion that no reliance can be placed on these statements. All the three witnesses produced in defence also stated that the appellant Golu @ Nakul was not one of the assailants. If there was no light to identify the assailants at the spot, how could they say that the appellant was not one of the assailants who committed murder of the deceased. For the reasons stated above, we are of the view that PW-1 Babulal and PW-2 Mathri Bai had identified the appellant correctly at the time of the incident and their testimony is reliable.
21. It was also urged by the learned counsel that neither Bajaj-M-80 on which the deceased was allegedly coming from the market, was seized by the Investigating Officer, nor it was shown in the Site Plan Ex.P.4, therefore, the prosecution story becomes doubtful. The report of the State Forensic Science Laboratory was not filed in the Court by the prosecution. This fact demolishes the case of the prosecution. It was also submitted by the learned counsel that the trial Court has committed a mistake in not placing reliance upon the testimony of the defence witnesses who stated that the murder of the deceased was committed by others and not by the appellant.
22. Having considered the above submissions of the learned counsel, we are of the view that these submissions deserve to be rejected. So far as non-seizure of Bajaj-M-80 is concerned, the Investigating Officer PW-7 Prahlad Singh stated mat he did not seize Bajaj-M-80 because it was removed and put in front of his house by PW-1 Babulal. Apart from that, it has not come on record that there was blood of the deceased on it and therefore it was not mandatory for the Investigating Officer to seize" it or mention the place where it was, in Site Plan Ex.P4. It is true that the report of State Forensic Science Laboratory regarding the presence of blood on the Gandasi allegedly to have been recovered on information and it the instance of the appellant, was not produced in the Court, but, in our opinion, it is not fatal to the prosecution. The prosecution can succeed on the basis of ocular testimony and other circumstances of the case. Had it been submitted, it would have been an incriminating circumstance to prove the guilt of the appellant. In the instant case, the prosecution has succeeded in proving its case against the appellant with the testimony of PW-1 Babulal, PW-2 Mathri Bai and the medical evidence.
23. In so far as the testimony of DW-1 Gopal, DW-2 Hanuman & DW-3 Premchand is concerned, it was rightly rejected by the trial Court. DW-1 Gopal, DW-2 Hanuman & DW-3 Premchand deposed that on the said day at about 9-10 p.m., on seeing the scuffle, they reached at the place of occurrence. They further stated that as there was darkness, the face of the persons involved in the scuffle was not visible. It was further stated that when they went near the victim, they found that Shyam was murdered. They could not identify the assailants, who were 3-4 in number. They also stated that the appellant Golu @ Nakul was not one of the assailants. If they could not identify the assailants because of the darkness, then, how could they say that the appellant was not there and he was not one of the assailants. The learned Sessions Judge, after having considered the testimony of all these witnesses, minutely has come to the conclusion that they are not truthful witnesses and no reliance can be placed on them. Detailed grounds have been given by the learned trial Court in its judgment for not placing reliance upon the testimony of the defence witnesses and we agree with the view taken by the learned trial Judge.
24. It was also contended by the learned counsel that because of the enmity, the appellant was falsely implicated. He also contended that as admitted by PW-1 Babulal in his statement, the deceased was involved in so many cases, therefore, possibility that he might have been killed by somebody else cannot be ruled out. We are not impressed by the arguments of the learned counsel. Enmity is a double edged weapon and in our opinion, because of the enmity, the deceased was killed by the appellant. It is also clear from the evidence that he was the appellant who caused the death of the deceased Shyam.
25. It was also contended by the learned counsel that both PW-1 Babulal and PW-2 Mathri Bai have made improvements in their statements in the Court from their statements recorded under Section 161 Cr.P.C. and there are inconsistencies and contradictions between their statements recorded during investigation and trial and, therefore, no reliance could be placed upon them, improvements, inconsistencies and contradictions stated by the learned counsel are not material and do not affect the veracity of PW-1 Babulal and PW-2 Mathri Bai. The learned Sessions Judge also had considered all these minor improvements and contradictions and came to the conclusion that they do not affect the basic structure of the prosecution story.
26. Having come to the conclusion that the evidence of PW-1 Babulal and PW-2 Mathri Bai is reliable and trustworthy and having taken note of the fact that the learned Sessions Judge, who had an opportunity to seeing the witnesses in the box, who choose to accept their evidence, we do not find any reason to reject the same. As already stated the ocular testimony of the prosecution gets corroboration from the medical evidence. The First Information Report was lodged promptly within 15 minutes and this fact also lends corroboration to the testimony of PW-1 & PW-2. Thus, in our considered view, the prosecution has succeeded in proving that the appellant inflicted as many as 9 injuries on the person of the deceased by sharp weapon, which resulted in his death at the spot instantaneously.
27. The trial Court has found the appellant guilty for offence under Section 302 I.P.C. as the appellant had caused as many as 9 injuries by sharp weapon on the person of the deceased. Some of the injuries were on the neck and left side of chest, which are vital parts of the body. Because of the injuries caused by the appellant, me deceased Shyam died at the spot instantaneously. It is also clear from the evidence and circumstances of the case that it was a pre-meditated act of the appellant. The appellant was already having a Gandasa and when the deceased while coming from the market, reached near him, the appellant started causing injuries to him and was not satisfied with causing 1 -2 injuries, but, as many as 9 injuries were inflicted by him. Some of the injuries were caused after the deceased fell down. As already stated PW-9 Dr. Rakesh Sharma deposed that injury No. 1 individually and all the injuries collectively were sufficient in the ordinary course of nature to cause death. In these circumstances, it can safely be inferred that the appellant had intended to kill Shyam and caused such injury, which was sufficient in the ordinary course of nature to cause death. In our opinion also, the appellant has rightly been convicted for offence under Section 302 1PC by the trial Court.
28. For the reasons stated above, we agree with the view taken by the trial Court that the prosecution has succeeded in proving its case against the appellant.
29. Consequently, the appeal is dismissed. The conviction and sentence awarded to the appellant is maintained.