Vijay Kumar Rajak vs The State Of Madhya Pradesh on 2 April, 2018

[Cites 9, Cited by 8]

Madhya Pradesh High Court

Vijay Kumar Rajak vs The State Of Madhya Pradesh on 2 April, 2018

This appeal has been filed by the appellant, being aggrieved by the judgment dated 11.12.2008, passed by Fourth Additional Sessions Judge (Fast Track), Jabalpur in S.T. No. 38/2008, whereby the appellant has been found guilty for the 2 Cr.A. No.153/2009 offence punishable under Section 302 of the Indian Penal Code and has been sentenced to imprisonment for life and fine of Rs.1,000/-.

2. Prosecution case, in brief, is that, accused and the deceased were husband and wife and Tanu (P.W.-1) is their daughter. The relationship between the accused and the deceased were strained, as a result of which deceased was living at her mother's house and has filed a suit for maintenance against her husband. On 27.09.2007, at around 1.25 P.M., the deceased was taking her daughter home from the tuition, when enroute, near Durga temple, the accused, who was hiding behind chakoda bushes, stopped her to talk to her. To which she replied that she does not want to talk him and whatever she has to say, can be said in the court and went ahead. On hearing this, accused ran after the deceased and after repeatedly striking her with knife in the chest, stomach, lower abdomen, face, back and leg has run away. As a result, deceased sustained grievous injuries and fell down. People standing nearby rushed after the accused and caught him and took him to police station. The accused was then taken to the hospital in an auto-rickshaw, when enroute she died. 3 Cr.A. No.153/2009

3. Report (Ex.P-2) to this effect was lodged by Tanu (P.W.-1) at Police Station, Ghamapur. On the basis of which, merg was recorded and FIR was registered. P.W.-12 Om Patel, Inspector after recording the FIR, went to the hospital and body of the deceased was sent for postmortem. Memorandum of accused Vijay was recorded vide Ex.P-8 and blood stained knife was recovered from him vide Ex.P-9. Statement of witnesses were recorded and the seized articles were sent for chemical examination to FSL, Sagar. Report of which was received vide Ex.P-15.

4. Dr. R.P. Pyasi (P.W.-9), who conducted the autopsy found the following injuries on the person of the deceased :-

(i) Stab wound 3" x 1" x deep to oral cavity on left cheek.

(ii) Stab wound 2" x 1" x deep to thoracic cavity on left side of chest.

(iii) stab wound 2" x 1" on right side of chest, deep to thoracic cavity.

(iv) stab wound 2" x 1" x deep to chest on lateral side of right side of chest.

(v) stab wound 2" x 1" x deep to abdominal cavity on right gastric region.

(vi) stab wound 2" x 1" on mid gastric region deep to abdominal cavity.

(vii) stab wound 2" x 1" on left gastric region deep to abdominal cavity.

4 Cr.A. No.153/2009

(viii) stab wound 2" x 1" x bone deep on right upper arm.

(ix) stab wound 2" x 1" x deep to bone on left upper arm.

(x) stab wound 2" x 1" x bone deep on left knee lateral.

Clotted blood present on all wounds.

In the opinion of the doctor, the cause of death was haemorrhage and shock due to the injuries mentioned above. Injuries were ante-mortem and caused by hard, sharp and pointed weapon.

5. After completion of the investigation, charge sheet was filed against the accused. The accused abjured his guilt and pleaded false implication.

6. The trial Court after careful scrutiny of the evidence and documents on record, recorded a finding of guilt against the appellant and convicted and sentenced him as aforesaid.

7. Learned counsel for the appellant has submitted that appellant has been falsely implicated. Tanu (P.W.-1) in her cross-examination has admitted that some other person inflicted injuries to her mother. Moreover, there is inconsistencies in the 5 Cr.A. No.153/2009 medical evidence and the statement of Tanu (P.W.-1), who has stated that appellant has inflicted two blows only. Learned counsel further urged that accused was present in the police station since 2-2.30 P.M., but he was arrested at 6.30 P.M. It is further contended that the recovery of knife is not proved, as according to Tanu (P.W.-1), she took out the knife from her mother's body and gave it to Jaggu (P.W.10).

8. The learned Govt. Advocate, on the other hand has supported the judgment of the trial court. It is stated that there are number of eye witnesses, who saw the accused inflicting injuries with knife to the deceased and the accused was caught, while he was trying to run away. It is further submitted that the knife recovered from the accused was found having human blood, as per the FSL report (Ex. P-15).

9. We have heard the learned counsel for the parties at length and perused the record.

10. Tanu (P.W.-1), who is eight years old and daughter of the deceased, in her examination in chief has deposed that the accused present in the Court is her father, who had murdered her mother. She had 6 Cr.A. No.153/2009 very clearly stated that on 27.09.2007, at 1.00 P.M., her mother had come to take her home from her tuition class and while they were going back home, her father who was hiding in Chakoda bushes called her mother from behind, but her mother refused to listen and talk to him, saying she will talk to him in the Court and both of them went towards their house. Hearing this, the accused came from behind and caught hold of deceased's neck and stabbed her repeatedly in the abdomen, as a result thereof, her mother fell down. The accused then tried to run away but was caught by the persons standing nearby. This witness has further stated that she took out the knife from the mother's stomach and gave it to Jaggu (P.W.-

10). She has further deposed that Manoj Sahu (P.W.-

8), who is their neighbour had called an auto- rickshaw and took injured Devika to the hospital, when enroute, she succumbed to the injuries. She has further deposed that Jaggu, Faru, Sushil and Alok took the accused to the police station, where, she lodged the merg intimation (P.W.-1) and FIR (Ex.P-2) and signed the same. However, in her cross-examination, which was done on 04.07.2008, i.e., after four months of her chief examination, contrary to her earlier statement, she had stated that one man stabbed her 7 Cr.A. No.153/2009 mother and run away. She has further stated that when she reached the police station, her father was already there, as some persons had beaten him and brought to the police station. However, she admitted that cases between her parents are going on which fact is also corroborated by Munni Bai (P.W.-2), mother of the deceased, who has stated that accused used to beat and harassed the deceased and therefore, she was living at her Mayaka. She has stated that deceased had filed a suit for maintenance against the accused, in which accused was directed to pay Rs.1 Lakh to the deceased.

11. In Yogesh Singh Vs. Mahabeer Singh and others (2017) 11 SCC 195, the Supreme Court has held :-

22. It is well-settled that the evidence of a child witness must find adequate corroboration, before it is relied upon as the rule of corroboration is of practical wisdom than of law. (See Prakash Vs. State of M.P., (1992) 4 SCC 225; Baby Kandayanathi Vs. State of Kerala, 1993 Supp (3) SCC 667; Raja Ram Yadav Vs. State of Bihar, (1996) 9 SCC 287; Dattu Ramrao Sakhare Vs. State of Maharashtra, (1997) 5 SCC 341; State of U.P. Vs. Ashok Dixit & Anr., (2000) 3 SCC 70;

Suryanarayana Vs. State Of Karnataka, (2001) 9 SCC 129).

8 Cr.A. No.153/2009

23. However, it is not the law that if a witness is a child, his evidence shall be rejected, even if it is found reliable. The law is that evidence of a child witness must be evaluated more carefully and with greater circumspection because a child is susceptible to be swayed by what others tell him and thus a child witness is an easy prey to tutoring. [Vide Panchhi Vs. State of U.P., (1998) 7 SCC 177].

12. In the instant case, the child witness has changed her statement in favour of the accused after four months of her main examination. It is clear that during the intervening period of four months, she has been won over and tutored by the accused. However, her main examination is amply corroborated by the other independent eye witnesses.

13. P.W.-8 Manoj Sahu, who is another eye witness, in conformity to his statement under Section 161 of the Cr.P.C. has stated that she knew Devika, as she was his neighbour. On 27.09.2007, he was siting in the garden of Durga Mandir, when he saw Devika coming alongwith her daughter, her husband was coming behind them. He saw Vijay (accused) took out knife and repeatedly stabbed Devika in the stomach and chest. He has stated that he is handicapped, therefore, could not help them but 9 Cr.A. No.153/2009 called the auto-rickshaw for taking Devika to hospital. His statement is corroborated by P.W.-3 Ashok, who stated that he is an auto driver and on 27.09.2007, at around 1.40, in the afternoon, while he was going to the school to pick up the children, somebody stopped his auto, he saw one woman drenched in blood, he recognized her as Devika from his neighbourhood. Her daughter was standing nearby with a knife in her hand. He has further stated that he took Devika to police station in his auto, where he was told to take her to the hospital.

14. P.W.-6 Sushil Kumar Sahu, is also an eye witness and in conformity with his 161 statement has deposed that he knew the accused by face and lateron came to know about his name. He has deposed that he was sitting near the Durga temple, when he saw the accused repeatedly stabbing a woman, who was with a small girl. He has stated that the accused after having stabbing the woman was running away, therefore, he alongwith son of Sibbu Nai went after him and caught him and later took the accused alongwith the knife to the police station. Similar is the statement of P.W.-4 Bijendra Burman, who has deposed that on 1.15 in the afternoon of 10 Cr.A. No.153/2009 27.09.2007, he was sitting at Shakti Travels, when he heard the shouts 'pakdo-pakdo' and he saw the accused running away, however, a person running behind him, caught the accused and took him to the police station.

15. P.W.-9 Dr. R.P. Pyasi has deposed that he noticed 10 stab wounds on the person of the deceased. Her left side 3rd, 4th ribs and right side 7th and 8th ribs were cut. There were deep cuts in both the lungs and the heart. The intestine, stomach and liver, all were deeply cut. The doctor has opined that injuries No. 2 to 7 were grievous and enough in the ordinary course of nature to cause death.

16. P.W.-12 Om Patel, Investigating Officer has deposed that on 27.09.2007, he was posted as Station Incharge at Ghamapur Police Station. He recorded the FIR (Ex.P-2) and Merg (Ex.P-1) as per the information of Tanu (P.W.-1). Tanu has stated that she took the knife from the stomach of her mother and gave it to Jaggu. The I.O. has corroborated this fact and has stated that accused was brought with the blood stained knife by Jaggu (P.W.-10) and some other persons to the Police station. He has further stated 11 Cr.A. No.153/2009 that after making enquiry from the accused and after recording his memorandum, he was formally arrested. He has further stated that the knife recovered from the accused was sent for chemical examination vide Ex. P-14. In view of these facts, the arguments of appellants regarding recovery of weapon and arrest has no substance.

17. From the statement of P.W.-1 Tanu, P.W.-2 Munnibai, it stands established that the relationship between the accused and the deceased were strained and they were living separately. It also stands established from the evidence of P.W.-1 Tanu, P.W.-4 Bijendra Burman, P.W.-6 Sushil Kumar Sahu and P.W.-8 Manoj Sahu that appellant came, armed with knife, with an intent to cause grievous injuries to the deceased and was waiting for her, hiding behind the bushes and when she refused to listen to him, he brutally stabbed her with knife that he was carrying with him, which is also medically corroborates with the injuries mentioned in the postmortem report. It is also established from the doctor's evidence that these injuries were grievous in nature and enough to cause death in natural course.

12 Cr.A. No.153/2009

18. Having considered all the relevant material and having noticed the fact that the relationship between the deceased and the accused were strained and the number and severity of the injuries caused to the deceased, we are of the view that the trial Court has rightly held the appellant guilty of offence under Section 302 of the I.P.C. In view of the the aforesaid, we do not find any illegality or perversity in the appreciation of the evidence made or the finding of conviction recorded by the trial Court.

19. In view of the above, the appeal filed by the appellant being meritless is accordingly dismissed. The conviction of the appellant under Section 302 of the I.P.C. is accordingly upheld and affirmed. It is submitted that appellant is in jail. He shall remain incarcerated to undergo the remaining part of his jail sentence.

             (J.P. Gupta)                        (Nandita Dubey)
                JUDGE                                JUDGE
             02/04/2018                           02/04/2018


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Digitally signed by GEETHA NAIR
Date: 2018.04.04 15:01:30 +05'30'

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