Rajasthan High Court - Jaipur
Mahaveer vs State Of Rajasthan on 29 October, 1986
Equivalent citations: 1987WLN(UC)16
JUDGMENT Shyam Sunder Byas, J.
1. Accused Mahaveer was convicted under Section 302, IPC and sentenced to imprisonment for life with a fine of Rs. 300/-, in default of the payment of fine to further undergo three months' rigorous imprisonment by the Sessions Judge, Bikaner by his judgment dated January 30, 1981. He has come-up in appeal and challenges his conviction.
2. Briefly recalled, the prosecution case is that PW 5 Smt. Shakuntala is the daughter of PW 1 Mamraj of village Chak 16-B.D. District Sri Ganganagar. Smt. Shakuntala was married to accused, somewhere 18 months before the incident. The deceased-victim Balram, aged about 20 years, was the son of PW 1 Mamraj. The relations between Smt. Shakuntala and the members of the husband's family were not happy. They used to take her to task off and on as she had not brought dowry from her parents. The accused was also not kind to her and used violence at times. Smt. Shakuntala, finding herself in these torturous circumstances, left her husband's house and came to her parents to live with them. This enraged the accused. Balram left his house at about 10.00 a.m. on Aug. 4, 1979 to go to 14-B.D. as he had some eye trouble. At 14 BD, the accused met him at the house of PW 9 Chandan Ram. Both of them exchanged greetings. Accused Mahaveer was having a naked sword with him while Balram had a bicycle. From there they went to the shop of PW 6 Khemraj, where Balram purchased Biri and a match-box. From there they went towards the canal. At about 3.00 p.m., the accused and Balram were going together towards 365-Head. The accused was sitting on the front bar of the bicycle while Balram was paddling it. They were proceeding on the Kacchi Patri running along with the canal. When they proceeded further, both of them got down from the bicycle on account of sand on the Patri. While they were proceeding on foot, accused Mahaveer made an assault on Balram and landed blows to him with his sword. He struck blows with the sword on the head and other parts of Balram. Balram dropped the bicycle and took to his heels. The accused followed him and continued to strike blows to him with his sword. Balram raised cries. Due to the infliction of injuries, Balram fell down. PW 7 Hari Kishan, who is the uncle of Balram, happened to pass that way. He challenged the accused. The accused ran away towards 365 Head, taking the sword with him. While running away, the accused threatened Hari Kishan that as his life has been rained by his parents-in-law, he would kill each of them. Hari Kishan went to Balram, who had numerous bleeding wounds on his body. Hari Kishan found that Balram was no more alive. He went to his brother PW 1 Mamraj and apprised him of the incident. Mamraj collected some persons and came to the spot where the dead body of his son Balram was lying. He kept some persons there to keep a watch on the dead body and himself went to the Police Station, Chhatargarh, where he reached at about 9.00 a.m. on August 5, 1979. He verbally lodged report Ex. P 1 of the occurrence there. It may be mentioned that the distance between the place of the occurrence and the police station is nearly 19 kilometers. The police registered a case and proceeded with investigation. The Station House Officer, who was at Bikaner on that day, was contacted on telephone. He reached Chhatargarh on the same day at about 1.00 p.m. From there, he arrived at the scene of the occurrence and prepared the inquest report of the victim's dead body. He also inspected the site and prepared the site plan. The bloodstained soil was seized and sealed. The post-mortem examination of the victim's dead body was conducted on the spot by PW 8 Dr. R.S. Rathore, the then Medical Officer Incharge, Government Dispensary, Chhatargarh. He noticed the following injuries on the victim's dead body:
External (1) Incised wound on right shoulder 1" x 1/4" x 1/4";
(2) Incised wound on right arm outer aspect 4"x 1/4"x 1/4";
(3) Incised wound on right palm 4" x 1/4" x bone deep;
(4) Incised wound on right fore-arm outer aspect l-1/2"x 1-1/2"x 1/2" (skin and muscles were gaping); (5) Incised wound below right ear 4" x 3/4" x 1/2";
(6) Incised wound behind right ear 2-1/2" x 1" x 1/2";
(7) Incised wound on neck right side lateral aspect 4" x 2" cutting verticular column. In this wound trachea, muscles and vessels, spinal cord and vertebreas were cut through; (8) Incised wound cutting scalp bone width 1";
(9)Incised wound on outer and lateral aspect of leg 1-1/2"x 1"x 1/2"; (10) Spinal cord cut in clavical region.
External - There was fracture of vertebral column in clavical region. Cut on frontal bone.
Fracture of all meta-tarsal bones on right foot.
The doctor was of the opinion that the cause of death of the victim was"
bl vkneh dh ekSr cervical rescin xnZu dk ?kko gS ftl dkj.k vertebra gks x;h gS lkFk es lkal dh uyh o spinal cord Hkh dV xbZ A The post-mortem examination report prepared by him is Ex. P 21.
3. The accused straight-way went from the place of occurrence to the Police Out Post 365 Head and lodged report Ex. P. 5, stating therein that he had committed the murder of his brother-in-law Balram. After sometime, PW 11 Umed Singh, the Station House Officer, Police Station, Gadsana came there and arrested the accused. He was wearing one shirt and one Tehmad, on which Umedsingh noticed blood-stains. Both these clothes were seized and sealed. The Investigating Officer went to the Police Out Post 365 Head and took the accused in his custody. On the information furnished by the accused at about 9.00 a.m. on August 6, 1979, one sword containing some blood-stains was seized. The recovered articles were sent for chemical examination. Blood was detected on the sword and the clothes of the accused. The blood on the Tehmad was found to be human, but the origin of the blood on the shirt and sword could not be determined as the bloodstains were disintegrated. On the completion of investigation, the police presented a challan against the accused in the Court of Judicial Magistrate, Bikaner, who, in his turn, committed the case for trial to the Court of Sessions. The Sessions Judge framed a charge under Section 302, IPC against the accused, to which he pleaded not guilty and claimed absolute innocence. He denied his hand in the murder of Balram and claimed that he was at his house at the time when the incident is alleged to have taken place. In support of its case, the prosecution examined 14 witnesses and filed some documents. In defence, the accused examined two witnesses in support of his plea of alibi. On the conclusion of trial, the learned Sessions Judge held the charge satisfactorily proved against the accused. The accused was consequently convicted and sentenced as mentioned at the very out-set.
4. We have heard the learned amicus curiae and the learned Public Prosecutor. We have also gone through the case file.
5. Before proceeding further, it may be pointed out that the learned amicus curiae has not challenged the opinion of Dr. Rathore (PW 8) about the cause of victim's death. We have gone through the statement of Dr. Rathore and find nothing therein to distrust his opinion pertaining to the cause of victim's death. Dr. Rathore stated that all the injuries found on the victim's dead body were caused by a sharp-edged weapon like sword. The injury on the neck was sufficient in the ordinary course of nature of cause death. The death of Balram was, thus, not natural but homicidal.
6. In convicting the appellant, the learned Sessions Judge relied upon the following sets of evidence:
(1) the statements of PW 6 Khemraj and PW 9 Chandan Ram of village 14-B.D.; (2) the direct testimony of PW 7 Hari Kishan, who has alleged to have seen the incident; and (3) the Tehmad of the accused, which he was wearing when he surrendered himself at Police Out Post 365-Head, was found stained with human blood.
7. In assailing the conviction, it was contended by the learned amicus curiae that the three sets of evidence individually and collectively were not sufficient to establish the charge of murder against the accused. He was convicted merely on suspicion because his relations with the family of his parents-in-law were strained. It was argued that PW 7 Hari Kishan had no occasion to go on that way where Balram was done to death. He was falsely introduced as an ocular witness of the incident by the Investigating Agency. It was argued that in case Hari Kishan is not taken to be a witness of truth, there remains no other evidence to connect the accused with the murder of Balram. It was, on the hand, submitted by the learned Public Prosecutor that PW 7 Hari Kishan was rightly treated as a witness of truth by the trial Court. He has explained as to how he happened to be near the place of incident. The accused is the husband of his real niece and had he not seen the incident, he would have never named him as the killer of Balram. PW 6 Khemraj and PW 9 Chandan Ram did not belong to the victim's village or caste. They had seen the accused and the deceased together. The accused was having a naked sword in his hand at that time. This fact affords a valuable corroboration to the testimony of PW 7 Hari Kishan. The accused surrendered himself at the Police Out Post and though the report lodged by him is not admissible in evidence against him, the fact remains that when he surrendered himself, he was wearing clothes, one of which was found stained with human blood. He has not explained as to how he happened to receive stains of human blood on his Tehmad. All these facts, when taken together, are sufficient to establish the charge of murder against the accused beyond doubt. The trial Court has taken all these matters into consideration. We have taken the respective submissions into consideration.
8. PW 6 Khemraj Arora and PW 9 Chandan Ram Khati are the residents of village 14 B.D. Khemraj runs a Kirana shop at 14 B.D. while PW 9 Chandan Ram Khati is a carpenter. PW 9 Chandan Ram stated that he knew the deceased-victim and the accused before hand. When he reached his house at about 12.00 in the noon, he found the accused sitting out side his house with a naked sword in his hand. While the accused was sitting there, his brother-in-law Balram (the deceased-victim) came there. Balram had a bicycle with him. The accused and Balram exhanged pleasantaries with each other. Balram had some eye trouble. Both of them stayed at his house nearly for half an hour. Thereafter the accused and Balram went together towards the canal. PW 6 Khemraj stated that he runs a Kirana shop. In the noon of the day of incident Balram and the accused came to his shop. The accused was having a naked sword while Balram had a bicycle with him. Balram purchased Biries and a match-box from him. Both of them thereafter went towards village 365-Head.
9. Both these witnesses were cross-examined at length, but nothing could be elicited from them so as to make their testimony unworthy of belief or credence. They bear no grudge against the accused. It does not, also, appear that they had any soft corner for the deceased-victim, which may induce them to testify falsely against the accused. The learned amicus curiae could not point out any infirmity which may shake the truthfulness and varacity of their statements. The trial Court treated them as witnesses of truth and we have no good or cogent reasons to take a different view. From what they testified, it can be safely said that the accused and the deceased-victim Balram were together in the noon of August 4, 1979 and went to the house and shop of these two witnesses. The accused was then having a naked sword with him while Balram had a bicycle with him. This set of evidence speaks volumes against the accused and forms a very valuable link to show his complicity in the crime.
10. PW 7 Hari Kishan is the ocular witness of the incident. He is the uncle of the deceased-victim and resides at 8 B.D. He deposed that on August 4, 1979 he went from 8 B.D. to 365-Head to make certain purchase At about 3.00 p.m., he reached the "Pattan" of the canals of 8-B.D. & 9-B.D. He saw his nephew Balram and the accused going on a bicycle towards 365-Head. The accused was sitting on the front bar of the bicycle and Balram was paddling it. They were nearly 40 feet ahead of him. When he crossed the "Pattan" and reached the Dhani of Ram Kumar Bishnoi, he saw that the accused and Balram were on foot as it is a sandy place and the bicycle cannot be paddled there. The accused was holding a naked sword in his hand. When they were nearly 50-60 paces ahead of him, he saw that the accused struck a blow with his sword on the head of Balram, Balram raised cries and dropped the bicycle. The accused again struck another blow with his sword on the left foot of Balram. Balram tried to run away and the accused followed him with the sword in his hand. The witness further stated that he also raised cries and asked the accused not to strike blows to Balram. But before he could reach to intervene, the accused struck a number of blows to Balram with his sword. Balram fell down. When he (witness) tried to proceed further, the accused threatened him with dire consequences that in case he came near, he would also meet the same fate. As he (witness) was empty handed, he got frightened. The accused thereafter ran away towards 365 Head with the sword in his hand. While running away, the accused hurled out the threats that as his life had been ruined by his parents-in-law, he would finish them one by one. The witness further stated that when the accused managed to escape, he went to Balram and found him dead. He noticed numerous wounds on his body and blood was oozing out of them. He immediately went to 16-B.D. and informed PW 1 Mamraj (Balram's father) and apprised him of the incident. The distance between the place of incident and 6-B.D. is nearly 10/12 kilometeres. Mamraj collected some persons and went to the spot where the victim's dead body was lying. He (witness) managed a tractor and arrived on the spot at about 11.00 p.m. Some persons remained on the spot with the dead body and Mamraj went to the Police Station to lodge the report. The police arrived next day and proceeded with investigation.
11. We may at once point out that the fate of the case rests squarely on the testimony of this witness PW 7 Hari Kishan. In case his testimony is found not reliable and he is not taken as a witness of truth, there is scanty evidence on record to connect the accused with the murder of Balram. But in case he is taken to be a witness of truth and his testimony is found reliable and dependable, there is no escape from the conclusion that the accused is tie perpetrator of the crime and it is he who had killed Balram. PW 7 Hari Kishan is the solitary witness of the incident. The conviction can be safely based on the testimony of a solitary witness provided he is a witness of sterling worth. The testimony of a solitary witness should be free from suspicion and above the board. The testimony of this witness is beyond reproach and inspires confidence.
12. It is true that PW 7 Hari Kishan is the real uncle of the deceased-victim. But his testimony cannot be put at a discount only on the ground of his close relationship with the deceased-victim. Since he is the close relative on the deceased, prudence requires that there should be a cautious approach to his testimony and before it is acted upon, it should be closely and carefully scrutinized.
13. The contention of the learned amicus curiae is that PW 7 Hari Kishan had no occasion to be present on the spot. He has invented a false pretext that he was going from 8-B.D. to 365-Head to make certain purchases only with the ulterior motive to establish his presence on the scence of the occurrence We find no force in this contention of the learned amicus curiae. The testimony of a witness given on oath is presumed to be true unless it has been shattered and shaken in cross-examination. He has explained satisfactorily as to how he happened near about the place of occurrence. While assessing and evaluating his testimony, it cannot be forgotten that his real niece (sister of the deceased-victim) has been married to the accused. In case he had not seen the incident and the accused landing blows to Balram with a sword, he would have never falsely implicated the accused. After all, the accused is also his close relative. It cannot be expected from him that he would falsely rope in him when there are no apparent reasons on the record for his doing so. He was cross-examined at length, but nothing could be elicited from him which may make his testimony unworthy of credit or unreliable. He has given a detailed and graphic description of the incident as to how the blows were landed to the deceased-victim by the accused. In the FIR Ex. P 1 lodged by PW 1 Mamraj, the whole incident, as recited to him by this witness Hari Kishan (PW 7), has been mentioned. It was on the information received from this witness that Mamraj lodged the FIR Ex. P 1. The FIR was lodged promptly without delay. The distance between the place of the incident and the Police Station Chhatargarh, where Ex. P 1 was lodged, is nearly 20 kilometres. There was no time left with PW 1 Mamraj for manuplation and fabrication. The fact that the name of PW 7 Harikishan has been mentioned in the FIR Ex. P 1 as the person who had seen the incident, makes his testimony credit-worthy. His testimony is direct, positive and straight-forward. The trial Court treated him as a witness of truth and found his testimony reliable and dependable. On a careful scrutiny of his testimony, we are unable to take a view different from that taken by the trial Court. The learned amicus curiae could not point out any flaw or infirmity in his testimony which may induce us not to treat him a truthful witness. His presence on the spot is not open to doubt and once his presence on the spot is established, there appears no reasons to discared what he testified on oath against the accused. Ordinarily, a relative witness does not leave out the real culprit and substitute an innocent person in his place, especially when the person so substituted also happens to be his close relative. We are, therefore, unable to accept the contention of the learned amicus curiae that PW 7 Harikishan is not a witness of truth and he had not seen the incident. The contention fails.
14. The accused, after killing Balram, voluntarily went to the Police Out Post 365-Head and lodged report Ex. P 5 stating there in that he had killed his brother-in-law Balram. When he appeared at the Police Out Post, he was wearing shirt (Article 1) and Tehmad (Article 2). When he was arrested there by the Station House Officer Digvijaysingh (PW 10), both these clothes were seized and sealed. These clothes were sent for chemical examination. Blood was found on both of them as and as per report Ex. P 10 of the Serologist, human blood was found on the Tehmad. Report Ex. P 5 lodged by the accused containing his confession cannot be read in evidence for any purpose against him and must, therefore, be excluded from consideration while assessing his guilt. But the fact that he appeared at the Police Out Post 365-Head and at that time was wearing shirt (Article 1) and Tehmad (Article 2) is admissible in evidence as it is not hit by Section 162, Cr. PC. The accused has merely denied that he appeared at the Police Out Post 365-Head and was wearing these clothes at that time. His bare denial does not disprove the fact of his appearing at the Police Out Post and that he was wearing these clothes at that time. The fact that when he was arrested just after the occurrence, he was wearing these clothes and both of them were found stained with blood and the blood found on Tehmad was human blood, is a very valuable piece of evidence to connect him with the murder of Balram. The contention of the learned amicus curiae that this evidence was also manipulated and fabricated has no substance.
15. It was lastly argued that the prosecution could not subscribe any motive which induced the accused to finish his own brother-in-law. It was argued by the learned amicus curiae that this lack of motive should at least be taken into consideration while deciding the nature of offence made out against the accused. It was argued that as there was no motive, the accused cannot be imputed with the guilty intention to commit the murder of Balram. We are again not impressed by the submission of the learned amicus curiae. There is the direct evidence of PW 7 Hari Kishan, who had seen the accused making a murderous assault of the deceased Balram. When there is direct evidence, absence of motive or inadequacy of it loses its significance. Motive is rooted deep in the heart of the accused and it is difficult to conceive it as he alone knows about it. How ever, there is evidence on record to show that the accused was not kindly treating his wife Smt. Shakuntala PW 5. She was physically tortured by him as stated by her. Per force, she had to leave his house and went to her parents to live with them. It appears that the accused got irked with this behaviour of his wife, who chose to live with her parents. The accused, thus, got displeased with his in laws. The wrath of his displeasure and annoyance fell on his brother-in-law Balram, whom he, per chance, metatl4-B.D. The accused was having a naked sword and as soon as he got the opportunity to put his wrath into action, he did so successfully. The medical evidence shows that numerous blows were inflicited to Balram with a sword. The deceased received an incised wound 4" x 2" on his neck, cutting the trachea, spinal cord, etc. It is not the case where only a single injury was inflicted. It is a case of the repetition of the infliction of injuries. The accused wielded dangerous weapon like sword and chose the neck of the victim for the infliction of the blow. His choice of the weapon and the part of the body of the victim where the injuries were inflicted, leave no room to doubt that he had the intention to kill the victim. Apart from that, there is medical evidence to show that injury No. 7, which was on the neck, was sufficient to cause death in the ordinary course of nature. Dr. Rathore PW 8 made a categorical statement that injury No. 7 was fatal and was in itself sufficient to cause death in the ordinary course of nature. The accused intentionally caused such bodily injuries as he knew to be liely to cause death. The case is, thus, covered by Clauses lstly, 2ndly and 3rdly of Section 300, IPC and the offence made out is that of culpable homicide amounting to murder. There can be, therefore, no escape for the accused from his conviction under Section 302, IPC.
16. No other contention was raised.
17. For the reasons discussed above, we find no force in this appeal. The accused was rightly convicted and sentenced. No interference is called for. The appeal is consequently, dismissed.