JUDGMENT
Chand Mal Totla, J.
1. The appellant accused has challenged his conviction for the offence of Section 302, IPC, and sentence of life imprisonment (with fine of Rs. 2500/- in default of payment 1 year rigorous imprisonment) awarded by the Court of Additional Sessions Judge, Nohar vide judgment of 24.08.2002 in Sessions Case No. 61/2001. Appellant requests for his acquittal – setting aside judgment.
2. The said facts, as per prosecution, are that on June 20, 2001, at 11.30 O’clock one Shri Mala Ram with his brother Motaram and one Amilal presented a typed report Ex.P-1 at Police Station, Rawatsar, stating that he is resident of Baikali, Tehsil Nohar and his daughter Krishna married 15 years earlier to Mahendra s/o.Rajiram Bhargava of 23 A.G. Mahendra passed away 5 years earlier and neighbour of Krishna is her Jeth – Nathuram s/o. Sahiram (elder brother of husband) who keeps bad intentions and looks for Krishna. Stated in FIR is that for last seven days son of complainant Gajanand 16 years was with Krishna who on that day came at about 8 O’clock and spoken him that he, Krishna and sons of Krishna, Mukesh,Kamlesh and Dharmpal all in night were asleep on three cots just out of house (compound), then at about 2 – 2.30 in the night, Nathuram inflicted blows of axe to sleeping Krishna and killed her. As per FIR, Malaram along with his brother Motaram, Manilal and Amilal came to Dhani A.G.23 of Krishna, where Krishna found lying dead on cot with injuries on face and neck – on this report FIR No. 186/2001 Ex.P-2 registered for offence of Section 302, IPC. In course of investigation, IO SHO (a) inspected place of occurrence – memos Exs.P-3 and Ex.P-3A; (b) dead body examined – memos Exs.P-5 and P-6; (c) weared jumper of deceased Krishna and blooded bed seized – Ex.P-10 packets marked B & C; (d) found palm impression on vertical side of wall between house of deceased and appellant and also body photographed memo – Ex.P-3 and positive negatives Ex.P19 to Ex.P-32; (e) got post mortem conducted at 3 O’clock afternoon by Medical Officer – report Ex.P-17; (f) ornaments found on her and body handed over to father – memos Exs.P-6 and P-11; (g) scratched sample of palm impression blood and plane wall taken – memos Exs.P-8, P-9 and packets C & D; (h) accused arrested at 7.30 same evening – found wearing shirt and ‘payjama’, having blood spots, so seized – memos Ex.P-14 and packet D; (i) on information furnished by appellant next day June 21st at 9.15 a.m. an axe of about 3-1/2″ sharp-edge metal portion with 2-1/2″ pipe handle having some blood like stains recovered from appellant’s house lying below iron box – memos Exs. P-14, 15, 16, 16A & packet marked E; (j) on June 25th presented blood stained shirt of son Dharmpal, 5 years – who was sleeping with Krishna, seized memo Ex.P-12 packet marked F; (k) packets to Malkhana Incharge – entries in Register Ex.P-34 – delivered at FSL on 12.07.2001 with forwarding letter Ex.P-35 – FSL reporlt Ex.P-33; (l) opinion for injuries obtained – Ex.P-18. In course of investigation, statements of witnesses recorded. As per post-mortem report and opinion, Krishna had six incised injuries on face and neck and she died of these – injury inflicted on neck substantial one also found fracture of mandible. After usual investigation, charge-sheet submitted and case committed.
3. Appellant accused when charged for the offence of Section 302, IPC, – pleaded not guilty and claimed trial.
4. Prosecution examined 12 witnesses, of them Malaram PW 1 is father, Motaram PW 2 uncle, Gajanand PW 5 brother and Mukesh 10 years is son of deceased. PW 5 and PW 6 are eye witnesses, whereas PW 1 and PW 2 when informed by PW 5 reached at 23 A.G. and then lodged FIR Ex.P1. Beg Raj @ Bega Ram PW 3 is said to be the person appellant accused contacted and talked about someone killing Krishna. Krishnal Lal PW 4 is Motbir of all done in course of investigation and Ramesh PW 8 photographer. Head Constable Sant Kumar Malkhana In- charge, Constable Rajendra Singh PW 11 and Ranjeet Singh PW 9 In-charge Police Station relate to safe custody and depositing of sealed packets at FSL. Shayar Singh PW 12, SHO, during investigation did all as above and exhibits all the memos prepared – PW 7 Dr. Hanuman Singh is Medical Officer who performed post-mortem proves his report Ex.P-17 and opinion P-18. Of the recovered or seized Article 1 is axe, Article 2 and Pajjama Article 3 of accused, Jumper Article 4 of deceased, shirt Article 5 of Dharmpal s/o. deceased and Article 6 blooded bed of cot – memos of seals used are Exs.P42 to 45.
5. When examined under Section 313, Cr.P.C., appellant accused stated witnesses telling lie and all wrong, – as per appellant, – he supported Sukhram who contested election for Sarpanch and defeated by Krishan Kumar – so falsely case implanted – witnesses lieing due to jealousy. In defence, produced is Sukhram DW 1 who deposes having contested and defeated by Krishan Sihag for Sarpanch. Learned Additional Sessions Judge, on the basis of direct and circumstantial evidence, convicted and sentenced appellant.
6. Learned Counsel for the accused appellant argued that (1) both the main witnesses PW 5 and PW 6 are child witnesses, whose depositions find no corroboration; (2) conduct and behaviour of PW 4 and PW 6 very un-natural and strange right from the said incident; (3) two sisters and father’s sister of deceased are married living in same village were not informed; (4) Bega Ram PW 3 is wholly implanted witness who, if at all approached by the appellant, did not do what is/are expected of him; (5) accused not arrested on same day, though wandering there and his conduct behaviour all natural; (6) Malkhana articles tampered and difference about name on packet creates strong suspicions; (7) no motive; (8) Very different versions of how and where cot was found; (9) no neighbour, relative, or independent is amongst prosecution witness. Also contended is that the day of incident was dark night of “Aashadh Krishna 14 Samvat 2058” and on such night occurs no moon light. In support of contentions, reliance is placed on (i) State of Bihar v. Kapil Singh – Evidentiary value of child witness and when corroboration may be desired – facts and circumstances as per Paras 6 and 7; (ii) State of U.P. v. Ashok Dixit – evidence of child witness to be evaluated carefully; (iii) Bhagwan Singh v. State of M.P.; (iv) Surjit Singh v. State of Punjab; (v) Peddireddy Subbareddi v. State of Andhra Pradesh – delay in lodging FIR and other circumstances – on basis of this contended (for present appeal) that as per evidence, hand written report first submitted, then got typed – and no information lodged by PW 1 or PW 2 while passing nearby to police station; (vi) AIR 2004 SC 1080 State of Rajasthan v. Taran Singh – among other factors, also was place where body was found ; (vii) Sadaram v. State of M.P. – delay in arrest; (viii) Dharam Singh v. State of Punjab; 1993 Supp (3) SCC 745 Varkey Joseph v. State of Kerala; , Yamanapa v. State of Karantaka; (ix) Gambhir v. State of Maharashtra – regarding circumstantial evidence during investigation; (x) Hallu v. State of M.P. Harijana Thirupala v. Public Prosecutor Hardeep v. State of Haryana; and 2003 SCC (Cri.) 326 Raghunath v. State of Haryana -principles of appreciation of evidence.
7. For the appellant is argued that incident is said to be of 2 – 2.30 a.m. in the night – Gajanand PW 5 and son of deceased Mukesh PW 6 both sleeping near on cots – who witnessed incident, but none of them shouted – not reported to others even to near relatives – Gajanand instead of narrating incident to nearby person, going to parents 40 – 50 km. – all this is very un-natural and strange. Also contended that appellant named in FIR – by early noon, SHO on scene of occurrence – accused available there, but not arrested – recovery said to be on next day, whereas living in just near by house. Also contended is that PW 1 and PW 2 while reaching to place of incident passed just near to P.S. but not informed and similarly Gajanand also passed but he too not reported – delay in FIR – accused may be wearing stained clothes till late cannot be accepted – said sealing of articles and what then was written on packets also – highly doubtful and no blood group matching. Also argued there could not have been any palm impression as accused alleged to be having an axe in hands.
8. Learned Public Prosecutor argued that PW 5 Gajanand 16 years was for last 7 days with his sister whose husband passed away five years earlier , so presence of Gajanand is natural – son of deceased Mukesh 10 years of tender age but was of understandable age – killing by close relative who is neighbour and relative so as well out of fear, will first report only to parents. On behalf of prosecution is contended that evidence pf PW 4 and PW 6 fully reliable – said contradiction on different versions do not exist and even if some were there, not of any significance – completely trustworthy evidence. It is contended that in forwarding letter of S.P. to FSL Ex.P35 by slip of pen, simply some other name mentioned, so this cannot create any doubt and blood is found on clothes of accused and also on axe recovered on his information.
9. We have thoughtfully considered rival arguments.
10. Regarding cause of death, there cannot be any doubt and it is indeed not disputed that death occurred due to injuries inflicted and caused to deceased. Every witness who any how happened to be at scene of occurrence has stated of severe injuries on face and neck of the deceased – PW 7 is the Doctor Medical Officer who conducted post-mortem – report Ex.P-7 – proved by evidence of Dr. Hanuman Singh PW 7 is that he conducted post-mortem at 3 O’clock afternoon, prepared report Ex.P7 and found were following injuries on her body :
(1) Incised wound 3 x 2 x 1 cm at upper lip.
(2) Incised wound 6 x 3 x 3 cm. Left angle of mouth. Teeth broken and low jaw bone (mandible)broken.
(3) Incised wound 2 x 1 x 1 cm on right side to neck.
(4) Incised wound 3 x 2 x 1 cm on right to neck.
(5) Incised wound 6 x 4 x 2 cm below chin.
(6) Incised wound 10 x 6 x 4 cm. Size. Trachea right side esophagus vertical cut.
11. All injuries ante mortem of sharp weapon and victim died within last to 24 hours. Learned Public Prosecutor also stated that accused appellant at all did not inform any relative or authorities of this incident.
12. Most severe injury is on neck and as a consequence of which, lungs and heart failed. In cross-examination, stated that if injuries, except last one i.e. on neck, is/are caused, the injured person can cry or shout very well. So it stands proved that Smt. Krishna died of above injuries – immediately after getting injuries in night between 19th and 20th June, 2001.
13. From the evidence of various witnesses, it is established that (1) deceased is daughter of PW 1 Motaram; (2) husband of deceased Mahendra passed away five years earlier; (3) deceased having three sons – Mukesh 10 years, Kamlesh 7 years and Dharmpal 5 years; (4) deceased and three sons and Gajanand sleeping on three cots, just out of house, i.e., in compound; (5) On a cot sleeping was deceased with youngest son; (6) house of appellant just adjacent to that of the deceased; (7) appellant brother of husband of deceased, a near relative and about incident, appellant too did not inform relatives, neighbours, or concerned authorities.
14. Evidence is also there firmly establishing that accused appellant is a widower living alone in just adjacent house and his sons not living with him at least regularly. Also established is that just opposite to house of deceased at about 30 ft. distance, is house of Shri Ram Kishan – adjoining that is house of Jagdish and then is house of Khyalilal who is husband of sister of Mala Ram PW 1.
15. Evidence briefly stated, as per Gajanand PW 5, they were sleeping on three cots and in night at about 2 – 2.30 a.m., he, Mukesh and Kamal woke up on hearing cries of sister and Nathuram was inflicting injuries of axe on face and neck to Krishna, who (appellant Nlathuram) threatened them of the same consequence (if they tell about the incident to anyone) – at early dawn he saw sister to be dead, so rushed to own village, taking jeep from Rawatsar about 10 km. & reached village Virkani – at a distance of 30 – 40 km – where he narrated to father PW 1 and uncle PW 2, he reached back with them at around 9.30 at village 23 A.G. Statement of this witness PW 5 taken during investigation is Ex.D-2 which do not contain that (a) three sons of deceased also sleeping, (b) younger son Dharmpal sleeping with Krishna, (c) wake up on hearing cries – accused Nathuram threatened them of the same consequence – and as per this witness, he narrated all this to Police. Of all these only (d) of threatening to threat, can be said to be of some significance, but this is also to be taken care of that this witness was 16 – 17 years and sons of deceased also 10, 7 and five years respectively and above all, Nathuram not only neighbour, but also is the elder brother of husband of Smt. Krishna, so it is natural that first of all, before telling anyone else they will report their parents and close family members. As per Mukesh PW 6, they do not have any interaction with their “Mausi” (mother’s sister). As per PW 5, though, in his own village, female does not talk to elder brother of husband, but his sister Krishna used to talk to Nathuram. Here, it may be observed that this may be customary to not to talk elders unnecessarily (in early yrs.), but, in this case, deceased was having three sons, her husband expired five years ago and no other adult member seems to be so it becomes natural and some what essential to talk to appellant who also was residing adjacently.
16. Mukesh PW 6 deposing in November, 2001, was 10 years and the incident is of June, 2001 and as per him, his father died and he with two younger brothers live with mother. Adjoining their house is house of appellant (“Taauji”). As per Mukesh PW 6, on preceding day, mother asked for returning money (Rupees) to appellant, so appellant became annoyed and, in the night, when they were sleeping on the cot, appellant came and inflicted blows of axe on head and neck – they too were threatened that if will tell anyone, shall meet same fate – and appellant went away. Mukesh PW 6 also states that he, Gajanand and younger brother woke up on hearing cries and early morning, Gajanand went to village and called “Naana”. In cross-examination, PW 5 states that cot of mother was between of three – they not told anyone in morning – Gajanand went by early morning when he woke up – at the time of incident was little night of moon and earlier mother and appellant had no quarrel. Statement Ex.D3 under Section 161, Cr.P.C., of this witness PW 6 does not find mention that accused threatened them of consequences if told to anyone – for which this witness has explained that the Police did not ask so – he did not tell. As such no reason appears for not believing this witness.
17. PW 1 narrates to the same effect that – in the morning came Gajanand and informed as above, so he, brother PW 2 and others went by jeep to house of Krishna, where she was lying dead on cot, so went to Police Station Rawatsar – got application Ex.P-1 typed and submitted – Ex.P1 and registered FIR Ex.P-2 bears their signature. As per PW 1 on the wall was a palm impression, Police did all as above and memos Exs.P-3 to P-12 bear his signature. As per PW 1, he was at 23 AG at about 10 – 10.15 O’clock – there did not go any where except house of Krishna – reached Rawatsar at about 11.15, and handed over report to Police. In his statement Ex.D-1, not mentioned is that sons of Krishna were sleeping with her on cot and on hearing clries, Gajanand woke up – but these are too minor things to be mentioned in statement. Motaram PW 2 also narrates accordingly and in cross-examination, he disclosed that soon reaching at Police Station, orally told incident, then SHO asked for getting it written, so he himself did write, but SHO asked them that it is not clear (legible), so get it typed, so they got it (Ex.P1) typed and submitted.
18. From the evidence is clear that the Dhani of Beg Raj PW 3 is at a distance of 1 – 1.5 km. from 23 A.G. Beg Raj PW 3 states that in the morning of 20.06.2001, at 6.00 a.m. came appellant Nathuram and told him that some one unknown has killed wife of Mahendra who is lying dead near out of house. As per Beg Raj PW 3 Nathuram was very badly disturbed and when he asked Nathuram for reporting to Police, Nathuram asked him to acompany and see her body and he PW 3 – after visiting spot again asked Nathuram to report to police. Nathuram told him to get it settled in Panchayat itself and (also) asked PW 3 to do whatever is to be done by way of Panchayat and appellant specifically told him to get it settled in Panchayat (if can be through this witness) – but not asked to not to report to police. Appears no reason to not to take narration of this witness to be true – and no reason for this witness to tell which is not true.
19. As above, ocular direct evidence – is PW 5 and PW 6 being eye witnesses and to Begraj PW 3 accused told of killing of Krishna by someone and also asked for some settlement. At all if not mentioning to villagers, neighbour, relative all is of significance, then again a very substantial fact of non-reporting and not-mentioning by appellant Nathuram is also there who happen to be only adult near relative available there immediate after the incident.
20. Signatures of PW 4 Krishan Lal appear on every memo of what is done during investigation. For this, it is contended that he appears to be moving spirit. On this point, suffice to mention that on Exs. P-3 to P-12, Malaram PW 1 is also a witness who can and will naturally be and except recovery and seizure of cloth, all other proceedings relatively are formal. In addition, Krishan Lal is Sarpanch and 23 A.G. Is not a town or big town, so nothing abnormal of his being a witness.
21. Here, it is also worth mentioning that as per endorsement on registered FIR Ex.P-2, this reached at residence of Magistrate on June 20th, at 1.00 p.m., as such, there can be no reluctance to hold that FIR lodged and registered at 11.30 a.m. before 1.00 p.m. Also proved is there was palm like impression on the wall – positive photo of it is Ex.P-23. Also proved is that scratch sample of this and also of plain wall taken and sealed packets A & B – as per Lab. Report scratch on palm figure had human blood – group could not be ascertained. Palm impression as per that was on the vertical side of wall and below upper surface -no blood or like impression is alleged to be found on the upper or other side of the wall – so simply because this palm impression is found, no inference can be for the appellant – if any inference can be, then it can be for any who was assailant.
22. As per PW 1 and PW 2, they, when at place of occurrence, did not see Nathuram but Sarpanch Krishan Lal PW 4 tells that when Police came at around 12 – 30 or 1.00 O’clock, appellant accused was there. As per I.O. SHO PW 12, he was on place of occurrence from 12.50 to 4.30 afternoon and till that time, accused was not available there and he again went to spot at 6.30 and then accused was arrested. As per Motaram PW 2, also when police came, a search made for appellant who was not found. Thus, it cannot be said that accused was available on the spot or available easily, may be that he was not running away but not easily available too. Looking to this alleged delay, if any, of arrest of 6 – 7 hours does not make any effect. The clothes on his person – shirt and Pajjama seized and sealed packet marked D and as per evidence of Malkhana related evidence, Sant Kumar PW 10 and Rajendra Singh PW 11, all sealed packets deposited on the day sealed and Rajendra Singh PW 11 handed over sealed packets on 9th July, who obtained forwarding letter Ex.P-35 from S.P. Office and reached FSL on 11.7.2001, where packets not accepted because on difference of name on packet D and Ex.P35 so came back redeposited for safety in Malkhana and again, after meeting objections, deposited at FSL on July 12th. From the evidence and Ex.P-35, it appears that in forwarding letter, name like Bhagirath was mentioned, whereas different but right mentioned – on packet D. So it appears a plain clerical error or slip of pen – whatever it may be, it is proved that on all articles of the packets (except of plain control soil) was human blood (group could not be ascertained). Therefore, it is proved that stains on shirt of Dharmpal (son of deceased) and also stains on shirt & Pyjama of accused land on all were of human blood – however, significance of blood stains on clothes is lessened because group could not be detected. In any case found is that articles had human blood.
23. Now, coming to recovery. As per I.O. PW 12 on June 21st morning at about 9.30 appellant disclosed to him that axe is lying below iron box in his house and then I.O. PW 12 made and accompanied appellant to his house, where below iron box found an axe with pipe handle – having blood stains which sealed. Evidence of this recovery is also PW 4. As per FSL report it bears human blood – so proved is that on or below iron box and in knowledge of appellant was human blood. As above, Gajanand PW 5 and Mukesh PW 6 are child witnesses – but certainly they are not of very tender age. Gajanand PW 5 is 17 years an age of good understanding below majority but grown up child.
24. For the reasons observed that person involved is near relative of deceased lady who again was a widow with no adult member in family, the fact that these children did not make any hue and cry and PW 5 Gajanand first straightway went to parents, does not make behaviour or conduct of these witnesses abnormal, unnatural or stranger. As per PW 6 Mukesh, they not on talkative terms with their “Mausi”. It is also pertinent to observe that no reason appears or is assigned for falsely implicating appellant.
25. As for the contention that the cot of deceased was found on side not and between as the witness says, but on a side suffice to say that the incident is of 2 – 2.30 a.m., the I.O. reached on the spot at about 12.00 noon and not earlier than 11.00 O’clock – it was June 20th i.e. summer time and the body was lying in open, so it is but natural that the cot with body may be taken on a side of shadow in order to protect the same from sun light.
26. For the contention that it was a dark moon night it may be sufficient to mention that witnesses being son and brother of deceased did well know appellant accused – resided just near to house of deceased and assailant is elder brother of deceased’s husband – so even if it was dark night, it does not affect prosecution. Further, number of inflicted blows many so PW 5 and PW 6, both had reasonable time and chances of looking and definitely identifying the assailant.
27. As far as motive is concerned, when evidence is straight and fully worthy of acceptance, then it is not a must – even if no motive or reason appears, this cannot help culprit. Similar is the position here. From the oral evidence i.e. eye witnesses, it is proved that accused had inflicted severe and many blows of axe to Krishna who died soon then and there. Still, if motive is at all relevant, then, father of deceased PW 1 tells that appellant was having bad intentions and looks for Krishna, and obviously, he is telling either as per some hints given by his daughter or as per his impressions gathered of activities. Gajanand PW 5, who at that time, was 16 – 17 years tells that appellant not having wife, had bad intentions for Krishna and on a day prior to this incident, sister – deceased Krishna asked appellant for returning back her Rs. 10,000/-, for which Nathuram became annoyed and abusing her also threatened. Son Mukesh PW 6 also deposes to the effect that on previous day, mother asked for rupees from Nathuram, so he became annoyed. As such the motive and reason also surfaces.
28. As observed and inferred above, presence of Gajanand PW 5 is very much natural – act behaviour of anyone cannot be said abnormal or unnatural – accused-appellant immediate neighbour and in addition close relative of deceased – also established is that husband of deceased died five years earlier, whose three sons were 10, 7-8 and 5-6 years at the time of incident – number of injuries inflicted – a single injury of throat itself sufficient and almost bound to cause death and similar is the position for injury of mandible that is face and also are other injuries of sharp-edged object proved to be Kulhari.
29. As above, there is direct evidence of appellant inflicting blows of axe, as a result of which Krishna died immediately. Article used for inflicting injury is axe which is a iron heavy object, having sharp-edge of good length and normally used for getting wood or plantation like – as many as six injuries – all on face and neck – every injury substantial one, so is proved that the person i.e. Appellant accused knew that of the injuries to be and being inflicted by him death is bound to follow. This act of appellant is an act punishable under Section 302, IPC.
30. Hence, the appeal deserves to be dismissed.
31. Appeal is dismissed. Conviction and sentence of life imprisonment awarded and fine of Rs. 2,500/- imposed on appellant Nathuram s/o. Sahi Ram (in Sessions Case No. 61/2001 by Court of A.D.J., Nohar vide judgment dt. 24.08.2002) for the offence of Section 302, IPC, is upheld.