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IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR
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CRIMINAL APPEAL No. 529 of 2003
PAPPU
V/S
STATE
Mr. SHAITAN SINGH, for the appellant
Mr. A.R. NIKUB, PP, for the respondent
Date of Order : 1.4.2009
HON'BLE SHRI AM KAPADIA,J.
HON'BLE SHRI CM TOTLA,J.
JUDGMENT
BY THE COURT (PER HON'BLE A.M. KAPADIA),J.
1. This criminal appeal under Sec. 374 of the Code of Criminal Procedure
(‘the Code’ for short), is directed against the judgment and order dated
02.04.2003 rendered in Sessions Case No.76 of 2002 by the learned
Addl. Sessions Judge (Fast Track) Pratapgarh, whereby he convicted
and sentenced appellant/accused Pappu s/o Chhogalal (hereinafter
referred to as “A-1”), as under:
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U/s. 302 IPC Imprisonment for life and a fine of Rs.5,000, in
default of payment of fine to further undergo six
months’ simple imprisonment.
U/s. 452 IPC Two years’ rigorous imprisonment and a fine of
Rs.2,000, in default of payment of fine to further
undergo three months’ simple imprisonment.
U/s. 324/34 IPC One year rigorous imprisonment and a fine of
Rs.1,000, in default of payment of fine to further
undergo two months’ simple imprisonment.
U/s. 323/34 IPC Six months’ imprisonment and a fine of Rs.500, in
default of payment of fine to further undergo one
month’s simple imprisonment.
All the sentences were ordered to run concurrently.
2. The prosecution case, as disclosed from the F.I.R. and unfolded during
trial, is as under:
2.1 On 10.08.2002, in the morning at about 4 O’ clock,
complainant Smt. Haga Kalbelia, resident of Salamgarh Hat, lodged
a verbal report at Police Station Pratapgarh, alleging inter-alia that
for last about 10 years she was living with Sorab Mansuri s/o Abdul
Rehman as his wife and two children were born to them. One year
prior to the incident, she left Sorab Mansuri and started living with
Pappu s/o Chhoga Kalbelia but since he used to beat her, she left
Pappu and again started living with Sorab Mansuri, in the rented
house of Neka s/o Bajja Nath Kalbelia. On the day of incident,
when she, her husband Sorab Mansuri and Imran, the nephew of
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Sorab Mansuri, were sleeping in house and the doors of house were
kept open on account of summer, A-1 alongwith his brother
Narunath entered in the house. A-1 was having a knife and
Narunath A-2 was having a sword and both were saying that they
would finish them. When her husband tried to get up, A-1 inflicted
a knife blow on the chest of Sorab and when Pappu tried to inflict
second blow, her husband Sorab raised his hand and therefore he
received knife injury on his left hand. When she tried to intervene,
Narunath also tried to chop her nose and as a result of which she
also received injury on her nose. When she alongwith her husband
tried to save their lives, her husband fell down in front of the
house. On hearing cries, Sabeer, Jakir and Premnath came there
but because of darkness accused could not be caught. Thereafter,
her husband was taken to hospital where he was declared dead.
2.2 On the aforesaid information, a case under Sections 452,
302, 307, 323 and 324/34 IPC was registered. During the course of
investigation, inquest was held on the dead body of deceased Sorab
and thereafter the dead body was sent for autopsy. Panchnama of
the scene of occurrence was prepared and statements of the
witnesses were record.
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2.3 At the end of investigation. as sufficient incriminating evidence
was found against both the accused. chargesheet was filed against
them in the Court of ACJM, Pratapgarh. Since accused Narunath
(A-2) absconded, he was shown as absconder in the chargesheet. As
the offence punishable under Sec. 302 IPC is exclusively triable by
the Court of Sessions, the learned ACJM, Pratapgarh committed the
case to the Sessions Court. The learned Addl. Sessions Judge, (Fast
Track) Pratapgarh (‘trial Court, for short), to whom the case was
made over for trial, framed charge against A-1 for commission of
offence as per the chargesheet. The charges were read over and
explained to him. A-1 pleaded not guilty, and claimed to be tried,
therefore, he was put to trial by the trial Court in Sessions Case No.
76/02.
2.4 To prove the culpability of the accused, prosecution examined
as many as 17 witnesses and also produced documents Ex.P/1 to
Ex.P/25.
2.5 After recording of the evidence of the prosecution witnesses
was over, the trial Court explained to the accused the
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circumstances appearing against him and recorded his further
statement under Sec.313 of the Code. In his further statement,
accused A-1 denied the case of the prosecution in its entirety and
stated that false case has been filed against him, however, he
neither produced any evidence nor did he examine any witness in
support of his defence.
2.6 On appreciation, evaluation, analysis and scrutiny of the
evidence on record, trial Court came to the conclusion that the
prosecution has successfully established the complicity of the
accused for committing murder. It was also held that out of the
two injuries received by the deceased, one injury was fatal. Trial
Court further held that it is a case of pre-planned murder.
2.7 On the aforesaid finding, the trial Court held that offence
against accused under Sec.302 IPC is proved. Consequently, the
trial Court convicted A-1 for the said offences and sentenced him to
undergone imprisonment as mentioned in foregoing paragraph of
this judgment, which has given rise to the present appeal at the
instance of A-1.
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3. Learned counsel for accused A-1 Mr. Shaitan Singh submitted that
there is no evidence to connect the accused with the crime except the
evidence of PW16 Haga and PW12 Imran, who at the relevant time
were residing with the deceased, therefore, no reliance can be placed
on her testimony and it is unsafe to rely on her oral testimony. It is
also submitted by him that the remaining witnesses have turned
hostile, therefore, prosecution could not prove the case against A-1.
On the aforesaid premises, learned counsel for the
appellant submits that there is no evidence against the accused,
however, the trial Court has not appreciated the evidence adduced by
the prosecution in correct perspective and conviction and sentenced
recorded against the accused is against the evidence on record,
therefore, the impugned order of conviction and sentence suffers from
non-appreciation of evidence and it deserves to be quashed and set
aside by allowing this appeal and thereby acquitting the accused of the
offence with which he is charged.
Alternatively, it is also submitted by him that if this
Court accept the evidence of the prosecution witnesses in toto, in that
case also it is not a case of murder punishable under Sec.302 IPC but a
case of culpable homicide not amounting to murder punishable under
Sec.304 Part II IPC as the accused has inflicted only a single fatal blow
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on the lungs of the deceased and that too after seeing Haga there, to
whom he claims to be his wife and who was staying with the deceased.
He, therefore, urged to pass appropriate order in this regard.
4. Per contra, learned Public Prosecutor Mr. A.R. Nikub, has supported
the judgment and order of conviction and sentence throughout.
According to him, no illegality has been committed by the trial Court
in recording the conviction and order of sentence against the accused.
5. This Court has considered the submissions advanced by learned counsel
appearing for the parties and perused the impugned judgment and
order. This Court has undertaken a complete and comprehensive
appreciation of all vital features of the case and the entire evidence
on record, which is read and re-read by the learned counsel for the
parties with reference to broad and reasonable probabilities of the
case. This Court has examined the entire evidence on record for itself
independently of the learned Judge of the trial Court and considered
the arguments advanced on behalf of the accused and infirmities
pressed, scrupulously with a view to find out as to whether the trial
Court has rightly recorded the order of conviction and sentence.
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6. There is no dispute that Sorab died homicidal death. To prove this
fact, the prosecution relied upon the oral testimony of PW4 Dr. Vimal
Kumar Gandhi, who performed the postmortem of the deceased. The
postmortem report is on record as Ex.P/7. On conjoint reading of
the oral testimony of PW4 Dr. Vimal Kumar Gandhi and the
Postmortem report Ex.P.7, it is seen that deceased received following
two injuries:
1. Incised wound – ¾” x ¼” x Lung issue on upper sternal area of chest
obliquely below Sterno clavicular joint.
2. Incised wound – 1 ½” x ¾” muscle artery, vein deep obliquely over
left forearm, medial side, Ant to post aspect at lower end of middle
1/3rd part.
It is also stated in the report that both the injuries are ante-
mortem and caused by sharp weapon. The cause of death was due to
hemorrhagic shock because of injury to right lung. The injury caused
to the deceased on the right lung was fatal, therefore, it has to be
held that the deceased died a homicidal death.
7. Now the next question which calls for consideration is whether A-1 was
the author of the injuries. In this connection, prosecution relied upon
oral testimony of number of eye witnesses, however, out of those
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witnesses only two witnesses have supported the prosecution case.
8. First, we will refer the evidence of PW16 Haga, who has lodged the FIR
also. She has inter-alia testified before the Court that it was about
five months back when she was sleeping in the house. Her husband,
two children and nephew of her husband were there. It was about 3 O’
Clock in the night when Pappu and Naru came to her house. Naru was
having a sword in his hand and Pappu was having a Knife. Soon after
coming there, Pappu gave knife blow in the chest of her husband Sorab
and the blow of sword was given by Naru on her nose. Knife blow was
also given on the hand of her husband. On receiving knife blow, her
husband stood up to catch hold of Pappu and Naru but he fell down as
soon as he went outside and Pappu and Noru both took to their heels
towards Chittorgarh road. On their raising cries, at the place of
incident Sagri, Meera and Badri came who took her husband in lap till
that time her husband was alive. Thereafter, her husband was taken
to hospital by elder brother of her husband and 2-3 other persons,
however, he died. She has been cross examined at length by the
learned counsel for the defence but nothing has been brought out
which would impeach the credibility of her evidence.
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9. The prosecution has thereafter relied upon the testimony of PW 11
Imran, who was present and who has inter-alia testified in his
testimony that on the night of incident he was sleeping at the house of
his maternal uncle (Mama) where his uncle Sorab, aunt Haga and two
children were also sleeping. Pappu and Naru came in night and fought
with his uncle with nife. He further stated that Pappu, who was
having knife in his hand gave blow on the his chest of his uncle and on
trying to save him by his aunt, Naru who was having sword in his hand
gave sword blow on the nose of his aunt. His uncle Sorab received
injuries on his chest and hand. During the incident, he shouted loudly
so Badri came there and called his another uncle Jakir. He also
testified that at the place of incident he had seen Pappu and Naur and
that they had fled away after causing injuries. In his cross
examination nothing contrary came out.
10.On reappraisal of the evidence of aforesaid two eye witnesses,
according to us, there is no contradiction vis a vis their evidence.
PW16 Haga has in unequivocal terms stated before the Court as per
the statement made by her in the complaint. Her evidence is of
sterling quality, which also gets corroboration from the evidence of
PW11 Imran.
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11.It is settled position of law by catena of decision of the Supreme
Court that evidence of sole eye witness if it is of sterling quality and
unimpeachable, conviction can be recorded on the basis of it. In the
instant case, evidence of Haga (PW16) is of sterling quality,
unimpeachable, inspiring confidence and being trustworthy, reliance
can be placed upon her oral testimony to base conviction of the
accused for commission of the offence of murder of Sorab. Her
evidence also gets corroboration from the evidence of PW11 Imran.
12.In the case of Ramesh Krishna Madhusudan Nayar Vs. State of
Maharashtra, reported in AIR 2008 SC 927, the Hon’ble Supreme Court
has held that conviction can be based on the basis of evidence of a
solitary witness. Sec.134 of the Indian Evidence Act clearly states that
no particular number of witnesses is required to establish a case,
conviction can be based on the testimony of single witness if he is
wholly reliable. Corroboration may be necessary only when the
witness is partially reliable. If the evidence is unblemished and
beyond all possible criticism and the Court is satisfied that the witness
was speaking the truth, on such evidence alone conviction can be
maintained.
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13.On re-appreciation of the evidence of two eye witnesses, we are
convinced that there was no reason for both the witnesses to falsely
implicate the accused, therefore, according to us, complicity of the
accused is duly established.
14.The contention of the learned counsel that it is a case of single blow,
therefore, conviction recorded under Sec.302 IPC is required to be
altered into under Sec.304 Part II IPC has no substance because the
incident has not taken place in hot exchange of words in a spur of
moment. A-1 came in the company of respondent accused No.2 with
weapon in mid night with a view to take revenge as PW16 Haga left his
house and again accompanied the deceased. Therefore, there was
intention on the part of A-1, who came with the weapon knife to kill
the deceased. Therefore, according to us, it is not a case of culpable
homicide not amounting to murder but it is a clearcut case of murder.
15.We find ourselves in complete agreement with the aforesaid finding,
ultimate conclusion and the resultant order of conviction and sentence
recorded by the trial Court and according to us no other finding or
conclusion could have been reached by the trial Court except the one
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reached by the trial Court on the facts and circumstances of the case
with which we agree and according to us, it is required to be
confirmed.
16.Seen in the above context, there is no reason to interfere with the
impugned judgment and order of conviction and sentence passed by
the trial Court and hence the appeal lacks merit and deserves to be
dismissed by confirming and maintaining the judgment and order
conviction and sentence passed by the trial Court.
17.For the foregoing reasons, the appeal fails and accordingly it is
dismissed. Resultantly, the judgment and order of conviction and
sentence dated 02.04.2003 rendered in Sessions Case No.76 of 2002 by
the learned Addl. Sessions Judge (Fast Track) Pratapgarh is confirmed
and maintained.
( CM TOTLA ),J. ( AM KAPADIA ),J. JPA