{"id":193634,"date":"2009-04-01T00:00:00","date_gmt":"2009-03-31T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/pappu-vs-state-on-1-april-2009"},"modified":"2017-11-24T19:36:31","modified_gmt":"2017-11-24T14:06:31","slug":"pappu-vs-state-on-1-april-2009","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/pappu-vs-state-on-1-april-2009","title":{"rendered":"Pappu vs State on 1 April, 2009"},"content":{"rendered":"<div class=\"docsource_main\">Rajasthan High Court &#8211; Jodhpur<\/div>\n<div class=\"doc_title\">Pappu vs State on 1 April, 2009<\/div>\n<pre>                                     1\n\n IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR\n             --------------------------------------------------------\n\n\n                          CRIMINAL APPEAL No. 529 of 2003\n\n                                  PAPPU\n                                   V\/S\n                                  STATE\n\n\n\n  Mr. SHAITAN SINGH, for the appellant\n  Mr. A.R. NIKUB, PP, for the respondent\n\n  Date of Order : 1.4.2009\n\n                             HON'BLE SHRI AM KAPADIA,J.\n                              HON'BLE SHRI CM TOTLA,J.\n\n\n                                         JUDGMENT\n\n\n\nBY THE COURT (PER HON'BLE A.M. KAPADIA),J.<\/pre>\n<p>1. This criminal appeal under Sec. 374 of the Code of Criminal Procedure<\/p>\n<p>  (&#8216;the Code&#8217; for short), is directed against the judgment and order dated<\/p>\n<p>  02.04.2003 rendered in Sessions Case No.76 of 2002 by the learned<\/p>\n<p>  Addl. Sessions Judge (Fast Track) Pratapgarh, whereby he convicted<\/p>\n<p>  and sentenced appellant\/accused Pappu s\/o Chhogalal (hereinafter<\/p>\n<p>  referred to as &#8220;A-1&#8221;), as under:\n<\/p>\n<p><span class=\"hidden_text\">                                       2<\/span><\/p>\n<p>   U\/s. 302 IPC         Imprisonment for life and a fine of Rs.5,000, in<br \/>\n                        default of payment of fine to further undergo six<br \/>\n                        months&#8217; simple imprisonment.\n<\/p>\n<p>   U\/s. 452 IPC         Two years&#8217; rigorous imprisonment and a fine of<br \/>\n                        Rs.2,000, in default of payment of fine to further<br \/>\n                        undergo three months&#8217; simple imprisonment.\n<\/p>\n<p>   U\/s. 324\/34 IPC One year rigorous imprisonment and a fine of<br \/>\n                   Rs.1,000, in default of payment of fine to further<br \/>\n                   undergo two months&#8217; simple imprisonment.\n<\/p>\n<p>   U\/s. 323\/34 IPC Six months&#8217; imprisonment and a fine of Rs.500, in<br \/>\n                   default of payment of fine to further undergo one<br \/>\n                   month&#8217;s simple imprisonment.\n<\/p>\n<p>             All the sentences were ordered to run concurrently.<\/p>\n<p>2. The prosecution case, as disclosed from the F.I.R. and unfolded during<\/p>\n<p>  trial, is as under:\n<\/p>\n<p>  2.1          On 10.08.2002, in the morning at about 4          O&#8217; clock,<\/p>\n<p>     complainant Smt. Haga Kalbelia, resident of Salamgarh Hat, lodged<\/p>\n<p>     a verbal report at Police Station Pratapgarh, alleging inter-alia that<\/p>\n<p>     for last about 10 years she was living with Sorab Mansuri s\/o Abdul<\/p>\n<p>     Rehman as his wife and two children were born to them. One year<\/p>\n<p>     prior to the incident, she left Sorab Mansuri and started living with<\/p>\n<p>     Pappu s\/o Chhoga Kalbelia but since he used to beat her, she left<\/p>\n<p>     Pappu and again started living with Sorab Mansuri, in the rented<\/p>\n<p>     house of Neka s\/o Bajja Nath Kalbelia.       On the day of incident,<\/p>\n<p>     when she, her husband Sorab Mansuri and Imran, the nephew of<br \/>\n<span class=\"hidden_text\">                                  3<\/span><\/p>\n<p>  Sorab Mansuri, were sleeping in house and the doors of house were<\/p>\n<p>  kept open on account of summer, A-1 alongwith his brother<\/p>\n<p>  Narunath     entered in the house.    A-1 was having a knife and<\/p>\n<p>  Narunath A-2 was having a sword and both were saying that they<\/p>\n<p>  would finish them. When her husband tried to get up, A-1 inflicted<\/p>\n<p>  a knife blow on the chest of Sorab and when Pappu tried to inflict<\/p>\n<p>  second blow, her husband Sorab raised his hand and therefore he<\/p>\n<p>  received knife injury on his left hand. When she tried to intervene,<\/p>\n<p>  Narunath also tried to chop her nose and as a result of which she<\/p>\n<p>  also received injury on her nose. When she alongwith her husband<\/p>\n<p>  tried to save their lives, her husband fell down in front of the<\/p>\n<p>  house. On hearing cries, Sabeer, Jakir and Premnath came there<\/p>\n<p>  but because of darkness accused could not be caught. Thereafter,<\/p>\n<p>  her husband was taken to hospital where he was declared dead.<\/p>\n<p>2.2          On the aforesaid information, a case under Sections 452,<\/p>\n<p>  302, 307, 323 and 324\/34 IPC was registered. During the course of<\/p>\n<p>  investigation, inquest was held on the dead body of deceased Sorab<\/p>\n<p>  and thereafter the dead body was sent for autopsy. Panchnama of<\/p>\n<p>  the scene of occurrence was prepared and statements of the<\/p>\n<p>  witnesses were record.\n<\/p>\n<p><span class=\"hidden_text\">                                        4<\/span><\/p>\n<p>2.3   At the end of investigation. as sufficient incriminating evidence<\/p>\n<p>  was found against both the accused. chargesheet was filed against<\/p>\n<p>  them in the Court of ACJM, Pratapgarh.               Since accused Narunath<\/p>\n<p>  (A-2) absconded, he was shown as absconder in the chargesheet. As<\/p>\n<p>  the offence punishable under Sec. 302 IPC is exclusively triable by<\/p>\n<p>  the Court of Sessions, the learned ACJM, Pratapgarh committed the<\/p>\n<p>  case to the Sessions Court. The learned Addl. Sessions Judge, (Fast<\/p>\n<p>  Track) Pratapgarh (&#8216;trial Court, for short), to whom the case was<\/p>\n<p>  made over for trial, framed charge against A-1 for commission of<\/p>\n<p>  offence as per the chargesheet. The charges were read over and<\/p>\n<p>  explained to him. A-1 pleaded not guilty, and claimed to be tried,<\/p>\n<p>  therefore, he was put to trial by the trial Court in Sessions Case No.<\/p>\n<p>  76\/02.\n<\/p>\n<p>2.4     To prove the culpability of the accused, prosecution examined<\/p>\n<p>  as many as 17 witnesses and also produced documents Ex.P\/1 to<\/p>\n<p>  Ex.P\/25.\n<\/p>\n<p>2.5     After recording of the evidence of the prosecution witnesses<\/p>\n<p>  was    over,   the   trial   Court       explained   to   the   accused   the<br \/>\n<span class=\"hidden_text\">                                  5<\/span><\/p>\n<p>  circumstances appearing against him and recorded his further<\/p>\n<p>  statement under Sec.313 of the Code. In his further statement,<\/p>\n<p>  accused A-1 denied the case of the prosecution in its entirety and<\/p>\n<p>  stated that false case has been filed against him, however, he<\/p>\n<p>  neither produced any evidence nor did he examine any witness in<\/p>\n<p>  support of his defence.\n<\/p>\n<p>2.6    On appreciation, evaluation, analysis and scrutiny of the<\/p>\n<p>  evidence on record, trial Court came to the conclusion that the<\/p>\n<p>  prosecution has successfully established the complicity of the<\/p>\n<p>  accused for committing murder.      It was also held that out of the<\/p>\n<p>  two injuries received by the deceased, one injury was fatal. Trial<\/p>\n<p>  Court further held that it is a case of pre-planned murder.<\/p>\n<p>2.7   On the aforesaid finding, the trial Court held that offence<\/p>\n<p>  against accused under Sec.302 IPC is proved.      Consequently, the<\/p>\n<p>  trial Court convicted A-1 for the said offences and sentenced him to<\/p>\n<p>  undergone imprisonment as mentioned in foregoing paragraph of<\/p>\n<p>  this judgment, which has given rise to the present appeal at the<\/p>\n<p>  instance of A-1.\n<\/p>\n<p><span class=\"hidden_text\">                                       6<\/span><\/p>\n<p>3. Learned counsel for accused A-1 Mr. Shaitan Singh submitted that<\/p>\n<p>  there is no evidence to connect the accused with the crime except the<\/p>\n<p>  evidence of PW16 Haga and PW12 Imran, who at the relevant time<\/p>\n<p>  were residing with the deceased, therefore, no reliance can be placed<\/p>\n<p>  on her testimony and it is unsafe to rely on her oral testimony. It is<\/p>\n<p>  also submitted by him that the remaining witnesses have turned<\/p>\n<p>  hostile, therefore, prosecution could not prove the case against A-1.<\/p>\n<p>                     On the aforesaid premises, learned counsel for the<\/p>\n<p>  appellant submits that there is no evidence against the accused,<\/p>\n<p>  however, the trial Court has not appreciated the evidence adduced by<\/p>\n<p>  the prosecution in correct perspective and conviction and sentenced<\/p>\n<p>  recorded against the accused is against the evidence on record,<\/p>\n<p>  therefore, the impugned order of conviction and sentence suffers from<\/p>\n<p>  non-appreciation of evidence and it deserves to be quashed and set<\/p>\n<p>  aside by allowing this appeal and thereby acquitting the accused of the<\/p>\n<p>  offence with which he is charged.\n<\/p>\n<p>                    Alternatively, it is also submitted by him that if this<\/p>\n<p>  Court accept the evidence of the prosecution witnesses in toto, in that<\/p>\n<p>  case also it is not a case of murder punishable under Sec.302 IPC but a<\/p>\n<p>  case of culpable homicide not amounting to murder punishable under<\/p>\n<p>  Sec.304 Part II IPC as the accused has inflicted only a single fatal blow<br \/>\n<span class=\"hidden_text\">                                     7<\/span><\/p>\n<p>  on the lungs of the deceased and that too after seeing Haga there, to<\/p>\n<p>  whom he claims to be his wife and who was staying with the deceased.<\/p>\n<p>  He, therefore, urged to pass appropriate order in this regard.<\/p>\n<p>4. Per contra, learned Public Prosecutor Mr. A.R. Nikub, has supported<\/p>\n<p>  the judgment and order of conviction and sentence throughout.<\/p>\n<p>  According to him, no illegality has been committed by the trial Court<\/p>\n<p>  in recording the conviction and order of sentence against the accused.<\/p>\n<p>5. This Court has considered the submissions advanced by learned counsel<\/p>\n<p>  appearing for the parties and perused the impugned judgment and<\/p>\n<p>  order.   This Court has undertaken a complete and comprehensive<\/p>\n<p>  appreciation of all vital features of the case and the entire evidence<\/p>\n<p>  on record, which is read and re-read by the learned counsel for the<\/p>\n<p>  parties with reference to broad and reasonable probabilities of the<\/p>\n<p>  case. This Court has examined the entire evidence on record for itself<\/p>\n<p>  independently of the learned Judge of the trial Court and considered<\/p>\n<p>  the arguments advanced on behalf of the accused and infirmities<\/p>\n<p>  pressed, scrupulously with a view to find out as to whether the trial<\/p>\n<p>  Court has rightly recorded the order of conviction and sentence.<br \/>\n<span class=\"hidden_text\">                                         8<\/span><\/p>\n<p>6. There is no dispute that Sorab died homicidal death. To prove this<\/p>\n<p>  fact, the prosecution relied upon the oral testimony of PW4 Dr. Vimal<\/p>\n<p>  Kumar Gandhi, who performed the postmortem of the deceased. The<\/p>\n<p>  postmortem report is on record as Ex.P\/7.            On conjoint reading of<\/p>\n<p>  the oral testimony of PW4 Dr. Vimal Kumar Gandhi and the<\/p>\n<p>  Postmortem report Ex.P.7, it is seen that deceased received following<\/p>\n<p>  two injuries:\n<\/p>\n<p>  1. Incised wound &#8211; \u00be&#8221; x \u00bc&#8221; x Lung issue on upper sternal area of chest<\/p>\n<p>  obliquely below Sterno clavicular joint.\n<\/p>\n<p>  2. Incised wound &#8211; 1 \u00bd&#8221; x \u00be&#8221; muscle artery, vein deep obliquely over<\/p>\n<p>  left forearm, medial side, Ant to post aspect at lower end of middle<\/p>\n<p>  1\/3rd part.\n<\/p>\n<p>                It is also stated in the report that both the injuries are ante-<\/p>\n<p>  mortem and caused by sharp weapon. The cause of death was due to<\/p>\n<p>  hemorrhagic shock because of injury to right lung. The injury caused<\/p>\n<p>  to the deceased on the right lung was fatal, therefore, it has to be<\/p>\n<p>  held that the deceased died a homicidal death.\n<\/p>\n<\/p>\n<p>7. Now the next question which calls for consideration is whether A-1 was<\/p>\n<p>  the author of the injuries. In this connection, prosecution relied upon<\/p>\n<p>  oral testimony of number of eye witnesses, however, out of those<br \/>\n<span class=\"hidden_text\">                                    9<\/span><\/p>\n<p>  witnesses only two witnesses have supported the prosecution case.<\/p>\n<p>8. First, we will refer the evidence of PW16 Haga, who has lodged the FIR<\/p>\n<p>  also. She has inter-alia testified before the Court that it was about<\/p>\n<p>  five months back when she was sleeping in the house. Her husband,<\/p>\n<p>  two children and nephew of her husband were there. It was about 3 O&#8217;<\/p>\n<p>  Clock in the night when Pappu and Naru came to her house. Naru was<\/p>\n<p>  having a sword in his hand and Pappu was having a Knife. Soon after<\/p>\n<p>  coming there, Pappu gave knife blow in the chest of her husband Sorab<\/p>\n<p>  and the blow of sword was given by Naru on her nose. Knife blow was<\/p>\n<p>  also given on the hand of her husband. On receiving knife blow, her<\/p>\n<p>  husband stood up to catch hold of Pappu and Naru but he fell down as<\/p>\n<p>  soon as he went outside and Pappu and Noru both took to their heels<\/p>\n<p>  towards Chittorgarh road.    On their raising cries, at the place of<\/p>\n<p>  incident Sagri, Meera and Badri came who took her husband in lap till<\/p>\n<p>  that time her husband was alive. Thereafter, her husband was taken<\/p>\n<p>  to hospital by elder brother of her husband and 2-3 other persons,<\/p>\n<p>  however, he died.    She has been cross examined at length by the<\/p>\n<p>  learned counsel for the defence but nothing has been brought out<\/p>\n<p>  which would impeach the credibility of her evidence.<br \/>\n<span class=\"hidden_text\">                                    10<\/span><\/p>\n<p>9. The prosecution has thereafter relied upon the testimony of PW 11<\/p>\n<p>  Imran, who was present and who has inter-alia testified in his<\/p>\n<p>  testimony that on the night of incident he was sleeping at the house of<\/p>\n<p>  his maternal uncle (Mama) where his uncle Sorab, aunt Haga and two<\/p>\n<p>  children were also sleeping. Pappu and Naru came in night and fought<\/p>\n<p>  with his uncle with nife.   He further stated that Pappu, who was<\/p>\n<p>  having knife in his hand gave blow on the his chest of his uncle and on<\/p>\n<p>  trying to save him by his aunt, Naru who was having sword in his hand<\/p>\n<p>  gave sword blow on the nose of his aunt. His uncle Sorab received<\/p>\n<p>  injuries on his chest and hand. During the incident, he shouted loudly<\/p>\n<p>  so Badri came there and called his another uncle Jakir.        He also<\/p>\n<p>  testified that at the place of incident he had seen Pappu and Naur and<\/p>\n<p>  that they had fled away after causing injuries.           In his cross<\/p>\n<p>  examination nothing contrary came out.\n<\/p>\n<\/p>\n<p>10.On reappraisal of the evidence of aforesaid two eye witnesses,<\/p>\n<p>  according to us, there is no contradiction vis a vis their evidence.<\/p>\n<p>  PW16 Haga has in unequivocal terms stated before the Court as per<\/p>\n<p>  the statement made by her in the complaint.        Her evidence is of<\/p>\n<p>  sterling quality, which also gets corroboration from the evidence of<\/p>\n<p>  PW11 Imran.\n<\/p>\n<p><span class=\"hidden_text\">                                     11<\/span><\/p>\n<p>11.It is settled position of law by catena of decision of the Supreme<\/p>\n<p>  Court that evidence of sole eye witness if it is of sterling quality and<\/p>\n<p>  unimpeachable, conviction can be recorded on the basis of it. In the<\/p>\n<p>  instant case, evidence of Haga (PW16) is of sterling quality,<\/p>\n<p>  unimpeachable, inspiring confidence and being trustworthy, reliance<\/p>\n<p>  can be placed upon her oral testimony to base conviction of the<\/p>\n<p>  accused for commission of the offence of murder of Sorab.            Her<\/p>\n<p>  evidence also gets corroboration from the evidence of PW11 Imran.<\/p>\n<p>12.In the case of Ramesh Krishna Madhusudan Nayar Vs. State of<\/p>\n<p>  Maharashtra, reported in AIR 2008 SC 927, the Hon&#8217;ble Supreme Court<\/p>\n<p>  has held that conviction can be based on the basis of evidence of a<\/p>\n<p>  solitary witness. Sec.134 of the Indian Evidence Act clearly states that<\/p>\n<p>  no particular number of witnesses is required to establish a case,<\/p>\n<p>  conviction can be based on the testimony of single witness if he is<\/p>\n<p>  wholly reliable.   Corroboration may be necessary only when the<\/p>\n<p>  witness is partially reliable.   If the evidence is unblemished and<\/p>\n<p>  beyond all possible criticism and the Court is satisfied that the witness<\/p>\n<p>  was speaking the truth, on such evidence alone conviction can be<\/p>\n<p>  maintained.\n<\/p>\n<p><span class=\"hidden_text\">                                    12<\/span><\/p>\n<p>13.On re-appreciation of the evidence of two eye witnesses,       we are<\/p>\n<p>  convinced that there was no reason for both the witnesses to falsely<\/p>\n<p>  implicate the accused, therefore, according to us, complicity of the<\/p>\n<p>  accused is duly established.\n<\/p>\n<\/p>\n<p>14.The contention of the learned counsel that it is a case of single blow,<\/p>\n<p>  therefore, conviction recorded under Sec.302 IPC is required to be<\/p>\n<p>  altered into under Sec.304 Part II IPC has no substance because the<\/p>\n<p>  incident has not taken place in hot exchange of words in a spur of<\/p>\n<p>  moment. A-1 came in the company of respondent accused No.2 with<\/p>\n<p>  weapon in mid night with a view to take revenge as PW16 Haga left his<\/p>\n<p>  house and again accompanied the deceased.        Therefore, there was<\/p>\n<p>  intention on the part of A-1, who came with the weapon knife to kill<\/p>\n<p>  the deceased. Therefore, according to us, it is not a case of culpable<\/p>\n<p>  homicide not amounting to murder but it is a clearcut case of murder.<\/p>\n<p>15.We find ourselves in complete agreement with the aforesaid finding,<\/p>\n<p>  ultimate conclusion and the resultant order of conviction and sentence<\/p>\n<p>  recorded by the trial Court and according to us no other finding or<\/p>\n<p>  conclusion could have been reached by the trial Court except the one<br \/>\n<span class=\"hidden_text\">                                    13<\/span><\/p>\n<p>  reached by the trial Court on the facts and circumstances of the case<\/p>\n<p>  with which we agree and according to us, it is required to be<\/p>\n<p>  confirmed.\n<\/p>\n<\/p>\n<p>16.Seen in the above context, there is no reason to interfere with the<\/p>\n<p>  impugned judgment and order of conviction and sentence passed by<\/p>\n<p>  the trial Court and hence the appeal lacks merit and deserves to be<\/p>\n<p>  dismissed by confirming and maintaining the judgment and order<\/p>\n<p>  conviction and sentence passed by the trial Court.<\/p>\n<p>17.For the foregoing reasons, the appeal fails and accordingly it is<\/p>\n<p>  dismissed. Resultantly, the judgment and order of conviction and<\/p>\n<p>  sentence dated 02.04.2003 rendered in Sessions Case No.76 of 2002 by<\/p>\n<p>  the learned Addl. Sessions Judge (Fast Track) Pratapgarh is confirmed<\/p>\n<p>  and maintained.\n<\/p>\n<\/p>\n<pre> ( CM TOTLA ),J.                                       ( AM KAPADIA ),J.\n\n\nJPA\n <\/pre>\n","protected":false},"excerpt":{"rendered":"<p>Rajasthan High Court &#8211; Jodhpur Pappu vs State on 1 April, 2009 1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR &#8212;&#8212;&#8212;&#8212;&#8212;&#8212;&#8212;&#8212;&#8212;&#8212;&#8212;&#8212;&#8212;&#8212;&#8212;&#8212;&#8212;&#8212;&#8211; 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&#8217;BLE SHRI AM KAPADIA,J. [&hellip;]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,19],"tags":[],"class_list":["post-193634","post","type-post","status-publish","format-standard","hentry","category-high-court","category-rajasthan-high-court-jodhpur"],"yoast_head":"<!-- This site is optimized with the Yoast SEO plugin v27.0 - https:\/\/yoast.com\/product\/yoast-seo-wordpress\/ -->\n<title>Pappu vs State on 1 April, 2009 - Free Judgements of Supreme Court &amp; High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/pappu-vs-state-on-1-april-2009\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Pappu vs State on 1 April, 2009 - Free Judgements of Supreme Court &amp; 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