Ashok Kumar vs State Of Rajasthan

The instant appeal has been preferred by the accused appellant Ashok Kumar who stands convicted and sentenced vide judgment dated 01.08.2012 passed by learned Sessions Judge, Jalore in Sessions Case No.51/2011 as below:-

Sec.302 IPC

Imprisonment for Life and to pay a fine of Rs.2,000/-. In default of payment of fine to further undergo two months' SI

Being aggrieved of appellant has, preferred his the conviction and instant appeal sentences the under Section 374 (2) Cr.P.C.

Though the appeal was a represented one but during the pendency of the present appeal, learned Counsel Shri T.S. Champawat who filed the instant represented appeal pleaded no instructions. Accordingly, we summoned the convict from jail and after taking his consent appointed Shri Manjeet Godara, Advocate to argue the appeal under the Free Legal Aid Scheme.

Brief facts are that Gobarram (PW.7) lodged a written report (Ex.P-7) at Police Station Aahore inter alia alleging that his sister Tikadiyadevi (deceased) was married with the appellant herein at Gudabalotan about fifteen years ago. They had three daughters and two sons. Smt. Tikadiyadevi was being harassed and humiliated by her husband Ashok Kumar, Jeth Chhaganlal and father-in-law Dungaram for the last 2-3 years. She was being threatened that she would be killed. On 21.12.2010 in the morning at 8 O' Clock, the informant received an information from a person named Mahendra of Gudabalotan on phone that the appellant Ashok Kumar had killed his sister on previous evening and that her dead body was lying in Jalore Hospital. On this, the first informant Gobarram (PW.7) went to the Jalore Hospital and found that his sister's body was pierced by sharp wounds at numerous places. She suspected that the deceased had been killed by Ashok Kumar, Chhaganlal and Dungaram. She was harassed two years earlier in which a Panchayat of some respectable members of the society was held wherein the accused agreed that they would not repeat such acts with the deceased Tikadiyadevi and on this assurance, she was sent back to live with Ashok Kumar. On the basis of this report, an FIR No.285/2010 was registered at Police Station Aahore for the offences under Sections 302 & 120B IPC. Numerous marks of violence and blood stains etc. were recovered from the scene of occurrence. The dead body of Smt. Tikadiyadevi was subjected to postmortem examination. Her blood stained clothes were seized. Statements of witnesses were recorded. The accused Ashok Kumar was arrested and on the basis of information provided by him to the Investigating Officer Jabbar Singh (PW.23) under Section 27 of the Indian Evidence Act, blood stained pair of scissors was recovered. The seized articles were forwarded to the FSL for serological and chemical examination. After completing investigation, charge sheet was filed against the accused appellant Ashok Kumar in the court of concerned Magistrate for the offence under Section 302 IPC. Since the offence was sessions triable, the case was committed to the court of Sessions Judge, Jalore. The trial court framed charge against the accused appellant for the offence under Section 302 IPC. The accused pleaded not guilty and claimed trial. The prosecution examined as many as 23 witnesses and got 22 documents exhibited in support of its case. Upon being questioned and confronted with the prosecution allegations, in his statement under Section 313 Cr.P.C., the accused appellant denied the same and claimed to be innocent. However, he did not lead any evidence in defence. After hearing the arguments advanced by defence and the prosecution and after perusing and appreciating the evidence available on record, the learned trial judge proceeded to convict and sentence the appellant as above. Hence, this appeal.

Learned Amicus Curaie Shri Manjeet Godara vehemently and fervently advanced the following contentions for assailing the appellant's conviction:-

That the witness Gudiya (PW.20), being the daughter of the deceased and appellant is not a witness of sterling worth.

Her deposition regarding the time and incident does not match with the statements of the witness Shankarlal (PW.13) who took the deceased to the hospital. Her very presence on the scene of occurrence is doubtful.

That no other witness examined at the trial, stated that the accused appellant assaulted and caused fatal injuries to the deceased.

That there is a grave contradiction in the recovery of the pair of scissors made at the instance of the accused because the size of the pair of scissors mentioned in the seizure memo works out to be about 25 inches whereas the scissors which was produced in the Court was measuring only 10 inches.

That even if the prosecution allegation are accepted to be true on the face of record, manifestly, the injuries caused to the deceased were not which could have resulted into her death in the ordinary course of nature.

As per learned Amicus Curiae Shri Godara, the offence, if any would not travel beyond 304 Part I IPC. He thus, craves acceptance of the appeal and sought acquittal of the appellant. In the alternative, he submitted that the conviction of the appellant under Section 302 IPC may be converted into that under Section 304 Part I IPC with suitable reduction in sentence.

Learned Public Prosecutor vehemently and fervently opposed the submissions advanced by learned Amicus Curiae. He urged that the witness Gudiya (PW.20) aged 15 years, is the daughter of the appellant and the deceased. She has given clinching evidence that some time between 6:00 to 7:00 pm on the fateful day, when she reached her home after getting wheat grinded from the flour mill, she found her mother and father present in the house. Loud noises were coming from inside the room. Her mother was shouting "Maare Maare". Sound of blows was coming out. Her mother came out from the room on which she saw that her clothes were stained with blood. Her mother set down in the Chowk. Her father came behind having a pair of scissors in his hand. She asked her mother as to what happened on which she told that the accused appellant had stabbed her with scissors. She took her mother near to the tap where she became unconscious. Thereafter, her grandparents and other people of locality came around and her mother was taken to the Hospital for treatment.

Nothing significant was elicited in the cross-examination of this witness which could take away the credibility of her version as stated in her examination-in-chief. Not even a bald suggestion was given to the witness by the defence that she did not see her mother coming out of the room bleeding profusely; her father (the accused appellant) was pursuing her mother with blood stained pair of scissors in his hand and her mother told her that she had been stabbed by the appellant. Manifestly, the witness remained unflinching in her cross-examination and her testimony is wholly reliable. Not only this, PW.8 Smt. Shanti Devi being the mother of the appellant herein and the mother-in-law of the deceased though did not support the prosecution case on significant aspects but as regards the presence of the witness Gudiya, she stated in her examination-in-chief that when she reached the house of the accused appellant Ashok Kumar, she saw the witness Gudiya (PW.20) standing there. Manifestly, there is no doubt regarding the presence of Gudiya at the scene of occurrence and she is considered to be a witness of sterling worth and there would be no requirement to seek any corroboration thereof. However, we find that the Investigating Officer after arresting the accused appellant recorded his voluntary information under Section 27 of the Indian Evidence Act (Vide memo Ex.P.25) and in furtherance of this information, the accused got recovered a pair of scissors stained with blood vide recovery memo Ex.P.11. It is, however, true that in the recovery memo, the total length of pair of scissors is mentioned as 13 inches plus 11 inches and the defence itself sought an explanation in this regard in cross-examination, to which the Investigating Officer stated that by inadvertent error he had mentioned inches instead of centimeters while preparing the seizure memo. The blood stained scissors, the apparel worn by the deceased Tikadiyadevi and the blood stained pieces of grounds were forwarded to the FSL from where the report Ex.P.27 was received which proves the presence of 'B' Group blood on all the seized articles including the scissors recovered at the instance of the accused. The medical evidence of Dr. Hemant Jain (PW.22) established beyond all manner of doubt that the deceased received two incised wounds. The first was 1 x 1 x 1 cm deep to abdominal cavity on the left side of Hypochondrium penetrating deep into the spleen and the second was 1 x 1 x 1 cm deep to abdominal cavity, on the right side of Hypochondrium penetrating deep into the Liver. Both injuries resulted into excessive blood loss leading to shock. The doctor opined that the injuries were sufficient in the ordinary course of nature to cause death.

In view of this unflinching evidence of PW.20 Gudiya, PW.22 Dr.Hemant Jain and PW.23 Jabbar Singh, the Investigating Officer which got corroboration from the recovery of blood-stained pair of scissors recovered at the instance of the accused and the FSL report (Ex.P.27), we are of the firm opinion that the trial judge committed no error either factual or legal while convicting and sentencing the appellant as above. The impugned judgment does not suffer from any illegality or infirmity whatsoever warranting any interference. The contention of the learned counsel Shri Manjeet Godara that the conviction of the appellant deserves to be converted from that under Section 302 IPC to one under Section 304-I IPC is rejected. Considering the fact that the accused brutally assaulted his own wife by a pair of scissors leading to rupture of liver and spleen which proved fatal, we are least convinced that the offence should be converted from that under Section 302 IPC to one under Section 304-I IPC. That apart the accused has not been able to set out any circumstance which brings the case within the exception of Section 300 IPC.

Accordingly, we find no merit in the instant appeal which is dismissed as such.