Kalu vs State of Rajasthan

Gopal Krishan Vyas, J.—The instant cr. appeal has been filed by the appellant Kalu under Section 374(2) Cr.P.C. against the judgment dated 6.2.2009 passed by the Addl. Sessions Judge (Fast Track), Banswara in Sessions Case No. 41/2008 by which the accused appellant was convicted for offence under Section 302 and 449 of the IPC and following sentence was imposed against him:

Brief facts of the case are that on 2.6.2008 the complainant PW--1 Vagji gave oral information at Police Station, Kotwali Banswara that on 1.6.2008 when he was in his house, his brother kalu D/o Devji went to the house of his sister at Ankelshwar, on that day, his mother Smt. Sonki was alone in the house. In the night at about 1.00 am upon hearing noise of crying of his mother immediately went on spot alongwith his wife in the house of his mother and saw that accused Kalu S/o. Hukia, resident of Aala Prithigarh was beating his mother by Lathi and knife and inflicted number of injuries upon the body of his mother Smt. Sonki. At the time of incident when complainant and his wife raised their voices, there neighbor Ramesh came and upon intervention, the accused Kalu made attack upon them also and said, gate out from here otherwise I will kill all of you also. The accused was asking that Smt. Sonki, mother of the accused is "Dakan" and she has eat his wife, therefore, she became ill and today he will kill Smt. Sonki and while saying above words, continuously give beating to his mother Smt. Sonki. The entire incident was seen by PW--1 Vagji and his wife PW--7 Ganga and Ramesh. After beating severely the accused appellant ran away from the place of occurrence. When accused appellant left the place of occurrence, they immediately rushed his mother and his mother informed that when she was sleeping the appellant Kalu entered in the house after pushing the door and said Sonki Dakan you have eaten my wife, therefore, today, I will kill you and gave beating by Lathi and knife.

As per the complainant his wife gave water to his mother and give information to the brother Kalu and sister. During the said period, Smt. Sonki died and in the night there was no means to reach to the police station, therefore, in the morning reach the police station Kotwali and filed FIR.

Upon aforesaid verbal information given by the complainant PW--1 Vagji FIR bearing No. 264/2009 was registered under Section 302 IPC against the appellant Kalu and investigation was commenced by Umaid Singh Solanki, Sub-Inspector of the Police Station, Kotwali, Banswara.

After post mortem, the body of the deceased Smt. Sonki was handed over to the complainant and his family members and in the investigation, the accused appellant was arrested by the police vide Ex. P/20 and upon his information (Ex. P/21), one Lathi and knife were recovered vide E.P/7 in front of two witnesses Naniya and Mahu. The post mortem report (Ex. P/9) was also obtained. On completion of investigation, challan was filed in the court of Chief Judicial Magistrate, Banswara under Section 449 and 302 IPC from where the case was committed to the court of Sessions Judge, Banswara, but later on transferred to the court of Addl. Sessions Judge (Fast Track), Banswara.

The learned trial court framed charge against the accused appellant for offence under Section 302 and 449 of the IPC and commenced the trial.

In the trial, the statements of 13 prosecution witnesses were recorded including the eye witnesses PW--1 Vagji, PW--7 Gang and PW--8 Ramesh. Thereafter, the statements of the accused Kalu were recorded under Section 313 Cr.P.C. in which he denied the allegations against him and stated that

In defence, the statements of DW-1 Laxman were recorded and 3 documents were exhibited. Thereafter, the case was finally heard by the learned trial court.

The learned trial court after considering the entire evidence and argument finally passed the judgment dated 6.2.2009 in Sessions Case No. 41/2008 whereby the trial court held accused appellant guilty for offence under Section 302 IPC while giving finding that prosecution has proved its case beyond reasonable doubt.

In this appeal, the accused appellant is challenging the validity of the said judgment on various grounds.

The learned counsel for the appellant vehemently argued that prosecution case is concocted and false because it has been instituted against the appellant on account of enmity and so called eye witness PW-1 Vagji and his wife Ganga are planted witnesses, because if occurrence took place in their presence then why the witness PW--1 Vagji and his wife not came to the rescue of this mother.

Learned counsel for the appellant submits that in the site plan there are number of houses situated near the place of occurrence but none of the witness of the area has been examined from prosecution side. Therefore, the allegation levelled by the prosecution is not substantial in law.

While inviting attention towards the fact that incident took place in the night when all the villagers must have gathered but not a single independent witness has been examined from prosecution side and prosecution case is based only upon the evidence of close relative of the deceased, therefore, obviously it is a case in which the prosecution has concocted a false story supported by the evidence of interested witness of prosecution. The learned counsel for the appellant is questioning the reliability of the statement of eye witness PW--1 Vagji and PW--7 Ganga on the ground that allegation of prosecution is that a number of injuries were inflicted by the accused appellant therefore obviously some time was consumed at the place of occurrence, but how during said period, none of the witness came on spot for rescue but this fact is not understandable in common parlance, therefore, the judgment impugned deserves to be quashed and set aside.

While attacking upon the statement of two witnesses of recovery, it is submitted that prosecution has failed to prove the recovery of weapon at the instance of the accused appellant, therefore, the petitioner is entitled for acquittal because case is totally based upon the evidence of interested witnesses, so also, recovery of weapon is not proved beyond reasonable doubt, therefore, it is submitted that the appeal may kindly be allowed and the judgment impugned may kindly be set aside.

Per contra, learned Public Prosecutor submits that to prove the prosecution case the statement of 13 witnesses were recorded and the prosecution has proved its case beyond reasonable doubt. The learned trial court has rightly held guilty the accused appellant for the offence under Section 302 and 449 IPC and therefore, the present appeal may kindly be dismissed.

After hearing argument of the learned counsel for the parties, we have considered the arguments and scanned the entire evidence.

PW-1 Vagji is the author of the FIR and this witness is eye witness of the occurrence. Upon perusal of his statement, this fact is established that the mother of the deceased was severely assaulted by the accused appellant in his presence and a threat was given by the accused to the eye witness that if they will intervene then face the consequences. In the cross examination although certain questions were put for the purpose of contradiction, but the witness PW--1 Vagji categorically corroborated the FIR (Ex. P/2), which was registered on the basis of information given by him.

PW-2 Magu also stated before the court that in the night at 2'' Clock I received phone call of my brother-in-law Vagji that accused Kalu inflicted injuries by Lath and knife to the deceased Sonki and upon that information he went on spot alongwith his brother-in-law Kalu and Prabhu, where dead body of Smt. Sonki was lying.

PW--3 Naniya is the witness who has categorically stated before the court that on the date of incident in the night PW--1 Vagji called him and informed that the accused Kalu assaulted my mother Sonki by Lath and knife.

PW--4 Kalu is the son of the deceased and brother of the complainant. It is stated by him that the day on which the occurrence took place he was at the house of his sister but upon information given by his brother Vagji on phone he came back in the morning at 6'' O Clock at the house of his mother and see the injuries upon the body of his mother, at that time blood was coming out from the body.

PW--5 Prabhu is son-in-law of deceased who came on spot upon information given by PW--1 Vagji, author of FIR. In whose presence the Panchnama of dead body was prepared vide Ex. P/5, which is proved by him.

PW--6 Sukhlal is the witness who has proved Ex. P/5 Panchnama of body.

PW--7 Smt. Ganga is the eye witness who has categorically corroborated the allegations levelled in the FIR and version stated by PW--1 Vagji because she was present at the time of occurrence took place. The said witness categorically stated in his statement that after hearing voice of cry of my mother-in-law I and my husband Vagji rushed to the house of her mother-in-law where accused appellant Kalu was beating her mother-in-law Sonki by lathi and knife. She gave following statement before the Court, which reads as under:--

The same statement is given by PW--1 Vagji in the trial and corroborated the allegation leveled in the FIR.

The witness PW--8 Ramesh turned hostile and did not support the prosecution case, whereas PW--9 Dr. S.K. Bhatnagar stated before the court that post mortem of deceased Smt. Sonki was conducted by him on 2.6.2008 in the MG Hospital, Banswara when he was posted as Medical Jurist. In the post mortem 9 injuries were found upon the body of the deceased, out of which injury Nos. 2, 3, 4, 5 and 7 were incised wound upon the vital part of the body and hand of the deceased, further said that there was combined fracture on right knee and other injuries were contusions. Meaning thereby, the said witness corroborated the injuries inflicted by the accused by knife and lathi so also stated that cause of death was injury upon the head and lungs.

The PW-10 Iqbal is the photographer who has taken the photographs of the place of occurrence upon the instructions of investigating officer.

PW-11 Suresh Chandra was working as Constable at Police Station Kotwali who was carrier of Malkhana and deposited the articles in the FSL, Udaipur and PW-12 Umaid Singh is the Investigating Officer who has categorically proved the entire investigation conducted by him and said that accused is guilty of committing offence under Section 302 IPC because recovery of weapon was made as per his information and statement of eye witnesses were recovered by him which is supported by other circumstantial evidence.

PW-13 is Balwant Singh, Head Constable who was working on the relevant date as Head Constable at Police Station Kotwali Banswara. He has stated before the court that on 03.06.2008 the Investigating Officer Umaid Singh deposited 2 packets and those packets alongwith 3 packets were sent to the FSL, through Constable Suresh Chandra. Meaning thereby, this witness has proved the fact that articles were sent to FSL for chemical examination.

We have assessed the entire evidence of prosecution and considered the finding by the learned trial court. In our opinion, the prosecution has proved its case beyond reasonable doubt by leading trustworthy and reliable evidence of two eye witnesses PW-1 Vagji and PW-7 Ganga. Both these witnesses categorically proved the prosecution case before the Court the incident took place in front of them in which the accused appellant Kalu inflicted number of injuries to the deceased Smt. Sonki by lathi and knife in the evening of 1.6.2008 and upon information given by PW-1 Vagji, FIR No. 264/2008 dated 02.06.2008 was registered by SHO, Police Station Kotwali District Banswara. We have perused the report of FSL (Ex. P/22) which is very important document of prosecution in which a clear report is given by the FSL that upon blood smell soil, control soil, Ghaghara of deceased, Lathi and knife human blood of ''A'' group was found. Meaning thereby, by medical evidence it is proved by the prosecution that accused inflicted injury by knife and lathi on the vital part of the body of the deceased and due to those injuries the deceased Smt. Sonki died on spot. The injuries were caused with the intention to kill because accused appellant was suspecting that Smt. Sonki is "Dakan" and she has destroyed the peace of his family because his wife became ill, therefore, the prosecution has proved the allegation that there was intention for inflicting injuries by sharp edged weapon and blunt weapon by the accused appellant.

In view of the entire evidence we are of the opinion that prosecution has established the allegations levelled against the accused appellant for committing murder of Smt. Sonki because number of injuries were found upon the body of the deceased, which is corroborated by the medical evidence and there is no reason to disbelieve the testimony of witness PW-1 Vagji and PW-7 Smt. Ganga because the allegations levelled by the eye witnesses are fully corroborated by the medical evidence and recovery of weapon at the instance of the accused appellant is also proved by the prosecution by leading cogent evidence. Therefore, in our opinion, no interference is called for in the judgment rendered by the trial court whereby the accused appellant was convicted for offence under Sections 449 and 302 IPC and passed sentence against him for the said offence.

Consequently, this Cr. Appeal is hereby dismissed.