Majid vs State of Rajasthan

Kanwaljit Singh Ahluwalia, J.

Majid @ Manjan was sent for trial by the investigating agency for having caused murder of Smt. Sharifan @ Sharifunnisa on 13.7.2007 at 6.00 AM in his own residential house at Abdulla Khan Ki Street, Ward No. 14, Rajban, Tonk. Case of the prosecution is that the appellant has caused injuries on the person of deceased with iron Sabbal. The Court of Additional Sessions Judge (Fast Track) No. 1, Tonk vide impugned judgment dated 29.7.2008 held the appellant to be guilty of offence under Section 302 IPC and sentenced him to undergo life imprisonment and pay a fine of Rs. 3000/-, in default thereof to undergo one year rigorous imprisonment.

Statement (Ex. P.7) made by Saddam (P.W. 5) son of the deceased was recorded. In the said statement he claimed that the occurrence was witnessed by him alongwith Zakira (P.W. 9) step daughter of the appellant.

Saddam (P.W. 5) in his statement (Ex. P.7) stated that he is illiterate. He alongwith his mother Sharifunnisa was staying in Badwali Haveli on rent. Majid @ Manjan aged 35 years, r/o Rajban, Tonk often used to visit her mother. A day before the occurrence on 12.7.2007 at about 7.00 PM Saddam (P.W. 5) alongwith his sister Rukhsar aged three years and mother Sharifan @ Sharifunnisa had gone to the house of Majid @ Manjan to ask welfare of the mother of accused-appellant. In the night after taking meals, they stayed in the house of the accused. In the morning at about 6.30 AM when her mother Sharifan @ Sharifunnisa was about to take tea, accused Majid @ Manjan caught hold of her hand and dragged her inside the house and had bolted the door of the room. Mother of the informant Saddam (P.W. 5) told the accused that she will go back to the house upon which Majid @ Manjan stated as to how she will go and saying so, he picked up a thick iron rod and caused 4-5 blows on the head of Sharifan due to which she fell on the ground, when Saddam (P.W. 5) stepped forward to save his mother, the accused gave him a kick blow. The witness further stated that at the time of beating his mother, except Majid @ Majan, nobody was present. Lot of blood due to oozing from the injury had splashed on the floor. Zakira had put ash on the blood. The occurrence was only witnessed by Saddam (P.W. 5) and Zakira (P.W. 9) as nobody else was present. Then suddenly Kajal Sahab @ Mohammad Saeed, father of the accused came. The informant alongwith Kajal Sahab brought his mother in a tempo to the hospital and during treatment, his mother had expired.

On the basis of the above statement (Ex. P.7), formal FIR (Ex. P.8) bearing FIR No. 185/07 was registered at P.S. Kotwali, Tonk for offence under Section 302 IPC. The case was committed to the Court of Sessions and was entrusted for trial to the court of Additional Sessions Judge (Fast Track) No. 1, Tonk. The said court charge-sheeted the accused for offence under Section 302 IPC. Accused pleaded not guilty and claimed trial.

Prosecution case rests on the testimonies of Saddam (P.W. 5) a child aged 12 years and Zakira (P.W. 9) aged 22 years, step daughter of the accused-appellant.

Dr. B.L. Nama (P.W. 7) on 14.7.2007 being a member of the medical board had conducted autopsy on the dead body of Sharifan @ Sharifunnisa. As per post-mortem report (Ex. P.9), he had found the following injuries on the person of deceased:--

"1. Lacerated wound 2 1/2" x 1", bone deep with depressed fracture of frontal bone left side.

Lacerated wound 3" x 1 1/2" x brain matter deep with compound fracture of parieto frontal bone right.

Lacerated wound 1 1/2" x 1" x bone deep behind right ear.

I.W. (venesection) 3/4" x 1/2" on right leg (medial) above ankle.

Multiple haematoma below scalp.

Multiple fracture of skull bone involving Lt. Frontal, both parietal, Rt. temporal.

All of above wounds are ante mortem in nature."

As per opinion of the medical board, cause of death was shock due to fracture of temporal bone of skull (head injury). The witness further stated that a compound fracture of skull was also found. Injuries No. 5 and 6 had a fracture and injuries No. 1,2 and 3 were simple. Injury No. 4 was a surgical wound. The witness further stated that injuries No. 1, 2 and 3 were individually sufficient to cause death.

Kamar (P.W. 1) stated that no site plan was made in his presence by the police. This witness was declared hostile by the prosecution.

Mohammad Miyan (P.W. 2) stated that the police had already made site plan and had not taken into possession blood stained soil and controlled soil vide memo (Ex. P.2 and Ex. P.3) in his presence. This witness was also declared hostile by the prosecution.

Jiya Ulla @ Manzoor Miyan (P.W. 3) stated that Sharifan was his tenant. He knew Majid. He used to often visit to the house of Sharifan. Six months before he had gone to the hospital where son of Sharifan told that Majid had caused injury with an iron rod to the deceased. The police in presence of this witness had recovered iron rod vide memo (Ex. P.4).

Sarfuddin (P.W. 4) stated that Sharifan deceased was his wife. She had given birth to a son and a daughter. They stayed in the house of Manzoor Bhai on rent. He used to live in Jaipur and used to come to Tonk to give day to day expenses to the deceased. His another wife and children are living in Jaipur. He stated that 6-7 month ago he received a telephonic call and he was informed by his son Saddam that accused has caused 4-5 iron rod blows on the head of his mother and she is admitted in the hospital. In cross-examination, this witness stated that Nikah with Sharifan was held in 2001. Saddam is not born from his loins.

Hazari Lal (P.W. 6) stated that on 13.7.2007 he was posted as In charge of Police Station Kotwali, Tonk. Gowardhan Lal Meena, S.I. recorded statement (Ex. P.7) of Saddam, on the basis of which he had recorded a formal FIR (Ex. P.8).

Noorjahan (P.W. 8) stated that earlier she was residing at Kalipaltan. Sharifan also used to stay there on rent. She further stated that Majid @ Manjar used to come to the house of Sharifan.

Bihari Lal (P.W. 10) was in-charge of the Malkhana. He deposed regarding deposit of articles and their onward transmission to the FSL.

Mohan Singh (P.W. 12) was posted as Constable at P.S. Kotwali, Tonk. He carried samples to the FSL. Thus, Bihari Lal (P.W. 10) and Mohan Singh (P.W. 12) were examined to prove the link evidence.

Mohammad Saeed (P.W. 11) has not supported the prosecution case and he was declared hostile by the prosecution.

Gowardhan Lal (P.W. 13) being investigating officer has proved various facets of investigation.

Meena Agrawal (P.W. 14) stated that on 16.7.2007 she was posted as Judicial Magistrate, Tonk and on the request made by the investigating officer, she has recorded statement of Saddam (P.W. 5) and Zakira (P.W. 9) under Section 164 Cr.P.C.

Chandra Singh Rawat (P.W. 15) is also investigating officer. He also proved part of investigation carried out by him.

After completion of prosecution evidence, statement of the accused was recorded under Section 313 cr.P.C. He denied all incriminating circumstances. However, the accused stated that he is innocent. He has been falsely implicated. Zakira (P.W. 9) wanted to marry a boy from whom she became pregnant. He had lodged a report of rape at Police Station, Kotwali. He was opposed to the marriage. Therefore, Zakira has falsely deposed against him. The accused further stated that Sarfuddin was having grudge against him. Therefore, Saddam (P.W. 5) has appeared as a false witness. He further stated that he was not having a good mental health. He remained admitted in Mental Hospital and in Jail also he is taking medicines.

In defence, accused had examined Dr. C.P. Bairwa (D.W. 1). This witness stated that he is posted as Psychiatrist in Saadat Hospital, Tonk. Male Nurse from District Jail, Tonk had referred the accused to me. He had examined the accused. He was having pain and he was given medicine. This witness stated that mental state of the accused is normal. In cross-examination by the learned Public Prosecutor, the witness stated that the accused was mentally sound and tablet "Penital" is taken to cure the disease of epilepsy.

As stated earlier, the case of the prosecution rests on the testimony of Saddam (P.W. 5) and Zakira (P.W. 9). Saddam (P.W. 5) reiterated as to what was stated by him in his statement (Ex. P.7).

Zakira (P.W. 9), step daughter of the appellant, stated that her grandmother was not well. Therefore, on a telephonic call made, Sharifan came to their house. Sharifan alongwith Saddam (P.W. 5) and her daughter had come on Jumma (Friday) night. They stayed for the night and had taken dinner. In the morning, Sharifan told that she will go to Jaipur. Accused caught hold of her hand and dragged her. The witness further stated that dispute had arisen between Sharifan and the accused. Then the accused picked-up an iron rod and had given 4-5 blows to the deceased. In cross-examination, the witness admitted that she had married Wasim. She has instituted a suit against Wasim in which she later entered into a compromise.

Shri Sanjeev Sogarwal learned counsel for the appellant has stated that Saddam (P.W. 5) is a child witness and being tutored, he has falsely implicated the accused in the case. The learned counsel further stated that Zakira (P.W. 9) being a step daughter was annoyed with the appellant as he has opposed her marriage with a boy of her choice.

In the present case, apparently occurrence had taken place inside the house of the appellant. It has come in evidence that accused alone was there alongwith the deceased Sharifan. Thus, as per Section 106, Evidence Act, a duty has been cast upon the appellant to explain as to how deceased had died. Zakira (P.W. 9) being daughter of the accused was expected to be present in the house in early hours of morning. It has also come in evidence that Saddam (P.W. 5) being a child had accompanied her mother to the house of the accused where they stayed for the night. It has come in evidence that husband of the deceased was living in Jaipur. Therefore, presence of Saddam (P.W. 5) alongwith his mother is natural. Similarly, presence of Zakira (P.W. 9) was natural at the house of her step father. Both the witnesses have stated in categorical terms that the accused was annoyed as Sharifan wanted to go to Jaipur to meet her husband and therefore, Majid @ Manjan in anger had picked-up an iron rod and had caused injuries to the deceased.

Learned counsel for the appellant relying on the statement of the accused under Section 313 Cr.P.C. has submitted that the appellant could not be tried as he was not of a sound mind. Learned counsel has submitted that it was incumbent upon the trial court to hold an inquiry whether the appellant was of unsound mind or not, or was incapable of making his defence because of unsound mind.

We are of the view that the argument raised by the learned counsel cannot be appreciated at the appellate stage. The accused has raised a plea at very highly belated stage after the trial has been concluded. Furthermore, Dr. C.P. Bairwa (D.W. 1) examined by the accused-appellant has demolished the plea raised by the appellant by deposing in court that the accused was competent to understand and take his decision and furthermore, after admission of the appellant in the hospital and observation made by him, mental state of the accused was found to be normal. Thus, the argument raised stands demolished by the testimony of Dr. C.P. Bairwa (D.W. 1) examined in defence.

Learned counsel has also tried to prove that the prosecution has failed to prove the motive or intention on the part of the appellant to commit the crime. The counsel has stated that occurrence had taken place at the spur of moment when the deceased has refused to stay in the house of the accused. The counsel, thus, submitted that the offence, if any, will not fall under Section 302 IPC, but under Section 304 Pt.I IPC.

We cannot accept the alternative submission made by the learned counsel for the appellant. In the present case, the appellant has given 4-5 repeated blows to the deceased. Injuries found on the person of deceased clearly prove that accused has given injuries by giving repeated blows with an intention to cause murder.

Taking totality of the circumstances, the fact that the occurrence had taken place at the house of the accused-appellant, his own step daughter Zakira (P.W. 9) and Saddam (P.W. 5) son of the deceased have deposed against him, we are convinced that the appellant has failed to impeach the credibility of the eye-witnesses. Therefore, we affirm the judgment of conviction and sentence rendered by the trial court.

Consequently, the present appeal being devoid of any merit is hereby, dismissed.