Prakash Kasotiya vs State of Rajasthan

Gopal Krishan Vyas, J.

The instant cr. appeal has been filed by the accused appellant under Section 374(2) Cr.P.C. against the judgment dated 14.6.2006 passed by the Sessions Judge, Udaipur in Sessions Case No. 10/2006 whereby the said court convicted the accused appellant for offence under Section 302 IPC and under Section 4/25 of the Arms Act and passed the sentence against him for life imprisonment under Section 302 IPC and one year RI for offence under Section 4/25 of the Arms Act.

As per the brief facts of the case, the FIR No. 162/2005 dated 7.12.2005 (Ex.P/14) was registered at Police Station Jhadol, District Udaipur upon the complaint made by Mukund Lal. The author of the FIR alleged that today in the morning at about 9.00 a.m. when he was going on road near Patiya in the village he heard cry of girl from the agricultural field nearby road and upon hearing the cry, he rushed to the place of occurrence and saw that one Prakash Kasotiya S/o Heera Lal, resident of village Adole was having knife (Chhuri) in his hand and he was inflicting one after another injury upon the girl Ganga D/o Ambawa, resident of Adole when she was doing work in the agricultural field of her father. As per the allegation in the FIR due to injuries caused by Prakash by knife, Ganga fell down, at that time, her father Ambawa (PW-7) also came on spot and saw the incident but accused Prakash run away from the spot alongwith knife (Chhuri) and Ganga died at spot due to number of injuries caused by the accused appellant Prakash.

After registration of case under Section 302 IPC and under Section 4/25 of the Arms Act, the investigation was commenced by the SHO, Police Jhadol. In the investigation, the accused appellant was arrested vide Ex.P/6 and blood sustained cloths of accused were recovered vide Ex.P/7 and upon information given by the accused appellant, the recovery of the knife was made vide Ex.P/10 and after recording statements of prosecution witnesses under Section 161 Cr.P.C. and after obtaining the post mortem report (Ex.P/20) and conducting regular investigation, the challan was filed against the accused appellant in the court of ACJM, Jhadole from where the case was committed to the Sessions Court for trial.

In the trial court the statements of 12 prosecution witnesses were recorded out of which PW-3 Mohan Lal and PW-7 Ambawa were eye witnesses. After recording statements of prosecution witnesses, the statement of accused appellant were recorded under Section 313 Cr.P.C. in which following explanation were given by him.

The learned trial court after recording statements of the accused appellant under Section 313 Cr.P.C. granted an opportunity to produce evidence in defense but no defense was produced by the accused appellant before the learned trial court. The learned trial court after providing an opportunity of hearing to both the parties finally convicted the accused appellant for the offence under Section 302 IPC and under Section 4/25 of the Arms Act vide judgment dated 14.6.2006.

The appellant is challenging the validity of the said judgment in the present appeal and learned counsel for the appellant vehemently argued that the learned trial court has grossly erred in law and facts as well as in relying upon the truthfulness of the statements of the eye witnesses PW-3 Mohan Lal and PW-7 Ambawa respectively. While attacking upon the testimony of these witnesses, it is submitted that as per the statement of PW-3 Mohan Lal his presence is doubtful and unnatural because he has categorically stated that when he rushed to the place of occurrence, the injuries were already inflicted by the accused upon the stomach, therefore, it cannot be said that he is eye witness. With regard to evidence of PW-7 Ambawa, father of the deceased, it is submitted that his evidence is also not trustworthy because in his cross-examination he said that he was working in the field of muster crop and the height of muster crop was nearly upto the chest. It is also stated by him that he is having poor eye sight but saw the incident from the distance of 150 meters, therefore, upon the said statement, conviction of the accused appellant is not sustainable in the eye of law. While inviting attention towards the statements of PW-3 Mohan Lal and PW-7 Ambawa it is submitted that there is major contradiction which creates doubt of their presence on the place of occurrence because if the incident took place in their presence then why they did not try to caught the accused. With regard to recovery of knife, it is submitted that the recovery is also suspicious because it has been made in an open place after 24 hours on the alleged information under Section 27 of the Evidence Act, therefore, in the totality of the circumstances, the evidence available on record is not sufficient to prove the prosecution case, therefore, the judgment impugned may be quashed.

The learned counsel for the appellant lastly argued that the learned trial court has committed further error in passing an order that sentence awarded under Section 4/25 of the Arms Act and sentence awarded for offence under Section 302 IPC will run concurrently, but the period of police custody and judicial custody is required to be reduced and therefore, if this Court comes to the conclusion that no interference is called for in the judgment then at least the order may be modified to the extent that the period of police custody and judicial custody shall be counted for the purpose of conviction of life imprisonment.

Per contra, the learned Public Prosecutor vehemently opposed the prayer and said that it is a case in which the prosecution has proved its case beyond reasonable doubt while producing trustworthy and reliable evidence of eye witness PW-3 Mohan Lal and PW-7 Ambawa, the father of the deceased. As per the argument of learned Public Prosecutor the incident took place in the morning at about 9''O Clock and immediately FIR was filed by PW-3 Mohan Lal eye witness at 9.30. Meaning thereby, his presence is not doubtful as stated by the learned counsel for the appellant. Likewise the testimony of PW-7 Ambawa, father of the deceased Ganga is also trustworthy because he was also working in the same agricultural field where incident took place. Therefore, there is no reason to disbelieve the testimony of both these witnesses who were present at the time of occurrence took place and saw the incident.

With regard to recovery of weapon and cloths it is submitted that recovery of the same were made in the presence of 2 witnesses namely Pw-2 Kamal Chand and PW-6 Govind Singh before whom the cloths and knife (Chhuri) was recovered at the instance of the appellant. With regard to motive, it is submitted that accused appellant himself stated that he was having love affairs with Ganga but as per the statement of PW-7 Ambawa, father of the deceased Ganga, engagement of Ganga was made with one Duli Chand S/o Viram Chand PW-11 and due to that engagement, the accused appellant became anger because deceased Ganga refused to go with him and said that my engagement has already been made by my father with Duli Chand. Therefore, it is clear from the evidence that there was motive with the appellant to kill Ganga, therefore, it is evident from the entire evidence produced by the prosecution that accused is guilty of the offence under Section 302 IPC and under Section 4/25 of the Arms Act.

The learned Public Prosecutor lastly argued that as per the allegation of PW-3 Mohan Lal and PW-7 Ambawa number of injuries were inflicted by knife by the accused appellant which is corroborated by the medical evidence because in the post mortem report number of injuries were found upon the body of the deceased, which were abrasion and incised wound and as per the opinion of the doctor, the cause of death was due to the nature of the injuries caused in the incident, therefore, no case is made out for interference in this appeal to disturb the finding given by the learned trial court for conviction of the accused appellant under Section 302 IPC and under Section 4/25 of the Arms Act.

After hearing the learned counsel for the appellant and the learned Public Prosecutor, we have scanned the entire evidence. Admittedly, soon after the occurrence, FIR was filed by PW-3 Mohan Lal at Police Station Jhadol at 9.30 a.m. and incident took place at 9''O clock. Meaning thereby, there was no delay in registering the case against the accused appellant. Further, we have examined the testimony of both the witnesses namely PW-3 Mohan Lal and PW-7 Ambawa, father of the deceased. Both the witnesses were present at the time of occurrence took place and they categorically stated in their statement that in front of them accused appellant inflicted number of injuries by knife (Chhuri) upon the body of deceased Ganga when she was working in the agricultural field.

PW-3 Mohan Lal gave following statements in examination-in-chief, which reads as under:

In the cross examination although certain questions were put to the witness PW-3 with regard to height of the crop and to disturb the testimony of the witness to disbelieve his presence, but upon perusal of the cross-examination, the witness PW-3 Mohan Lal not only proved the case of prosecution but also supported the prosecution story, therefore, the testimony of PW-3 Mohan Lal cannot be discredited upon the ground of the learned counsel for the appellant that he is planted witness.

Similarly to prove the motive, the father of the deceased PW-7 Ambawa gave following statement in the trial court, which reads as under:

Upon perusal of above statements, we are of the opinion that there is no reason or ground to disbelieve the testimony of PW-7 Ambawa because for the purpose of motive the said witness has categorically said that accused appellant fall in love with his daughter Ganga who was 19 years of age and her engagement was settled with Duli Chand son of Virmaji PW- 11 and due to said reason, the accused appellant became angry and it was the motive behind the offence of murder committed by the accused appellant. In the cross-examination although so many questions were put to the witness PW-7 Ambawa with regard to his eye sight and height of the crop but he has categorically stated in his statement that he was present at the time of occurrence and see the occurrence by his eyes, therefore, in our opinion, there is no strength in the argument of the learned counsel for the appellant that statement of PW-7 Ambawa is not trustworthy witness. More so, the testimony of eye witnesses have rightly been relied upon by the learned trial court to convict the accused appellant.

We have also perused the post mortem report in which, the details of injuries are mentioned, so also, the statement of PW-12 Dr. Chandra Kumar who has corroborated the injury and gave the following opinion, which reads as under:

"Both eye and mouth partially opened. Clotted blood present over face and neck. Rigor Mortis present all over the body. Bilateral pupils fully dilated and light reaction is absent. Organs of generation external and internal healthy and hymen intact."

In view of the above discussion we are of the opinion that prosecution has proved its case beyond reasonable doubt by leading reliable evidence before the court that appellant has committed an offence of murder of young girl of 19 years of age with the motive, therefore, no case is made out to interfere in the finding of conviction and sentence for offence under Section 302 IPC.

With regard to prayer of the appellant to calculate the period of police custody and judicial custody, we deem it appropriate to pass an order to calculate that period also for the punishment of imprisonment.

Consequently, the instant appeal is hereby dismissed with above direction for calculating the period of police custody and judicial custody in the sentence.