Full Judgment Text
Crl. A. No. 943 of 2006 1
REPORTABLE
THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.943 Of 2006
Rajput Jabbarsingh Malaji ……Appellant
Versus
State of Gujarat ...Respondent
J U D G M E N T
Deepak Verma, J.
1.On account of homicidal death of Jethusing on the
intervening night of 2/3.04.1994 at about 2 a.m.
Appellant was charged and prosecuted for
commission of the offence under Section 302 of the
Indian Penal Code (for short 'IPC') and under
Section 135 (1) of the Bombay Police Act. On
appreciation of evidence available on record,
Additional Sessions Judge, Banaskantha at Palanpur
in Sessions Case No. 137 of 1994, decided on
07.03.1998, found the Appellant guilty for
Crl. A. No. 943 of 2006 2
commission of the said offence and awarded him
life imprisonment and a fine of Rs. 500/-, and in
default to undergo further R.I, for 3 months under
Section 302 of the IPC and 4 months simple
imprisonment and fine of Rs. 100/- and in
default to undergo further imprisonment of 15 days
under Section 135 (1) of Bombay Police Act. The
sentences were directed to run concurrently.
2. Feeling aggrieved thereof, Appellant filed
Criminal Appeal No. 597 of 1998 before the
Division Bench of the High Court of Gujarat at
Ahmedabad. The High Court, after categorically
examining the oral and documentary evidence
available on record came to the conclusion that no
case for interference was made out, affirmed the
judgment and order of Trial Court and thus
dismissed the appeal.
3. The Appellant therefore feeling aggrieved by
the aforesaid impugned judgment and order of
Crl. A. No. 943 of 2006 3
conviction recorded by the Division Bench of the
High Court, is before us challenging the same on
variety of grounds.
4. Before we proceed to decide the grounds raised
at the time of hearing, it is necessary to narrate
the facts of the case in nutshell, which stand as
under:
5. On 2.4.1994 at about 6 o' Clock, deceased
Jethusing and his agriculture partner Fueo Rabari
had gone to cultivate the field of Karshanbhai
Patel in their village and returned at about 12 O'
clock midnight, after cultivating the same. Then
Jethusing went to sleep in Oshri outside Orda,
whereas his wife Pepaben and their son Pintu were
also sleeping at the same place but on another
cot. Father of the complainant i.e. Paragji and
Feuo were sleeping in Verandah whereas, brother of
the complainant named Vaghji was sleeping outside
verandah and youngest brother of the complainant
Crl. A. No. 943 of 2006 4
Deepji was watering castor plants. On the
intervening night of 2/3.4.1994, at about 2.00
a.m., Pepaben raised shouts for help. On hearing
the same, complainant – Viramji Paragji, his wife
and other members of the family were woken up.
Complainant and other family members, went to the
place where Jethusing, his wife Pepaben and their
son were sleeping. On reaching the spot, they
found that Pepaben was raising alarm to save her
husband Jethusing. Complainant found that
Jethusing had received severe injuries on his face
and was bleeding profusely. Looking to the gravity
and seriousness of the matter, Viramji Paragji and
his other brother Surajsing and Fueo placed
injured Jethusing in the tractor to take him to
Dhanera Hospital.
6. On way to hospital, they met Appellant and one
Kanabhai Mulabhai, who also accompanied them to
the hospital. The Doctor on duty examined him and
declared the deceased brought dead. Thereafter,
Crl. A. No. 943 of 2006 5
the complainant went to Dhanera Police Station and
lodged his complaint. It is pertinent to mention
here that at that time PW -3 Pepaben had not
disclosed the name of the Appellant as assailant
to anyone including the complainant who had lodged
the FIR. To this she has offered an explanation
that at that time her uppermost anxiety was to
take her injured husband to the hospital for
treatment, therefore, the name of the Appellant
could not be mentioned in the FIR. Only after
Jethusing was taken to the hospital, Pepaben
informed PW-5 - Deepji Paragji and PW-6 - Vaghji
Paragji, brothers of the deceased that injury was
caused on the person of the deceased by Appellant,
with the aid of an axe. On hearing this, they
informed Pepaben that while entering the field,
they had also seen Appellant going away from the
field, with an axe in his hand.
7. FIR lodged by complainant Viramji Paragji was
handed over to the Police Sub Inspector of
Crl. A. No. 943 of 2006 6
Aagathala Police Station, for investigation.
After completion of usual formalities and
collecting incriminating articles, statements of
the witnesses were recorded by him, who were
conversant with the facts of the case.
Thereafter, arrangements were made for sending
the body for postmortem at Dhanera Hospital.
8.Further investigation in the case was conducted by
Circle Police Inspector, Tharad. While in police
custody, Appellant made disclosure statements
pursuant to which blood stained adhivato (scarf
to be tied as head gear) and blood stained axe
were discovered from the place shown by
Appellant. The incriminating articles seized
during the course of investigation were sent to
Forensic Science Laboratory (FSL) for analysis.
On completion of the investigation, the Appellant
was charged and prosecuted for commission of the
aforesaid offences as mentioned hereinabove.
Crl. A. No. 943 of 2006 7
9.The Appellant denied the charges and submitted
that he is innocent and prayed for absolving the
charges levelled against him. The criminal
investigation machinery was set into motion on the
strength of the report submitted by complainant
PW-2 -Viramji Paragji on 03.04.1994 itself. No
doubt, it is true that in the same, the name of
the Appellant has not been mentioned but it has
been categorically mentioned that someone had
assaulted his brother with an axe and after
assault had ran away. The assault was on the right
side of the mouth, and on the forehead with some
sharp weapon.
10.Formal FIR was registered at the Police Station on
the strength of the aforesaid complaint. But as
soon as PW-3, Pepaben had become little composed
after the shock which she faced due to the
incident, she had disclosed the name of Appellant
to PW-5, Deepji Paragji Rajput and PW-6, Vaghji
Paragji Rajput (as stated hereinabove). Their
Crl. A. No. 943 of 2006 8
statements were recorded under Section 161 of Code
of Criminal Procedure (in short 'Cr.P.C.'), soon
after the incident and this fact is clearly borne
out from the records.
11.It has neither been challenged before us nor was
challenged before the High Court or the District
Sessions Court that deceased Jethusing had met
with homicidal death, which even otherwise stands
proved from the evidence of PW-1, Dr. Shamaldas
Mohanlal Adhvan, who had performed the postmortem
of the dead body of the deceased. He has disclosed
the nature of fatal blow sustained by deceased on
his face. He has testified to the postmortem
report in his examination in para-2 thereof which
also describes the nature of injury sustained by
the deceased. The said injury fully corroborates
with the nature of injury, disclosed by PW-3,
Pepaben to others. Thus from this evidence, it
could not be disputed before us that PW-3 was
stating the truth and the deceased had met the
Crl. A. No. 943 of 2006 9
homicidal death, on account of severe wounds
inflicted upon his face by an axe.
12.We have accordingly heard Ms. Usha Reddy, learned
counsel for the Appellant and Mr. Kamaldeep Dayal,
Ms. Hemantika Wahi and Ms. Suveni Banerjee,
learned counsel for the Respondent State at length
and have also perused the records.
13.PW-2, Viramji Paragji who lodged the FIR had given
the reasons as to why initially in the complaint
the name of Appellant could not be mentioned but
which was stated expressly by him subsequently on
getting necessary information from PW-5, Deepji
Paragji and PW-6, Vaghji Paragji who in turn were
informed by PW-3, Pepaben, Wife of the deceased.
The star witness in the case is PW-3, Pepaben, who
was sleeping next to her husband alongwith her
small child aged 1 ½ years. She happened to know
the Appellant as they all are related. According
to her at about 2 a.m. midnight the Appellant had
Crl. A. No. 943 of 2006 10
inflicted a heavy and hard blow on the face of her
husband with an axe. On hearing the painful shriek
of her husband, she woke up and saw the Appellant
standing with the axe in his hand. Since the
electric bulb was already lit, it was throwing
sufficient light in which PW-3 could comfortably
recognise Appellant. She has also said that soon,
thereafter, she raised an alarm, on which several
persons had gathered there.
14.
The statement of Pepaben stands fully proved and
corroborated from the evidence of PW-5 and PW-6,
who were informed soon after the incident as to
how, the injury was inflicted by the Appellant on
her husband. Their statements also reveal that
they were in the vicinity of the scene of crime
and were among the many members of the victim's
family who had rushed to the spot as soon as they
heard the PW-3's wails and shrieks. Thus under
Section 6 of the Indian Evidence Act, 1872
(hereinafter referred to as “the Act”), PW-5 and
Crl. A. No. 943 of 2006 11
PW-6 were to be treated as Res Gestae witnesses.
Their evidence lends full support to the case of
prosecution and corroborates the evidence of P.W.3
Pepaben. She had first disclosed the full
description of the incident including the name of
Appellant to them, thus they would be Res Gestae
witnesses. In the light of aforesaid evidence of
PW-2, Viramji Paragji (complainant), PW-3,
Pepaben, PW-5, Deepji Paragji and PW-6, Vaghji
Paragji, it fully stands proved and established
that the Appellant had caused the fatal blow on
the person of the deceased causing his death.
Single blow was so hard and powerful that it
caused his death instantaneously.
15.However, at this stage it is also pertinent to
point out that another crucial link with
commission of the said offence by the Appellant
stands proved from the FSL report. As mentioned
hereinabove, during the course of investigation
Appellant's blood stained scarf, blood-stained
Crl. A. No. 943 of 2006 12
axe, used in the commission of the offence were
recovered from the place of discovery. Same were
sent for serological report alongwith mattress,
sand, shirt, big scarf, waistcoat, turban, watch,
belt etc. belonging to the deceased. Human blood
of group 'O' which was also the blood group of the
deceased was found in all the articles including
Appellant's scarf and the axe. These findings
could not be satisfactorily refuted by the
Appellant. Thus from the FSL report it is
conclusively established that it was Appellant and
only Appellant who had caused the fatal blow on
the deceased. There could not have been any other
better link connecting the Appellant with the
commission of the said offence.
16.After critical examination of the evidence of
P.W.3 Pepaben, P.W.2 Pragji, P.W.5 Deepji and
P.W.6 Wagji, it is clearly established that
Appellant was the person who had caused the fatal
blow on the deceased. Their evidence stands fully
Crl. A. No. 943 of 2006 13
corroborated with each other's version. There was
no reason why they should have unnecessarily
implicated the Appellant, had he not been the
perpetrator of the crime. Their evidence is of
sterling quality and deserves to be accepted.
17.Thus, in our considered opinion, the prosecution
has fully established beyond shadow of any doubt
that it was Appellant and none else who had caused
the fatal blow on the person of the deceased which
ultimately caused his death.
18.In this view of the matter, looking to the facts
of the case from all the angles, we are of the
considered opinion that there is no scope for any
interference in the concurrent findings recorded
by the two courts below. Appeal being devoid of
any merit and substance, deserves to be dismissed.
It is accordingly dismissed.
......................J.
Crl. A. No. 943 of 2006 14
[ASOK KUMAR GANGULY]
......................J.
[DEEPAK VERMA]
New Delhi
May 24, 2011