Rajput Jabbarsingh Malaji vs State Of Gujarat

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 = 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