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     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

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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

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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

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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,

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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

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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.  

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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

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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

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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

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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

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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

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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

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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.

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  [ASOK KUMAR GANGULY]

     ......................J.    [DEEPAK VERMA]

New Delhi May 24, 2011