Crl. Appeal No.240-DB of 2002 -1 v. The State of Haryana

formal FIR was registered. In his statement (Ex.PG), Mukesh, complainant had stated that he was a resident of village Karan Jawan, P.S. Chilwa, District Gorakhpur (UP) and was working as a labourer at the Farm of Vicky Bhadana in village Ismailpur (District Faridabad) for the last about one year. He was residing in a room of the said Farm along with his children. On 28.6.2000, his brother Sanjay, who was working as electrician at Sarai Khawaja, was also with him. At about 3.00 P.M., they heard the noise of Maya Devi (wife of Mukesh). Then he and his brother Sanjay rushed towards the room. On reaching near to the room, they saw that Budhpal son of Shri Ram Vakil Thakur, resident of the village, who was already known to them, was scuffling with his wife. At some distance, his employer Vicky Bhadana was also following them by running. Within their sight, Budhpal ran away with knife after causing knife blows in the stomach of his wife. They tried to catch hold him, but to no effect. Later on, he, his brother Sanjay and his employer Vicky Bhadana went to the room where his wife was lying on the floor. She told that Budhpal accused wanted to ravish her and when she resisted, he gave her knife blow and fled away. When they were taking her to the hospital for treatment, she breathed her last. He stated that the incident had occurred as accused Budhpal wanted to outrage the modesty of his wife, and the incident was seen by him, his brother Sanjay and his employer Vicky Bhadana. He stated that after leaving his brother Sanjay at the spot, he came to Police Station to report the matter along with his employer Vicky Bhadana. Action be taken. On the basis of the aforesaid statement, after recording the FIR, the police party went to the spot. The inquest report (Ex.PA/1) was prepared. Scene was got photographed. Site-plan (Ex. PF) was prepared. Crl. Appeal No.240-DB of 2002 -3- The statements of the witnesses were recorded and then the dead body was sent for post-mortem examination. On 29.6.2000, PW1-Dr.Sudhir Khurana, M.O., B.K. Hospital, Faridabad conducted the autopsy of deceased Maya Devi, aged 24 years. He found following one incised wound injury on her body:- “incised wound 2.5 cm x 1.5 cm with loops of intestines coming out. It was situated 7 cm above and right of umbilicus. Margins of the wound were clear-cut and everted and there was gapping in the middle. Clotted blood was present on the margins of wound.” According to the opinion of the doctor, the deceased had died due to injury to vital organs and shock due to haemorrhage. The said injury was found ante-mortem in nature and sufficient to cause death in ordinary course of life. In the opinion of the doctor, the said injury was caused by sharp edged weapon. On 29.6.2000, the accused was arrested from his house. On

30.6.2000, he was interrogated by the police in presence of Constable Jamsed Ali. He made a disclosure statement, on the basis of which, the knife (Ex.P1) was got recovered from the ditch situated among bushes behind the boundary of school situated behind Nikhil properties, vide recovery memo (Ex.PH) in the presence of Constable Azad Singh and Vicky Bhadana. The knife was sent for chemical examination report. The FSL report (Ex.PJ) revealed that the knife was stained with brownish stains. After completion of the investigation, the challan was presented against the accused. He was charge-sheeted under Section 302 IPC to which he pleaded not guilty and claimed trial. In support of its case, the prosecution examined five witnesses, namely, PW1-Dr. Sudhir Khurana, PW2-Manoj Kumar (Draftsman), PW3- Crl. Appeal No.240-DB of 2002 -4- Mukesh (complainant), PW4-Vicky Bhadana and PW5-Jaivir Singh, Investigating Officer. The brother of Mukesh, namely, Sanjay, who was present at the time of the alleged occurrence, was not examined by the prosecution being unnecessary. In his statement under Section 313 Cr.P.C., the accused pleaded innocence and stated that he was falsely implicated. However, no witness was examined in defence. The trial Court after hearing the learned counsel for the parties and appreciating the evidence available on the record, convicted and sentenced the accused, as indicated above. Learned counsel for the appellant argued that in this case there is major contradiction between the statements of two witnesses, namely, PW3-Mukesh and PW4-Vicky Bhadana, which made the alleged occurrence as doubtful. Learned counsel while referring to the statement of PW3- Mukesh stated that only complainant went to Police Station for reporting the matter to the police, whereas Sanjay and Vicky Bhadana remained at the spot to guard the dead body. Similar is the statement of PW4-Vicky Bhadana, who stated that Mukesh (PW3) went to the Police Station to lodge the report whereas he and Sanjay stayed at the spot. This part of their statement is contrary to the statement (Ex.PG) made by Mukesh to the police where he had stated that he along with Vicky Bhadana went to the Police Station and lodged the report. Learned counsel further pointed out to the statement of PW5-Jaivir Singh, Investigating Officer, who has categorically stated that Mukesh and Vicky Bhadana came to the Police Station at 4.30 P.M. to lodge the report. Secondly, learned counsel while referring to the statement of Crl. Appeal No.240-DB of 2002 -5- PW5-Jaivir Singh, argued that according to this witness, the accused was interrogated on 30.6.2000 and he made a disclosure statement (Ex.PL) in presence of Constable Jasmed Ali, and in pursuance of the said disclosure statement, which was signed by him and attested by Jamsed Ali, knife (Ex.P1) was got recovered by the said witness in the presence of, Vicky Bhadana and Constable Azad Singh behind Nikhil Properties and from the ditch situated among bushes, vide recovery memo (Ex.PH). However, this document is not the disclosure statement, but a memo of personal search. Thirdly, learned counsel argued that the knife, which was alleged to have been recovered at the instance of the appellant, was not blood stained, therefore, it is doubtful whether the occurrence had taken place at the place where it has been mentioned to have occurred and the said fact also cause doubt on the prosecution version. According to the learned counsel, in the present case the evidence led by the prosecution is not sufficient to convict the appellant for committing the offence under Section 302 IPC. After hearing the learned counsel for the parties, we do not find any illegality, infirmity or perversity in the impugned judgment of conviction and order of sentence passed by the trial Court. In this case, homicidal death of Maya Devi has been established by the post-mortem report (Ex.PA). In his statement, Dr. Sudhir Khurana (PW1) had stated that the deceased died due to the injuries caused by sharp edged weapon in the abdomen which was ante-mortem in nature and sufficient to cause death in the ordinary course of nature. The doctor after seeing the recovered knife (Ex.P1) has given the opinion that the injuries could have been caused by that knife. The occurrence, which had taken Crl. Appeal No.240-DB of 2002 -6- place at 3.00 p.m. on 28.6.2000, was seen by PW3-Mukesh, PW4-Vicky Bhadana and Sanjay, brother of the complainant. Out of the three eye- witnesses, the prosecution has examined two witnesses, who have fully supported the prosecution case. PW4-Vicky Bhadana is an independent and most natural witness as the occurrence had taken place in his Farm house where the complainant Mukesh was working as a labourer and residing in a room with his wife and children. Except for a minor contradiction to the effect that the complainant went to Police Station to lodge the report with PW4-Vicky Bhadana or not, counsel for the appellant could not point out any infirmity or material contradiction in the statements of the two eye- witnesses. In our opinion, as far as causing of the injuries by the appellant to the deceased are concerned, which resulted into the death of Maya Devi, the same has been fully established by these two prosecution witnesses without any contradiction. The ocular version of these two eye-witnesses is fully corroborated by the medical evidence. The testimonies of these two witnesses are fully reliable and trustworthy. In the instant case, the occurrence had taken place in day time and the presence of the prosecution witnesses at that time was most probable and natural. Further, in this case, the matter was reported to the police without any delay. The prosecution has fully established the recovery of the knife (Ex.P1) on the disclosure statement made by the appellant in presence of the independent witness, namely, PW4-Vicky Bhadana. It is true that Ex.PL is not the disclosure statement and it is a memo of personal search. We have seen the record. The disclosure statement of the accused is available at page 235 of the original record. The said disclosure statement was made by the accused in presence of the Investigating Officer PW5-Jaivir Singh and Crl. Appeal No.240-DB of 2002 -7- Constable Jamsed Ali. It appears that while exhibiting the document, a mistake was committed before the trial Court and instead of the disclosure statement, the personal search memo was exhibited as Ex.PL. In our opinion, for this mistake, no benefit can be given to the accused. We also do not find any substance in the argument of the learned counsel for the appellant that when the knife (Ex.P1) was got recovered, it was not blood stained. PW4-Vicky Bhadana and PW5-Jaivir Singh have categorically stated that when the knife was got recovered, it was blood stained. After the recovery, the knife was sent for chemical examination report. As per FSL report (Ex.PJ), the knife was stained with brownish stains. This fact itself will not lead to inference that the knife was not blood stained and not used by the accused to cause injury to the deceased. Therefore,in our opinion, there is no force in this submission also. In our opinion, in the instant case the prosecution has fully established its case beyond reasonable doubt. It has been proved that accused Budhpal out of lust, wanted to sexually exploit the deceased Smt. Maya Devi and when she resisted, he gave a severe knife blow in her abdomen, which resulted into her immediate death, and thereafter, the accused ran away with the knife after scaling the wall. In view of the aforesaid discussion, we do not find any illegality, infirmity or perversity in the impugned judgment of conviction and order of sentence passed by the trial Court. Resultantly, the appeal is dismissed. (SATISH KUMAR MITTAL) JUDGE February 02, 2010 ( JORA SINGH ) JUDGE