SHARMA, J. - (1.) MADAN Singh, the appellant herein, was put to trial for having committed murder of Nirma. Learned Additional Sessions Judge (Fast Track) No. 2 Bharatpur, vide judgment dated March 4, 2002 found the appellant guilty and convicted and sentenced him under section 302 IPC to suffer imprisonment for life and fine of Rs. 500/-, in default to further suffer imprisonment for one month.
(2.) IT is the prosecution case that informant Binda (Pw. 4) on October 15, 2000 submitted a written report at Police Station Bhusawar stating therein that on the said day around 9 AM while his wife Nirma was returning from the field carrying fodder along with her younger sisters Gopali and Vimla, the appellant, who was hiding near the well of Devi Ram, infliced axe-blow on the head of Nirma and cut her neck due to which she died on spot. On being informed by Mohan and Mukesh, he reached on the spot and found his wife dead. On that report a case under section 302 IPC was registered and investigation commenced. Dead body of Nirma was subjected to autopsy, necessary memos were drawn, statements of witnesses were recorded, the appellant was arrested and on completion of investigation charge sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2 Bharatpur. Charge under section 302 IPC was framed against the appellant, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 19 witnesses. In the explanation under Sec. 313 Crpc, the appellant claimed innocence and took the plea of alibi. Three witnesses in defence were examined. Learned trial Judge on hearing final submissions convicted and sentenced the appellant as indicated herein above. We have heard the contentions raised before us and with the assistance of learned counsel perused the record. Death of Nirma was concededly homicidal in nature. As per post mortem report (Ex. P-16) following ante mortem injuries were found on the dead body:- 1. Incised wound 4 inch long x 1 inch breadth x muscle deep, in Lt. supra clavicular fosea, oblique in direction, margins are clear cut regular & well defined clotted blood with hematoma scattered on wound surroundings. Large blood vessels carotid vessels and subsclavian vessels are sharply cut. 2. Incised wound 4 inch long x 3/4 inch breadth x cranial cavity deep, over Rt. parietal region of skull, oblique in direction. Margins are clear cut regular & well defined. Scalp hair found cut near the wound clotted blood & fresh clotted blood present over & in surroundings of wound. The cause of death was acute hemorrhagic shock as a result of injuries to skull, brain & large blood vessels. The prosecution case is founded on the testimony of Vimla (Pw. 1), Gopali (Pw. 2) and Santa (Pw. 3 ). In her deposition Vimla (Pw. 1) stated that on the day of incident around 9 am while she along with Gopali, Santa and Nirma (since deceased) was returning from Har (pasture) carrying fodder, the appellant, who was hiding near the well of Devi Ram, inflicted axe-blow on the head of Nirma due to which her neck was cut and blood oozed out. After causing injury appellant fled away. She also stated that prior to this incident the appellant made attempt to commit theft in the house of Nirma, she woke up, raised alarm and beat appellant with Chappal. It was because of this reason that the incident occurred. The testimony of Vimla gets corroboration from the evidence of Gopali (Pw. 2) and Santa (Pw. 3 ). Manoj Kumar Gupta Investigating Officer (Pw. 18) in his deposition stated that on receiving information about the incident on October 15, 2000 he conducted investigation of the case and arrested appellant vide arrest memo (Ex. P-18 ). On the basis of his disclosure statement (Ex. P-23) he recovered blood stained axe from his residential Pator (room) vide recovery memo (Ex. P-14 ). The recovery of axe was effected in presence of Ram Niwas (Pw. 13) and Dhanphool (Pw. 15 ). The axe and other incriminating articles were sent for examination to FSL.
(3.) LEARNED counsel for the appellant criticised the impugned judgment and canvassed that the witnesses who have been relied upon by the learned trial court are close relatives of the deceased and because of their unnatural conduct i. e. they ran away at the time incident instead of saving the deceased and not making effort to save her, their presence, is doubtful at the time of incident. LEARNED counsel further contended that the appellant was at the house of his in-laws from October 14, 2000 to October 16, 2000 and he was not present in the village on the date of incident. According to learned counsel, the conduct of witnesses was quite unnatural. LEARNED counsel took us through the contradictions in the evidence of prosecution witnesses and urged that no reliance could be placed on such shattered testimony. Per contra learned Public Prosecutor supported the impugned judgment and contended that presence of sisters of the deceased at the time of incident is established and in their cross examination nothing favourable to the appellant could be extricated and only because of the fact that they are close relatives of the deceased, their testimony could not be discarded. It is well settled that when ocular evidence is cogent, credible and trustworthy, minor variance, if any, is not of any consequence. Eye witnesses account would require a careful independent assessment and evaluation for its credibility. The evidence must be tested for its inherent consistency and inherent probability of the story. Their Lordships of the Supreme Court in Din Dayal Vs. Raj Kumar @ Raju (AIR 1999 SC 537) held as under:- (Para 4) "witness Din Dayal had accompanied the deceased to the hospital but after reaching there he did not disclose the name of the accused to the Police Constable who was on duty even though he disclosed other facts regarding the incident. This circumstance has been relied upon by the High Court together with some other reasons for doubting truthfulness of the evidence of this witness. The High Court has also referred to the improvements made by Din Dayal and those improvements clearly indicate that they were deliberately made with a view to make the presence of other witnesses acceptable. Having gone through the evidence we find that the view taken by the High Court is not unreasonable and no interference is called for by this Court. " ;