RAJPUT JABBARSINGH MALAJIversusSTATE OF GUJARAT

                         [2011] 6 S.C.R. 978


A                 RAJPUT JABBARSINGH MALAJI
                                   v.
                        STATE OF GUJARAT
                 (Criminal Appeal No. 943 of 2006)

                            MAY 24, 2011
B
    [ASOK KUMAR GANGULY AND DEEPAK VERMA, JJ.]

        PENAL CODE, 1860:

c        s.302 - Murder- Accused causing severe axe blow on
    the face of victim, resulting in his death - Conviction and
    sentence of imprisonment for life upheld by High Court -
    HELD: From the evidence of prosecution witnesses, recovery
    of blood stained scarf of accused and blood stained axe at
    the instance of the accused, the FSL report and the evidence
0
    of the wife of deceased corroborated by the medical evidence,
    it could not be disputed that the deceased had met the
    homicidal death on account of severe wounds on his face
    caused by the accused with the axe - In this view of the matter,
E   there is no scope for any interference with the concurrent
    findings recorded by the two courts below.

        Evidence Act, 1872:

       s. 6 - Res gestae witnesses - Name of assailant not
F mentioned in FIR - Subsequently, the wife of deceased
  disclosed to two witnesses the name of the assailant with full
  description of the incident - Witnesses in tum disclosing the
  name of the assailant in their statements u/s 161 CrPC -
  HELD: The two witnesses would be res gestae witnesses - The
G evidence of the wife of the deceased and other witnesses
  stands fully corroborated with each other's version - Their
  evidence is of sterling quality and deserves to be accepted -
  Penal Code, 1860 - s.302.

        The    appellant-accused was            prosecuted      for
H                            978
   RAJPUT JABBARSINGH MALAJI v. STATE OF               979
                 GUJARAT

commission of offence punishable u/s 302 IPC. The             A
prosecution case was that on the night of the incident,
at about 2.00 a.m., PW-3 raised shouts for help. On
hearing the same, PW-2 and other family members
reached there and found that PW-3 was crying to save
her husband, the brother of PW-2. PW-2 found that his         B
brother had received severe injuries on his face and was
bleeding profusely. The victim was taken to the hospital
where he was declared brought dead. Thereafter PW-2
lodged a comi:>laint that some one _had assaulted his
brother with an axe and had run away. After the victim        c
had been taken to the hospital, PW-3 informed PW-5 and
PW-6, the other brothers of the victim, that the injury was
caused on the person of the victim by the accused with
an axe. The two witnesses also told PW-3 that while
entering the filed, they had also seen the accused going      D
away with an axe in his hand. PW-5 and WP-6, in .their
statements u/s 161 mentioned this fact. The accused
made disclosure statements leading to recovery of his
blood stained scarft and a blood stained axe from the
place shown by him. The trial court convicted the             E
accused of the offence charged and sentenced him to
imprisonment for life. The High Court upheld the
conviction and the sentence. Aggrieved, the accused filed
the appeal.
    Dismissing the appeal, the Court                          F
     HELD: 1.1. Though before taking the victim to the
hospital, PW -3 had not disclosed the name of the
appellant as assailant to anyone including the
complainant who had lodged the FIR, but she has offered
an explanation that at that time her uppermost anxiety        G
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 the victim was taken
to the hospital, PW-3 informed PW"5 and PW-6, the
brothers of the,• deceased, that
                             ..
                                 ,the injury was caused
                                        ,   '       .
                                                        on    H
    980      SUPREME COURT REPORTS            [2011] 6 S.C.R.

A the person of the deceased by the appellant with an axe.
  Their statements were recorded u/s 161 of Code of
  Criminal Procedure soon after the incident and this fact
  is clearly borne out from the records. (para 6 and 1O] [983-
  F-H; 984-A; 985-A-B]
B
       1.2. It has neither been challenged before this Court
  nor was challenged before the High Court or the trial
  court that the deceased had met with homicidal death,
  which even otherwise stands proved from the evidence
  of PW-1, who had performed the postmortem of the dead
C body of the deceased. He has disclosed the nature of
  fatal blow sustained by the deceased on his face and
  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
D corroborates with the nature of injury, disclosed by PW-
  3 to others. Thus from this evidence, it could not be
  disputed that PW-3 was stating the truth and the
  deceased had met the homicidal death, on account of
  severe wounds inflicted upon his face by an axe. [para
E 11] (985-C-E]

       1.3. The star witness in the case is PW-3, who was
  sleeping next to her husband alongwith her small child
  aged 1 % years. She happened to know the appellant as
F they all are related. According to her at about 2 a.m.
  midnight the appellant had inflicted a heavy and hard
  blow on the face of her husband with an axe. On hearing
  the painful shrieks of her husband, she woke up and saw
  the appellant standing with the axe in his hand. Since the
G electric bulb was already lit, it was throwing sufficient
  light in which PW-3 could comfortably recognise the
  appellant. She has also said that soon thereafter, she
  raised an alarm, on which several persons had gathered
  there. [para 13] [985-G-H; 986-A-B]

H         1.4. The statement of PW-3 stands fully proved and
    RAJPUT JABBARSINGH MALAJI v. STATE OF               981
                  GUJARAT

corroborated from the evidence of PW-5 and PW-6, who           A
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         B
as they heard PW-3's wails and shrieks. Their evidence
lends full support to the case of prosecution and
corroborates the evidence of P.W.3. She had first
disclosed the full description of the incident including the
name of appellant to them, thus u/s 6 of the Evidence Act,     c
1872, they would be res gestae witnesses. (para 14] (986-
C-D]

      1.5. Another crucial link with commission of the
. offence by the appellant stands proved from the FSL
  report. The appellant's blood stained scarf, and the         D
  blood-stained axe used in the commission of the offence
  were sent for serological report alongwith other articles
  recovered from the place of occurrence. Human blood of
  group '0' which was also the blood group of the
  deceased was found on all the articles including             E
  appellant's scarf and the axe. These findings could not
  be satisfactorily refuted by the appellant. Thus, from the
  FSL report and the evidence of P.Ws 2, 3, 5 and 6, it is
  clearly established beyond shadow of any doubt that the
  appellant was the person who had caused the fatal blow       F
  on the deceased causing his death. Thus, there is no
 scope for any interference in the concurrent findings
  recorded by the two courts below. [para 15-18] [986-G-H;
 987-A-F]
                                                               G
    CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
No. 943 of 2006.

    From the Judgment & Order dated 28/29.4.2005 of the
High Court of Gujarat at Ahmedabad, in Criminal Appeal No.
597 of 1998.                                                   H
     982      SUPREME COURT REPORTS               [2011) 6 S.C.R.


A          S. Usha Reddy for the Appellant.

          Kamaldeep Dayal, Hemantika Wahi, Suveni Banerjee for
     the Respondent.

           The Judgment of the Court was delivered by
'B
           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
c 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. 137of1994, decided on 07.03.1998, found
  the Appellant guilty for commission of the said offence and
0 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
E 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
F    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
G aforesaid impugned judgment and order of 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
H in nutshell, which stand as under:
    RAJPUT JABBARSINGH MALAJI v. STATE OF                   983
         GUJARAT [DEEPAK VERMA, J.]

      5. -On 2.4.1994 at about 6 o' Clock, deceased Jethusing       A
 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         B
 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 Deepji was watering castor
 plants. On the intervening night of 2/3.4.1994, at about 2.00 ·    c
 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
                                                                    0
 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         E
tractor to take him to Dhanera Hospital.

     6. Qn 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, the complainant went to          F
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          G
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          H
    984     SUPREME COURT REPORTS                [2011] 6 S.C.R.


A 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
8
  over to the Police Sub Inspector of 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
C 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
D 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
E · Appellant was charged and prosecuted for commission of the
    aforesaid offences as mentioned hereinabove.

       9. The Appellant denied the charges and submitted that
  he is innocent and prayed for absolving the charges levelled
F 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
G 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,
H Pepaben had become little composed after the shock which
     RAJPUT JABBARSINGH MALAJI v. STATE OF                    985
          GUJARAT [DEEPAK VERMA, J.]
 she faced due to the incident, she had disclosed the name of         A
 Appellant to PW-5, Deepji Paragji Rajput and PW-6, Vaghji
 Paragji Rajput (as stated hereinabove). Their 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.                                          B

       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.         C
  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          D
  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 homicidal death, on account of severe
  wounds inflicted upon his face by an axe.                           E

      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             F
 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 G
 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
                                                                H
    986      SUPREME COURT REPORTS                  [2011] 6 S.C.R.


A 1h years. She happened to know the Appellant as they all are
  related. According to her at about 2 a.m. midnight the Appellant
  had 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
B 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
C 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
D 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 PW-6 were to
  be treated as Res Gestae witnesses. Their evidence lends full
  support to the case of prosecution and corroborates the
E 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
F 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.
G        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 axe, used in the commission
    of the offence were recovered from the place of discovery.
H
     RAJPUT JABBARSINGH MALAJI v. STATE OF                      987
          GUJARAT [DEEPAK VERMA, J.]

  Same were sent for serological report alongwith mattress,              A
  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        B
  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.                                                               c
       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 corroborated with each other's version. There was no              D
 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          E
 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        F
 is no scope for any interference in the concurrent findings
 recorded by the two courts below. Appeal being devoid of any
 merit arrd substance, deserves to be dismissed. It is
 accordingly dismissed.
                                                                         G
  R.P.                                          Appeal dismissed.