Rajasthan High Court - Jodhpur

Akhey Singh vs State on 2 August, 2021

Bench: Sandeep Mehta, Manoj Kumar Garg

     HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
                      JODHPUR
               D.B. Criminal Appeal No. 195/2015

Akhey Singh S/o Shri Bhanwar Singh, by caste Rajput, R/o
Loharwa, Tehsil and Police Station Dhorimanna, District Barmer
(Raj.)
                                                                  ----Appellant
                                   Versus
State of Raj. through Public Prosecutor
                                                                ----Respondent


For Appellant(s)         :     Mr. Kalu Ram Bhati
For Respondent(s)        :     Mr. N.S. Bhati P.P.
                               Mr. Siddharth Karwasara



          HON'BLE MR. JUSTICE SANDEEP MEHTA
         HON'BLE MR. JUSTICE MANOJ KUMAR GARG

                                Judgment

02/08/2021


BY THE COURT : (PER HON'BLE GARG, J.)

The instant criminal appeal has been filed by the accused

appellant under Section 374(2) Cr.P.C. against the judgment dated

20.01.2015 passed by the learned Special Judge, SC/ST

(Prevention of Atrocities Act Cases), Barmer in Session Case No.

44/2013 (74/11, 108/11) by which learned Judge convicted the

accused-appellant for offences under Section 302 & 450 IPC and

sentenced him as under :-

OFFENCE                                        PUNISHMENT
Section 302 IPC            Life Imprisonment with fine of Rs.

5,000/-, in default of payment of fine, to further undergo one year's simple imprisonment.

                                           (2 of 7)                      [CRLA-195/2015]


Section 450 IPC              Three years' simple imprisonment with

fine of Rs.1000/-, in default of payment of fine, to further undergo six months' simple imprisonment.

Brief facts of the case are that a written report (Ex.P/6) was

filed by one Karan Singh at the Police Station, Dhorimana, District

Barmer stating therein that on the night intervening 19 th and 20th

July, 2011 at about 11:30 PM, his brother Laxman Singh was

sleeping in the courtyard of his own Dhani. Upon hearing some

clatter, he woke up and saw a person entering house of his

brother. When the complainant followed, he saw accused Akhey

Singh inflicting an axe blow on the neck of Laxman Singh who

raised an outcry upon which the complainant and Mana Ram

reached the courtyard. The accused Akhey Singh threatened them

saying that he had killed one and if they came near him then he

shall kill them too. Thereafter he fled from the place of

occurrence. It was stated that since it was a moon night, they

could identify the accused Akhey Singh who used to cultivate their

land.

On the basis of the said report, the Police registered the FIR

for offences under Sections 458, 302 IPC and started

investigation. After usual investigation, the police filed charge

sheet against the accused-appellant for offence punishable under

Sections 450 & 302 IPC.

The case was committed for trial to the court of Special

Judge, SC/ST (Prevention of Atrocities) Act, Cases, Barmer where

the charges were framed against the accused-appellant. He

pleaded not guilty and claimed trial.

(3 of 7) [CRLA-195/2015]

At the trial, the prosecution examined as many as 13

witnesses in all. Thereafter the statement of the accused-appellant

was recorded under section 313 Cr.P.C. No witness was examined

on the defence side.

At conclusion of the trial, the learned Special Judge, SC/ST

(Prevention of Atrocities) Act Cases, Barmer vide judgment dated

20.01.2015 convicted the appellant for offence under Section 450

& 302 IPC and passed the sentence mentioned above.

Learned counsel for the appellant Mr. K.R. Bhati submits that

the learned trial court has not appreciated the evidence led by the

prosecution in the proper perspective. It is argued that there are

material contradictions, improvements and omissions in the

statement of alleged eye-witnesses. The incident had occurred in

the night and there is no way that the alleged eye witnesses could

have identified the accused. He further argued that after the

arrest of the accused, an axe was recovered at the instance of the

appellant but the recovery is also doubtful, therefore, it can be

said that the finding of learned trial court for convicting the

accused appellant for offence under Section 302 IPC is not

sustainable on facts and in law.

Per contra, learned Public Prosecutor argued that the

occurrence had taken place in the night at about 11.30 PM and at

the time of occurrence, PW/4 Karan Singh and PW/9 Mana Ram

were present and therefore, their testimony cannot be discarded.

After arrest of the accused appellant, an axe was recovered from

the possession of the appellant and according to FSL report

(Ex.P/28), the blood group found on the axe matched with the

blood group of the deceased. He urged that it cannot be said that

finding of the trial court holding the appellant guilty for offence

(4 of 7) [CRLA-195/2015]

under Section 302 IPC is erroneous and therefore, this appeal

may kindly be dismissed.

We have heard the learned counsel for the appellant as well

as learned public prosecutor, perused the impugned judgment

passed by the learned trial court and also gone through the record

of the case.

The informant and eye witness Karan Singh was examined as

PW/4 and he had specifically stated that when he heard screams

in the night, he alongwith Mana Ram reached the spot and saw

the accused Akhey Singh inflicting axe blow on the neck of his

brother Laxman Singh due to which he expired on the spot. Since

it was a moon night, the witness could distinctly identify the

assailant. Likewise PW/9 Mana Ram also corroborated the story of

Laxman Singh and stated that he reached the spot and saw the

accused appellant inflicting an axe blow to the deceased. Both

tried to restrain the accused but he threatened to kill them as

well. Similarly, PW/8 Lila Kanwar also mentioned that she was

sleeping near the cot of deceased and she saw the accused

appellant inflicting injury to the deceased.

In Nathuni Yadav v. State of Bihar & Ors. reported in

AIR 1997 SC 1808, with regard to identification in the dark,

Hon'ble Supreme Court observed:

"9 .... Even assuming that there was no moonlight then, we have to gauge the situation carefully. The proximity at which the assailants would have confronted with the injured, the possibility of some light reaching there from the glow of stars, and the fact that the murder was committed on a roofless terrace are germane factors to be borne in mind while judging whether the victims could have had enough

(5 of 7) [CRLA-195/2015]

visibility to correctly identify the assailants. Over and above those factors, we must bear in mind the further fact that the assailants were no strangers to the inmates of the tragedy-bound house, the eyewitnesses being well acquainted with the physiognomy of each one of the killers. We are, therefore, not persuaded to assume that it would not have been possible for the victims to see the assailants or that there was possibility for making a wrong identification of them. We are keeping in mind the fact that even the assailants had enough light to identify the victims whom they targeted without any mistake from among those who were sleeping on the terrace. If the light then available, though meagre, was enough for the assailants why should we think that the same light was not enough for the injured who would certainly have pointedly focussed their eyes on the faces of the intruders standing in front of them."

After arrest of the accused appellant, at his instance, an axe

(Ex-P/27) was recovered vide recovery memo (Ex.P/23) and

according to FSL report, blood group of blood found on the axe

matched with that of deceased.

PW/5 Hanuman Ram, who conducted the post mortem of

deceased Laxman Singh stated that the deceased sustained an

incised wound 18x8x6 cm which almost severed his neck. The

cause of death of deceased was opined to be excessive bleeding

and cutting of spinal cord. Thus, according to the doctor (PW/5),

the cause of death is axe injury.

Hon'ble Apex Court in recent case of 'Pruthiviraj

Jayantibhai Vanol vs. Dinesh Dayabhai Vala and Ors'

(6 of 7) [CRLA-195/2015]

(Criminal Appeal No. 177 of 2014) decided on 26.07.2021

held as under :-

"17. Ocular evidence is considered the best evidence unless there are reasons to doubt it.

The evidence of PW-2 and PW-10 is unimpeachable. It is only in a case where there is a gross contradiction between medical evidence and oral evidence, and the medical evidence makes the ocular testimony improbable and Rules out all possibility of ocular evidence being true, the ocular evidence may be disbelieved. In the present case, we find no inconsistency between the ocular and medical evidence. The High Court grossly erred in appreciation of evidence by holding that muddamal No. 5 was a simple iron rod without noticing the evidence that it had a sharp turn edge.

18. The aforesaid discussion leads us to the conclusion that the acquittal by the High Court is based on misappreciation of the evidence and the overlooking of relevant evidence thereby arriving at a wrong conclusion. It is not a case where two views are possible or the credibility of the witnesses is in doubt. Neither is it a case of a solitary uncorroborated witness. The conclusion of the High Court is therefore held to be perverse and irrational. The acquittal is therefore held to be unsustainable and is set aside. In the nature of the assault, Section 304 Part II, Indian Penal Code has no application. The conviction of Respondent Nos. 1 to 4 by the Trial Court is restored."

(7 of 7) [CRLA-195/2015]

From the appreciation of evidence, it has been proved by the

prosecution that the written-report of the alleged incident was

lodged without any delay. The evidence on record clearly proves

charges against the accused and point to the guilt of only

appellant and no one else. The eye-witnesses have supported the

prosecution story to the hilt. Their evidence is corroborated by Dr.

Hanuman Ram (PW/5) and the Post Mortem Report (Ex-P/16).

Thus, the medical opinion and ocular testimony are wholly

corroborated by each other. Minor contradictions do not affect the

prosecution case. In our opinion, the trial court has not committed

any error in convicting the appellant and sentencing him as above.

The impugned judgment dated 20.01.2015 does not suffer from

any infirmity whatsoever warranting interference therein. There is

no merit in the appeal. The appeal is hereby dismissed.