Mukesh Kumar @ Manoj Kumar vs State
2023 Latest Caselaw 3773 Raj

[2023/RJJD/008125]

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR

D.B. Criminal Appeal No. 619/2016

Mukesh Kumar @ Manoj Kumar son of Shri Parvat Raj, by caste Soni, Resident of Panghat Road, Barmer.

(At present lodged in Central Jail, Jodhpur)

----Appellant Versus State of Rajasthan

----Respondent

For Appellant(s) : Mr. Suresh Kumbhat.

Mr. Sheetal Kumbhat.

For Respondent(s)           :     Mr. B.R. Bishnoi, PP.
                                  Mr.Siddharth Karwasra, for the
                                  complainant.


             HON'BLE MR. JUSTICE ARUN BHANSALI
       HON'BLE MR. JUSTICE RAJENDRA PRAKASH SONI
                                   Judgment

REPORTABLE

28/04/2023

(Per Hon'ble Mr. R.P. Soni, J.)

1. The appellant has assailed the judgment and order dated

17.06.2016 rendered by the Court of Additional District & Sessions

Judge No.1, Barmer in Sessions Case No. 18/2012 whereby, the

appellant was held guilty of offences punishable under Section 302

of the IPC and Section 4 read with Section 25 of the Arms Act and

was sentenced as under:-

 Sentence under          Sentence                Fine              Fine Default Sentence
      Section            awarded               imposed

302 IPC              Life Imprisonment        Rs. 5,000              One Month R. I.

4/25 Arms Act            One Year              Rs. 500                 15 Days R. I.

Both the sentences were ordered to run concurrently.

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2. As per prosecution case, on 01.12.2011 at about 2:00 pm, a

report (Ex.P-12) came to be filed before the concerned Police

Station by Ratan Lal (PW-6), who is the brother of the deceased,

alleging inter-alia that his elder brother Suresh Kumar runs a tea

stall. On 01.12.2011 at between 12:00-1:00 in the noon, someone

informed him that Suresh Kumar had been murdered by some

unknown person. He had five stab wounds on his body.

3. After receiving of the said report, a formal F.I.R. was

registered, investigation was commenced and after completion of

the investigation, the Challan was filed against the appellant.

After the case was committed to the Court of Sessions, the

appellant was put on trial and stood charged for the offences

punishable under Section 302 of the IPC and Section 4 read with

Section 25 of the Arms Act. The appellant denied the charges and

claimed to be tried.

4. To bring home the guilt of the appellant, the prosecution

examined as many as 15 witnesses out of them, Kesar Singh

(PW-3) is the sole eye-witness, Deepak (PW-8) is son of the

deceased and the witness of scene, Sawai Lal (PW-1) is brother-

in-law of the deceased (Saalah), who reached at the place of

occurrence after the incident, Ratan Lal (PW-6) is younger brother

of the deceased and the complainant, Hanuman Das (PW-4) and

Paras Mal (PW-10) are the witnesses of recovery of weapon of the

crime, Dr. Arun Kumar (PW-12) conducted autopsy on the body of

the deceased, Loon Singh (PW-11) is the Investigating Officer,

Constable Chandan Giri (PW-15) is the photographer and the

remaining witnesses are the Motbirs and formal witnesses.

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Besides above, various articles like knife, blood smeared soil,

control soil, clothes of the deceased and accused were also

exhibited during the trial.

5. In his statement under Section 313 of the Criminal

Procedure Code, the appellant denied all the allegations levelled

against him in the prosecution evidence. He pleaded innocence

and false implication. He stated that he did not commit murder of

the Suresh Kumar, the deceased Suresh Kumar was his real uncle.

He was a habitual drinker. Suresh Kumar had taken loan from

various persons of Rajput Community and he has been murdered

by the members of that community. The appellant examined one

Mohan Ram Poonia (DW-1), the District Excise Officer as a defence

witness and exhibited a document Ex.D-1 received under RTI from

Excise Department.

6. The Trial Court, while relying upon the version of the Kesar

Singh (PW-3) the sole eye-witness and testimony of Deepak

(PW-8), the son of the deceased, the medical evidence which has

been found to be consistent with the ocular evidence, the recovery

of knife and blood smeared clothes as well as the motive of the

appellant, convicted and sentenced the appellant, as indicated

above. Hence this appeal.

7. We have heard and considered the submissions advanced at

Bar and have gone through the impugned judgment. We have

thoroughly re-appreciated the evidence available on record.

8. Shri Suresh Kumbhat, learned counsel representing the

appellant-accused has vehemently argued that the appellant is

innocent and has been falsely implicated in this case as the entire

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case is false and fabricated. While referring to the prosecution

evidence, he argued that the prosecution has failed to prove the

guilt of the accused beyond reasonable doubt therefore, the

learned Trial Court was not justified in convicting the appellant for

committing murder of Suresh Kumar. He advanced various

contentions for assailing the legality and validity of the impugned

judgment and implored the Court to set-aside the same and acquit

the appellant of the charges levelled against him.

9. Reliance was placed by the learned counsel for the appellant

in support of his arguments on the following judgments:-

1. Triveni Singh & Anr. Vs. State of Bihar 2020 CRI. L.J. 162

2. Madan Lal Vs. State of Rajasthan 2018 (3) RCC (Raj.) 992

3. Amar Singh Vs. State (NCT of Delhi) 2020 Cr.L.R. (SC) 1030

4. Kuna alias Sanjaya Behera Vs. State of Odisha 2018 CRI. L.J. 1143

5. Hoshiyar Singh Vs. State of Rajasthan 2022 (1) CJ (Cri.)(RaJ.) 337

6. Chiranji Lal Vs. State of Rajasthan RLR 1987 (II) 543

7. Ganesh Bhavan Patel & Anr. Vs. State of Maharashtra 1979 SCC (Cri.) 1

8. Arti Vs. State of Rajasthan 2021 (4) CJ (Cri.) (Raj.) 1905

9. Bheru Lal Tulsi Ram Salwi Vs. State 2019 CRI. L.J. 1692

10. Daau Ram Meghwal Vs. State of Rajasthan 2019 (2) Cr.L.R. (Raj.) 1022

11. Roshan Koli Vs. State of Rajasthan through PP 2019 (3) Cr.L.R. (Raj.) 1153

12. Raghunath & Anr. Vs. State of Rajasthan 2019 (3) CJ (Cri.) (Raj.) 2334

13. Iqbal Singh Vs. State of Rajasthan 2019 (2) CJ (Cri.) (Raj.) 1111

14. Sharvan Ram Nayak Vs. State of Rajasthan 2019 (1) Cr.L.R. (Raj.) 534

15. Sagar Dinanath Jadhav Vs. State of Maharashtra 2018 CRI. L.J. 4271

16. Mallappa Vs. State of Karnataka 2021 Cr.L.R. (SC) 777

17. Niranjan Panja Vs. State of West Bengal 2010 Cr.L.R. (SC) 487

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18. Anand Ramchandra Chougule Vs. Sidarai Laxman 2019(4) CJ (Cri.) 1227

19. Nagendra Sah Vs. State of Bihar (2022) 1 SCC (Cri.) 127

20. Sharad Birdhichand Sarda Vs. State of Maharashtra 1984 Cr.L.R. (SC) 296

21. Naeem Mohammad & Anr. Vs. State of Rajasthan 2015 (2) Cr.L.R. (Raj.) 655

10. While opening his arguments, he pointed out that in the

present case, Kesar Singh (PW-3), the alleged eye-witness was

planted; that the case of the prosecution rests upon the testimony

of above sole eye-witness whose presence at the time of

occurrence is highly doubtful and he had not seen the occurrence.

It is also pointed out that the conduct of Kesar Singh (PW-3),

either at the time of the incident or immediately thereafter, is not

natural and does not inspire confidence which make his presence

at the spot extremely doubtful, unreliable and unworthy of

credence. Despite being available on the place of occurrence, he

was not named in the F.I.R. Hence, the testimony of Kesar Singh

(PW-3) cannot be accepted.

11. It is further argued that the other eye-witness Sampat

(PW-5) has turned hostile and nothing could be elicited from his

cross-examination by the prosecution; that the conviction and

sentence of the appellant based upon the sole testimony of single

eye-witness Kesar Singh (PW-3), whose conduct was unnatural

and inconsistent with the ordinary course of human nature,

making his presence at the site of the incident extremely doubtful

and it is highly unsafe to rely upon his testimony.

12. It was further argued that had Kesar Singh been an eye-

witness of the incident, his name would have appeared, initially in

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the F.I.R., since it was lodged almost after 2 hours of the incident.

Kesar Singh is said to be working as salesman at the liquor shop

of Bhag Singh but the prosecution has failed to prove him to be a

salesman at that liquor store and Bhag Singh as the owner of the

store.

13. It was also argued that the defence has produced DW-1

Mohan Ram Poonia, the District Excise Officer and produced

exhibit D-1, an information obtained under RTI from the Excise

Department, which proves that Kesar Singh was not working as

salesman of the liquor shop situated near the place of occurrence.

14. It is further argued that as per the record of the Excise

Department, the license of that liquor shop was issued in favour of

Swaroop Khan and Salesman at that shop was Mr. Hadmat Singh

therefore, there was no possibility of Mr. Kesar Singh (PW-3) being

present there at the liquor shop and in view of this, learned

counsel for the appellant argued that Kesar Singh cannot be

termed as an eye-witness and he has been introduced and planted

as an eye-witness after careful planning and deliberations. The

testimony of Kesar Singh is clouded under suspicion and in such

circumstances, false implication of the appellant cannot be ruled

out.

15. It was further contended that the alleged incident took place

in a densely populated area of Ratan Singh Market, still no other

witnesses of the locality were produced to prove the incident as

alleged. Had the accused committed the alleged crime at the place

indicated by the prosecution, there have been so many witnesses

available other than Kesar Singh, as it is an admitted case of the

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prosecution that a large number of people had gathered there

after the incident.

16. It was also contended that despite the fact that various

police officials were available on the spot and Kesar Singh was

also available at his liquor shop yet, the name of the appellant was

never brought into the notice of the police officials by Kesar Singh

despite being present there. In the light of aforesaid contention, it

is argued that the conviction of the appellant is palpably illegal

and liable to be set-aside.

17. In refutation, learned Public Prosecutor has argued that the

statement of the sole eye-witness Kesar Singh (PW-3) was

recorded on the very day of the occurrence. Kesar Singh is a

natural witness and his presence at the time of occurrence is also

natural. Since the incident had taken place very close to liquor

shop where Kesar Singh was working as a salesman therefore,

presence of Kesar Singh cannot be doubted; that the testimony of

the sole eye-witness has rightly been held to be reliable and

trustworthy therefore, the trial court has been justified in

convicting the appellant.

18. It is further asserted that the evidence of the Kesar Singh is

coherent, consistent, cogent and is fully complimented by the

medical evidence. Having regard to the vivid narrations of the

incident in minute details as provided by Kesar Singh, the Court

below was perfectly justified in relying upon the testimony of the

Kesar Singh. Learned Public Prosecutor dismissed the demur of

the defence that the evidence of Kesar Singh was vitiated by

contradictions, embellishments and inconsistencies and thus, the

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prosecution having been able to prove the charges beyond all

reasonable doubts therefore, the conviction and sentence of the

appellant do not merit interference.

19. It is the settled law that the evidence has to be weighed and

not to be counted. The testimony of a sole eye-witness, whose

testimony does not suffer from any infirmity, can by itself formed

the basis of conviction. As a general rule, the Court can act upon

the testimony of a single eye-witness and there is no need of any

corroboration provided that he is wholly reliable and inspires

confidence as well as the Court is satisfied that the testimony of

solitary eye-witness is of such sterling quality that the Court finds

it safe to base a conviction solely on the basis of testimony of that

witness.

20. Administration of justice would be hampered if a particular

number of witnesses were to be insisted upon. It is not seldom

that crime is committed in the presence of only one witness. If the

legislature were to be insisted upon plurality of the witnesses,

accused of many cases would go unpunished, where there is

availability of a single eye-witness. There is no legal impediment

in convicting a person on the sole testimony of a single witness

and that is the logic of Section 134 of the Evidence Act, 1872.

21. In the light of above settled legal principles, we now proceed

to examine the testimony of Kesar Singh (PW-3) in view of the

rival contentions raised before us, as the prosecution case

primarily rests upon his testimony.

22. We have examined the testimony of Kesar Singh (PW-3) as

well as other evidence led by the prosecution.

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23. It is true that Kesar Singh (PW-3) did not inform the

policeman present at the place of occurrence about the incident

nor did he tell about the accused to the relatives of the deceased,

when they came to the spot. In our opinion, such conduct and

behavior of Kesar Singh (PW-3) cannot be considered unnatural on

the said ground as he had explained it in his cross-examination

itself that he was not previously acquainted with the family

members of the deceased Suresh Kumar. In such a situation, in

the absence of prior acquaintance, no question could arise of

Kesar Singh (PW-3) disclosing the name of the accused to the

relatives of the deceased.

24. When a person has been brutally murdered in a busy market

and there is a huge crowd and policeman present on the spot, any

eye-witness of that incident will not come forward and narrate the

incident to anyone instantly out of panic, sensation and fear

generated by such a murder. Immediate disclosure of details of

the incident and the name the accused is generally avoided by the

person present on the spot.

25. It is commonplace for most of the people to be hesitant

about being involved in legal proceedings and they therefore, do

not volunteer to become witness instantly. Hence, it is highly likely

that the name of the accused did not find mention in the F.I.R.

Thereafter, on the same day when police recorded his statement,

Kesar Singh (PW-3) without any personal interest or motive,

assisted both the police and the family members of the deceased.

Though, Kesar Singh (PW-3) is not a relative to the deceased but

as a good citizen, he later extended his help to the police and

complainant family to ensure that the truth must come out.

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26. It is quite natural that such a person who was present on the

spot, could not have contacted the police or the person who

lodged the F.I.R. The evidence of Kesar Singh (PW-3) cannot be

disbelieved just because he did not file F.I.R. himself or the name

of the accused was not told to the policeman or the relatives of

the deceased present at the place of occurrence.

27. One disturbing feature of the case may also be mentioned

here. Kesar Singh (PW-3) was examined in the Court on

27.09.2012 but his cross-examination started after a gap of

almost two and quarter years on 04.12.2014 which transpires that

despite the probable efforts made by the defence during the said

long gap to win over this witness, he has remained unperturbed in

cross-examination and has supported the prosecution case.

28. As regards the credibility of the fact as to Kesar Singh

(PW-3) was working at that liquor shop as a Salesman or not,

what is not important is that who is mentioned as the owner or

salesman in the record of the Excise Department but what is

important is that, who actually was working as a salesman at that

time in that liquor shop. It is a definite statement of Kesar Singh

(PW-3) that at the time of occurrence, he was present in the liquor

shop as a Salesman. If Kesar Singh was working as an

unauthorized salesman, he can definitely be held responsible for

that as per the law but because of this, his presence at the shop

cannot be denied. Record of the Excise Department cannot be the

sole and only ground of actual presence of any person as

salesman in the liquor shop.

29. The more important fact is that there was no cross-

examination by the defence counsel regarding Kesar Singh being a

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salesman at that shop therefore, now the defence has no right to

dispute the fact of presence of Kesar Singh in the liquor shop.

30. Hon'ble the Apex Court in Laxmibai (Dead) Thru Lr'S. & Anr.

Vs. Bhagwanthbuva (Dead) Thru Lr'S. & Ors.: AIR 2013 SC 1204,

examined the fact of non-cross-examination of witness on a

particular fact/circumstance and held as under:-

"31. Furthermore, there cannot be any dispute with respect to the settled legal proposition, that if a party wishes to raise any doubt as regards the correctness of the statement of a witness, the said witness must be given an opportunity to explain his statement by drawing his attention to that part of it, which has been objected to by the other party, as being untrue. Without this, it is not possible to impeach his credibility. Such a law has been advanced in view of the statutory provisions enshrined in Section 138 of the Evidence Act, 1872, which enable the opposite party to cross-examine a witness as regards information tendered in evidence by him during his initial examination in chief, and the scope of this provision stands enlarged by Section 146 of the Evidence Act, which permits a witness to be questioned, inter-alia, in order to test his veracity.

Thereafter, the unchallenged part of his evidence is to be relied upon, for the reason that it is impossible for the witness to explain or elaborate upon any doubts as regards the same, in the absence of questions put to him with respect to the circumstances which indicate that the version of events provided by him, is not fit to be believed, and the witness himself, is unworthy of credit. Thus, if a party intends to impeach a witness, he must provide adequate opportunity to the witness in the witness box, to give a full and proper

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explanation. The same is essential to ensure fair play and fairness in dealing with witnesses."

31. Thus, it becomes crystal clear that the defence cannot rely

on a particular fact or issue on which the defence has not cross-

examined him. In the light of this interpretation, the documentary

evidence submitted by the defence in relation to the factum of

salesmanship of Kesar Singh (PW-3) is of no importance.

32. In our opinion, presence of Kesar Singh (PW-3) at the time

of occurrence is not doubtful at all. His testimony is wholly

reliable, trustworthy and credible. His presence at the spot has

been corroborated by the medical evidence. Therefore, in our

opinion, the trial court has rightly relied upon the testimony of this

solitary witness and merely because his name was not mentioned

in the F.I.R. or in the evidence of Deepak (PW-8), Ratan Lal

(PW-6) and Sawai Lal (PW-1), the testimony of Kesar Singh would

not be rendered unreliable. It cannot be presumed that Kesar

Singh was not present at his liquor shop or he would not have

seen the incident. Thus, his presence at the time of occurrence

has been proved beyond reasonable doubt. He is a natural

witness.

33. The deceased was murdered in a broad-day light and there

were several shops near the place of occurrence, though the

market in which the occurrence took place, was a very busy

market but Kesar Singh himself is a witness of the vicinity. The

cross-examiner has not been able to make any dent in his

testimony. It is the quality of the evidence and not the quantity

which is required. The crux of the issue being, has the prosecution

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been able to bring home the charges with the evidence available

on record, if the evidence on record is otherwise satisfactory in

nature and can be ascribed to be trustworthy, an increase in the

number of witnesses cannot be termed to be a requirement for

the case. We, therefore, see no reason to disbelieve Kesar Singh

(PW-3) and his presence on the spot is found to be most natural.

On close and careful scrutiny of the testimony of Kesar Singh, we

have found it cogent and credible. The medical evidence also

supports his deposition therefore, there was no reason to reject

the testimony of Kesar Singh (PW-3) which is to be the effect that

he saw the deceased Suresh Kumar being stabbed by Mukesh

Kumar.

34. Thus, no benefit from the judgments rendered in the cases

cited by learned counsel for the appellant in support of above

contention can be dug out as in those cases sole eye-witness was

in inimical terms with the accused; that in the given facts and

circumstances of present case, sole eye-witness Kesar Singh had

given his statement to the police in respect of the occurrence on

the same day; that conduct of sole eye-witness has found to be

very natural, filing of FIR against unknown person by Sawai Lal is

of no consequence in the present case because he was not an eye

witness to the case; that conduct of Kesar Singh has not been

found to be inconsistent with human nature and behavior; that

this is not a case which is based on circumstantial evidence; that

the evidence of defence witness has not found to be useful in any

manner for the appellant.

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35. We shall now deal with the next argument advanced on

behalf of the appellant that visiting of Deepak (PW-8) at the place

of occurrence was entirely a concocted story. Deepak (PW-8),

being the son of the deceased along with Sawai Lal (PW-1) and

Ratan Lal (PW-6) are the relatives of the deceased and they are

interested as well as partisan witnesses and therefore, their

testimony should not be accepted and relied upon and cannot be

termed as sufficient to come to the conclusion that the

prosecution has succeeded to prove its case against the appellant.

It was also contended that on the basis of the testimony of three

relative witnesses, the appellant could not be held guilty for the

murder of Suresh Kumar.

36. It was further contended the complainant Ratan Lal (PW-6),

who is his uncle, has not named Deepak having reached at the

place of occurrence; that Deepak was examined by the police on

the next day of the incident; that he did not inform his uncle

Ratan Lal whether he saw the accused at the place of occurrence

nor to the police nor to the hospital staff; that visiting of Deepak

(PW-8) at the place of occurrence was entirely a concocted story

to introduce him as a witness of the scene; that no hospital record

was produced by the prosecution to prove that he was admitted

anywhere being unconscious; that Ratan Lal (PW-6) has not

named Deepak in the complaint lodged by him, having reached at

the place of occurrence despite the fact that the F.I.R. was

registered 2 hours after the incident; that being the son of the

deceased, he is a relative and interested witness therefore, his

evidence should be discarded.

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37. Learned Public Prosecutor has argued that statement of

Deepak is reliable and cannot be disbelieved on the ground that

he is son of the deceased.

38. In view of the above contentions we shall now deal with the

fact of interestedness and relativeness of Deepak (PW-8) for

furthering prosecution version.

39. The witness is normally to be considered independent unless

he or she springs from sources which are likely to be tainted and

that usually means unless a witness has cause such as enmity etc.

to implicate falsely. The mechanical rejection of such evidence on

the sole ground that he or she is a partisan witness, would

invariably lead to failure of justice as relationship is not a factor to

affect his credibility.

40. It is true that when feelings run high and there is personal

cause for enmity etc., then there is tendency to drag in an

innocent person against whom a witness has a grudge, but

foundation must be laid for such a criticism. In such cases, the

Court has to adopt a careful approach and analyze the evidence to

find whether his evidence is cogent and credible. What is required

is careful scrutiny of evidence of relative witness.

41. Though Deepak (PW-8), had not seen the occurrence but

immediately after the occurrence, he reached on the spot. In his

deposition, he stated as under:-

"that on the fateful day at about 12:00-12:30 in the noon, my father and I had gone to buy vegetables;

my father said that you buy vegetables here and I go to the liquor shop to bring liquor; I waited there for some time for my father but when he did not return, I

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followed my father towards the Ratan Singh's Pole (gate); as soon as I started entering into the gate, I saw Mukesh Kumar there with a knife in his hand, whose clothes and hands were blood stained; when I went inside the gate I saw that my father was lying dead in a pool of blood; seeing him dead I fainted there; when I regained consciousness after 2-3 hours I found myself admitted in Dr. D.K. Ramawat's hospital and my maternal uncle (Mamaji) Sawai Lal (PW-1) was with me; I told the whole incident to Mamaji; from there we went to the mortuary and returned home with dead body of father; Mukesh Kumar has murdered my father with a knife with the intention to usurp our house."

42. He has been cross-examined by the defence at length but

nothing incriminating could be elicited from his cross-examination.

Rather it is deposed by him that:-

"there is a distance of 500 meters between the vegetable market and Ratan Singh gate; we had gone on foot to buy vegetables; when I reached on the spot, there was a crowd of people; I don't know who informed the police; when I went inside the Ratan Singh's gate, a person with hand-cart was also there."

43. We have carefully and cautiously examined his statement.

44. He has been cross-examined by the defence counsel at

length but nothing incriminating could be elicited from his cross-

examination.

45. In view of the above evidence available on the record, it is

established that at the time of occurrence, Deepak was only 18

years old boy. It was not unnatural for Deepak to accompany his

father to buy goods in the market. When his father did not return

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from the liquor shop, it was also not unnatural for him to go

towards the Ratan Singh's gate to find him out. Seeing accused

with a blood stained knife and clothes and thereafter seeing his

father dead in a blood soaked state, it cannot be unnatural for a

boy of his age to get fainted. His Mamaji Sawai Lal (PW-1) has

also deposed that when he reached the spot after getting the

information about the incident, he saw his Bhanej

(maternal nephew) Deepak lying unconscious there.

46. The analysis of the statement of Deepak and Sawai Lal, it is

proved that it does not seems to be artificial or untruthful in the

whole chain of the incident therefore, the presence of Deepak and

Sawai Lal at the scene also proves to be natural.

47. After careful scrutiny of deposition of these witnesses, we

found Deepak and Sawai Lal to be highly reliable witnesses and

their testimony suffer from no blemish at all. Rather their

testimony is in conformity with Kesar Singh (PW-3) and medical

evidence led by the prosecution. Merely because Deepak is the

son of the deceased, it cannot be inferred that he was not present

at the place of occurrence and had not seeing the occurrence.

48. We, therefore, see no reason to disbelieve Deepak (PW-8)

and Sawai Lal (PW-1). It cannot be unreasonable to assume that

the evidence given by Deepak is liable to be discarded only on the

ground that he happens to be the son of the deceased. His

presence on the spot is found to be much natural and his evidence

is found to be creditworthy and cogent therefore, it can be acted

upon.

49. In view of the above discussion, the contention of the

learned counsel for the appellant that the appellant could not be

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held guilty on the testimony of Deepak (PW-8) is concerned, it has

no force. Thus, no benefit can be dug out from the judgment cited

by learned counsel for the defence in support of the said

argument.

50. Learned counsel for the appellant has further argued that in

the instant case, the prosecution has also failed to prove the

motive. The appellant has nothing to do with the alleged will dated

06.04.2006 (Ex.P-21) and the property mentioned therein. No

dispute or any litigation has been brought on record prior to the

registration of the present F.I.R. Therefore, the findings arrived at

in relation to the enmity and motive of the accused is not based

on any cogent evidence. It is further argued that the alleged

motive is not so strong which may lead to the commission of the

offence of murder. He pointed out that before the occurrence, a

compromise has also taken place between the parties in respect of

their property therefore, the alleged motive of the crime was not

there on the day of the occurrence. Thus, the conviction of the

appellant is liable to be set aside.

51. The above contention has been opposed by the learned

Public Prosecutor and it has been argued that the accused has a

strong motive behind committing the murder of his uncle Suresh

Kumar, as the accused was deprived of his ancestral property

being in force of the said will. There had been quarrel between

them 2-3 times earlier and the accused murdered Suresh Kumar

only because of the dispute over the house.

52. A perusal of the record reveals that the will dated

06.04.2006 (Ex.P-21) has been produced in evidence on behalf of

the prosecution. It was executed by Smt. Vali Devi, mother of the

[2023/RJJD/008125] (19 of 29) [CRLA-619/2016]

deceased. She has given an immovable property to her son

Suresh Kumar (the deceased) through said will. It is also

mentioned in the will that only Suresh Kumar resides with her and

takes care of her.

53. In view of the above evidence regarding dispute of property,

the prosecution has also proved the motive. It has been

established that the dispute in respect of the ancestral property

was alive between the parties, yet the matter was compromised

earlier as stated by one prosecution witness but the accused did

not want to give up the property. Having the above grudge in his

mind, the appellant has committed the murder of his uncle Suresh

Kumar.

54. On a threadbare analysis of record, there is clear evidence

about the strong motive of the accused. The testimony of Deepak

(PW-8) together with that of Ratan Lal (PW-6) and Sawai Lal (PW-

1) who are the son, brother and brother-in-law respectively of the

deceased, coupled with the statement of Loon Singh the

Investigating Officer, the Court below was justified in accepting

the same to be the motive for the offence in the attending facts

and circumstances of the case.

55. The next contention of the learned counsel for the appellant

is that the appellant has falsely been implicated due to rivalry. The

postmortem was conducted at 5:00 pm and as per the contents of

the PMR, the information furnished by the police to the Medical

Board was to the effect that the deceased died in suspicion

circumstances. It is argued that till 5:00 pm of the day of the

occurrence i.e. almost after 5 hours of the incident, the

prosecution was not sure as to who was the real culprit. Had the

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name of the appellant come fore, either Ratan Lal brother of the

deceased or Deepak, son of the deceased would have narrated the

name of the appellant to the police or to the Doctor.

56. This Court is of the opinion that there is no merit in the

above argument also. The reason for this has been explained

earlier. Apart from this, in the proforma of the PMR, it was neither

necessary nor required for the police to give the detailed

description about the incident to the Medical Board with respect to

death of the deceased or culprit. The contents of the PMR are

relevant only for the purpose of finding out the cause of the death

and not for the purpose of crime, perpetrator or manner of the

crime. The narration of the information furnished by the police to

the Doctor in the PMR is merely a formality and cannot be taken

as a substantive evidence.

57. Now, we shall proceed to analyze the medical evidence.

Learned counsel for the appellant has contended that the evidence

of the medical jurist Dr. Arun Kumar (PW-12), who conducted

autopsy upon the body of the deceased is inadmissible in the

evidence; the postmortem report (Ex.P-25) does not mention the

time of death or the weapon used to inflict the injuries and thus,

the same is vague; that the prosecution has not shown the knife

to the Doctor to prove the fact that injuries caused to the

deceased could have caused with knife; that the Doctor has also

not deposed that the injuries were sufficient in ordinary course of

nature to cause death; that the member of the Board has also not

deposed that the deceased died due to cumulative effect of all the

injuries.

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58. Learned Public Prosecutor has opposed the above contention

and argued that the medical evidence is supportive to the ocular

evidence hence, it is also reliable and trustworthy.

59. On perusal of the evidence produced in this aspect, it is quite

evident from the PMR that total 4 stab wounds were found on the

person of the deceased, out of which, first was on the left side of

the chest, the second was on the stomach, the third was on the

left arm and the fourth was on the left lower lung. The left lower

lung was found to be ruptured with blood pooling inside it. The

membrane of the stomach was torn and the blood was also

accumulated in it. The PMR (Ex. P-25) proves that all the injuries

were ante-mortem in nature. In the opinion of the Medical Board,

the cause of death was due to bursting of lungs and excessive

bleeding. Therefore, we see no reason to disbelieve the testimony

of Dr. Arun Kumar (PW-12) and it has been established beyond

reasonable doubt by his testimony that the cause of the death of

Suresh Kumar was injuries of his lung which was caused by the

stab wounds hence, homicidal death of the deceased stands

proved and that the stab injuries were caused by the appellant on

the person of the deceased Suresh Kumar, is also proved.

60. So far as the contention of showing of weapon to the Doctor

is concerned, perusal of the PMR (Ex.P-25) and the nature of

injuries mentioned therein, it is proved that only one type of

weapon was used. As per the evidence of Kesar Singh, the injuries

caused to the deceased was also by one type of the weapon i.e.

knife and the nature of all the wounds were stab wounds.

61. No such fact has been brought out in the cross-examination

of any witness that the nature of the injury is suspicious or it is

[2023/RJJD/008125] (22 of 29) [CRLA-619/2016]

possible to be caused by two types of the weapons. In such a

situation, there was no need for the prosecution to show the

weapon to the Doctor during his evidence because there was no

doubt about it, required to be removed. The defence has also not

asked any question to the Doctor regarding nature of the weapon

used in the incident therefore, no benefit can be given to the

accused on the basis of said contention.

62. After consideration of the submissions made by the learned

counsel for the appellant and after minutely analyzing the

testimonies of Doctor coupled with eye-witness Kesar Singh

(PW-3) Deepak (PW-8) Sawai Lal (PW-1) and Ratan Lal (PW-6),

we are of the opinion that presence of Kesar Singh and Deepak at

the spot is not doubtful at all and their testimonies are wholly

reliable and trustworthy.

63. Now, we shall proceed to deal with the next submissions of

the learned counsel for the appellant regarding the recovery of

weapon and blood stained clothes of the accused.

64. The recovery memorandum of knife has been attacked by

the learned defence counsel on the ground that it is unbelievable

for the reason that it is fake and fabricated because the same is

from an open place accessible to one and all therefore, the same

cannot be treated that the recovered knife was placed there by

the appellant; this piece of evidence also cannot be used against

the appellant; the recovery of the weapon deserves to be

discarded; that the conduct of the Investigating Officer reflects

unfair motivated investigation to somehow or the other implicate

the appellant in this case. He urged that the recoveries made by

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the Investigating Officer are totally cooked-up and planted which

should be discarded.

65. In this respect, it is apposite to rely on the following

observations of Hon'ble the Apex Court in the case of State of

Himachal Pradesh Vs. Jeet Singh: (1999) 4 SCC 370:-

"26. There is nothing in Section 27 of the Evidence Act which renders the statement of the accused inadmissible if recovery of the articles was made from any place which is "open or accessible to others." It is a fallacious notion that when recovery of any incriminating article was made from a place which is open or accessible to others, it would vitiate the evidence under Section 27 of the Evidence Act. Any object can be concealed in places which are open or accessible to others. For example, if the article is buried in the main roadside or if it is concealed beneath dry leaves lying on public places or kept hidden in a public office, the article would remain out of the visibility of others in normal circumstances. Until such article is disinterred, its hidden state would remain unhampered. The person who hid it alone knows where it is until he discloses that fact to any other person. Hence, the crucial question is not whether the place was accessible to others or not but whether it was ordinarily visible to others. If it is not, then it is immaterial that the concealed place is accessible to others."

66. It could, thus, be seen that what is relevant is not whether

the place was accessible to others or not but whether it was

ordinarily visible to others. If the place at which the article was

hidden is such where only the person hiding it knows until he

[2023/RJJD/008125] (24 of 29) [CRLA-619/2016]

discloses that fact to any other person, then it will be immaterial

whether the concealed place is accessible to others or not. The

accused had to give some explanation as to how the human blood

came on the weapon and on his clothes. This discovery would very

positively further the prosecution case.

67. As per Arrest Memo (Ex.P-14), the accused was arrested on

01.12.2011 at 8:30 in the evening i.e. on the day of the incident.

Loon Singh (PW-11), the Investigating Officer has deposed that on

02.12.2011, an information (Ex.P-19) was given by the accused

Mukesh Kumar under Section 27 of the Evidence Act and in

pursuance of which, Mukesh Kumar got a knife recovered which

was found hidden under the stones lying inside the boundary wall

of the Railway line. The witness Hanuman Das (PW-4) and Paras

Mal (PW-10) were witnesses of this recovery. The recovered knife

was sharped edged and blood stained as per the Recovery Memo

(Ex.P-9). Both the witnesses Hanuman Das and Paras Mal have

confirmed and corroborated the fact of the seizure of knife at the

instance of the accused.

68. It is also the statement of Investigating Officer that after

arrest of the accused, the clothes worn by him at the time of

incident were also recovered in the presence of the witnesses

through a Memo (Ex.P-15). This memo has also been proved by

Motbir witness Naresh Kumar (PW-7). Naresh Kumar in his

deposition has proved that the accused Mukesh Kumar took-off a

white coloured shirt and brown coloured vest and handed it over

to the police which he was wearing at the time of incident. There

was blood stains on these clothes.

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69. In the cross-examination of Hanuman Das, Naresh Kumar

and Paras Mal nothing specific has come to the light which cast

doubt on the contents of these memorandums or the oral evidence

of these witnesses which is of any help to the accused.

70. The argument of the learned counsel for the appellant that

no accused will keep himself dressed in blood stained clothes after

the incident is not sustainable because the accused was arrested

in the evening of the incident and at the same time, his blood

stained clothes worn by him were seized. There has been no

cross-examination at all from the Motbir regarding the arrest of

the accused and seizure of his blood stained clothes. The effect of

non-cross-examination in respect of any fact has already been

discussed earlier therefore, the above argument of the defence is

also not tenable.

71. Both recovery memorandums are proved to be duly

executed. All the witnesses of memorandums have supported the

prosecution version.

72. The evidence produced by the prosecution coupled with FSL

Report (Ex.P-24) proves the fact that the recovery of weapon of

offence was on information (Ex.P-9) given by the accused having

blood stains of human origin blood with group "B" matching the

same with the blood group of the deceased, which is proved on

the basis of the FSL Report (Ex.P-24), is also corroborated with

the statement of the eye-witness Kesar Singh (PW-3). Therefore,

the argument of the learned counsel for the appellant that the

knife was recovered from an open place has no force and the

same is liable to be rejected.

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73. Thus, no benefit can be dug out from the judgments cited by

learned counsel for the defence in support of the said argument

since the evidence of recovery of blood stained clothes of the

accused is corroborated by the ocular evidence; that in the instant

case, recovery of knife and bloodstained clothes of the accused is

not the only evidence against the appellant; that the recovery of

bloodstained clothes is corroborated by the eye-witness and

medical evidence; that there is no ambiguity in the blood group

found on the various articles.

74. The next contention of the learned counsel for the appellant

is that the prosecution has failed to prove the requisite link

evidence so as to establish that the incriminating articles seized

during the investigation remained in the self-same sealed

condition right from the time of seizure till they reached FSL.

Thus, the FSL Report deserves to be discarded. In view of this

Court, such argument is not tenable at all as the prosecution has

been completely successful in establishing the link evidence from

the statements of Moola Ram, Constable (PW-9), Madan Singh,

Head Constable (PW-13), Swaroop Singh, Constable (PW-14) and

Loon Singh, the Investigating Officer (PW-11).

75. It is further argued by the learned counsel for the defence

that the prosecution has failed to prove the exact FIR Number in

which investigation was conducted and seized articles were dealt

with. He invited attention of the Court towards some

contradictions appearing in the oral evidence of the prosecution to

the effect that the prosecution has failed to produced Malkhana

Register containing entry at Sl. No. 424 therefore, the link

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evidence is also missing. It is further argued that Madan Singh

Head Constable (PW-13) who was incharge of the Malkhana at the

relevant time has also not stated that, Malkhana articles of the

case remained intact with him till it were sent to the FSL. The

sealing of recovered knife has also not been proved before the

witness of recovery. It is also argued that no finger prints were

taken from the allegedly recovered knife to connect the appellant

to the recovery of knife therefore, the recovery of knife is planted

and cannot be relied upon. The prosecution has also failed to

prove Roznamcha of the date of the occurrence; there has been

variations in the timings of recording of statements of witnesses

by police; it is also not proved that when did Deepak (PW-8)

regained consciousness and when he was discharged from the

hospital. But in view of this Court, though it is correct to say that

the variations in FIR Number of the case have come in evidence

yet, these variations are simple typographical mistakes.

76. In the instant case, since the recovery of the knife is proved

and this case is not based on circumstantial evidence which could

have necessitated collection of finger prints on the knife. All the

contradictions indicated above are minor in nature which does not

bear any adverse effect on the veracity of the case of the

prosecution hence, we do not find any merit in the said argument

as well. Thus, no benefit can be dug out from the judgment cited

by learned counsel for the defence in support of the said

arguments as nothing has been improved in the story by the

prosecution witness and the prosecution has been able to prove its

case on its own legs.

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77. On the basis of above analysis of the documentary and oral

evidence produced by the defence, this Court does not find any

merit in any of the argument raised by the learned counsel for the

appellant. After considering all the submissions made on behalf of

the parties and going through the record of the case, we do not

find any illegality or perversity in the conviction of the appellant,

as recorded by the trial court. The trial court has gone through the

evidence carefully and we have also undertaken the same exercise

and in our opinion, the trial court has committed no error

whatsoever, in coming to the conclusion that the appellant had

committed the alleged offence.

78. Thus, in our opinion, the prosecution has fully proved the

guilt of the accused beyond reasonable doubt and the trial court

was fully justified to convict the appellant for committing the

murder of Suresh Kumar.

79. Consequently, the impugned judgment of the conviction as

well as the order of sentence is upheld and the appeal is

accordingly dismissed.

80. So far as compensation to the dependent of the victim is

concerned, though it was not considered appropriate by the trial

court to recommend compensation on the ground that dispute

was between the relatives of a family in respect of property but, in

our opinion, the reason mentioned for denying the compensation

is not found justified. The factum of murder of Suresh Kumar has

been proved therefore, we hold that under Section 357-A of the

Cr.P.C., the dependents of the deceased Suresh Kumar are entitled

to compensation as even in a case of acquittal, for rehabilitation of

family of the victim, the Court can recommend compensation.

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Sub-clauses (3) and (4) of Section 357 Cr.P.C. manifest the

intention of the legislature.

81. Thus, in these circumstances, we direct the Secretary,

District Legal Services Authority, Balotra to disburse compensation

to the dependents of the deceased Suresh Kumar in consonance

with the Victim Compensation Scheme. The matter is referred to

the above Authority for the said purpose.

(RAJENDRA PRAKASH SONI),J (ARUN BHANSALI),J

Mohan/-

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