2011 Supreme(Guj) 339

2011 (3) GCD 1878 (SC)
Hon’ble Mr. Justice Asok Kumar Ganguly &
Hon’ble Mr. Justice Deepak Verma
Rajput Jabbarsingh Malaji
Versus
State of Gujarat
Criminal Appeal No. 943 of 2006—Decided on 24/05/2011

Point in Issue :
Whether in the facts and circumstances of the case conviction of appellant for murder of deceased is sustainable.

Headnote:Head Note :

       [Indian] Penal Code, 1860 (Central Act 45 of 1860) — Section 302 — [Indian] Evidence Act, 1872 (Central Act 1 of 1872) — Section 6 — Bombay Police Act — Section 135(1) — Murder — Conviction — Appreciation of evidence — Finding of — Sustainability — On the intervening night of 02/03.04.1994 at about 2 a.m. Pepaben PW. 3 wife of deceased raised shouts for help to save her husband deceased Jethu Singh — On reaching the spot complainant found deceased had received sever injuries on his face and was bleeding profusely — Complainant with the help of other took deceased to hospital where deceased was declared brought dead — In the FIR given there is no name of appellant mentioned because his name was till then not given by wife of deceased PW. 3 for which she gave explanation that her upper most anxiety was to take her husband to hospital — The statement of PW. 3 wife of deceased stands fully proved and corroborated from evidence of PWs. 5 and 6 who were informed soon after the inedited as how this injury was injected way appellant on her husband — they an therefore to be trailers rest Gestate wineries — In they evidence of PW. 2, PW. 3, PW. 5 & PW. 6 the fully scared proved and established that appellant had caused the fatal blow on deceased causing his death — The another crucial link with commission of offence by appellant stand proved from the FSL report — Appellant’s blood stained scarf, blood stained axe used in commission of offence were recovered from the place of discovery and were found stained with blood of deceased group — Thus FSL report conclusively establish that it was appellant and only appellant who had caused fatal blow on deceased resulting in his death — In view of the said evidence on record there is no scope for interference in the concurrent finding recorded by two Courts below.

       Held :

       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. [Para 6]

       Formal FIR was registered at the Police Station on the strength of the aforesaid complaint. But as soon as PW-3, Pepaben had become little composed after the shock which she faced due to the incident, she had disclosed the name of 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. [Para 10]

       Deceased Jethusing had met with homicidal death, which even otherwise stands proved from the evidence of PW-1, Dr. 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 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. [Para 11]

       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. Same were sent for serological report alongwith mattress, 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 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. [Para 15]

       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 no 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. [Para 16]

       Thus, in our considered opinion, the prosecution has 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. [Para 17]

       Law Laid Down :

       When FSL report discloses that appellant’s scarf and the axe recovered had blood of deceased group ‘O’ then unless finding satisfactorily refused by appellant conclusively prove involvement of appellant in commission of the offence.