WWW.LIVELAW.IN HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR D.B. Criminal Appeal No. 274 / 2011 Galji s/o Rakia, b/c Meena, r/o Khempuria Thana Suhagpura ----Appellant Versus State of Rajasthan ----Respondent _____________________________________________________ For Appellant(s)

: None present.

For Respondent(s) : Mr.J.P.S.Choudhary PP for the State. _____________________________________________________ HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI HON'BLE MR. JUSTICE VINIT KUMAR MATHUR Judgment Reserved on 07/04/2018 Pronounced on 16/05/2018 Per : Dr.Pushpendra Singh Bhati, J. 1.

The matter comes up before this Special Division Bench

constituted by Hon’ble the Chief Justice to have the sittings on Saturdays. However, we are constrained to note that as always, the Lawyers, even the ones provided by the Legal Services Authority, are not there to assist the Court. 2.

We have waited for a considerable time, and in, out of

the ten matters, which were listed, not even a single Lawyer from the accused side is available, for making submissions and provide assistance to the Court. 3.

Repeated requests to the Bar by Hon’ble the Chief

Justice as well as the persuasions made by us have failed to ensure a minimum requirement of assistance from the Lawyers on

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the side of the accused, on such Saturdays. 4.

Lawyers provided by the Legal Services Authority are

also not available, which makes the situation all the more concerning. 5.

To address the pendency of the pending criminal

appeals, where the accused are in jail, this Special Division Bench has been constituted to sit on Saturdays, and therefore, to justify the sitting, we have taken the assistance of the learned Public Prosecutor to go, in depth, into the records of this criminal appeal, and

have

satisfied

ourselves

from

all

aspects

of

criminal

jurisprudence before proceeding with this judgment. 6.

We have also taken note of the judgments rendered by

the Division Bench of this Hon’ble Court in Hari Ram & Ors. Vs. State

of

Rajasthan

&

Ors.

(D.B.Criminal

Appeal

No.130/1988 decided on 02.01.2017) and Jagdish Vs. State of Rajasthan (D.B.Criminal Appeal No.407/1989 decided on 15.11.2016), wherein it was contemplated as to whether a criminal appeal could be finally decided without the assistance of learned counsel for the accused, and the Hon’ble Division Bench, in this regard, has made the following observations, while relying upon the principles judicially adumbrated by the Hon’ble Apex Court in Surya Baksh Singh Vs. State of Uttar Pradesh, reported in (2014) 14 SCC 222:In Jagdish Vs. State of Rajasthan (supra): 1. No one appears for the Appellant when the appeal is called out for hearing despite power filed on his behalf.

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2.

The

Appellant

stands

convicted

to

life

imprisonment under Section 302 IPC alongwith fine and default stipulation in Sessions Trial Case No. 15/1986, dated 19.10.1989 by the Additional District and Sessions Judge, Rajsamand. 3. The appeal was instituted on 24.10.1989 and the Appellant

enlarged

on

bail

on

16.11.1989.

Considering the age of the appeal, the period since grant of bail to the Appellant and absence of representation on his behalf, we are not inclined to adjourn the matter further in view of observations in (Surya Baksh Singh Vs. State of U.P., 2014 14 SCC 222) as follows :"25....We reiterate that there is an alarming and sinister increase in instances where convicts have filed appeals, apparently with a view to circumvent and

escape

undergoing

the

sentences

awarded

against them. The routine is to file an appeal, apply and get enlarged on bail or get exempted from surrender,

and

thereafter

wilfully

to

become

untraceable or unresponsive. It is the bounden duty cast upon the Judge not merely to ensure that an innocent person is not punished but equally not to become a mute spectator to the spectacle of the convict circumventing his conviction. (See Stirland v. Director of Public Prosecution, quoted with approval by Arijit Pasayat, J in State of Punjab V. Karnail Singh.) If the court is derelict in doing its duty, the social fabric will be rent asunder and anarchy will rule everywhere. It is, therefore, imperative to put an end to such practice by the expeditious disposal of appeals....." 4. The appeal has therefore been taken up for consideration

with

assistance

of

Learned

State

Counsel who has very fairly and thoroughly taken us through the records of the case, the exhibits and the

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evidence which has greatly facilitated us in disposing the appeal.” In Hari Ram & Ors. (supra): “1. The present appeals arise from judgment dt. 20.1.1988 by the Sessions Judge, Jalore in Sessions Trial No.11/1987 and Sessions Trial No.15/1987 convicting

the

Appellants

No.130/1988

under

imprisonment

with

Sec. fine

in

Criminal

302/34

and

IPC

default

Appeal to

life

stipulation.

Criminal Appeal No.266/1988 has been preferred by the State questioning the acquittal of the other four accused Respondents as not sustainable in law. 2. The Appellants in Criminal Appeal No.130/1988 appear to have been enlarged on bail soon after institution of their appeals. The order-sheet is not very clear with regard to the exact date. The name of the Counsel for the Appellants and the acquitted accused appears in the cause list but there is no representation on their behalf. Considering that the appeals are very old of the year 1988, we were not inclined to adjourn the matter or issue notice to the parties, much less issue any notice for cancellation of bail to the Appellants in Criminal Appeal No.130/1988 in view of the observations in (Surya Baksh Singh vs. State of Uttar Pradesh, 2014 14 SCC 222) as follows:"25. The enunciation of the inherent powers of the High Court in exercise of its criminal jurisdiction already articulated by this Court on several occasions motivates us to press Section 482 into operation. We reiterate that there is an alarming and sinister increase in instances

where

convicts

have

filed

appeals apparently with a view to circumvent and escape undergoing the sentences awarded against them. The routine is to file an appeal, apply and get enlarged on bail or get exempted from surrender, and

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thereafter

wilfully

to

become

untraceable

or

unresponsive. It is the bounden duty cast upon the Judge not merely to ensure that an innocent person is not punished but equally not to become a mute spectator

to

circumventing

the his

spectacle conviction.

of

the

(See

convict

Stirland

vs.

Director of Public Prosecutions, quoted with approval by Arijit Pasayat, J. in State of Punjab vs. Karnail Singh.) If the Court is derelict in doing its duty, the social fabric will be rent asunder and anarchy will rule everywhere. It is, therefore, imperative to put an end to such practice by the expeditious disposal of appeals. The inherent powers of the High Court, poignantly preserved in Section 482 CrPC, can also be pressed into service but with care, caution and circumspection." 3. We therefore requested the State Counsel to assist us so that both the appeals could be taken up together for consideration. Learned State Counsel has meticulously taken us through the FIR, the post mortem report, the inquest report, Exhibits etc., as also the police statement of PW-1, Babulal, the son of the deceased Smt.Chouthi recorded after the FIR and subsequently when other accused not charge-sheeted were summoned by the Court under Sec. 319 Cr.P.C. We

have

also

been

taken

through

the

Court

statement of PW1-Babulal again at both stages, as also the Court statement of PW-2,Thakra Ram, brother of PW-1, Babulal. Our attention has also been invited to the discussion in the judgment under appeal acquitting four of the accused on benefit of doubt and the reasoning for the same. We therefore now take up the appeals for consideration on merits.”

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7.

In view of the aforementioned legal enunciation made

by the Division Bench of this Hon’ble Court, in regard to lack of representation on behalf of the accused, in the situation, like the present one, the present adjudication is made with the able assistance rendered by the learned Public Prosecutor, to set at rest the present impugnment. 8.

The brutality surrounding the crimes –

which are

inextricably consanguine with the one committed in the present case, gives to the case an eerie appearance. Such harrowing happenings make the task of unearthing the truth toilsome. However, in the words of Justice Vivian Bose, “the shocking nature of the crime, ought not to induce an instinctive reaction against a dispassionate scrutiny of facts and law”. The said reminder of Justice Vivian Bose, apart from having paramount relevance in the presence scenario of criminal jurisprudence, is worth-noting for the purpose of present adjudication, as well. 9.

The instant appeal mounts a challenge to the judgment

and order of conviction and sentence dated 11.03.2011 passed by the learned District & Sessions Judge, Pratapgarh in Sessions Case No.88/2009, which determination and verdict, has culminated in conviction of the present accused/appellant, and thereby, he stood sentenced, under Sections 302, 326, 324 and 323 of the Indian Penal Code (for brevity, ‘the IPC’), in the following manner:Under Section 302 IPC: Life imprisonment and a fine of Rs.2000/-, and in default of payment

of

imprisonment.

fine,

to

further

undergo

one

year’s

rigorous

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Under Section 326 IPC: Rigorous imprisonment for a period of five years and a fine of Rs.1000/-, and in default of payment of fine, to further undergo six months’ rigorous imprisonment. Under Section 324 IPC: Rigorous Imprisonment for a period of two years and a fine of Rs.500/-, and in default of payment of fine, to further undergo three months’ rigorous imprisonment. Under Section 323 IPC: Rigorous imprisonment for a period of six months and a fine of Rs.100/-, and in default of payment of fine, to further undergo one week’s rigorous imprisonment.

All the principal sentences were ordered to accrue concurrently.

10.

Appalled by the aforesaid determination made by the

learned court below, which constitutes the subject matter of the present oppugnant, the appellant is in appeal seeking remedial intervention of this Court, praying for overturning of the said verdict. 11.

Before we, to reach the litigative terminus, ratiocinate

on the relevant evidence available on record in the form of statements of witnesses, post-mortem report, injury report as well as the report of Forensic Science Laboratory and all other relevant

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documents, we consider it apt and expedient, sans the broad brush projection of the backdrop, to briefly set out the facts, so far as they are relevant and indispensable for the present adjudication. 12.

The genesis of the present arraignment is traceable to

the incident that witnessed deadly assault by a sharp-edged weapon, an axe, on Meera w/o Galji, Rakia Meena and Sonki @ Honki w/o Rakia Meena, by none else, but present accused Galji, who is husband of Meera, and elder son of Rakia Meena and Sonki @ Honki, apart from being the elder brother of complainant-Suraj. The said assault, which alleged to have been launched upon all the three assaultees, within the precincts of theirs as well as the house of the assaulter (the present accused), had resulted into immediate death of Meera, and grievous and simple injuries sustained by Rakia Meena and his wife Sonki @ Honki. 13.

The skeletal facts portraying the prosecution case, as

per the exposition made by present complainant-Suraj, the younger brother of present accused Galji, in his written report lodged, on 21.07.2009, at Police Station, Suhagpura,

originated

from the after dark of 20.07.2009, precisely 11:30 p.m. As the written report (Exhibit/P.4) and the subsequent inquisition made by the investigation team would evince, the apple of discord between the accused and the victims of the tragic assault, was the Nata marriage contracted between the present accused Galji and deceased Meera, after the demise of accused/Galji’s first wife three years prior to the date of occurrence, as reflected in the impugned order.

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14.

The elucidation of the alleged incident made by

complainant-Suraj in the written report so lodged, would manifest that when, on the fateful night of 20.07.2009 at 11:30 p.m., deceased Meera aged about 35 years, who was the sister-in-law of complainant-Suraj, was sleeping on the cot in the house, her husband, Galji s/o Rakia Meena, r/o Khempuria came with an axe (kulhadi) in his hand and inflicted blows on the neck of the lady, and thereafter, he (Galji) also attacked Rakia, father of the complainant and Galji, who was aged about 60 years, and gave blows with the axe on his left ankle. The present accused thereafter, also attacked their mother Sonki @ Honki, who was aged about 58 years, while inflicting axe blow on her elbow and left thigh. The aforementioned assault has been made with an intention of killing the assaultees. To reiterate, the said assault had immediately extinguished the life spark of Meera, the wife of present accused-Galji, and also resulted into grievous and simple injuries being sustained by the parents of the accused as well as the complainant. 15.

Following the aforesaid assault, when the parents of

the complainant shouted, he rushed to rescue them, whereupon Galji, his elder brother ran away with the axe in his hand. The complainant also mentioned in the complaint that in the light of the torch in his hand, the complainant saw everything, and he also shouted, upon which complainant’s wife Guddi, his uncle Kishan, neighbour Shantilal and his uncle’s son Manish, reached the spot, whereupon, the complainant told them that Galji, his elder brother

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had contracted Nata marriage with deceased Meera and the decision of the caste panchayat was pending. He further told that deceased Meera, again and again, insisted her husband (accusedGalji) for persuading the caste panchayat to take decision on the issue of Nata marriage and to compensate such marriage. The parents of Galji also asked him to pay such compensation in lieu of the Nata marriage, and being annoyed by such insistence, Galji attacked all three of them with the axe, while killing Meera and injuring his own parents with the intention to kill them, as well, and thus, a written report, as stated above, was sought to be lodged by complainant Suraj s/o Rakia Meena aged about 30 years r/o Khempuria. 16.

On the basis of the aforementioned report came to be

lodged by the complainant, an FIR bearing No.61/2009 was registered on 21.07.2009 at about 01:05 p.m. at Police Station, Suhagpura, District Pratapgarh for the offences under Sections 302 and 307 IPC, pertaining to the incident, which happened at 11:30 p.m. on 20.07.2009, and thereafter, the investigation commenced. 17.

Upon investigation, the charge-sheet was filed by the

police, for the offences under Sections 302, 326, 324 and 323 IPC, before the learned Additional Chief Judicial Magistrate, Arnod, Headquarters

Pratapgarh,

and

thereafter,

the

matter

was

committed to the Sessions Court, whereupon, the learned court below has framed four charges against the accused/appellant for the offences under Sections 302,326, 324 and 323 IPC.

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18.

Charge No.1, as framed by the learned court below,

was that on 20.07.2009 at 11:30 p.m. at Village Khempuria, accused-Galji gave blows by axe on the neck of his wife Meera and murdered her, thereby committing an offence punishable under Section 302 IPC. 19.

Charge No.2 was that Galji, on the same day, at the

same time and the same place, voluntarily attacked his father, Rakia, aged about 60 years on his left leg with a sharp-edged weapon, the axe, and caused grievous injuries to him. Thus, he committed an offence punishable under Section 326 IPC. 20.

Charge No.3 was that on the same day, at the same

time and the same place, Galji caused injuries on the left thigh of his mother Honki aged about 60 years with a sharp-edged weapon, the axe, causing injury to her voluntarily, thereby committing an offence under Section 324 IPC. 21.

Charge No.4 was that on the same day at the same

place, the accused voluntarily caused injuries to her father Rakia and mother Sonki @ Honki, thereby committing an offence under Section 323 IPC. 22.

In course of his examination under Section 313 Cr.P.C,

the present accused/appellant having denied the imputations and alleged his false implication, thereby pleading ‘not guilty’, he was made to stand the trial, and accordingly, the trial commenced. 23.

Whereas, the prosecution adduced 18 witnesses and

exhibited 28 documents, no defence evidence – neither any witness nor document – has however been adduced on behalf of the accused/appellant.

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24.

Thereafter, the learned court below framed three

issues. Firstly, whether the death of Meera was a murder or there was some other reason behind it; secondly, whether the murder was committed by Galji; and thirdly, whether Galji caused grievous and simple injuries upon his parents by the axe. 25.

For the purpose of appropriate appreciation of the

present assailment and to take a proper stock of the factual situation, as prevailing in the present case, before taking a survey of the issue-wise finding of the learned court below, essential it would be, to deal with the relevant portions of the evidence of the prosecution

witnesses,

in

bare

essentials,

in

the

following

paragraphs. 26.

PW-1 Dr.Maanmal Sankhala, the medical jurist working,

at the relevant time, in District Hospital, Pratapgarh, who conducted the postmortem upon the dead body of Meera w/o Galji, stated that the dead body was identified by Suraj s/o Rakia Meena, being brother-in-law of the deceased. The medical jurist opined that deceased Meera was hit by a sharp-edged weapon causing incised wound measuring 10 x 3 cm on the left side of her neck, and the wound extended upto the left ear, cutting the lobule. The neck was cut to the bone and the vertebra was also having a cut. The cause of death of Meera, as per the medical jurist, was the excessive bleeding causing neurogenic shock. 27.

The medical jurist further opined that he also examined

Rakia Meena, who is father of accused-Galji, and upon such examination, it was found that Rakia Meena received one incised wound measuring 4 x 1 cm in the left leg, which was bone deep

(13 of 25) [CRLA-274/2011]

and went upto the ankle. Another wound was measuring 3 x 1 cm on the left thigh of Rakia Meena. The fracture in the fibula bone of left leg was also found. The medical jurist further stated that, as per injury report (Ex.P.04), injury No.1 was found to be grievous in nature being caused by a sharp-edged weapon; whereas injury No.2 was simple in nature, as ascertained by the medical jurist. 28.

The medical jurist also examined Sonki w/o Rakia

Meena, aged 60 years r/o Khempuria, and found that the injury No.1 measuring 6 x 3 cm on bone of the left hand in the outer portion of the elbow was there, and injury No.2 was an incised wound measuring 1 x 0.5 cm, which was skin deep behind the left thigh. Both the injuries on the body of Sonki were found to be simple in nature, although caused by a sharp-edged weapon. 29.

PW-2

Suraj,

the

present

complainant,

was

also

examined by the learned court below, and in his examination, Suraj stated that Galji is his elder brother, and they had three more sisters, who were all married. He further stated that Injured witnesses, namely, Rakia Meena and Sonki @ Honki are their (complainant’s and present accused’s) parents. 30.

PW-2 Suraj also stated that the name of his wife is

Guddi. Suraj also deposed that present accused Galji, upon death of his first wife three years prior to the date of incident, entered into Nata marriage with deceased Meera, and they had a daughter, namely, Gayatri, aged one year, at the relevant time, born out of the said Nata marriage. Suraj further averred that the caste panchayat’s decision over the Nata marriage of Galji and deceased Meera was yet to be taken, and since such decision was not

(14 of 25) [CRLA-274/2011]

coming forward, deceased Meera was facing embarrassment amongst the relatives, as she could not socialize amongst them, as a result whereof, she used to pressurize Galji to seek final decision from the caste panchayat over the issue of Nata marriage. This witness further averred that he himself used to tell Galji that he should get the decision from the caste panchayat and pay compensation to the previous husband of deceased Meera, in accordance with the customs and traditions of Nata, but Galji did not pay any heed to such insistence. In fact, Galji remained annoyed with his family members, including his parents, as they also pressurized him to obtain the decision from the caste panchayat regarding the Nata marriage. Galji, being annoyed, attacked his wife Meera with the axe and gave blows on her neck, while she was sleeping in the house. 31.

PW-2 Suraj further stated that the incident had

happened at 11 o’clock in the night about six months ago and the injury resulted into severe blood oozing from the neck of deceased Meera, who later on succumbed to the same. Suraj further stated that he was very nearby to the place of incident and he saw the incident in the torch light. Accused Galji ran away after committing the act. Before running away from the spot, accused Galji attacked his and complainant’s parents, who were also sleeping in the same house, resulting into injuries being caused to their father on his left leg on the down side and to the mother, on the elbow. The attack was life threatening, and upon Suraj coming to their rescue, Galji ran away towards the road, with the axe in his hand.

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32.

Upon hearing the cries and commotion, wife of Suraj,

namely, Guddi, his uncle Kishan, neighbours Shantilal and uncle’s son Manish also reached the spot, whereupon PW-2 Suraj informed them about the incident so happened and lodged a written report (Ex.P.4) before the concerned police station, which was signed by Suraj. The panchnama, which was Ex.P.5, was also prepared before him, and after post mortem, the dead body of Meera was handed over to Suraj vide Fard Ex.P.6. 33.

PW-2 Suraj also stated that the samples of blood

stained soil, simple soil and other details were taken by the police, after completing all the necessary formalities. The bed cover and blood stained soil were taken and the blood stained clothes of their parents were also taken. In cross-examination, Suraj deposed that he and his elder brother Galji were staying in a common house, as the house had four rooms and all were sleeping at the time of incident. Suraj further stated that upon hearing the commotions, he came to the rescue of his parents, and had a torch, and in the torch light, he saw Galji committing the act, and running away. 34.

In cross examination, Suraj further stated that his

parents were also injured, and in fact, he saw Galji giving blows to mother and father of theirs, and the blows were given from the sharp-edged side of the axe. 35.

PW-3 Udailal had his signatures on Ex.P.8, which was

the report of blood stained soil and the bed cover. Udailal also signed on the Ex.P.7, which was the site inspection report. He also signed the memo of dead body of Meera, which is Ex.P.5. He also

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signed Ex. P.9 & 10. 36.

PW-4 Kishan was the uncle of Galji and Suraj, who

stated that the first wife of Galji had died three years prior to the date of incident, consequent whereupon, Galji entered into Nata marriage with deceased Meera, with whom they had a daughter. The annoyance of Galji was on account of insistence of deceased Meera, his wife, to settle the compensation arising out of their Nata marriage. Kishan had supported the incident narrated by Suraj and stated that he went on hearing the commotion and the shouts of Suraj, and the injured were taken in 108 Ambulance. In the cross-examination, Kishan states that he came after Galji had run away, and he actually did not see the incident. 37.

PW-5 Sonki w/o Rakia Meena, is the injured mother of

the present accused and the complainant, and therefore, a crucial witness to the whole incident. Sonki narrated that she had an elder son, Galji and younger son, Suraj, The elder son Galji had married Meera by entering into Nata marriage and there was a daughter of Galji, namely, Gayatri aged eight months. Deceased Meera

used

to

tell

Galji

regarding

resolving

the

Nata

compensation, and thus, there used to be tension between both regarding the said issue. The injured witness further stated that she was sleeping in the same house with her husband, when Galji attacked deceased Meera with the axe, and thereafter, Galji attacked Sonki and her husband, and rest of the incident was the same as narrated by Suraj. This witness also deposed that the intention of Galji was to kill Sonki and her husband, as well. She suffered the injuries out of the incident. The injured witness had

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her ghaghra fully blood stained and her injuries were simple in nature. However, she stated that she remained in the hospital for about 20-25 days alongwith her husband. Her blood stained clothes were taken by the police and were produced as Ex.P.10. 38.

PW-6 Maanmal supported the story as narrated by

Suraj and he further averred that the report was handwritten, as per the narration made by Suraj, and the report is Ex.P.4, which is in his handwriting. Signatures of PW-6 Maanmal were on Ex.P.10, which were blood soaked clothes. 39.

PW-7 Rakia, is again father of Galji and Suraj, and

reiterated the same incident as done by Suraj, his son. PW-7 Rakia stated that deceased Meera was socially cut off due to the matter of Nata marriage not being finally decided by the caste panchayat, and there used to be frequent tension between Meera and Galji, as Nata compensation was not paid by Galji to her previous husband and his family members. Rakia further stated that he also insisted that Galji should sort out the issue of Nata marriage, but Galji, rather than agreeing, used to fight on the same issue, and committed the incident, as already narrated, in which Rakia himself was badly injured. Rakia further stated that if they would not have shouted, then Galji would definitely have killed them, as Galji had already caused grievous injuries upon Rakia and his wife Sonki. 40. Constable

PW-8 Premlal, who was posted, at the relevant time, as at

Police

Station,

Suhagpura,

had,

as

per

the

information of Galji, recovered the axe from back side of the house in question, from beneath the kelu shed; the axe was

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stated to be hidden in a white dhoti. Narayan Lal, ASI was said to be with him, who completed the recovery, and PW-8 Premlal signed the same. The place of incident was also identified in his presence. 41.

PW-9 Narayan Lal, who, at the relevant time, was

posted as Assistant Sub Inspector at Police Station, Suhagpura, had also supported the recovery of the weapon, as stated by PW-8 Premlal, alongwith rest of the recoveries and issues. 42.

PW-10 Kaniram was father of deceased Meera, who

stated that Meera’s first marriage could not succeed on account of not having a child, and thereafter, her Nata marriage with Galji had happened, and for last three years, prior to the incident, she was with Galji. He stated that the cause of dispute was nonpayment of the compensation in lieu of Nata marriage. 43.

PW-11 Bherulal is the neighbour of the family of Galji

and Suraj, who has also supported the story narrated by Suraj, and stated that he came to the spot after hearing commotion and saw that Meera was lying dead, whereas Rakia and his wife Sonki @ Honki were severely injured and the incident was narrated to him by Suraj. He further stated that there was regular dispute between the husband (accused Galji) and wife (deceased Meera) and the parents (Rakia and Sonki @ Honki) regarding nonresolution of Nata marriage compensation by Galji, which caused tension in the house. 44.

PW-12 Guddi w/o Suraj, who has supported the story

as narrated by Suraj, stated that the regular tension was there in their house due to non-resolution of the issue in relation to the

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Nata compensation, and thus, the incident so happened, as already narrated by her husband Suraj. 45.

PW-13 Dr.Pramod Kumar Jaiman was, at the relevant

time, posted as Orthopaedician at District Hospital, Pratapgarh, who treated and conducted x-ray upon Rakia and his wife and found fracture on the body of Rakia. 46.

PW-14 Rakesh is the photographer, who took the

photographs of the scene and the same are Ex.P.13 to Ex.P.18 signed by him. 47.

PW-15 Bheru Singh was, at the relevant time, the SHO

at Police Station, Suhagpura under whose supervision, the investigation was conducted, and he has completely sustained the prosecution story of the incident by his investigation. 48.

PW-16 Gajraj Singh was the Head Constable and

incharge of malkhana and deposed the fact of receiving six sealed packets on 21.07.2009, and then further 7th and 8th packet on 23.07.2009, which were also sealed, and entered into the malkhana

register

with

his

signature.

The

same

were

subsequently sent to the FSL with Constable Shambhulal. 49.

PW-17 Shambhulal, who, at the relevant time, was

posted as Constable at Police Station, Suhagpura, had carried the eight packets with sealed chits for FSL and submitted the same to the Forensic Science Laboratory, Udaipur. 50.

PW-18 Kalu Khan was, at the relevant time, the Driver

at Police Station Suhagpura, who was witness to the arrest of Galji from the well, wherein he was hiding and wherefrom he was

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arrested. 51.

As adverted to hereinabove, the learned court below

has framed aforementioned three issues, while passing the impugned order; the issue-wise finding recorded by the learned court below is also relevant for the purpose of this adjudicatory pursuit. 52.

Regarding issue No.1, the learned court below, on the

basis of the evidence of PW-1 Dr.Maanmal Sankhala, the medical jurist, has reached to a conclusion that the injury caused to deceased Meera was deliberate and the same was caused by the axe, and thus, it was clearly homicidal in nature. Thus, the learned court below has reached to a conclusion that deceased Meera was murdered and her death was not a natural death. Thus, the issue No.1 was decided against accused-Galji. 53.

Regarding issue No.2, the learned court below has

relied upon PW-2, the eye witness Suraj, who was also the complainant, the injured eye witness PW-5 Sonki and the injured eye witness PW-7 Rakia, and the evidence rendered by PW-12 Guddi w/o Suraj, PW-11 Bherulal, PW-1 Dr.Maanman Sankhala, the medical jurist, PW-10 Kaniram, father of the deceased and also PW-15 BheruSingh, PW-8 Premlal and PW-9 Narayan Lal. 54.

The learned court below thus, held that the real brother

of accused Galji, i.e. Suraj has clearly deposed the incident, which is consistent with the FIR and the evidence rendered thereafter. The reason mentioned in the evidence is also consistent with the FIR, and the narration regarding the death of first wife of Galji resulting into Nata marriage between present accused Galji and

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deceased Meera three years prior to the date of incident, from whom a girl child Gayatri was born, is simple and was found to be natural, as in the peculiar caste system prevailing in the Scheduled Tribes of the area, Nata marriage is widely acceptable. Nata marriage has to be compensated by the husband in question before the caste panchayat, so as to render the same to the previous husband and his family members. 55.

The embarrassment and the tension between the

couple, namely, accused Galji and deceased Meera, wherein deceased Meera was supported by the parents of Galji, is a consistent story, which has caused extreme anger to Galji, and resulted into his committing such an inhuman act. 56.

The human blood stained axe has been recovered at

the instance of the accused, and deceased Meera sleeping in the house was a soft target and the aggravated injuries caused to her on the neck, while in sleep, being bone deep, had resulted into her immediate death. 57.

Torch in the hand of Suraj enabled him to see Galji and

probably scared Galji to have run away from the spot after causing injury to his own parents, who supported Meera on the issue of settlement of Nata marriage. 58.

The learned court below has especially relied upon the

evidence of PW-5 Sonki, who is none other than the mother of the present

accused and the complainant i.e. Galji

and Suraj

respectively. The mother had supported Meera on the issue of settlement of Nata marriage, and she herself had been badly injured in the incident. She has totally supported the story of the

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FIR and being an injured eye witness and natural mother of the accused, seems to be one of the most reliable witnesses, which the learned court below has relied upon. 59.

The learned court below further relied upon PW-7

Rakia, who is again father of the complainant and the accused, and has fully supported the prosecution story, as narrated in the written report lodged by complainant-Suraj. It is relevant, apart from being natural father of Galji, that he also deposed that there was a tension regarding some Nata marriage settlement and the father has been the recipient of the injury, including fracture on his body. 60.

PW-12 Guddi, the wife of complainant-Suraj has also

supported the prosecution story. 61.

The examination of PW-15 Bheru Singh, PW-6 Maanmal

and PW-11 Bherulal, are elaborate and clearly substantiate the recovery of axe, with whom blow was inflicted at the instance of Galji, and the same has been found to be convincing. 62.

The learned court below thus has decided issue No.2,

as well, against the accused, while arriving at the conclusion that the murder of deceased Meera has been attributed to Galji. 63.

As regards issue No.3, the evidence of PW-5 Sonki and

PW-7 Rakia, who are not only injured witnesses, but are also natural parents of the accused and the complainant read with evidence of the medical jurist clearly point out that the injuries upon their body was caused by Galji. Thus, the issue No.3 was also decided against the accused.

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64.

The evidence as well as the consequential judgment of

the learned court below, on an overall evaluation, as seen by this Court, are well reasoned and justified. 65.

We have lent our due consideration to the submissions

made by learned Public Prosecutor for the State and weighed such submissions on the touchstone of all the materials available on record, including the statements of the prosecution witness and other relevant documents. 66.

We have examined the FSL report, which is Ex.P.27,

whereby the blood smeared soil Ex.1, control soil Ex.2, piece of goodari Ex.3, blood smeared soil Ex.4, control soil Ex.5, ghaghra Ex.6, axe (kulhadi) Ex.7 and dhoti Ex.8, were examined, and blood stains of human origin were found thereon. Thus, taking ahead the prosecution story, to connect blood smeared soil, control soil, piece of goodari, blood smeared soil, control soil, ghaghra, axe and dhoti with the human blood stains, much credibility has been extended to the prosecution story. 67.

This Court has gone into all the details of the evidence

rendered by the prosecution witnesses and has carefully examined each and every document exhibited by the prosecution, which are there on record, including FSL report, post mortem report, injury report and all other relevant exhibits. 68.

This Court finds that the reason given, for the tragic

assault, in the FIR, is absolutely consistent with the statements of all the prosecution witnesses, and in the prevailing scenario in Meena Community, the Nata marriage is often very prevalent and

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the modus operandi of Nata marriage is that the lady, who already has an existing wedlock, is released by the earlier husband to the subsequent husband and his family members, upon payment of certain compensation to the previous husband and his family members by the subsequent husband. This custom is widely practiced in the said Community, and it is a very plausible indication in the evidence rendered by the family members and the witnesses that the matrimonial issue of Nata compensation between accused Galji and deceased Meera had caused serious strain between them. 69.

This Court also finds that there is not even a slightest

of any deviation in the prosecution story regarding use of axe by Galji in causing the death of Meera and causing injuries to his own parents. The intention swelling in the mind of the accused is apparent, on seeing of the severity of the injury, where the neck of the deceased was cut to the bone, thus causing immediate death of Meera. Injured witnesses Rakia and Sonki @ Honki give complete credence to the prosecution story, as they, in no possible circumstance, would give any wrong statement against their own naturally born son accused-Galji, and moreover, they themselves have suffered injuries – grievous and simple - by the axe at the instance of accused-Galji, their own naturally born son, and their bloodstained clothes have been proven to have blood of human origin. 70.

This

Court

further

finds

that

the

evidence

of

independent witnesses of neighbours and wife of the complainant are consistent with the narration of the incident made in the FIR.

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Complainant-Suraj, who has no animosity with his real brother accused-Galji, has completely narrated the incident, which is well supported by the evidence rendered, including the medical evidence and the report of the FSL, which found human blood on the recovered articles, as above. 71.

In the wake of the determination made above, we do

not find any merit in the present criminal appeal and the same is accordingly dismissed.

(VINIT KUMAR MATHUR)J.

Skant/-

(DR. PUSHPENDRA SINGH BHATI)J.