Dismissed

Nizambaksh v. State of Rajasthan through Pp.

Rajasthan HC20 Nov 2018CRLA/800/2012

Case brief

AI extract

What is this about?

The High Court dismissed the criminal appeal by the appellant accused against conviction and sentence for murder and arms offenses. The court held that eyewitness testimony corroborated by medical evidence, recovery of a blood-stained knife, and prior motive established the conspiracy required for murder.

What did the court decide?

Appeal dismissed; original judgment of conviction and sentence affirmed.

Nizambaksh Vs State of Rajasthan through Pp. — Murder and Culpable Homicide | Rajasthan HC (2018)

¶1

HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR

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D.B. Criminal Appeal No. 800/2012

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¶8

For Appellant(s) : Mr. N.A. Naqvi, Sr. Advocate with Mr. Nawab Ali Rathore For Respondent(s) : Ms. Sonia Shandilya, PP for State

¶9

HON'BLE MR. JUSTICE MUNISHWAR NATH BHANDARI HON'BLE MR. JUSTICE BANWARI LAL SHARMA

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Judgment

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20/11/2018

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(Per HON'BLE MR. JUSTICE BANWARI LAL SHARMA)

¶13

This D.B. criminal appeal is preferred by the appellantaccused against the impugned judgment of conviction and order of sentence dated 22.6.2012, passed by learned Additional Sessions Judge (Fast Track) No.1, Ajmer, in Sessions Case No. 30/2011 (FIR No. 38/2011, registered with Police Station- Alwar Gate, Ajmer), whereby, appellant-accused was convicted for offence punishable under Sections 302 IPC and 4/25 of the Arms Act and sentenced as under :-

¶14

Under Section 302 IPC :- life imprisonment with fine of Rs. 10,000/-, in case of default in payment of fine, to further undergo six months simple imprisonment.

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(2 of 16)

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[CRLA-800/2012]

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Under Section 4/25 of the Arms Act :- two years simple imprisonment with fine of Rs. 1,000/-, in case of default in payment of fine, to further undergo 15 days simple imprisonment.

¶18

It was also ordered that both the sentence shall run concurrently and the period for which appellant-accused remained in custody during investigation or trial, shall be set- off against the sentence of imprisonment.

¶19

The brief facts giving rise to this appeal are that an FIR bearing No. 38/2011 was registered with Police Station- Alwar Gate, Ajmer, for the offence under Section 302 IPC. It was on a written report (Ex.P-1) given by Madhu Choudhary (PW-1). It was stated that deceased- Basanti was her neighbour and they had good relations with each other. Accused Nizam Bux, a railway employee, was visiting the deceased- Basanti. The accused Nizam Bux and deceased were having some dispute for last some time. On 05.02.2011 between 11-11.30 a.m., she received a phone call from Basanti. It was informed that Nizam Bux met her at Srinagar Road and forced her to talk to him. Basanti refused to talk to accused- Nizam Bux. After some time, Basanti made second call to the complainant, informing that Nizam Bux is assaulting her. She immediately informed Constable Kishore Singh about the call and asked him to reach near Srinagar Road. The complainant then received third call from deceased informing that accused- Nizam Bux is assaulting her. She may be saved and thereafter the phone was dis-connected.

¶20

The complainant immediately reached to the place of occurrence. On the scene of occurrence, accused- Nizam Bux was causing knife blows to Basanti. In the meanwhile, Kishore Singh, Constable reached there. The accused ran away from the place of

¶21

(3 of 16)

¶22

[CRLA-800/2012]

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occurrence along with the knife. Basanti died on her way to the hospital.

¶24

After registration of the FIR, police conducted investigation and filed charge-sheet for the offence punishable under Section 302 IPC apart from Section 4/25 of the Arms Act against the appellant-accused in the court of learned Judicial Magistrate No.6, Ajmer. Since the offence under Section 302 IPC is exclusively triable by the Court of Session, therefore, learned Magistrate, after complying with the provision enshrined in Section 207 Cr.P.C., committed the case to the Court of Sessions Judge, Ajmer under Section 209 Cr.P.C. Learned Sessions Judge, vide its order dated 03.06.2011, transferred the case to the Court of learned Additional Sessions Judge (Fast Track) No.1, Ajmer (hereinafter referred to as “the trial Court”).

¶25

Learned trial Court framed charges for the offence under Sections 302 IPC and Section 4/25 of the Arms Act and same were explained to the appellant-accused. The appellant-accused denied the charges and claimed trial. To substantiate the charge, prosecution examined as many as sixteen witnesses apart from forty one documents. Thereafter, learned trial Court examined appellant-accused under Section 313 Cr.P.C wherein appellantaccused denied the incriminating evidence produced by prosecution and stated that he is innocent and has been implicated falsely in this matter.

¶26

Appellant-accused even after having an opportunity for defence evidence, didn’t produce any evidence in defence. Thereafter, learned trial Court, after hearing learned Additional Public Prosecutor and counsel for the accused, convicted and sentenced the appellant as aforesaid.

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(4 of 16)

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[CRLA-800/2012]

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Aggrieved by the judgment of conviction and order of sentence, appellant-accused preferred this appeal before this Court, which was admitted for hearing vide order dated 26^th September, 2012 and record of the trial Court was called.

¶30

From the perusal of available record, it reveals that PW-1Madhu Choudhary- complainant and eye witness stated that deceased- Basanti was residing in rented house in her neighborhood and was having good intimacy with her. Appellantaccused was an employee of Railway and used to visit her house but from past few days, there were some disputes between Nizam Bux and Basanti.

¶31

On 05.02.2011, between 11-11.30 A.M., a phone call was received by her from Basanti whereby she said that “ Jiji Nizam Bux (appellant-accused) met me at Srinagar Road and he wants to talk to me and I do not want to talk to him”. Thereafter, she talked to Nizam Bux, on which he said that he wants to sit with her and talk then I told him that she will talk at the house of her brother at Beawar. Thereafter, he dis-connected the phone.

¶32

After few minutes, Basanti again called her and said that “ Jiji he is giving beating to me”, thereafter I dis-connected the phone and called Kishore Singh, Constable at Chowki Naka Madar and told him to reach Srinagar Road and I also started to go to Srinagar Road. On the way, Basanti called her on telephone third time and, at that time, she was crying that “he is beating, save me” and the phone was disconnected. By that time, I had reached near Mridang Picture Hall and went to the place of incident and saw that Nizam Bux was inflicting knife blows to Basanti. At that time, Kishore Singh also reached there. Nizam Bux fled away alongwith the knife. Basanti was taken to the Hospital where she

¶33

(5 of 16)

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[CRLA-800/2012]

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died. She stated that Basanti was killed by Nizam Bux. She further stated that she submitted a report (Ex. P-1) at Police StationAlwar Gate, Ajmer on 05.02.2011 at 1:00 p.m. regarding this incident and proved the same.

¶36

PW-8- Constable Kishore Singh also corroborated the statement of PW-1- Madhu Choudhary and stated that on 05.02.2011, I was posted at Alwar Gate Police Station. During duty hours, one Madhu Choudhary (PW-1) called on mobile No. 9414709347 and stated that Nizam Bux was giving beating to Basanti at Srinagar Road near Mridang Picture Hall. She also requested him to reach at the place of incident as she is also reaching there. On the aforesaid phone call, I reached there where Madhu Choudhary (PW-1) was already present. One person, who was wearing yellow shawl was giving beating to a women. I saw that he was inflicting knife blows to Basanti. Thereafter, he fled away alongwith the knife. He further stated that he made a call to Police Station and Basanti was taken to hospital with Madhu Choudhary (PW-1). At that time, Basanti was unconscious and thereafter succumbed to injuries. He proved his signature on FIR (Ex. P-17).

¶37

PW-5- Madan Lal, father of deceased- Basanti, in his statement, stated that Basanti was his first child who got married with Ramesh Chand about 25 years ago in Kishangarh. Since there was a dispute between husband and wife for the last 3-4 years, therefore, she used to stay alone in Ajmer. A month before her death, she came to Merta City to meet me and told that Nizam Bux was blackmailing her and demanding Rs. 2,00,000/-. He threatened her that if his demand is not being fulfilled then she will be killed.

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(6 of 16)

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[CRLA-800/2012]

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He further stated that he himself made a report to this effect to Inspector General of Police, Ajmer and Superintendent of Police, Naguar against Nizam Bux and also supplied copy thereof to his daughter Basanti. He proved the receipt of UPC of report (Ex. P- 15) and further stated that Nizam Bux committed murder of his daughter.

¶41

PW-3- Laxman Singh, in his statement, stated that on 05.02.2011 when he was posted as A.S.I. at Police Station Alwar Gate, Ajmer, about 11:55 a.m., Constable Kishore Singh (PW-8) made a call to him and informed that at Srinagar Road, someone killed a lady by inflicting injuries with knife. After receiving the aforesaid information, I along with C.I., Gumana Ram, Head Constable- Rajaram, Constables Vinod Kumar and Ajay Singh went to the place of occurrence where C.I. Gumana Ram took blood sample vide Ex.P-2 and also recovered broken bangles of deceased from the place of incidence (Ex. P-3). Site plan (EX.-P-4) was also prepared in his presence. Thereafter, at Railway Mandal, accused- Nizam Bux was apprehended and one yellow shawl, one sharp edged knife with blood stains were recovered vide Exhibit P- 12 and 13 respectively in his presence. He also stated that inquest report (Ex. P-8) was also prepared in his presence.

¶42

PW-7- Dinesh Kumar, brother of deceased, in his statement, proved inquest report (Ex. P-8) and also stated that clothes of deceased were recovered vide Ex. P-10. Dead body of deceased was handed over to him and his brother-in-law vide Ex. P-11. Police seized original identity card of Nizam Bux issued by the Railways, UPC and carbon copy of the complaint made by deceased against the accused, a letter written by the accused on joint photo of accused and deceased vide Ex. P-5 in his presence.

¶43

(7 of 16)

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[CRLA-800/2012]

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PW-2 Ramesh Chand, husband of deceased, in his

¶46

statement, stated that he got married with Basanti in the year 1985 and since three years both were living separately. He stated that Basanti used to stay at Merta City and Ajmer. On 05.02.2011, he got a phone call and came to know that Basanti got murdered. On 06.02.2011, after postmortem, dead body of deceasedBasanti was handed-over to him. He also proved inquest report (Ex. P-8).

¶47

PW-4 Prem Singh, ASI, in his statement, stated that on 05.02.2011 he visited the place of incident from where blood sample were taken vide Ex. P-2 and broken bangles of deceased were also seized vide Ex. P-3. Site plan of place of incident (Ex. P- 4) was prepared in his presence. Thereafter, he went to search for the murderer. When we reached at Railway Mandal, a man was sitting in lawn. On asking, he told that his name is Nizam Bux to whom C.I. Gumana Ram (PW-16) interrogated and, in his presence, one yellow shawl vide Ex. P-12 and one sharp edged knife with blood stains (Ex. P-13) were recovered and also arrested the accused- Nizam Bux vide Ex. P-14.

¶48

PW-9- Virendra, in his statement, stated that he resides at Alwar Gate, Ajmer and Basanti used to stay in that colony and one person comes to meet her but he doesn’t know his name and he (Nizam Bux) generally stays in her house for 1-2 days. On 5^th or 6^th he came to Basanti’s residence in morning between 9-9:30 a.m. but, at that time, Basanti was not there. He identified appellant-accused Nizam Bux in the Court.

¶49

PW-11- Constable Jitendra Choudhary stated that he took pictures of Basanti and place of incident and proved photographs vide Exhibit P-21 to P-25 and further stated that he took printout

¶50

(8 of 16)

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[CRLA-800/2012]

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of all the call details (Ex. P-26) and handed-over to Investigating Officer.

¶53

PW-12- Head Constable Rajaram, in his statement, stated that Gumana Ram, C.I., has deposited five sealed packets marked as A,B,C,D and E to deposit it in Malkhana relating to Case No. 38/2011, which was entered in Malkhana at serial No. 26/11. He proved the copy of Malkhana register as Exhibit P-27A.

¶54

PW-13- Dr. R.K. Mathur, Medical Jurist, Jawahar Lal Nehru Hospital, Ajmer proved the postmortem report of deceasedBasanti (Ex. P-28) and stated that he found following injuries on the body of deceased :-

¶55

“1.Stab wound on the left side chest in the 5^th -6^th ICS, in midclavicular line.

¶56

2cm x 1cm x ?, obliquely placed,

¶57

cutting the 5^th & 6^th Rib, going upto upper lobe of left lung, margin clear cut.

¶58

Stab wound right side chest 3cm x 1cm in 8^th -9^th space left 3 x 1cm x ? obliquely placed, upto middle lobe

¶59

Stab wound left iliac fossa 4cm x 1cm x ? obliquely placed, clear cut margin, cutting the jejunum.

¶60

Stab wound right iliac fossa 2x1x1 cm, obliquely placed, going upto tunnel clear.

¶61

Stab wound left side butt, 3cm x 1cm x ? in the 9^th -10^th ICS, going upto lower lobe of left lung, oblique, cutting 9^th & 10^th Ribs.

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Incised wound 3cm x 1cm x 5 cm deep on the left forearm.”

¶63

He stated that the cause of death of Basanti was shock as a result of combined effect of ante mortem injury No. 1,2,3,4 and 5 caused by sharp edged weapon. He further stated that injury No. 1 to 5 individually and collectively were sufficient to cause death in ordinary course of nature.

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(9 of 16)

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[CRLA-800/2012]

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PW-14- Dr. Sumer Singh, who examined injuries of appellant-accused, stated that he found following injuries on the body of appellant-accused Nizam Bux :-

¶67

“Three abrasion on ring finger, dorsal aspects 0.25 x

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0.25cm to 0.5 x 0.5 cm.

¶69

Two abrasion on left middle finger, dorsal aspects, on

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1^st interphalangeal joint 0.25x0.5 cm & 0.5x0.5 cm.”

¶71

PW-15- ASI Kailash Chand, in his statement, stated that on 05.02.2011, when he was posted at Police Station, Alwar Gate, Ajmer and was on duty, during noon hours, Constable Kishore Singh submitted a written report of Smt. Madhu Choudhary (PW1), on which he registered FIR No. 38/2011 under Section 302 IPC.

¶72

PW-16- Gumana Ram, Investigating Officer, in his statement, stated regarding the investigation.

¶73

Learned senior counsel Mr. N.A. Naqvi, appearing on behalf of appellant, submits that eye witnesses PW-1 Madhu Choudhary and PW-8 Kishore Singh are not reliable because both of them have not stated that where the incident took place and where the accused caused injuries to deceased. He submits that as per statement of PW-1- Madhu Choudhary, she received a phone call of deceased but the call details have not been proved as required to be proved under Section 65-B of the Evidence Act and, in absence thereof, her statement cannot be relied upon and accepted.

¶74

He further submits that there are material contradictions in the statements of PW-1-Madhu Choudhary and PW-8-Kishore Singh. As per statement of PW-1- Madhu Choudhary, police had already reached before she reached at the place of incident and

¶75

(10 of 16)

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[CRLA-800/2012]

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she admitted that gallery cannot be seen from the road where incident had taken place while she has claimed that she saw the incident from the road. The place from where PW-1- Madhu Choudhary and PW-8- Kishore Singh saw the incident is not shown.

¶78

He submits that the residence of PW-1- Madhu Choudhary is at a distance of 450 Meters from the place of incident while police Check Post Madar is about 1.2 Km. away from the place of incident, therefore, it was not possible for both of them to reach immediately at the place of incident soon after receiving the call.

¶79

Further, PW-1 Madhu Choudhary, in her statement, stated that she reached prior to PW-8- Kishore Singh while Kishore Singh stated that he reached prior to PW-1 Madhu Choudhary. Therefore, their statements are not believable. He further submits that appellant was arrested on 05.02.2011 at 6:10 p.m. and, on his search at the time of arrest, nothing incriminating was recovered from appellant-accused, therefore, recovery of knife is also doubtful and cannot be relied upon.

¶80

He further submits that after discarding the statements of PW-1 Madhu Choudhary and PW-8 Kishore Singh, circumstances remain and, for the case of circumstancial evidence, motive is essential and from the prosecution evidence, there is no motive on record and the chain of circumstances is also not complete to connect the appellant-accused with the alleged crime. Not only this, presence of accused is also doubtful at the place of incidence.

¶81

He further submits that in alternate offence under Section 302 IPC is not made out rather at the most it is offence under Section 326 IPC.

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(11 of 16)

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[CRLA-800/2012]

¶84

Learned counsel relied on the judgment of the Apex Court in the case of Kalinder Bharik vs. State of H.P. reported in AIR 2000 SC 3618 and Vijay Singh And Anr. vs. State of Madhya Pradesh reported in (2014) 12 SCC 293.

¶85

Per contra, learned Public Prosecutor supported the impugned judgment and submits that there is direct evidence of independent witnesses i.e PW-1 Madhu Choudhary and PW-8 Kishore Singh, which is corroborated by the recovery of blood stained knife, place of incident and the statements of Medical Officer and Investigating Officer. Lastly, she prays for dismissal of the appeal.

¶86

We have considered rival submissions of the parties and perused the record.

¶87

It is true that the place from where Madhu Choudhary (PW1) saw the incident is not shown in site plan but, in the written report (Ex. P-1), which was proved by PW-1 Madhu Choudhary, she clearly stated that the incident took place at Srinagar Road, Ajmer, which is shown in site plan (Ex. P-4).

¶88

So far as distance of house of PW-1 Madhu Choudhary from the place of incident is concerned, from the perusal of her statement, it reveals that she did not measure the distance, rather, she stated that distance is from the gate of Court to Court room, therefore, distance is not so far. In view of above, it was not impossible for her to reach on the spot immediately.

¶89

Similarly, PW-8- Kishore Singh, in his statement, also stated that he also reached on the spot immediately, therefore, it cannot be said that it was not possible for them to reach on the spot immediately. The distance was given by these witnesses only on

¶90

(12 of 16)

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[CRLA-800/2012]

¶92

guessing, therefore, on this ground, their statements cannot be disbelieved.

¶93

When both these witnesses are eye witnesses and they, in their respective statements, stated that they saw the incident which corroborates from other evidence collected during investigation and medical evidence, therefore, they cannot be disbelieved. Further, it is not material that who reached first and who reached later. The material thing is that both of them reached at the place of incident and saw that accused was inflicting injuries to the deceased by knife.

¶94

It is true that the call details are not proved on record but when eye witnesses saw the incident themselves and their statements are reliable, in that case non-production of call details does not affect the prosecution case.

¶95

It is true that PW-8- Kishore Singh, after receiving the information from PW-1 Madhu Choudhary regarding inflicting injuries by appellant-accused to deceased- Basanti, did not inform the S.H.O. but, looking to the circumstance of the case, this fact also does not affect the prosecution case and, on this ground, the statements of PW-1 Madhu Choudhary and PW-8 Kishore Singh cannot be disbelieved.

¶96

It is also true that as per statement of PW-8- Kishore Singh, he did not try to hold the appellant-accused on the spot but from the perusal of his statement, it reveals that when he was reaching there on motorcycle, he saw that accused was inflicting injuries to deceased and, thereafter, he fled away with knife. Considering the aforesaid averments of PW-8- Kishore Singh, his statement cannot be disbelieved.

¶97

(13 of 16)

¶98

[CRLA-800/2012]

¶99

So far as motive is concerned, father of deceased- Madan Lal (PW-5), in his statement, clearly stated that about a month before the incident, deceased came to Merta where she stated that Nizam Bux, who is a Railway employee, is blackmailing her and demanding Rs. 2 lacs.

¶100

He also admitted that in this regard he made a complaint, for which, UPC (Ex. P-15) was also proved by this witness. In this regard, PW-8- Kishore Singh stated during cross- examination that inquiry was assigned to him against that appellant-accused on aforesaid complaint. Since he could not find Basanti, therefore, that inquiry was not completed. In view of above, statement of PW-5 Madan Lal corroborates with the statements of PW-8- Kishoe Singh.

¶101

Not only this, from the statements of PW-8- Kishore Singh and PW-16- Gumana Ram, it is also proved that a complaint (Ex. P-34) was filed by Basanti at S.P. Office, Ajmer, which was received at Police Station- Alwar Gate, Ajmer and the same was assigned to PW-8- Kishore Singh for inquiry, which was also proved by the statement of PW-16- Gumana Ram, wherein, the allegation of blackmailing is there by Basanti regarding demand of Rs. 2 lacs. Therefore, it cannot be said that there was no motive, rather, it proves that prior to alleged incident, appellant-accused was harassing Basanti and blackmailing her for Rs. two lacs and was also threatening her for murder. Therefore, it cannot be said that there is no motive. As per FSL report, human blood was found on the knife, which was not explained by the appellantaccused.

¶102

Considering all these facts and arguments advanced by learned counsel for the appellant-accused and considering the fact

¶103

(14 of 16)

¶104

[CRLA-800/2012]

¶105

that accused inflicted back to back five blows on vital parts of the body i.e. chest and abdomen of deceased- Basanti, which were individually as well as collectively sufficient to cause death in ordinary course of nature and it also shows that accused was knowing that his act will result into death of Basanti. Not only this, he brought the knife for committing the offence, therefore, premeditation of accused is also there.

¶106

In view of it, since there was motive and knowledge and back to back five blows were inflicted by the accused and all blows were opined as dangerous to life, therefore, it cannot be said that the alleged offence does not come in the purview of murder.

¶107

In the matter of Kalinder Bharik (supra) since none of the injuries found on person of deceased individually or collectively sufficient to cause death and the deceased- wife died because of excessive bleeding, hence, Hon’ble Supreme Court held that case is not covered by any of four clauses under Section 300 IPC and conviction of accused husband was altered to Section 304 Part II IPC.

¶108

But, in the case in hand, since there are eye witnesses and back to back five blows were inflicted by accused and each blow was opined as dangerous to life and accused reached on the spot armed with knife and prior to the incident he threatened deceased for committing murder, for which deceased made a complaint before the Superintendent of Police, therefore, the facts of present case are altogether different from the cited case.

¶109

In the matter of Vijay Singh (supra) accused armed with a ballam and another accused armed with farsa and nine other accused armed with axes surrounded informant’s father (deceased) and one of them inflicted injury on the neck of

¶110

(15 of 16)

¶111

[CRLA-800/2012]

¶112

deceased with farsa upon which he fell down. Thereafter, all accused assaulted deceased with their weapons. Accused No.1, caused an injury with a ballam near the eye of deceased and he died on the spot. Death had occurred on account of shock and excessive bleeding due to injuries caused on the person of deceased. Death had not taken place as a result of injuries specifically caused by appellants or any one of them, therefore, Hon’ble Supreme Court did not held guilty under Section 302 IPC simplicitor or with the aid of Section 34 IPC and, instead, they were convicted and sentenced the accused for offence under Section 326 IPC.

¶113

But facts of the present case are altogether different from the cited case, therefore, this judgment does not help the appellant-accused.

¶114

As observed above, since appellant-accused, prior to incident, gave threatening to deceased, thereafter, on the spot reached armed with sharp edged knife and in this regard deceased made a phone call to PW-1- Madhu Choudhary thrice and informed that accused is inflicting injuries that amounts to dying declaration of deceased and, therefore, PW-1- Madhu Chaudhary and PW-8Kishore Singh reached on the spot, they also saw that accused inflicted injuries to deceased and ran away with knife, which corroborates from the recovery of knife, which was found blood stained and medical evidence shows that each injury was opined as dangerous to life in ordinary course of nature, therefore, considering all these facts, learned trial Court convicted the appellant-accused for offence under Section 302 IPC and Section 4/25 of the Arms Act and sentenced as aforesaid, which does not require any interference by this Court. This appeal devoid of any

¶115

(16 of 16)

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[CRLA-800/2012]

¶117

merit, which is hereby dismissed and the judgment of conviction and order of sentence passed by learned trial Court is affirmed. Record of the trial Court be returned with the copy of judgment.

¶118

(BANWARI LAL SHARMA),J

¶119

(M.N. BHANDARI),J

¶120

S.Kumawat/15

Nizambaksh v. State of Rajasthan through Pp.

Case brief

What is this about?

What did the court decide?

Nizambaksh v. State of Rajasthan through Pp.

Case brief

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What did the court decide?

What the court decided

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