1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR. JUDGMENT Bhoja vs. State of Rajasthan D.B.Criminal Appeal No. 814/2005 against the judgment and order dated 9.8.2005 passed by the learned Addl. Sessions Judge(Fast Track), No.1, Bhilwara in Sessions Case No. 3/2005. Date of Judgment : December 24, 2010 PRESENT HON'BLE Mr. PRAKASH TATIA,J. HON'BLE Dr. VINEET KOTHARI,J. Mr. Anil Kaviraj for the appellant. Mr. K.R. Bishnoi, Public Prosecutor for the State. BY THE COURT: (Per Hon'ble Tatia,J.) This D.B. Criminal Appeal has been preferred by the accused-appellant Bhola Gurjar who has been convicted by the court of Addl. Sessions Judge (Fast Track) No.1, Bhilwara in Sessions Case No.3/2005 by judgment and order dated 9.8.2005 and has been sentenced to undergo life imprisonment for committing offence punishable under Section 302, IPC with fine of Rs.2000/-, in default thereof, to undergo two months' simple imprisonment. As per the prosecution case, on 12.12.2004 at 5.15 p.m., the complainant Bholu s/o Gopi lodged the oral report that today in the morning at 9 a.m., he and his son Suresh 2 was at their residence. His wife Badu went to one Bara to took out the corn from the crop. From their, the complainant heard some voices of quarrel which was going on between complainant's (cousin) brother Narayan's wife Jeti and complainant's wife and Jeti was scolding the complainant's wife that her daughter took away some sticks from her fence. Hearing the voices of the quarrel, the complainant' son (Suresh) and the complainant rushed towards the place of quarrel and during this quarrel, the accused-appellant Bhoja inflicted one injury on the head of complainant's wife by one stick. The complainant's wife fell down and went in unconsciousness . The complainant asked the appellant Bhoja why he has inflicted the injury on the complainant's wife but the accused did not reply and left the place. According to the complainant, he took his wife for treatment at (village) Dhamaniya and thereafter to Mandalgarh. However, because of the deterioration of condition of the victim Badu, he started for hospital at Kota. On the way Badu died and she has been brought back to the village. It is stated that due to shock, he could not come to the police station forthwith and now he is lodging the FIR. On the basis of this, a criminal case No.143/05 under Section 302, IPC was registered and site was inspected. The site map was prepared after recording formal FIR Ex.P.2. The Panchnama of the body of the victim Badu was prepared and pieces of broken bangles were recovered from 3 the spot. The weapon of offence, one stick, was also recovered. The map and site report for the place of recovery was also prepared. Body was sent for post-mortem and the post-mortem report was obtained. The accused-appellant was arrested on 15.12.2004 vide arrest memo Ex.P.10. The statements of various witnesses were recorded and after completion of the investigation, the challan was filed in the court. In trial court, charge under Section 302, IPC was framed against the accused which was denied by the accused-appellant and he sought trial. In trial, the prosecution produced total 17 witnesses and 11 documents. The accused was examined under Section 313, Cr.P.C., who stated that the evidence against him is false, however, he did not produce any evidence in defence. The trial court on the basis of oral statements of the witnesses supported by the medical evidence and recovery of the stick at the instance of the appellant, convicted the appellant for committing offence punishable under Section 302, IPC and sentenced him accordingly. Hence this appeal has been preferred by the appellant. 4 The learned counsel for the appellant submitted that in fact there was no eye-witness to the incident and as per the complainant PW-1 Bholu himself, he was in his house when incident occurred. He said that his son Suresh reached first and thereafter the complainant reached on the spot. Suresh (PW-8) was though examined in the court but he is a child witness of the age of 13 years and is interested witness and can be tutored and same is the position with PW-9 Sugna, who is also child witness and daughter of deceased. According to the learned counsel for the appellant, Sugna was subsequently planted as witness and her name is not mentioned in the report lodged by the complainant(Ex.P.1). The name of other witness PW-3 Bheru Lal is also not mentioned in the report (Ex.P.1). It is also submitted that even if prosecution case is accepted to be true that the incident occurred on spur of moment and in trivial dispute, a single injury was inflicted and that blow might have went wrong and may have hit on the head of the victim but neither there was any motive nor there could have been any intention of the appellant to eliminate the victim Badu. It is submitted that the learned trial court has not considered this aspect of the matter and reached to the conclusion that it was case falling under Section 302, IPC without examining the legal position and convicted the appellant ignoring the other parts of Section 304 IPC. It is also submitted that if there would have been any intention to kill 5 the victim then there would have been more injuries on the body of the deceased. It is also submitted that the victim did not die instantly which is proved from the evidence of the doctors who referred the victim to other hospitals. Therefore, the victim may have died due to not providing the treatment in time. According to the learned counsel for the appellant, in totality of the facts of the case, the conviction could not have been beyond Section 304 Part II, IPC. The learned Public Prosecutor drew our attention to the statements of the witnesses and submitted that the witness PW-1 Bholu(complainant), PW-8 Suresh and PW-9 Sugna are the eye-witnesses and PW-3 Bherun Lal reached on the spot immediately after the incident and clearly stated that he asked the victim who inflicted injury, then the victim stated that her husband's elder brother inflicted injury. PW-3 Bheru Lal found the injury immediately after the incident on the head of the victim and he took the victim to the hospital. The doctors have also opined that the victim died because of that injury. We considered the submissions of the learned counsel for the appellant and the learned public prosecutor for the State and perused the record. The facts show that the incident occurred in the 6 morning at 9.15 a.m. on 12.12.2004 and as per the complainant(husband of the deceased), he immediately reached on the spot after hearing voices of quarrel between the victim with wife of Bhoja-the appellant. PW-1 Bholu clearly stated that he saw the appellant inflicting injury upon the victim and that too was on the side of the head and his wife-victim fell down instantly. The complainant was cross-examined thoroughly but nothing came from the cross-examination so as to cast doubt on the credibility of the witness. He appears to be trustworthy witness and his evidence is supported by the evidence of PW-8 Suresh. PW-8 Suresh was of the age of 13 years when his statement was recorded. He gave the details how the event took place and clearly stated that when the appellant inflicted injury upon his mother, he was just 10-15 ft. away from his mother. He also stated that the appellant ran immediately thereafter. Hearing voices, Sarpanch Durga Shanker came on the spot. In cross-examination PW-8 Suresh denied the suggestion that the place of incident was away 200-300 ft. from the house of the complainant as well as of Suresh. The evidence of PW-1 Bholu(complainant) and PW-8 Suresh is further corroborated by the statement of PW-9 Sugna, a child witness. The presence of these two minor children on the spot cannot be doubted because the incident occurred just near the houses of these witnesses. 7 PW-3 Bheru Lal Gurjar stated that at about 9 a.m., he heard voice of quarreling and reached on the spot and found the appellant running away with one stick in his hand. He found the victim lying on the spot. This witness has also been cross-examined in detail but nothing came out from his cross-examination so as to cast any doubt on the credibility of this witness also. The victim was taken to the Public Health Centre, Dhamaniya immediately and Male Nurse Raj Kumar Swarnkar (PW-2) stated that near about 10 a.m., one lady with Sarpanch of the village with one another person, was brought in injured condition and when he examined the lady, he found Low B.P. of the lady. He advised them to go to Mandalgarh, upon which the lady was taken on motor cycle to Mandalgarh and subsequently he heard that the lady died. In cross-examination, he stated that he did not see any external injury at that time, however, that lady's B.P. was low and she vomited once. It appears that PW-2 Raj Kumar Swarnkar was also Male Nurse and he only advised that the victim may be taken for better treatment. PW-5 Dr. Dinesh Gautam was Health Officer in the Health Centre, Mandalgarh and deposed that Sarpanch of village came with one lady for treatment and that lady was victim Badu. Her husband was also with them. Badu had injury on her head and she was given primary treatment and was 8 referred for higher hospital. At Mandalgarh drip was also given to the victim. PW-4 Dr. Khan Ansar and PW-16 Dr. Rakesh Kulshretha were the Members of the Medical Board and both have been produced by the prosecution. Both the doctors have stated that the victim had injury on the head measuring 6 cms. X 4 cms and this injury was from blunt object. The bones of head were already broken. They proved the post-mortem report (Ex.P.9) and their signatures on the medical report and opined that that single injury was sufficient to cause death. In view of the statements of PW-2 Raj Kumar Swarnkar, Male Nurse, PW-5 Dr. Dinesh Gautam, PW-4 Dr. Khan Ansar and PW-16 Dr. Rakesh Kulshrestha, it is proved that immediately after the incident at 9.30 a.m., the victim was taken to these persons for treatment and there was no time gap in reaching to the immediate available facility of the treatment. The injury was ante-mortem and was sufficient to cause death in ordinary course. The injury was on the vital part of the body of the victim. Therefore, from the evidence discussed above, it is clear that the appellant inflicted injury by one stick on the head of victim Badu on her head resulting into grievous 9 injury and fracture in the head and in spite of making efforts by the complainant and other persons and the doctors, she could not be saved. Therefore, the learned trial court was right in holding the appellant guilty for inflicting injury upon the victim as well as causing death but so far as intention of the appellant to cause the death of the victim is concerned, we do not find any material evidence from the circumstances and the statements of the witnesses. As per the complainant himself, the ladies were quarreling. The accused wife's was scolding the victim only because of the reason that according to her, the daughter of the victim took away some sticks from the fence of the appellant and there was no other dispute. Even as per the prosecution case, the grievance of the appellant and his wife could have been against the daughter of the victim and not against the victim herself and, therefore, also there could not have been any intention of the appellant to kill the victim, apart from the fact that merely because of this trivial dispute, inference can only be drawn that the appellant may have tried to inflict injury upon the victim but without any intention to kill her. It appears that during this quarrel, the appellant had hit a blow by stick of 2- 2-1/2 ft. and it went to hurt on the head of the victim. It is true that the victim was knowing it well that the injury on the head may cause death also but from the evidence available on record, no inference can be drawn that the appellant remotely could 10 have any intention to kill the lady for such a trivial reason. Therefore, the offence committed by the appellant cannot fall beyond the scope of Section 304 Part II, IPC and, therefore, his conviction under Section 302, IPC cannot be sustained. The conviction of the appellant is altered to conviction under Section 304 Part II, IPC, in place of under Section 302, IPC. The accused was arrested on 15.12.2004 and since then he is behind the bar and, therefore, he has completed sentence of more than six years by now. In the facts of the case, in our opinion, sentence suffered by the appellant is sufficient punishment for commission of offence under Section 304 Part II, IPC and, therefore, his sentence is reduced to sentence already undergone by him. In view of the above, the appeal of the appellant is partly allowed, his conviction under Section 302, IPC is set aside and he is convicted for committing offence punishable under Section 304 Part II, IPC and his sentence is reduced to the sentence already undergone by him. In view of the above the appellant may be released forthwith, if not needed in any other case. ( VINEET KOTHARI),J. ( PRAKASH TATIA),J. mlt.