1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR. J U D G M E N T SHANKER & OTHERS. V. THE STATE OF RAJASTHAN. D. B. CRIMINAL APPEAL NO. 805/2002 Under Section 374 (2), Cr.P.C.,against the Judgment dated 07-09-2002 , passed by Miss Anuradha Sharma, RHJS, the learned Additional Sessions Judge, Banswara in Sessions Case No.94/2001. DATE OF JUDGMENT :::: 08-08-2007 PRESENT HON'BLE MR. JUSTICE BHAGWATI PRASAD HON'BLE MR. JUSTICE MUNISHWAR NATH BHANDARI Mr. Ranjeet Joshi, for Appellants. Mr. J.P.S.Choudhary, Public Prosecutor. BY THE COURT: (PER HON'BLE BHANDARI, J.):- This appeal is preferred by three accused namely, Shanker, Ghulia and Smt.Thawari against the judgment dated 2 07-09-2002 passed by the Additional Sessions Judge, Banswara in Sessions Case No.94/2001. During the pendency of the appeal, accused Thawari died on 21-03-2005. Thus, her appeal was dismissed as abated. This appeal is now on behalf of two appellants. Facts giving rise to the present appeal are that Complainant Bapulal r/o. Kanthav Majra Khanpada along with his mother Smt. Lad lodged First Information Report on 04.03.2001 in Police Station, Khamera. In the Report, complainant stated that he and his mother went for cutting a wheat crop, leaving behind deceased Gautam and brother Mohanlal at their residence. At about 2.00 p.m., Mohan and his uncle Rangji informed that Shanker, Thawari and Dhuliya fought with his father, causing death. After receipt of information, they went to the place of Sarpanch. However, when he was not available, the matter was reported to the Police. It was stated that the incident took place when the complainant and his father went to Hand Pump along with their oxes. It was further stated that in last 8-10 years, his father was doubting on Shanker for illicit relationship with his mother and, therefore, they were not having talking terms with Shanker and the cases were pending between them. The said report was registered under Section 302 read with Section 34 of IPC, bearing FIR No.50/2001. Police conducted investigation and thereupon 3 submitted challan before the Judicial Magistrate, First Class, Ghatol, from where the case was committed to the Sessions Court, Banswara. The trial Court framed charges vide its order dated 12.07.2001 and the same were read over to the accused, who denied charges which were framed under Section 302 or 302 read with Section 34 of IPC. Accused claimed trial. During trial, prosecution produced eight witnesses and exhibited 9 documents. In defense, five documents were exhibited and the statements of the accused were recorded under Section 313, Cr.P.C. In the statements under Section 313, Cr.P.C., accused denied allegations and stated that are falsely implicated out of dispute. Trial Court convicted accused Shanker under Section 302 and accused Thawari and Dhuliya under Section 302/34 of IPC. Accused Shanker was punished with the life imprisonment and penalty of Rs.5,000/-. Accused Dhuliya and Thawari were punished with a life imprisonment and penalty of Rs.5,000/- each, in default to serve one year's rigorous imprisonment. Learned counsel appearing for the appellants urged that in the First Information Report, complainant has not named any allegation against Shanker that he throttled the deceased Gautam. He has further submitted that aforesaid fact was 4 developed by prosecution at a later stage. Thus, story of the prosecution cannot be believed. Hence it was prayed that accused were wrongly convicted and sentenced. It was further argued that there exists no allegation against Dhuliya, so as to convict him under Section 302/34 of IPC. Thus, conviction and sentence against Dhulia deserve to be set aside. Per contra, learned Public Prosecutor submitted that when FIR is lodged, it is not necessary that minute fact pertaining to the incident is required to be stated, at times when the party is under sufferance, minute facts may not be stated. The First Information Report otherwise contains facts regarding involvement of key accused Shanker, Dhuliya and Thawari. Therefore, it cannot be said that merely for the reason that one fact is missing from the FIR, it demolishes prosecution's case. It was further submitted that Dhuliya was equally involved in the matter and thus rightly being convicted under Section 302/34 of IPC. We have heard rival submissions of the learned counsel for the parties and carefully scanned the record. The trial Court considered statement of eye witness Mohanlal, who had categorically stated that incident took place near Hand Pump when accused – Smt.Thawari, Dhulia and Shanker, all of a sudden, attacked on deceased Gautam. PW 6 Mohanlal further stated that Smt. Thawari first attacked deceased, whereas 5 Dhuliya hit deceased by his legs. Allegation against Shanker was that he throttled the deceased. When said witness shouted, Varja and his uncle Rakma came on the place of occurrence and, at that time, all the three accused ran away. In cross- examination, said witness maintained his statement. PW 5 Rakma and PW 2 Smt.Varja supported statement of Mohan Lal as both the witnesses visited scene of occurrence immediately, after hearing shout of Mohan Lal. PW 1 Dr.Suman stated that he was a member of Medical Board which conducted Post Mortem and they had prepared Post Mortem Report. In his opinion, deceased Gautam died die to asphyxia by throttling . Ex.P-1 Post Mortem Report shows that cause of death of the deceased was asphyxia by throttling, duration of the death was 2 to 24 hours. The date of Post Mortem Report is 5.3.1001, whereas the date of occurrence is 4.3.2001. In the statement under Section 313, Cr.P.C., accused stated nothing but show enmity between two parties and thereby attributed allegation of their false implication. The First Information Report was made complainant Bapulal who is not eye witness as his brother Mohan Lal was present at the place of occurrence who is otherwise, a eye witness. Thus, Bapulal reported the matter to the police, as per the statement of Mohan Lal and it may be for that reason that 6 minute details of the occurrence could not be reported, but the fact of involvement of three accused and enmity between the two parties has been stated in the First Information Report. Eye witness Mohan Lal in his statement as PW 6 stated about the occurrence when clear allegations are attributed against three accused, out of which allegation against Dhuliya is beating his father by legs. Allegation against Shanker Lal is of throttling accused. Thus, eye witness has clearly stated the occurrence and the case could not be demolished in the cross- examination. The opinion of Doctor and Post Mortem Report clearly indicates that the deceased died asphyxia from throttling. Since act of throttling was caused by Shanker Lal, hence finding of the trial Court and conviction of said accused under Section 302 is based on evidence produced by the prosecution. Minute discrepancy in the FIR cannot demolish prosecution case, therefore, we are not impressed by the arguments of the learned counsel for the appellants. Thus, this case calls for no interference, so far as the conviction and sentence of accused Shanker Lal is concerned. Since Smt.Thawari is dead and the allegation against Dhulia is that he hit deceased by legs, however, there is no allegation against said accused to have attributed any injury causing death of deceased Gautam. Thus, his case, at the best, falls under Section 323 of IPC. The conviction of accused Dhuliya 7 under Section 302 read with Section 34 of IPC, thus cannot be maintained. The conviction and sentence of accused Dhuliya under Section 302/34, IPC, is thus set aside. The said accused is convicted under Section 323 of IPC and is punished to the imprisonment already undergone by him. The said accused was released on bail vide order dated 3.3.2002.Thus, his personal bonds and sureties are cancelled. The appeal of appellant Dhuliya is partly allowed, whereas the appeal of appellant Shanker Lal is dismissed. (MUNISHWARNATH BHANDARI),J. (BHAGWATI PRASAD),J. Scd.