1 IN THE HIGH COURT OF JUDICATUARE FOR RAJASTHAN AT JODHPUR. JUDGMENT Prabhu Lal & anr. vs. The State of Raj. D.B. Criminal Jail Appeal No.88/2004 against the judgment dated 19.7.2003 passed by the learned Additional Sessions Judge (Fast Track) Bhilwara in Sessions Case No.125/2003. Date of Judgment: March 19 ,2008. PRESENT HON'BLE MR. PRAKASH TATIA, J. HON'BLE MR. BHANWAROO KHAN,J. Mr. P.C. Solanki ,Amicus Curiae for the appellant. Mr. J.P.S. Choudhary,P.P. for the State. ... BY THE COURT( Per Hon'ble Mr.Tatia,J): This Jail Appeal has been preferred to challenge the judgment and order dated 19.7.2003 by which the appellant Prabhu Lal has been convicted under Section 302, IPC and has been sentenced to undergo life imprisonment and a fine of Rs.1000/- and in default thereof, to undergo three months' rigorous imprisonment. He has been convicted for offences under Sections 2 342 and 323 IPC and has been sentenced to one year for each offence. The appellant Prabhu Lal's wife Muli has also been convicted under Section 342 and 323 IPC and has been sentenced to under go one year's rigorous imprisonment in both the offences. It appears that the accused Muli already has undergone the entire sentence and, therefore, jail appeal has been preferred only by appellant Prabhu Lal. As per the facts stated int he FIR Ex.P.8, complainant Smt. Nandu w/o Bhanwar Lal Nandu had one daughter Smt. Sarju, who married to Ram Kishan r/o Karundi. This marriage was nata marriage. Since Smt.Nandu had no son, therefore, her daughter and daughter's husband Ram Kishan used to live in the house of Smt. Nandu at village Kama and Smt. Nandu and her husband were living in village Makrodi. Smt. Sarju's daughter Vimla was married to Shanti Lal s/o Prabhu r/o Kama. Said Vimla went in nata marriage with Ghisa Bheel about 2-3 months before the time of incident. Shanti Lal and his father Prabhu appellant had doubt that Vimla was kept in nata with connivance of complainant's family members and, therefore, Shanti Lal and Prabhu Lal used to quarrel with the complainant's daughter Smt.Sarju. They also demanded 3 that either bring Vimla back and handed over to Shanti Lal or give money in consideration thereof. Two days ago, Smt. Sarju came to her mother Smt. Nandu at Makrodi and told complainant that Prabhu's family members are quarreling with her so come with her to her village so that dispute may be settled. On the request of Smt. Sarju, the complainant and her husband Bhanwar Lal along with their daughter Smt. Sarju went to the village Kama on the fateful day where when they were passing through house of one Kana Bheel, Prabhu Lal, Shanti Lal(minor) and Prabhu Lal's wife Muli came with lathis and started beating complainant's husband Bhanwar Lal. When complainant Smt.Nandu and her daughter Smt. Sarju tried to save Bhanwar Lal, some injuries were also inflicted on complainant and her daughter Smt. Sarju. After hearing the voice of quarrel, Badri Bheel, Ramdeo Bheel and Nandu Bheel came on the spot and intervened. As per the facts stated in the FIR, Prabhu Lal suffered injuries in head and Shanti Lal inflicted injury on the leg of the complainant Nandu. Muli also gave several beatings with stick. The complainant's husband Bhanwar Lal fell down and he was taken in the house of accused appellant Prabu Lal, where Bhanwar Lal was given beating again. The complainant and Sunder to save themselves, ran away from the site to their 4 house. In the morning, the complainant came to know that her husband has been killed by the accused-persons. On this FIR, Case No.93/01 under Section 323, 342 and 302, IPC was registered against accused- Prabhu Lal and his wife Muli. Smt. Sarju and the complainant Nandu were got examined by the doctor, who gave report Ex.P.24 and Ex.P.25. The body of Bhanwar Lal was taken and Panchnama was prepared. Bhanwar Lal's post- mortem was conducted by PW-5 Dr. Manish Jain, PW-17 Dr. Ladu Ram Lohiya and PW-19 Dr. Akshya Saxena. The site report was prepared and blood stained soil, Bhanwar Lal deceased's shirt and his turban were also taken and sent for FSL report. The accused were arrested and on the information(Ex.P.32) given by accused Prabu Lal, one blood stained lathi (Ex.P.34) was recovered and another lathi(Ex.P.35) was recovered on the information given by accused Muli for which Parcha Ex.P.33 was prepared. The articles were sent to FSL and the FSL report is Ex.P.37. After investigation, the challan was filed against the accused Prabhu under Sections 302, 325/34, 323 and 342, IPC, whereas challan was filed against Muli under Sections 302/34, 325/34, 323 and 342, IPC and the charges were framed accordingly and the accused denied the charges and sought trial. In total 20 witnesses were produced by the prosecution along 5 with the documentary evidence referred above. The accused persons were examined under Section 313, Cr.P.C, who denied all the allegations. However, no defence witness was produced. On 5.8.2002, an application was submitted on behalf of accused Shanti Lal stating therein that he was minor at the time of alleged date of incident and, therefore, he cannot be tried by the court of Sessions. That application was allowed by the learned trial court vide order dated 27.8.2002 and, therefore, the accused Shanti Lal was sent for trial under Juvenile Justice (Care and Protection of Children) Act, 2000. The trial court convicted accused Prabhu for offences under Sections 302, 342 and 323, IPC and exonerated from charge under Section 325, IPC. The accused Muli was convicted under Sections 323 and 342, IPC and has been acquitted from charge under Sections 302/34 and 325/34 IPC. In view of the conviction and sentences, referred above, appellant Prabhu Lal preferred this jail appeal. It appears that accused Muli has already undergone the entire sentence of one year on her conviction under Sections 342 and 323, IPC, therefore, no appeal might have been preferred by accused Muli. The learned counsel for the appellant submitted that the 6 nature of injuries clearly shows that they were inflicted only by the blunt weapon and out of six injuries inflicted on the body of deceased, four were on non-vital parts and out of two, one injury which was on the left parietal part of the victim, might have caused death of the victim Bhanwar Lal, whereas as per the witnesses produced by the prosecution, three persons attacked upon the victim and had full opportunity to inflict more injuries on vital part of the body had there been any intention to eliminate the victim Bhanwar Lal. The prosecution case is that the deceased Bhanwar Lal was given beatings by sticks and thereafter, he was taken in the house of the appellant and he was tied with the dhuni and further beatings were given. In that situation, there could not have been only six injuries on non-vital part of body of deceased Bhanwar Lal. The appellant has already been acquitted from the charge under Section 325, IPC, therefore, it appears that it was a case of only sudden fight and the appellant might have tried to frighten the victim and there was no intention of the appellant to kill the victim Bhanwar Lal. It was an accidental hit only. The learned public prosecution submitted that the case is fully proved by the oral evidence supported by the medical evidence and in the present case, the motive is also proved and, 7 therefore, there was clear intention of the accused persons to kill victim Bhanwar Lal. We considered the submissions of the learned counsel for the appellant and the learned P.P. and perused the record. PW-5 Smt.Nandu, who submitted report Ex.P.8, fully supported the prosecution case and clearly stated that there was dispute between the complainant's family and family of Prabhu Lal because of the reason that the complainant's daughter's daughter Vimla was married to Shanti Lal son of the appellant Prabhu Lal. Vimla left Shanti Lal and went in nata marriage with other. Prabhu, Shanti Lal and Prabhu Lal's wife were demanding some money for compromise. She stated that on the fateful day, her daughter Smt. Sarju came to village Makredi to bring her father victim Bhanwar Lal and her mother Smt. Nandu so that they may intervene and settle the dispute. When they dropped from the bus and were going to their house, near one Kana's house, all the accused- the appellant Prabhu, his wife Muli and son Shanti Lal (minor) attacked upon them with sticks and stones. PW-5 Smt.Nandu clearly stated that Prabhu inflicted injuries on the had of her husband Bhanwar Lal. Prabhu 's son Shanti Lal inflicted injuries on the stomach of deceased by stone. Prabhu also inflicted 8 injury by stick on the legs of the deceased and inflicted injury on the head of the witness PW-5 Smt.Nandu. Muli inflicted injury on Smt. Sarju by stick. Badri and Ramdeo and Ramdeo's wife also came to save the complainant and her family. Her statement finds support from the statement of her daughter PW-1 Smt. Sarju and independent witnesses PW-2 Smt. Bhuri, PW-3 Badri Lal, PW-4 Kanwar Lal, PW-7 Ramdeo and PW-8 Smt. Nandu w/o Ramdeo. PW-7 Ramdeo though did not support the prosecution allegations levelled against Smt. Muli and Shanti Lal but he as well as her wife PW-8 Smt. Nandu (same name as of complainant, wife of deceased Bhanwar Lal) fully supported the statement of complainant PW-5 Smt. Nandu w/o deceased Bhanwar Lal so far as inflicting injuries on Bhanwar Lal by appellant Prabhu is concerned. The above two witnesses PW-7 Ramdeo and PW-8 Smt. Nandu also corroborated the statement of PW-5 Smt. Nandu about taking of Bhanwar Lal in the house of Prabhu by accused Prabhu and Shanti Lal. They also saw the blood oozing out from the head of victim Bhanwar Lal. PW- 6 Smt. Sunder also was declared hostile but in cross-examination, she admitted that in her statement before the police (under Section161, Cr.P.C.), she gave her statement that all accused tied Bhanwar Lal with tap of dhuni and were beating Bhanwar Lal. She 9 further stated that she gave her statement that do not beat Bhanwar Lal, I will pay the settlement money. In view of above evidence of PW-1 Smt. Sarju,PW-5 Smt. Nandu, injured witness, supported by the statements of witnesses PW-2 Bhuri, PW-3 Badri Lal, PW-4 Kanwar Lal, PW-7 Ramdeo, PW-8 Smt. Nandu w/o Randeo, recovery of blood stained stick from the accused with same blood group as were found in the clothes of the deceased, the offence of inflicting injury on the body of accused by Prabhu Lal appellant is fully proved. PW-15 Dr. Manish Jain, PW-16 Dr. Ladu Ram Lohiya, PW-17 Dr. Akshya Saxena conducted the post-mortem and proved post- mortem report Ex.P.23 and clearly opined that the victim Bhanwar Lal died due to the injuries suffered by him on his parietal region and caused on the vital part with breaking of the head bone resulting into haemorrhage. In view of the above evidence, the prosecution fully proved that the victim Bhanwar Lal died because of injuries caused by accused Prabhu Lal in the manner stated above and also able to prove that there was reason for causing injuries on the body of Bhanwar Lal by Prabhu Lal and his wife Smt. Muli. All the witnesses clearly stated that the victim was tied with 10 the rope of dhuni and thereby before the victim Bhanwar Lal was killed, he was wrongfully confined by appellant Prabhu Lal and another accused Muli (whose appeal is not before us, as has not been preferred). The other injuries of simple nature, were also inflicted by Prabhu Lal, are also fully proved and, therefore, he has been rightly convicted by the trial court under Sections 342 and 323, IPC. The next question is whether appellant Prabhu Lal has been rightly convicted under Section 302, IPC or it was a case falling under any of the parts of Section 304, IPC. It appears from the prosecution story that Smt.Sarju went to bring her mother and father to village and Smt.Sarju, deceased Bhanwar Lal and Bhanwar Lal's wife dropped down from the bus and were going to their house in the village and at that time, the accused-persons attacked upon all the above three victims. There is no evidence that the accused and his family members had knowledge that the complainant's family members will be coming to village by bus and will pass through the way so that they may prepare plan to kill any of the victims. It appears that the incident occurred only in some quarrel between the two families. The injuries on the body of the 11 deceased Bhanwar Lal were from the sticks (lathis) and there are two injuries on the head of the deceased, which according to the prosecution witnesses, were inflicted when the victim was on the way and he was taken in the house of the appellant and his legs and hands were tied, yet no injury on any vital part of the body was inflicted by the accused, therefore, it appears that the injuries were inflicted by Prabu Lal on Bhanwar Lal to frighten him and his family members so that they may give the compromise money in settlement of dispute of Vimla's going in nata marriage and in that effort, some injuries were inflicted but without any intention to cause death. Therefore, the appellant's conviction under Section 302, IPC cannot be sustained and is altered to conviction under Section 304 Part II, IPC. The convictions under Sections 342 and 323, IPC are maintained and the sentences awarded under Sections 342 and 323, IPC are upheld. In view of the above, the appeal of the appellant is partly allowed. The conviction of the appellant Prabhu Lal under Section 302, IPC is set aside and he is acquitted from the charge under Section 302, IPC but he is convicted under Section 304 Part II, IPC. The appellant shall undergo sentence for 10 years' rigorous 12 imprisonment and a fine of Rs.1000/- is imposed and in default of payment of fine, to further undergo three months' rigorous imprisonment. The convictions and sentences awarded under Sections 342 and 323, IPC are maintained. ( BHANWAROO KHAN) ,J. (PRAKASH TATIA),J. mlt.