-1- IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR J U D G M E N T Rupa Vs. State of Rajasthan (D.B. CRIMINAL APPEAL NO.423/2002) D.B. Criminal Appeal under Section 374 Cr.P.C. against the judgment dated 7.2.2002 passed by the Additional Sessions Judge (Fast Track), Chittorgarh in Sessions Case No.108/2001. *** Date of Judgment :: 27.3.2008 P R E S E N T HON'BLE MR.JUSTICE PRAKASH TATIA HON'BLE MR.JUSTICE BHANWAROO KHAN Mr. P.R. Choudhary, for the appellant. Mr. J.P.S. Choudhary,Public Prosecutor BY THE COURT (PER HON'BLE MR.B.KHAN J.) : An oral report lodged by informant Kalu Ram set the police of Police Station, Salamgarh, District Chittorgarh in motion, who after investigation submitted challan against the appellant Rupa and Bhanwar Lal for the offence under Sections 302 and 323/34 I.P.C. before the Additional Sessions Judge (Fast Track), Pratapgarh by which accused Rupa was -2- convicted vide judgment dated 7.2.2002 for the offence under Sections 302 and 323/34 I.P.C. and sentenced to undergo life imprisonment with a fine of Rs.500/-; in default of payment of fine to further undergo 1 month's rigorous imprisonment and also 1 year's rigorous imprisonment with a fine of Rs.500/-; in default of payment of fine to further undergo 1 year's rigorous imprisonment respectively, against which accused Rupa has preferred this appeal. The other accused Bhanwar Lal expired during the pendency of trial against whom the proceedings were dropped by the trial court. Briefly stated the facts are that on 24.6.2000 at about 8.15 a.m., an oral report by Kalu Ram was lodged in Police Station stating inter-alia that between the intervening night of 23/24.6.2000 at about 2.00 a.m. Lalu son of Bagdi Ram informed him at his residence that when he along with Rameshwar, Mangu and Ganesh were sleeping near 'Ninor pond' then at about 1.00 a.m., 3-4 people having wrapped their faces with cloth came armed with 'lathies' and 'sword' and started beating Rameshwar. All the three he including Mangu and Ganesh out of fear ran away from there and were also chased by these people. Rameshwar received a knife injury and he is lying near the pond. On this information he along with Sarpanch Fakru, Deva, Gopal, Puna, Khushal went on the spot and found that Rameshwar has already died because of the injury -3- received. On this information, a case under Section 302/34 I.P.C. was registered and after investigation challan was filed. The accused-appellant denied the charges levelled against him under Sections 302, 323/34 I.P.C. and claimed for trial. The prosecution in all produced 20 witnesses and got exhibited documents Ex.-P/1 to Ex.-P/24. The trial court after evaluating the entire oral as well as documentary evidence and relying on the evidence produced convicted and sentenced the accused for the offence charged. Both the parties were heard. The entire record was gone through. The learned counsel for the accused- appellant pleaded that there is only single eye- witness Mangu of the occurrence, whose statement as per his deposition cannot be relied upon as it is full of contradictions, infirmities and improvements, which also lacks complete corroboration from the independent witness. There is nothing against the accused to link him with the commission of crime. The recovery of knife alleged to have been recovered at the instance of accused-Rupa does not inspite confidence because as per the statement of PW-16 -4- Madhav Pal Singh, the police recovered the knife from the site itself, hence, the recovery also becomes doubtful. Except these two testimonies there is nothing against the accused which links him with the commission of crime. The learned trial court relying on hearsay evidence and also on the recovery, has wrongly convicted the accused. The learned counsel for the appellant also pleaded that there is only single injury on the person of deceased. The accused did not intend the cause death, hence, the case is not covered under Section 302 I.P.C., but at best it can go only upto offence under Section 304 Part-II I.P.C. Per contra, learned Public Prosecutor pleaded that there is plenty of evidence available on record, which links the accused for the commission of the offence charged. The number of witnesses are not to be counted, but they are to be weighed. The single eye- witness is trustworthy and inspire confidence can safely be relied if there is corroboration from other testimony which can be found in the instant case. PW- 16 Madhav Pal Singh is not the witness of site memo so his testimony about recovery of knife cannot be demolished. The witnesses who immediately thereafter informed to PW-11 Kalu, who has lodged the report has stated whatever information was tendered to him by Lalu. Mangu also went on the spot along with others immediately during night and found that deceased Rameshwar lying in the pond. The evidence produced by -5- the prosecution links as the prosecution has recovered knife which bears the blood group matching the deceased which was found on the clothes of deceased and taken into possession by the Investigating Officer. The eye-witness PW-13 Mangu categorically stated that about the role played by the accused- appellant Rupra in inflicting the injury, which is by sharp edged weapon and as per the statement of PW-10 Dr. K.C. Meena, the inflicted injury on the person of deceased was sufficient in the ordinary course of nature to cause death, hence, the impugned judgment does not require any interference and the accused- appellant has rightly been convicted. It is true that single eye-witness is PW-13 Mangu, who has stated that during intervening night on 23/24.6.2000, he along with Rameshwar, Ganesh, Lalu were sleeping on the pond. Before sleeping, after having their dinner which was brought by Lalu from the residence of Rameshwar, they both went for a walk and during that they found two persons standing on the wall of the pond. Rameshwar asked them to go which led to scuffle in between Rupa and Rameshwar. He and the other person who was with Rupa intervened. Afterwards, he and Rameshwar returned from the walk and went for sleep. At about 1-1/2 a.m. Bhanwar Lal and Rupa gave a knife injury on his chest. He, Lalu and Ganesh were standing, but both accused when chased them, they ran away from there. The other eye-witness of incident -6- PW-20 Lalu ofcourse has corroborated about the presence of all the witnesses, but as per his version during night when he heard the incessant noise of fighting, he ran away from the spot. The third eye- witness of the incident Ganesh was not produced by the prosecution, so the only eye-witness of the incident is PW-13 Mangu who has narrated what he has seen. In his cross-examination nothing adverse to the prosecution story has come out. Alongwith this statement of PW-15 Prathvi Singh, Investigating Officer reveals that accused Rupa while in custody gave an information Ex.-P/23 about the knife and the same was recovered at the instance of accused Rupa through Ex.-P/1 recovery memo. The Forensic Report Ex.-P/24 clearly points out that 'baniyan' of deceased which was taken in possession by the police by PW-19 through Ex.-P/7 bears blood group “A” of the deceased and same blood group “A” was found on the knife recovered at the instance of accused Rupa. The statement of eye-witness the recovery of knife and also the clothes of the deceased, the report of Forensic Report clearly proved that the knife which was recovered was used in inflicting the injury on the person of the deceased and bears the same blood group “A” which was found to be of the deceased as per report on the clothes of the deceased. In these circumstances, it hardly matter that the other witnesses have not testified in support of what PW-13, -7- the eye-witness had deposed. The testimony so produced is reliable and trustworthy. No infirmity, inconsistencies which can be said to be fatal so as to demolish the prosecution case, has been elicited from the testimony produced. The postmortem report Ex.-P/16 prepared by PW-10 Dr. K.C. Meena reveals the injury which are as under :- “Stab wound : on right mid chest. Length was 2cm. The maximum width at centre was 1cm. The wound was 4cm. from mid line near right nipple and 16cm. below right collar bone. Margin was sharp, clean regular. A track is established on right anterior thoracic wall passes cutting 4th rib through mid Lobe of Lung to depth 6cm. A right haemorthorax of 300 ml. about blood is present Ante mortem would.” It is true that the deceased has received a single injury on his person. The nature of injury indeed is very serious and was given with very great force on a most vital part of the body namely Chest. Further the doctor also opined that as a result of the injury inflicted by the accused a track is established on right anterior thoracic wall passes cutting 4th rib -8- through mid lobe of Lung to depth 6 cm. The stab wound given with such great force as per opinion of doctor, was sufficient to cause death in the ordinary course of nature. It is true that if there is single injury caused accidentally or unintentionally, then the case falls under Section 304 Part-II I.P.C., but in 1980 SCC (Cri) 694 (Om Prakash Vs. State of Harayana), (1981) 4 SCC 484 (Randhir Singh alias Dhire Vs. State of Punjab), A.I.R.1972 SC page 955 (Chand & Ors. Vs. The State of U.P.), A.I.R. 1968 SC page 1390 (Laxman Kalu Nikalje Vs. The State of Maharashtra) and A.I.R. 1983 SC page 274 (State of Assam Vs. Mafizuddin Ahmed), it has been held by the Apex Court that intention to inflict the particular injury, which in the ordinary course of nature was sufficient to cause death, must be present in particular case to cover the case under Section 302 I.P.C. In the light of these observation and from the evidence rendered by the prosecution, the nature of injury, the statement of doctor and inflicted injury on the chest with great force reveals that the accused intended to cause the said injury which was neither accidental nor unintentional and the accused intended specifically to cause such chest injury with force which resulted ultimately in the death of deceased Rameshwar. The inference of the accused can be gathered from the conduct of the accused and also seriousness of the injury received by the deceased. -9- The cumulative effect of all these is that the prosecution has proved the offence under Section 300 thirdly and the case is squarely covered by the decision given in Virsa Singh Vs. State of Punjab (AIR 1958 SC 465). From the foregoing discussion and conclusion, it is found that the learned trial court while relying on the evidence produced by the prosecution has rightly convicted the accused and has committed no illegality and irregularity in doing so. That being the position the appeal filed by the appellant deserves to be dismissed. Accordingly, the appeal filed by the appellant-Rupa is dismissed. The accused is already in jail, he shall serve out the remaining part of his sentence. (BHANWAROO KHAN) J. (PRAKASH TATIA) J. RM/-