1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR. JUDGMENT GANGA RAM & ANR. vs. STATE OF RAJASTHAN. 1.D.B. Criminal Appeal No.842/2008 HANUMAN RAM vs. RAMCHANDRA & ANR. 2. DB Criminal Revision Petition No.185/2009 under section 374 (2) and section 397/401 Cr.P.C. against the judgment and order dated 14.11.2008 passed by the Additional Sessions Judge, (Fast Track), Parbatsar in Sessions Case No.10/2008 (03/2008). Date of Judgment: 6th August , 2010 PRESENT HON'BLE MR. JUSTICE PRAKASH TATIA HON'BLE MR. JUSTICE KAILASH CHANDRA JOSHI Mr.Mridul Jain ] Mr.Bhagat Dadhich ] for the appellants. Mr.Shaitan Singh ] Mr. K.R.Bishnoi, Public Prosecutor. Mr.Rakesh Arora ] for the complainant. Mr.Mahaveer Bishnoi ] BY THE COURT (PER HON'BLE JOSHI, J.): This order will decide DB Criminal Appeal No.842/2008 preferred by Ganga Ram and Smt. Radha Devi, as well as D.B.Criminal Revision Pet. No.185/2009, preferred by Hanuman 2 Ram complainant, against the order of the acquittal of Ramchandra. Both, this appeal and revision , arose out of the same order, and therefore, they are being decided by a common order. Appellants Ganga Ram s/o Shiv Karan by caste Jat, r/o Bhadsiya, Police Station Peelwa, District Nagaur and Smt.Radha Devi w/o Shri Ganga Ram , by caste Jat, r/o Bhadsiya, Police Station Peelwa, District Nagaur, have preferred this appeal against the judgment of conviction and order of sentence, dated 14.11.08 passed by the learned Addl. Sessions Judge (Fast Track ), Parbatsar, in sessions Case No.03/2008 and 10/2008. The learned trial Judge convicted the accused appellants under section 302/34 and section 323 of the Indian Penal Code and sentenced them as under : 1. For the commission of offence under section 302/34 IPC both the accused appellants were sentenced to undergo life imprisonment and were ordered to pay a fine of Rs.5,000/-each and in default of payment of fine, to further undergo six months' rigorous imprisonment. 3 2. For the commission of offence under section 323 IPC, both the accused appellants were sentenced to undergo six months' simple imprisonment and pay a fine of Rs.500/ - and in default of payment of fine, to further undergo one month's simple imprisonment. Both the sentences were ordered to run concurrently. The learned trial court acquitted the accused Ramchandra for the commission of offence under section 302 /34 IPC and aggrieved by that order a DB Cri. Revision Petition No.185/2009 had been preferred by the complainant. The nub of the prosecution story is that on 20.02.2007 at 04.40PM, complainant Hanuman Ram had submitted a written report at police station Peelwa, District Nagaur, stating that on that day at 10.00 AM, while he was going along with his father to his house, the accused appellants along with co- accused Ramchandra , inflicted injuries with 'sariya' and 'lathis' on his father, Kesa Ram , as a result of which, Kesa Ram sustained injuries. On the basis of the above report, a criminal case No.108/2007 under section 323 and 341 of the Indian Penal Code was registered. Lateron, on 22.09.09, the injured succumbed to the injuries and died. Therefore, the case was registered under section 302 of Indian Penal Code also and the investigation commenced. During the course of investigation, the investigating officer recorded the statements of the witnesses , prepared a site plan, 4 got the autopsy of the body done and after usual investigation, filed a challan against the accused appellants along with Ramchandra, under section 302 IPC, in the court of Addl. Chief Judicial Magistrate, Parbatsar, from where the case was committed to the court of Addl.District & Sessions Judge, Parbatsar and ultimately transferred for trial to the court of Addl. Sessions Judge ( Fast Track), Parbatsar. All the accused were charged for the commission of offence under section 302 and 323 IPC to which accused did not plead guilty and claimed to be tried. In support of the alleged charge, prosecution adduced 19 witnesses, namely, PW/1 Bhagwanaram, PW/2 Anita Meena, PW/3 Sayari Devi, PW/4 Hanumanram, PW/5 Smt.Manju Devi, PW/6 Jagdish, PW/7 Rameshwar, PW/8 Hardeen , PW/9 Rajuram, PW/10 Dr. Ramratan, PW/11 Kaluram, PW/12 Ramchandra , PW/13 Begaram, PW/14 Ramendra Singh , PW/15 Dr.Sumer Singh, PW/16 Dr.R.K.Mathur , PW/17 Narendra Singh, PW/18 Kana Ram, and PW/19 Ugamraj. The accused were asked to explain the incriminating evidence adduced by the prosecution during the course of the trial. The accused appellants produced no evidence in their defence. After hearing both the parties, the learned trial Judge, vide order dated 14.11.2008 , convicted the accused appellants Ganga Ram and Smt.Radha Devi and sentenced them as above and acquitted the accused appellants Ramchandra for the commission of offence under section 302 and 323 IPC. 5 The learned trial Judge, while convicting the accused appellants Ganga Ram and Smt. Radha Devi for the commission of offence under section 302/34 and 323 IPC , relied upon the ocular evidence of the eye witnesses as well as the documentary evidence , including the injury report of the injured and post- mortem report of the deceased Kesa Ram. Further, the acquittal of the co-accused Ramchandra was done on the ground that his presence at the scene of occurrence had not been proved. The learned trial court , while appreciating the ocular as well as the documentary evidence against the accused, framed the following points for determination:- (1) First Information Report (2) Time of incident (3) Behaviour and conduct of the witnesses (4) Contradictions in the statement of witnesses or Improvement in their statement (5) suppression of genesis of the incident, (6) interested and independent witnesses, (7) medical evidence and motive (8) reliability of defence story and (9) miscellaneous. We have perused the statement of the witnesses produced during the course of trial. 6 PW/1, Bhagwana Ram deposed that on 23.09.07 he was posted as a Head Constable at Police Station, Peelwa, District Nagaur. He was the incharge of the Police Station , Peelwa, District Nagaur and was also the incharge of the Malkhana articles. On 23.09.07, Station House Officer handed over to him three sealed packets , out of which one sealed packet was of clothes and two sealed packets were of iron rods and lathi. Out of these sealed packets, one sealed packet marked as”A” was handed over to Constable Anita Meena for depositing it to the Forensic Science Laboratory, Jodhpur and after depositing that article in Forensic Science Laboratory, Jodhpur, Anita Meena produced the receipt of that article. PW/2, Anita Meena corroborated the evidence of PW/1 Bhagvana Ram. PW/3, Sayari Devi is not an eye witness to the crime but just after the occurrence of the incident , the injured Hanuman Ram and deceased Kesa Ram reached their residence. It was then that she saw the injuries on the body of both the persons. She further deposed that she had heard about the incident from some other persons on the way. Further , in the examination-in-chief, she deposed that from a distance, she had seen all the three accused persons inflicting injuries to Kesa Ram and Hanuman Ram. She had even cried out loudly, but the accused had absconded from that place. She further deposed that when she reached her residence, the condition of her husband Kesa Ram was very serious. There were several 7 injuries on the body of her husband and blood was oozing out from places. After some time, her husband was carried in a jeep to the Bhadsiya Hospital and from there he was referred to Ajmer, where he died due to those injuries. Further, this witness also deposed about the execution of Naksa mouka Ex.P/4 of Kharda Bera and Ex.P/5 of Guwadi of her residence. While corroborating the ocular evidence of PW/3 Sayari Devi, PW/4 Hanuman Ram deposed that Radha Devi was present at Kharda Bera at 09.30- 09.45 AM and was abusing his father and mother and when they returned to their residence, Ganga Ram, Ramchandra and Radha Devi came to their residence . Ganga Ram and Radha Devi had iron rods in their hands and Ramchandra had a lathi with him. All the three accused persons started beating the deceased and Hanuman Ram. Injuries were inflicted on both his knees and on the left hand and right hand fingers. All the three accused had inflicted injuries on the body of his father also. His father had got injuries on the chest, back and on other parts of the body. Blood was oozing from the above mentioned injuries. The incident was eye witnessed by Rameshwar, Jagdish and Hardeen Ram . He had informed the police and had presented first information report Ex.P/6. He had taken his father to Bhadsiya Hospital, from where he was referred to Ajmer, where during the process of treatment, he died. He further deposed that the incident had taken place because of a land dispute. PW/5, Smt.Manju Devi, PW/6 Jagdish , PW/7 Rameshwar, 8 PW/8 Hardeen and PW/9 Raju Ram also corroborated the ocular evidence of these two witnesses. PW/10 Dr.Ram Ratan deposed that on 20.09.07 he was posted as Medical Officer Govt. Hospital Bhadsiya . On the request of Station House Officer , Peelwa, he had conducted the examination of the injuries, on the body of Hanuman s/o Kesa Ram and he observed the following 5 injuries :- (1)Abrasion 1x 0.5 cm at left hand , 1 cm distal to wrist joint (2)Abrasion 1 x 6 cm at Lt. Forearm in dorsal side (mid part) (3)Abrasion 1 x 1 cm at Lt. Knee joint region with swelling. Leg movements free (4)Abrasion 1 x 2 cm at Rt. Lower leg, 2 cm below knee joint (5) Abrasion 1x 0.5 cm at tip of 03rd Rt. Finger. He further deposed that all the injuries , except injury No.1 and 3, were simple in nature and had been caused by a blunt weapon. For injuries No.1 and 3, he advised an X-ray. The period of injury was within one hour of the examination. After perusal of X-ray plates, he found that injuries No.1 and 3 were also of simple nature. On the same day, he conducted the examination of the injuries on the body of Kesa Ram s/o Jugla Ram aged 75 years and found the following ten injuries:- (1) aggravated bruise with c/o difficulty in breathing at Lt. 9 Postero lateral aspect of thorax (back side ). (2) Bruise 1 x 2 cm with swelling at shoulder joint region . (3)lacerated wound 1 x 1x 0.5 cm at Rt.hand finger (between 2 & 3rd finger ) fresh bleeding (4)Bruise , 1 x 2 cm at Rt. Forearm dorsal side (mid) (5)Abrasion , 1 x 0.5 cm at lower leg Ft. anterior aspect (6)Bruise & swelling 1 x 2 cm at Rt.knee joint region (7)Bruise & swelling at Lt. Elbow joint, extending left mid of forearm on ventral aspect. (8)Swelling at Lt. Knee joint , c/o restricted leg movements. (9) Abrasions 1 x 0.5 x 0.5 cm at Rt. Side of face near Rt. Ear (10)Bruise , 1 x 1.5 cm at Rt. Post. aspect of thorax He further deposed that injury No.4, 5, 9 and 10 were simple in nature and for the rest of the injuries he had advised an X-ray. The injuries had occurred were within an hour of the examination of the injured. PW/11 Kalu Ram and PW/12 Ramchandra did not corroborate the evidence of the prosecution and, therefore, they were declared hostile during the course of the trial. PW/13 Begaram deposed that on 20.09.07 he was posted as Assistant Sub-Inspector at Police Station, Peelwa and on that day he had received the investigating file of criminal case No.108/2007 . He had prepared the site memo Ex.P/4 and 10 Ex.P/5 during investigation and had also recorded the statements of some of the witnesses. PW/14 Ramendra Singh was the Station House Officer of the Peelwa Police Station on the relevant date, i.e. on 20.09.07. He deposed about registration of case No.108/07 and also deposed about the investigation which he had conducted. PW/15 Dr.Sumer Singh deposed that on 22.09.07 he was posted as Medical Jurist of the J.L.N. Hospital , Ajmer and on that day, he had conducted the autopsy on the body of Kesa Ram, s/o Jugla Ram, aged 75 years, r/o Bhadsiya. This post mortem was conducted by a Medical Board and he was a member of that Board. The following 8 external injuries were observed on the dead body of Kesa Ram:- (1) Contusion 2 x 1 cm on Rt. shoulder Jt. (2) Lacerated wound stitched 1.5 cm long on Rt. Hand at interdigital cleft between 2nd and 3rd finger with fracture of 2nd metacarpal bone. (3)Contusion Rt. forearm dorsally 2 x 1 cm (4)Contusion swelling Rt. Knee Jt. 2 x 1 cm (5)Diffuse couped swelling at Lt. elbow Jt. And forearm upper ½ (6) Contused swelling Rt.knee Jt. (7)Abrasion 1 x 1 cm on Rt.leg lower ½ and (8) Abrasion 1 x 1 cm on Rt. Cheek near ear. 11 On dissection of the body, the following condition of the internal organs were found: “ in corresponding above mentioned injury to thorax, there is fracture of Rt. side 5,6,7 and Lt. Side 5th 6th, 7th 8th with corresponding tear in the pleura. Chest cavity contained about 250 c.c blood”. As per his deposition, the cause of the death of the deceased was shock, which was due to ante-mortem injuries on the lungs. The board prepared Ex.P/25, autopsy report. PW/16, Dr.R.K.Mathur corroborated the evidence of PW/15 Sumer Singh and further deposed that he was the Chairman of the Medical Board, which conducted the post mortem report of the deceased Kesa Ram. PW/17, Narendra Singh deposed that on 26.11.07 he was Circle Officer, Makrana and on the direction of the Superintendent of Police, Nagaur in Cri. Case No.108/07 he reached the place of occurrence for verification and he recorded the statement of some of the witnesses. PW/18, Kana Ram and PW/19 Ugamraj did not corroborate the prosecution story, therefore , they were declared hostile, during the course of trial. Accused Ganga Ram, Ramchandra and Radha Devi in 12 their statement under section 313 Cr.P.C. had stated the prosecution witnesses as false and further they had stated that on 20.09.07 at 10.00 AM Kesa Ram, Hanuman Ram etc. had tried to outrage the modesty of Radha Devi. We have heard the learned counsel for both the parties and scanned and evaluated the evidence available on record. The learned counsel for the accused appellants assailed the judgment of the trial Judge on the ground that the trial court had gravely erred in appreciating the prosecution evidence and the FIR had been lodged after a lapse of more than 2 ½ hours. Further,the learned counsel for the accused appellants argued that Bega Ram , Assistant Sup-Inspector of Police was present in the village and had reached the site of the crime just after the occurrence. There had been hardly any reason to lodge the FIR after so much delay. The learned counsel for the accused appellants argued that as per medical report , no external injury had been found on the chest of the deceased, Kesa Ram and when there being no external injury on chest, it could not be possible to cause such injuries on the ribs, so as to cause fracture of the right 5th, 6th and 7th ribs and fracture of left 5th, 6th, 7th and 8th ribs. Learned counsel for the accused appellants also argued that there was a total concoction on the part of the prosecution on this point because when the injuries were examined by 13 PW/10 Dr.Ram Ratan, he had found no external injuries on the chest of the deceased Kesa Ram and even while conducting the post -mortem, no such injuries had been noticed by PW/15 Dr.Sumer Singh, and on internal examination the fracture of the right 5th 6th and 7th ribs and fracture of left 5th , 6th, 7th and 8th ribs were found which creates suspicion in the prosecution story regarding infliction of injuries on the body of injured Hanuman Ram and deceased Kesa Ram. The learned counsel for the accused appellants further contended that looking to the injury report and post mortem report, no injury was found on any vital part of the deceased Kesa Ram and thus there could be no intention on the part of the appellants to cause the death of the deceased. The learned counsel for the accused appellants also argued that there were inherent contradictions and improvements in the statements of the prosecution witnesses, therefore, the evidence of the prosecution witnesses, could not be relied upon by the learned trial court. Learned counsel for the accused appellants also contended that the injuries inflicted on the body of deceased Kesa Ram were not sufficient, in the ordinary course of nature, to cause death because the death could not be attributed to the injuries which were inflicted on the body of deceased , they being simple in nature and caused by blunt weapon. No X-ray report was produced by the prosecution, regarding any injury of the injured Hanuman Ram or deceased Kesa Ram. 14 Learned Public Prosecutor vehemently defended the judgment of the learned trial court and argued that the cause of death was the injuries inflicted by the accused appellants on the body of deceased. Therefore, the judgment of the learned trial court does not suffer from any infirmity or illegality and deserves to be confirmed. We have perused the statement of the witnesses as well as the injury report Ex.P/12 of Hanuman Ram and the post-mortem report Ex.P/14 of deceased Kesa Ram. For deciding the question that whether the act of the accused was murder or culpable homicide not amounting to murder or any offence, following factors are required to be considered :- 1. Motive or previous enmity, 2. whether the incident had taken place on the spur of the moment ? 3. The intention / knowledge of the accused while inflicting the blow or injuries, 4. The gravity , direction and nature of the injury, 5. Whether the injury was caused without premeditation in a sudden fight, 6. the nature and size of weapon used for inflicting the injuries and the force with which the blow was inflicted, and 7. Whether the injuries inflicted were not sufficient in the 15 ordinary course of nature to cause death, but the death was caused because of shock . Keeping in view the above facts and the contention of the learned counsel for both the parties , the fact is that to bring a case within the four corners of culpable homicide , prosecution had to establish that the death was caused, either with an intention to cause death or with an intention to cause such bodily injury, as is likely to cause death or with the knowledge that it is likely by such act to cause death. Murder is aggravated form and the distinction lies in the criminal intent only. Turning to the facts of the present case, the accused appellants were armed with deadly weapon like iron rods. They were having lathi also. They inflicted injuries by using those articles, but no injury on any vital part of the body of the deceased was caused by iron rods or lathi. PW/15 Dr.Sumer Singh and PW/16 Dr.R.K.Mathur, who conducted autopsy did not observe any fatal external injuries on the person of deceased. External injuries were simple in nature and were at shoulder, hands, knee, and foot of the deceased. Had there been any intention to cause death , they must have aimed at the head or any other vital part of the body. To the contrary, external visible injury was found over the chest of the deceased. It was only after opening the body , the fact of the fractured ribs was noticed and injury on the postero lateral part 16 of the neck suggested that the deceased had fell down during the scuffle ,or as a result of push given by any of the accused. PW/9 Raju Ram deposed in cross-examination that Radha Devi sat on the chest of the deceased , though none else has corroborated it. But this part of the statement can be believed because of the medical corroboration. Of course, this act of the sitting over the chest of an aged person, may result in fractures of ribs . Thus it may not be that her sitting over the chest will cause puncture in lungs of the person. It is a sheer co-incidence that some fracture of ribs caused hurt to the lung but this may not be a matter to cover knowledge. Such sort of the result, may also ensue. The intermittent time before the incident and death, also cannot be over looked. It is not a case of instant death. Moreover, had there been intention to cause bodily injury which may result in death, nobody had prevented the assailants to hit at the head, with iron rods or lathis, which they were using at the time of the incident. Thus, the learned trial court erred in coming to the conclusion that the criminal act of the accused appellants stands covered within the four corners of murder. The prosecution has succeeded in proving that Radha Devi had caused grievous hurt to the deceased and that common intention was shared by other co-accused also. Similarly, it also stands proved that simple injuries were voluntarily caused to Hanuman Ram by both the accused. 17 Hence, instead of offence under section 302 and 323 IPC, accused Radha Devi is convicted for commission of offence under section 325 and 323 IPC and accused appellant Ganga Ram is convicted for the commission of offence under section 325/34 and 323 IPC. In view of aforementioned discussions, the conviction of the accused appellants under section 302 /34 IPC is set aside and accused appellant Radha Devi is convicted for the commission of offence under section 325 IPC and accused appellant Ganga Ram is convicted for the commission of offence under section 325/34 IPC. However, the conviction of both the accused under section 323 IPC is maintained. We have also pondered over the facts of the D.B.Criminal Revision Petition No.185/2009 and perused the judgment of the learned trial court. There is no illegality or infirmity in acquitting the accused Ramchandra for the commission of offence under section 302/34 and 323 IPC. Therefore, there is no reason to interfere with the order of acquittal. Accordingly, the revision petition preferred by Hanuman Ram is, accordingly, dismissed. The appeal of the accused appellants Ganga Ram and Radha Devi , is partly allowed in the above terms. So far as the sentence part is concerned , both the accused appellants are in jail since 14.11.2008. For the commission of offence under section 325/34 IPC, accused 18 appellants Ganga Ram and Radha Devi are sentenced to the period already undergone and a fine of Rs.1,000/-each and in default of payment of fine, to further undergo one month's simple imprisonment. For the commission of offence under section 323 IPC, both the accused appellants Ganga Ram and Radha Devi are sentenced to six months' simple imprisonment and fine of Rs.500/- and in default of payment of fine , to further undergo 15 days' simple imprisonment. Both the accused appellants will also get the benefit of section 428 Cr.P.C. The substantive sentences for both the offences shall be served concurrently. (KAILASH CHANDRA JOSHI),J. (PRAKASH TATIA), J. l.george