-1- IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR J U D G M E N T Narayan @ Naran Vs. State of Rajasthan (D.B. CRIMINAL JAIL APPEAL NO.1023/2003) D.B. Criminal Jail Appeal under Section 383 Cr.P.C. against the judgment dated 28.8.2003 passed by the Additional Sessions Judge (Fast Track), Bhilwara in Sessions Case No.138/2003. *** Date of Judgment :: 17.3.2008 P R E S E N T HON'BLE MR.JUSTICE PRAKASH TATIA HON'BLE MR.JUSTICE BHANWAROO KHAN Mr. PC Solanki,for the appellant Mr. Vishnu Kachhawa, Public Prosecutor BY THE COURT (PER HON'BLE MR. B.KHAN J.) : A written report filed by Shankar Lal before Police Station, Kotdi led the police after investigation to file a challan against the accused- appellant Narayan @ Naran under Section 302 I.P.C. and 3(1)(X) of the SC/ST (Prevention of Atrocities) Act before the Additional Sessions Judge (Fast Track), Bhilwara, who after discharging the accused under -2- Section 3(1)(X) of the SC/ST (Prevention of Atrocities) Act, convicted the accused after trial under Section 302 I.P.C. and sentenced him to undergo life imprisonment and to pay a fine of Rs.1000/-; in default of payment of fine to further undergo 3 months rigorous imprisonment, against which jail appeal has been preferred by the accused-appellant. The brief facts as disclosed is that on 2.6.2001, a written complaint was filed by Shankar Lal with the averment that his father Ghashi Ji at about 5.00 p.m. was returning after paying visit to 'deity of Dhuni'. In the way accused Narayan with an iron road belaboured his father, due to which his father received serious injury on the head and also on the right hand. The incident was witnessed by Uda and Mrs. Radha, who brought his father to his house. On this report, a case against the accused-appellant for the offence under Sections 307 and 323 I.P.C. and under Section 3(1)(X) of the SC/ST (Prevention of Atrocities) Act was registered. During investigation, when the injured Ghashi died, Section 302 I.P.C. was also added and the police submitted challan against the accused for the aforesaid sections. The accused was discharged for the offence levelled under Section 3/3(2)(v) of the SC/ST (Prevention of Atrocities) Act and charge was framed against him under Section 302 I.P.C. The accused -3- denied the allegation and claimed for trial. The prosecution in all produced eight witnesses. The accused-appellant in his statement under Section 313 Cr.P.C. denied the allegations of prosecution. No defence was led in evidence. The trial court after evaluating the oral as well as documentary evidence and relying on the evidence produced, has convicted the accused for the offence charged. Both the parties were heard. The entire record was gone through. The learned amicus curiae argued that the eye-witnesses produced are not reliable and material infirmity, contradiction are available. The witnesses have tried to represent them in the capacity of eye- witnesses, but in fact, they have not witnessed the incident personally. There is no direct eye-witness available against the accused. The learned trial court while relying the uncorroborative evidence, has wrongly convicted the accused for the offences charged. Moreso, the doctor has also not opined about the injury received by Ghashi Lal and he kept pending the opinion but no such opinion was tendered in the prosecution evidence, so the case against the accused cannot go beyond under Section 304 Part-II I.P.C. Further the inflicted injuries are not so grievous -4- which can be said to be dangerous or sufficient in the ordinary course of nature to cause death. The learned trial court has committed irregularity or illegality by convicting the accused under Section 302 I.P.C. on the basis of injury received by the deceased, which are cumulatively not sufficient in the ordinary course of nature to cause death. Contrary to this, the learned Public Prosecutor has supported the judgment of learned trial court and pleaded that the produced eye-witnesses are having corroborative statement of each other and doctor in his statement has categorically stated that the injuries were sufficient in the ordinary course of nature to cause death. The learned trial court has committed no illegality in convicting the accused under Section 302 I.P.C. and inflicted injuries are given repeatedly and head injury given by the accused proved to be fatal which has ultimately culminated to the death of the deceased. It is true that the only alleged eye-witness PW-1 Radha (daughter-in-law of the deceased) was produced by the prosecution. Udai Lal PW-4 has categorically denied to have seen any incident and PW-9 Shankar Lal, who had lodged the FIR is not the eye-witness of the incident, but PW-1 Radha has categorically stated that when her father-in-law was returning after paying visit to 'deity of Dhuni', the -5- accused Narayan inflicted injury on the head of her father-in-law with iron road and also on his hand and legs. Her father-in-law after receiving the injury fell on the ground she called her brother-in-law and brought her father-in-law in the house and took them to Kotdi Hospital where her father-in-law expired. Thus, there is no other witness to corroborate the testimony of Radha but immediately thereafter on the spot PW-4 Udai Lal arrived and he saw injured on the spot, but he has categorically admitted that Ghashi Lal was taken away by Kana and Mrs. Radha, but he has not seen any evidence. There is nothing in the cross-examination of Radha which belies the theory of prosecution story. Radha, who has seen the incident and specifically alleged that it was accused Narayan who inflicted injury on the person and head of the deceased. The statement of Mrs. Radha finds corroboration from the statement of PW-5 Ramesh Chandra, who initially examined the deceased and prepared the injury report Ex.-P/8 on 2.6.2001, who has stated that on the same day at about 9.30 p.m. Ghashi Lal expired in the hospital. He also conducted the postmortem on the next day and prepared the postmortem report Ex.-P/9. The doctor has specifically mentioned that the injuries mentioned in the injury report are sufficient in the ordinary course of nature to cause death and as per his opinion, the cause of death is head injury -6- received by the deceased. So from the testimony of eye-witness and doctor, it is found that accused Narayan inflicted injuries with an iron road on the head and other part of the body of the deceased. The injuries received by the deceased were sufficient in the ordinary course of nature to cause death. It is true that the cause of death as per statement of doctor is head injury received by the deceased. The single injury inflicted by the accused proved fatal, of course other injuries were also inflicted by the accused on the person of the deceased. It is true that if there is one single injury caused accidentally or unintentionally, then the case falls under Section 304 Part-II I.P.C., but in the instant case the accused inflicted more than one injury. The injury inflicted by the accused on the head of the deceased was neither accidental nor unintentional. It is also not the case of the accused that the accused aimed blow on the some other part of the body and because of some intervention or movement of the deceased the iron road struck the head of the deceased. There is no evidence or explanation given by the accused that inflicted injury was not arrived on the head of the deceased. From the testimony tendered by the prosecution, it is found that a serious bodily injury has been caused by the accused on the head of the -7- deceased and the nature of injury inflicted is sufficient in the ordinary course of nature to cause death. From the tendered evidence, it can safely be inferred that the accused inflicted bodily injury with an intention to cause the said injury and it was neither accidental nor unintentional and the accused intended specifically to cause the head injury, which resulted ultimately in the death of the accused. The inference of intention can be gathered from the conduct of the accused and also the seriousness of the injury received by the deceased. 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). In view of the aforesaid discussion, the jail appeal filed by accused-appellant Narayan is dismissed. The accused is in jail, he will serve the remaining part of his sentence. (BHANWAROO KHAN) J. (PRAKASH TATIA) J. RM/-