1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR. J U D G M E N T BOTLAL V. THE STATE OF RAJASTHAN D. B. CRIMINAL APPEAL NO. 1079/2003 under Section 374 (2), Cr.P.C., against Judgment dated 03.09.2003 passed by Shri Deepak Maheshwari, RHJS, Special Judge, SC/ST (Prevention of Atrocities) Cases, Udaipur in Sessions Case No. 5/2003. DATE OF JUDGMENT: SEPTEMBER 09, 2008 PRESENT HON'BLE MR. JUSTICE PRAKASH TATIA HON'BLE MR. JUSTICE C.M. TOTLA Mr. Bhagat Dadhich, for Appellant (s). Mr. V.R.Mehta, P.P. for the State. BY THE COURT: (PER HON'BLE MR. TOTLA, J.) Appellant, convicted for the offence of Section 302, IPC, and sentenced to life imprisonment and fine Rs.1000/-, in default one month's simple imprisonment - vide judgment dated September 3, 2003 by the Special Judge, SC/ST (Prevention of Atrocities) Cases, Udaipur, in Sessions Case No. 5/2003 - preferring this appeal, requests his acquittal. Facts alleged, as per prosecution, are like that Harlal, Uda and Tara Chand were three brothers sons of Gulab Jat, having their agriculture land at Hinta tehsil Bhinder. On August 15, 2008, at about 7.00 p.m. , 2 Kalu Lal s/o. Tara Chand lodged a written report (Ex.P-1) at Policle Station, Bhinder, narrating that he has a agriculture field at village Hinta, where as daily, since morning, his father was grazing Oxen – at about 4 O'clock, in the afternoon, when he and his elder father Harlal working at field. They heard shouts of his father of beating to him, so they and Gordhan Singh, soon reached and found that Botlal s/o. Udailal was beating Tara Chand with 'lath' who in blood pool was lying down. On seeing them, appellant accused Botlal ran away. Tara Chand, while being carried to Bhinder hospital in a private jeep, collapsed and his death caused because of 'lath' beating by accused Botlal which also resulted in fractures of legs and hand. On this report, FIR No.123/2000 (Ex.P-2) registered for the offence of Section 302, IPC. On August 16th at 8.00 a.m. dead body examined by I.O. - Dhoti and half of the Baniyan with blood stains of deceased presented by Botlal sealed and after post- mortem at about 9 O'clock, body handed over for rites. In the afternoon, at 2 O'clock, place of incident inspected and samples of blood mixed with soil and plain soil collected and sealed and found half piece of Baniyan having blood stains seized and sealed, memos are Exs.P-6 to P-8. Preparing memo Ex.P-8, appellant accused arrested on August 17th at 5.15 p.m. and worn pant and shirt having some blood like stains seized and sealed, memo prepared is Ex.P-10. On August 21st, on informatory disclosure of appellant made at 1 O'clock, a 'lath' lying behind the mud Kothi in Kachcha Makan of accused recovered at his instance – memos prepared are Exs. P-15 and P-11. On August 13th, place of 3 occurrence again inspected in presence of Patwari and momo Ex.P-12 was prepared - copies of revenue record, Jamabandi and trace were obtained which are Exs. P-13 and P-14. Packets of seized and recovered articles kept safe and delivered at Lab. Post mortem report of deceased Tara Chand is Ex.P-21 and found were fractures on skull, frontal occipital area and also of legs and both elbows. Appellant when charged for the offence of Section 302, IPC, - that he on August 15th, 2000, in evening at 4.00 p.m. in village Hinta with intention to kill Tara Chand inflicting blows of lathi to him, caused his death - claimed trial. Of the prosecution witnesses, Kalu Lal PW 1 is complainant son of deceased, Harlal PW 9 brother of deceased, who both and Goverdhan Singh PW 8 are eye witnesses. PW 2, PW 3 and PW 4 are 'Motbirs' – Surajmal PW 5 Patwari who proves copies of revenue record Exs. P-13 and P-14. Khum Singh PW 10 SHO is I.O., whereas Constable PW 6 and Heada Constable PW 7 pertain to safe custody and delivery of packets of articles at Laboratory. Dr. M.S.Shaktawat PW 11 who conducted post-mortem proved report Ex.P-21. FSL report is Ex.P-20. When examined under Section 313, Cr.P.C., appellant states that complainant bears enmity with him who earlier also lodged several false criminal cases against him and Harlal PW 9 deposed against appellant. He is acquitted in all. In defence presented are certified copies of judgments of three criminal cases and also a order of the Revenue Court. 4 Learned counsel for the appellant contended that (1) enmity proved. (2) Witnesses PW 1 and Harlal PW 9 close relative – their evidence contradictory to each other – conduct unnatural and abnormal. (3) Considering substantial low senses of PW 9 as noted in his statement by Sessions Judge, he cannot and could not have identifield the appellant. (4) presence of Goverdhan Singh PW 6 highly doubtful - his evidence contradicts those of PW 1 and PW 8-where witnesses were not disclosed in the site plan – being crop time with a crop of person height could not have observed the said incident. (5) Delay in lodging FIR, though police station at a distance of 4 km and ascribe of FIR not known - investigation highly biased which began next day. (6) Important witness like jeep driver not produced and (7) 'Motbirs' do not support any recovery. Vehemently contended on behalf of the appellant is that no external injury , except that on head on the person of deceased, whereas fracture of legs and arms are also described. Lastly contended that even if appellant inflicted blow or blows, it was not with knowledge of causing death much less with intention, so the alleged act may only come within Section 302 Part II IPC. In support of contentions, reliance placed on (i) Sahab Ram & 2 Others v. State of Rajasthan, Supp. RCC 1997 P.345, (ii) Rakesh & Another v. State of Rajasthan, 2003 (2) CJ (Raj.)a Cri.994, (iii) Ghadsi Ram v. State of Rajasthan, 2003 (2) CJ (Raj.) Cri.838. Learned Public Prosecutor contended that FIR lodged immediate after the incident, direct evidence of son, brother and nearby agriculturalist Goverdhan Singh – motive proved and death as a result of 5 head injury in addition were four fractures of hand and legs. Considered rival contentions and carefully perused record and judgment of the learned Sessions Judge. Appellant son of Udailal, complainant son of deceased Tara Chand and Uda, Tara Chand and Harlal PW 9 are real brother sons of Gulab. From certified copies of revenue record Exs. P-13 and trace P-14 as proved by Patwari, it stands proved that the land, more than 18 Bighas bearing No.533, 534, 535, 629 and 521 is in the name of above three brothers and all these lands are adjoining. Harlal PW 9 aged 70-75 years states that he does not know Hira Lal and Hiralal is not his son. Kalulal PW 1 states that Harlal PW 9 having no issue sold his land to elder brother of PW 1 (Onkarlal) and due to this enmity, his father killed by the accused. Kalulal PW 1 accepts that appellant Botlal faced criminal cases for beating Onkarlall and PW 1 was witness and he does not know about acquittal of appellant. From the certified copies of judgment submitted by appellant, it is clear that appellant acquitted in three different criminal cases by Magisterial Court in the months of September and December, 2000. Further, as per presented certified copy or order of Revenue Court dated 27.09.1999 in Case No.107/99, Hira Lal v. Harlal, interim order for above- mentioned lands, is that no change in revenue record be made. Harlal is plaintiff applicant in revenue case, so it is clear that all concerned persons had strained relations. According to I.O. SHO PW 10, appellant arrested vide memo Ex.P- 12 and his worn pant and shirt seized and sealed vide memo Ex.P-10 and 6 on appellant's informatory disclosure Ex.P-18, recovered from his residence – at his instance from behind a mud Kothi – a 'lath' which seized and sealed and memo Ex.P-11 prepared. Independent witnesses of the recoveries PW 2 and PW 3 are declared hostile, but both accepted their signatures on memos Exs. P-9, P-10, P-11 and P-12, so unless specific reason, it can be assumed that the proceedings as mentioned in the memos did happen. For the recovery, it is also contended that the incident is of August 15th and appellant arrested on August 17th, whereas information is of August 21st, i.e., 4 days after the incident and recovery cannot be accepted as his house was searched or ought to have been searched earlier. For this argument, suffice to mention that appellant arrested on the next day of incident, so belated information in this case is not of much significance. However, for the incident, other evidence is very straight and totally worth credit and belief, so no inference corroborative or otherwise is being taken on the basis of this recovery of lathi. Witness Harlal is brother of deceased – named in the FIR – whose agriculture land is there, so his presence is very natural. This witness Harlal is 70-75 years age and as noted by the learned Sessions Judge while recording evidence, is very hard of hearing, unable to understand very perfectly few questions and his deposition recorded only with the help of complainant PW 1, so all these factors, in the opinion of the Court, no inference exclusive on the basis of his statement can be safely taken, but certainly his evidence cannot be discarded and minimally be used as 7 corroborative one. Complainant Kalulal PW 1 deposes that on the day of Raksha- Bandhan August 15th in the afternoon at about 4 O'clock, he and elder uncle Harlal working in agriculture field and Tara Chand grazing Oxen in Beera (field where fodder grown), he heard shouts of his father as to beating by Botlal, so he along with Harlal reached there and saw father lying on earth being beaten by Botlal by lathi, who, on their appearance, ran away and Goverdhan Singh also came on spot. Father when being carried to Bhinder hospital in jeep collapsed in way, so he lodged written report Ex.P-1 at police station. PW 1 also states that crop of “Jowar” of his own hight was in 0.75 Bigha - no exchange of words or quarrel heard prior to shouts of father – houses of Goverdhan Singh and some other are near. No specific reason is assigned by PW 1 as to why he reached with Harlal and not alone quickly. Goverdhan Singh PW 8 states that he around 4 O'clock was grazing buffaloes in his Beera and on hearing loud shouts of Tara Chand, went to their field and there appellant Botlal was beating Tara Chand with a lathi and also reached there Harlal and Kalulal, then accused ran away. Goverdhan Singh PW 8 states that hands and legs of Tara Chand broken (fractured) and head injury bleeding, then Kalulal procured a jeep and carried Tara Chand to Bhinder, he did not accompany and next morning, came to know of Tara Chand's death. As per PW 8, he was about a distance of one Bigha and his house at a distance of 100-150 meters from the place of incident - they all reached almost simultaneously and Jowar 8 crop was about 2 – ½ ft. high. For the contention that the site plan does not indicate as to which witness or person was standing where, suffice it to mention or indication of this in the site plan at the most merely is a rule of ideal investigation which probably can be significant in incidents like involving many persons in very very close vicinity or obstructive, restrictive or walled places – and no uniform practice can be. In this particular case, the place of incident is plain agriculture field surrounded by such fields, so non-indication in the site-plan is completely immaterial. Contradictions, if any, in the statements of these two witnesses and of Harlal PW 9 are too minor and of the nature bound to occur. Absolutely no reason to believe the depositions of PW 1 and PW 8. As mentioned PW 9 is brother of deceased who is real uncle of appellant, whose agriculture field there also narrates the incident in the same manner, so if no inference exclusively on the evidence is taken, even then, certainly his evidence corroborates PW 1 and PW 8, if corroboration is needed. In the total scenario, no corroboration of PW 1 and PW 2 is required. On the shirt found on the person of accused at the time of his arrest, on clothes of deceased and sample of stain soil taken from the field, found was human blood of A-B group. FIR submitted at 7.00 p.m. on the same day, i.e., within 3-4 hours of the incident – post-mortem conducted next morning at 9.00 a.m. site inspection etc. also on the next day August 16th. For this, contention is that where and why kept 9 dead body whether at hospital or at any other place is not very clear – FIR delayed and investigation biased. With these facts, this is also to be taken note of that father was badly injured who died on way and police station is at 4 km – it was night and incident of village agriculture field. So, the above contention that the complainant or anyone else could not have seen the incident because of 3-4 ft. high crop, has no merit. Crop was of the hight of about 3 ft. and persons are those who regularly live and work there. It is also immaterial as to why complainant did not go alone running and why he accompanied his elder uncle PW 9 an old person. Dr. Shaktawat PW 11 conducted post-mortem on August 16th, at 9.00 a.m. and found following injuries :- (1) Lacerated wound 3 x 4 cm x 1.5cm On dissection of head, on the head at middle portion. found fractures on frontal (2) Fracture left thigh. area and vertex with (3) Fracture right leg below knee. laceration and membrane (4) Fracture left hand near elbow. fractured. All the injuries (5) Fracture right hand just above elbow ante-mortem, duration (6) Abrasions 3 x 2 cm on left arm. 36 hours and died due to head injury which sufficient to cause death in normal course. PW 11 Dr. clearly states that no external injury on or around above fractures - fractures found on clinical examination - on many occasions particularly of transverse fracture, i.e, through and through breaking of bone, no external injury is caused. On the basis of above injuries and findings and deposition of 10 Doctor, contention for the appellant is that fracture cannot be caused in the alleged incident, because fractures do not have corresponding external injuries. Contention is that either the witnesses are telling lie or the fractures not caused about same time of incident. In context of above contention, it is to be observed that the death is caused by head injury – fractures of occipital frontal area and vertex – laceration – membrane ruptured, exclusive injury caused on head is sufficient in normal course to cause death as is also deposed by the Doctor. Fractures were clinically observed and were of transverse nature, so not a must that external injury ought to have been. Fractures are near both elbows, left thigh and right leg just below knee. Hence act is proved that the death of Tara Chand caused by injuries (specifically head injury) voluntarily inflicted & caused by appellant. Now, coming to last contention that whether the act amounts to murder. Proved is that death caused by head injury - resulting in occipital fracture, in addition, fractures on both elbows and left thigh. From the prosecution evidence is also established that (1) on August 16th, at 8.45 a.m., complainant Kalu Lal handed over Dhoti and half piece of Baniyan which were on the body of deceased and blood-stained – seized and sealed, memo Ex.P-7. (2) On August 16th, at around 2 O'clock afternoon when place of incident was inspected by SHO IO, found there were many foot marks - and a torn piece of Baniyan which seized and 11 sealed, memos Exs. P-7 and P-8. (3) On chemical examination, these both separate pieces of Baniyan found to have stains of human blood of A-B group. Deceased about 60 years of age – fractures on both elbows, leg and thigh, did not have any external injury – on place of occurrence were many foot marks – one torn piece of Baniyan (not very small) found at the place of occurrence – remaining baniyan on person of deceased - accused is son of brother of deceased and all have adjoining agriculture fields – strained relations for land and-weapon is lathi. All these facts cumulatively tend to suggest/impress that some scuffle and/or quarrel between deceased and appellant occurred just or little time prior to blow of lathi at head. Reasons of scuffle are there, i.e, share of agriculture field of one brother having no issue, and strained relations so it follows that some scuffle between deceased and appellant occurred and in the scuffle because of hand blows or alike acts fractures caused to deceased 60 years and then blow of lathi on head by the appellant. In the circumstances neither intention of killing , nor intention of causing such injury likely/sufficient to cause death in the ordinary course can be inferred – but proved is that accused knowingly inflicted injury as is likely to cause death which act amounts to culpable homicide within the ambit of Section 304 Part-I, IPC. Accordingly, allowing appeal partly, appellant is convicted for the 12 offence of Section 304 Part-I, IPC. In the totality of the facts, sentence of ten years rigorous imprisonment and a fine of Rs.25,000/- in default further two years rigorous imprisonment ought to be. Accordingly, the appeal is decided. The conviction of the appellant Botlal S/o. Udaylal for Section 302, IPC, and sentence of life imprisonment with fine Rs.1,000/- (vide judgment dated September 3, 2003 by the Special Judge, SC/ST (Prevention of Atrocities) Cases, Udaipur in Sessions Case No.5/2003) is set aside and is altered to that of Section 304 Part I, IPC and appellant accused Botlal s/o. Udaylal is sentenced to ten years' rigorous imprisonment and fine of Rs.25,000/-, in default of payment additional two years rigorous imprisonment for offence of Section 304 Part I, IPC. (C.M. TOTLA), J. (PRAKASH TATIA), J. scd