D.B. Criminal Appeal No. 10/2004 D.B. Criminal Appeal No. 332/2006 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR JUDGMENT Lumb Nath & Ors. Versus The State of Rajasthan D.B. CRIMINAL APPEAL NO. 10/2004 AND Mohan Nath Versus The State of Rajasthan D.B. CRIMINAL APPEAL NO. 332/2006 Date of Judgment : 12.08.2010 PRESENT HON'BLE MR. JUSTICE PRAKASH TATIA HON'BLE MR. JUSTICE KAILASH CHANDRA JOSHI Mr. Dhirendra Singh ] Mr. Shambhoo Singh ] for the appellants Mr. K.R. Bishnoi – Public Prosecutor BY THE COURT (PER HON'BLE JOSHI, J.) This judgment shall decide two D.B. Criminal Appeals No. 10/2004 and 332/2006. Both these appeals arose out of the same incident, but by different judgments of the learned trial court, therefore, they are being disposed of by a common judgment. The accused appellant Lumb Nath, Paras Nath and Jabar Nath by way of Criminal Appeal No. 10/2004 challenged the judgment of conviction and order of sentence dated 20.12.2003, passed by the learned Additional District and Page 1 of 16 D.B. Criminal Appeal No. 10/2004 D.B. Criminal Appeal No. 332/2006 Sessions Judge (Fast Track) No. 1, Jodhpur, in Sessions Case No. 92/2003. At the relevant time, the accused appellant Mohan Nath remained absconded and after his surrender, he was tried for the same incident separately by registering a separate Sessions case. The appellant Mohan Nath by way of Criminal Appeal No. 332/2006 has challenged the judgment of conviction and order of sentence dated 27.03.2006, passed by the learned Additional District and Sessions Judge (Fast Track) No. 1, Jodhpur, in Sessions Case No. 10/2004. By the judgment dated 20.12.2003 in Sessions Case No. 92/2003, the accused appellant Lumb Nath was convicted for commission of offence under Section 302, 323/34 IPC and the accused appellants Paras Nath and Jabar Nath were convicted for commission of offence under Section 302/34, 323 IPC and they were sentenced as under :- Name of Accused Offence Sentence Lumb Nath 302 IPC Life imprisonment alongwith a fine of Rs.1000/- and in default of payment of fine, to further undergo 3 months' rigorous imprisonment. 323/34 IPC 6 months' rigorous imprisonment alongwith a fine of Rs.100/- and in default of payment of fine, to further undergo 1 month's rigorous imprisonment. Page 2 of 16 D.B. Criminal Appeal No. 10/2004 D.B. Criminal Appeal No. 332/2006 Name of Accused Offence Sentence Paras Nath and Jabar Nath 302/34 IPC Life imprisonment alongwith a fine of Rs.1000/- and in default of payment of fine, to further undergo 3 months' rigorous imprisonment. 323 IPC 6 months' rigorous imprisonment alongwith a fine of Rs.100/- and in default of payment of fine, to further undergo 1 month's rigorous imprisonment. The accused appellant Mohan Nath was convicted vide judgment dated 27.03.2006 for commission of offence under Section 302/34, 323 IPC and sentenced as under :- Name of Accused Offence Sentence Mohan Nath 302/34 IPC Life imprisonment alongwith a fine of Rs.1000/- and in default of payment of fine, to further undergo 3 months' rigorous imprisonment. 323 IPC 6 months' rigorous imprisonment alongwith a fine of Rs.100/- and in default of payment of fine, to further undergo 1 month's rigorous imprisonment. The nub of the prosecution story is that on 31.01.2003 at 6.00 p.m., complainant Smt. Janta lodged a report at Police Station Jhanwar, District Jodhpur stating that she alongwith her husband resided in the Industrial Area, Boranada Page 3 of 16 D.B. Criminal Appeal No. 10/2004 D.B. Criminal Appeal No. 332/2006 and on 30.01.2003 they had slept after their dinner. In the night at about 1.00 a.m., Mohan Nath, Lumb Nath, Paras Nath and Jabar Nath came there. Lumb Nath was armed with an axe and the rest of the accused were armed with lathis. All the 4 accused started beating them. Her husband Sardarnath tried to rescue himself, but Lumb Nath inflicted an injury with an axe on his head and thereby her husband fell down. She also sustained some injuries. Her brother Anna Nath was also present there. On the aforesaid report, a criminal case No. 15/2003 under Section 307, 341, 323/34 IPC was registered at Police Station Jhanwar and investigation commenced. After a lapse of 7 to 8 days, injured Sardar Nath had died and offence under Section 302 IPC was also added. After usual investigation and arresting the accused persons and conducting of autopsy of the dead body of the deceased Sardar Nath, a charge-sheet under Section 341, 323, 302/34 IPC was submitted in the court of Judicial Magistrate (District), Jodhpur, from where the case was committed to the court of Sessions Judge, Jodhpur and ultimately the case was transferred to the court of Additional District and Sessions Judge (Fast Track) No. 1, Jodhpur for trial. The accused appellant Mohan Nath absconded during the trial, therefore, trial of the three accused appellants, namely, Lumb Nath, Paras Nath and Jabar Nath, was conducted. A Page 4 of 16 D.B. Criminal Appeal No. 10/2004 D.B. Criminal Appeal No. 332/2006 separate trial was conducted for accused Mohan Nath, after he surrendered. First of all, we would like to decide the appeal filed by accused appellant, Mohan Nath, which bears D.B. Criminal Appeal No. 332/2006. Learned counsel for the accused appellant contended that the only eye-witness as per the prosecution story was P.W.8 Smt. Janta, the wife of the deceased Sardarnath and during the course of trial, P.W.8 Smt. Janta did not corroborate the prosecution story and was, therefore, declared hostile by the prosecution. She stated that Mohan Nath who had accompanied the other accused was another person and not the person present in the court and thus, she refused to identify the present appellant Mohan Nath as the person who had attacked her and her husband Sardar Nath and had inflicted injuries. The learned counsel for the accused appellant contended that the learned trial court has relied upon the testimony of P.W.15, Anna Nath, and had held the accused appellant guilty for commission of offence under Section 302/34, 323 IPC whereas P.W.15 Anna Nath had clearly stated in his statement that he had hid himself behind a camel cart, therefore, he had not seen the incident. P.W.8 Smt. Janta did not corroborate the evidence regarding the presence of the accused appellant Mohan Nath and there was hardly any reason to disbelieve her statement and further to believe the statement of P.W.15 Anna Nath. Page 5 of 16 D.B. Criminal Appeal No. 10/2004 D.B. Criminal Appeal No. 332/2006 The Learned Public Prosecutor vehemently defended the judgment of the learned trial court. We have considered the rival contentions of both the parties and also evaluated and scanned the evidence available on record and we are in agreement with the learned counsel for the accused appellant that when P.W.8 Smt. Janta did not corroborate the prosecution story and had been declared hostile, there was no reason to believe the evidence of P.W.15 Anna Nath and in our view the prosecution failed to establish the guilt of the accused appellant Mohan Nath. The learned trial court held that P.W.8 Smt. Janta had intentionally not identified the accused appellant Mohan Nath, which cannot be considered to be a correct appreciation of the evidence. Looking to the fact that P.W.8 Janta, the wife of the deceased, had refused to identify the accused appellant Mohan Nath, the evidence of P.W.15 Anna Nath as relied upon by the trial court does not inspire confidence particularly when the injured herself and the lodger of the FIR did not corroborate the prosecution story and it is very unsafe to believe the evidence of P.W.15 Anna Nath regarding commission of offence by the appellant Mohan Nath. The conviction of the accused appellant Mohan Nath is based purely on surmises and conjectures without Page 6 of 16 D.B. Criminal Appeal No. 10/2004 D.B. Criminal Appeal No. 332/2006 there being any legal evidence on record. Prosecution has utterly failed to prove his guilt. Anna Nath, brother-in-law of the deceased, was examined as P.W.15 and he had not indentified Mohan Nath in the court. P.W.8 Janta categorically deposed that Mohan Nath who assailed the deceased was not the person who was present in the court. Thus, there is no ocular or circumstantial evidence available against accused appellant Mohan Nath. Now we are coming to D.B. Criminal Appeal No. 10/2004, which has been preferred by accused appellants Lumb Nath, Paras Nath and Jabar Nath. The learned counsel for the accused appellants contended that as per the prosecution story, the accused appellant Lumb Nath had inflicted a single injury on the head of the deceased Sardar Nath and by that single injury, the deceased Sardar Nath had died after a lapse of 8 days. Therefore, the act of the accused appellant Lumb Nath did not come within the purview of Section 302 IPC. He further contended that the act of the accused appellant Lumb Nath could only travel upto Section 304 Part II IPC. The learned counsel for the accused appellant relied upon the following Judgments of the Hon'ble Supreme Court in support of his aforesaid contention :- (i) Ninaji Raoji Boudha & Anr. Versus State of Maharashtra reported in 1976 SCC (Cri) 227 Page 7 of 16 D.B. Criminal Appeal No. 10/2004 D.B. Criminal Appeal No. 332/2006 (ii)Kailash Versus State of M.P. reported in (2006) 11 SCC 420 The learned counsel for the rest of the two accused appellants contended that the so far as the accused appellants Paras Nath and Jabar Nath were concerned, the prosecution story was false and the statement of P.W.2 Smt. Janta could not be relied upon and in the absence of any motive, the story of the prosecution was not reliable. We have perused the statements of the witnesses and other evidence available on record and also considered the judgments relied upon by the learned counsel for the accused appellant. As per the first Information Report Ex.P.2, at the time of the incident, P.W.1 Anna Nath, brother of the complainant Smt. Janta was also present at the place of occurrence and had tried to rescue Sardar Nath but had failed in doing so. P.W.1 Anna Nath deposed that 5 to 5 ½ months earlier to the recording of his statement in the court, his sister Smt. Janta and brother-in-law Sardar Nath used to reside at Boranada near the Pepsi Factory. On the date of the incident, they had slept at their residence and in the night between 12 and 1 a.m., Lumb Nath, Paras Nath, Jabar Nath and Mohan Nath Page 8 of 16 D.B. Criminal Appeal No. 10/2004 D.B. Criminal Appeal No. 332/2006 had come there. Lumb Nath had an axe in his hand and the rest of the accused had lathis with them. Lumb Nath had inflicted an injury with the axe on the head of his brother-in-law Sardar Nath. At that time he had hid himself out of fear. Thereafter Mohan Nath, Jabar Nath and Paras Nath inflicted injuries upon his sister and brother-in-law. As a result blood started flowing out from the head of his brother-in-law. The accused then ran away from the place of the incident. He alongwith his sister then went to the Police Station and lodged the First Information Report Ex.P.2. P.W.2 Smt. Janta corroborated the evidence of P.W.1 Anna Nath and further deposed that her husband had died 8 days after the occurrence of the incident. She had also sustained injuries on her head, hand and back. She identified all the three accused appellants, namely, Lumb Nath, Paras Nath and Jabar Nath, in the court. P.W.3 Ramsukh deposed about the arrest of the accused appellant Lumb Nath vide memo Ex.P.3 and further deposed about taking into possession the blood stained clothes of Sardar Nath vide Ex.P.4. P.W.4 Mal Nath and P.W.5 Suram Nath did not corroborate the prosecution story and therefore, they were Page 9 of 16 D.B. Criminal Appeal No. 10/2004 D.B. Criminal Appeal No. 332/2006 declared hostile by the prosecution. P.W.6 Om Prakash deposed that on 09.02.2003 at the instance of the accused Lumb Nath as per information furnished by him under Section 27 of the Indian Evidence Act, the axe was recovered vide memo Ex.P.7. P.W.7 Sanwaldan is the witness of the arrest memo Ex.P.9 and Ex.P.10 and he further deposed that on 29.03.2003 at the instance of the accused Paras Nath a lathi had been recovered vide memo Ex.P.11 and on 03.03.2003 at the instance of accused Jabar Nath a lathi had been recovered vide memo Ex.P.13. P.W.8 Gulam Nath and P.W.9 Poon Nath are the formal witnesses of handing over of the dead body. P.W.10 Dr. Jagdish Jugtawat deposed that on 07.02.2003 at 11.30 am. he had conducted an autopsy on the dead body of the deceased Sardar Nath and had found the following external injuries on his body :- Fracture of right frontal bone. There was diffuse subdural haematoma on right side of brain. Stitched wound 7 cm. long on right side of forehead frontal region upper part. Page 10 of 16 D.B. Criminal Appeal No. 10/2004 D.B. Criminal Appeal No. 332/2006 P.W.11 Bhawani Singh is the formal witness. P.W.12 Dr. V.K. Malhotra deposed that as a Medical Jurist he had examined the body of Smt. Janta and had found the following injuries on her body :- (i)Abrasion – 5cm x 2cm on left forearm 1/3 part – simple – blunt (ii)Abrasion – 2cm x 1.5cm on right side of neck - simple -blunt (iii)Abrasion – 0.5cm x 0.5cm on right shoulder He further deposed that on 01.02.2003 he had examined the body of Sardar Nath and had found the following injuries on his body :- (i)Stitched wound (lacerated) – 7cm long on middle and right side of forehead - blunt (ii)Abrasion – 1cm x 0.5cm on left big toe – simple -blunt P.W.13 Nawlaram is a formal witness of carrying the sealed packets to the Forensic Science Laboratory and P.W.14 Happaram is also a witness of recovery of lathis at the instance of the accused appellant. P.W.15 Hariram, P.W.16 Mohanlal Bishnoi, P.W.17 Hari Singh and P.W.19 Bhanwar Singh are the Investigating Officers who conducted investigation of the case. Page 11 of 16 D.B. Criminal Appeal No. 10/2004 D.B. Criminal Appeal No. 332/2006 P.W.18 Dr. C.R. Agrawal deposed that on 04.02.2003 an x-ray of the head of Sardar Nath was conducted in his presence by a Radiographer and on the basis of the x-ray films, he had prepared the report Ex.P.24. As per the x-ray films, there was a fracture in the frontal bone of the deceased Sardar Nath. Coming to the arguments advanced by learned counsel for the accused appellants, we have to appreciate and analyze the ocular evidence and the evidence of P.W.10 Dr. Jagdish Jugtawat, who conducted the autopsy on the dead body of deceased Sardar Nath. In considering whether the intention was to inflict the injury found to have been inflicted, the enquiry necessarily proceeds on broad lines as for example, whether there was any intention to strike at a vital part or a dangerous spot and whether with sufficient force to cause the kind of injury found to have been inflicted. It is of course, not necessary to explain into every last detail. In the instant case we have to analyze the evidence on the point that whether there was an intention on the part of the accused appellants to cause death of deceased Sardar Nath. In such matters court should proceed to decide the pivotal Page 12 of 16 D.B. Criminal Appeal No. 10/2004 D.B. Criminal Appeal No. 332/2006 question of intention with care and caution, as that will decide whether the case falls under Section 302 or 300 Part I or 304 Part II Ipc. Intention to cause death can be gathered generally from a combination of a few or several of the following, among other circumstances :- (iii)Nature of weapon used; (iv)Whether the weapon was carried by the accused or was picked up from the spot; (v)Whether the blow was aimed at a vital part of the body; (vi)The amount of force applied in causing the injury; (vii)Whether the accused gave a single blow or several blows, etc. The ocular evidence sufficiently goes to establish that all the three accused appellants, namely, Lumb Nath, Paras Nath and Jabar Nath, came together at the place of occurrence. Lumb Nath was armed with an axe, whereas Paras Nath and Jabar Nath were armed with lathis in their hands. Every one of them had common intention to give beating to the deceased Sardar nath and to injured Smt. Janta. For this deadly weapon like 'Kulhari' was also being openly carried by one of the accused, therefore, each one of them had a common intention to use lathis and Kulhari to cause injuries. It is also a matter of common knowledge that inflicting blow on head by Kulhari may Page 13 of 16 D.B. Criminal Appeal No. 10/2004 D.B. Criminal Appeal No. 332/2006 prove fatal. Thus, Paras Nath and Jabar Nath also shared common intention of causing head injury by 'Kulhari' which was in fact inflicted by Lumb Nath and other accused also caused injuries to Janta by lathis. There is medical evidence about head injury and resultant fracture of right parietal bone. Death of deceased Sardar Nath occurred due to head injury. However, this injury is of blunt object, thus, accused Lumb Nath aimed at the head but used blunt part of the Kulhari. It is a matter of common knowledge that a powerful blow on head can cause death but had there been any intention to cause murder, nobody prevented them to use sharp edged side of 'Kulhari' or to repeat the blows even from blunt side. Using blunt side or not to repeat the blow by itself goes to show that there was not an intention to cause death, but death was caused by such an act that assailants must have knowledge that thereby death may occur. Hence, accused Lumb Nath is liable to be convicted for commission of offence under Section 304 Part II and 323/34 IPC instead of Section 302 and 323/34 IPC and accused appellants Paras Nath and Jabar Nath are liable to be convicted for commission of offence under Section 304 Part II read with Section 34 IPC and Section 323 IPC instead of Section 302/34 and 323 IPC. Page 14 of 16 D.B. Criminal Appeal No. 10/2004 D.B. Criminal Appeal No. 332/2006 In D.B. Criminal Appeal No. 10/2004, the conviction of the accused appellant Lumb Nath is converted from Section 302 and 323/34 IPC to Section 304 Part II and 323/34 IPC and the conviction of the accused appellants Paras Nath and Jabar Nath is converted from Section 302/34 and 323 IPC to Section 304 Part II and 323 IPC and the appeal is accordingly, partly allowed. Now coming to the point of sentence, accused appellant Lumb Nath is sentenced for commission of offence under Section 304 Part II IPC to undergo five years' rigorous imprisonment and to pay a fine of Rs.1000/- and in default of payment of fine, to further undergo one month's simple imprisonment and for commission of offence under Section 323/34 IPC, he is sentenced to undergo six months' simple imprisonment. Accused appellant Paras Nath and Jabar Nath are sentenced for commission of offence under Section 304 Part II/34 IPC to undergo five years' rigorous imprisonment and to pay a fine of Rs.1000/- and in default of payment of fine to further undergo one month's simple imprisonment and for commission of offence under Section 323 IPC, they are sentenced to undergo simple imprisonment for six months. It is further ordered that substantive sentences shall run concurrently. Accused appellants Paras Nath and Jabar Nath are on bail, therefore, they are directed to surrender before the trial court for serving the remaining sentence as awarded. Page 15 of 16 D.B. Criminal Appeal No. 10/2004 D.B. Criminal Appeal No. 332/2006 Accordingly, D.B. Criminal Appeal No. 10/2004 is partly allowed. D.B. Criminal Appeal No. 332/2006 preferred by accused appellant Mohan Nath is allowed and his conviction for commission of offence under Section 302/34 and 323 IPC is set aside. Accused appellant Mohan Nath is on bail, he need not surrender and his bail bonds are discharged. Record of the trial court be sent back for further needful action. [KAILASH CHANDRA JOSHI],J. [PRAKASH TATIA],J. Pramod Page 16 of 16