-1- IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR J U D G M E N T Kapil Gaur Vs. State of Rajasthan D.B. CRIMINAL APPEAL NO.979/2002 against the judgment dt.13.11.2002 passed by Additional Sessions Judge (Fast Track), Sirohi, in Sessions Case No.8/2001(149/95). Date of Judgment: November 15, 2006 P R E S E N T HON'BLE MR.JUSTICE N.N.MATHUR HON'BLE MR.JUSTICE MANAK MOHTA Mr.Doongar Singh) Mr.M.K.Garg ) for the appellant. Mr.O.P.Rathi, Public Prosecutor. Mr.B.S.Rathore, for complainant. BY THE COURT : (PER HON'BLE MR.MATHUR J.) 1. Appellant Kapil Gaur has been convicted of offence under Sections 302 IPC and sentenced to imprisonment for life together with a fine of Rs.5000/- & in default, to further undergo two years' imprisonment, by the judgment of the learned Additional Sessions Judge (Fast Track), Sirohi dated 13.11.2002. -2- He has also been convicted of offence u/s.324 IPC and sentenced to two years' rigorous imprisonment together with a fine of Rs.2000/- & in default, to further undergo six months' imprisonmnt. Both the sentences were ordered to run concurrently. 2. On 21.9.1995 at about 3.00 P.M., while deceased Dinesh, a student of 12th Standard, alongwith his classmates P.W.2 Basant and P.W.4 Ashok were on the road outside the school gate, appellant arrived on a bicycle and reprimanded him for talking to the A.B.V.P.Students. He took out a knife from the socks and stabbed into the stomach of Dinesh. On intervention by P.W.2 Basant, appellant also inflicted injuries on his person by knife. P.W.3 Amit took injured Dinesh and Basant on a scooter to the hospital. The information of the incident was also given to the police. P.W.16 Bheem Singh, incharge of the Police Station, Sirohi recorded the statement of Dinesh vide Ex.P.26 which has been referred-to as `parcha bayan'. On the basis of the said `parcha bayan', the F.I.R. Ex.P.7 was registered for the offence under Section 307 IPC. Dinesh succumbed to the injuries in the hospital, as such, offence under Section 302 IPC was added. After usual investigation, the police laid chargesheet against the appellant for the said offence. The appellant denied the charges levelled against him and claimed trial. The prosecution adduced -3- oral and documentary evidence in support of its case. Appellant in his statement under Section 313 CrPC denied the correctness of the evidence appearing against him. The appellant also pleaded that at the time of occurrence, he was 16 years and 10 months. In defence, he examined 7 witnesses and produced certain documents. The trial Court having found the charges proved, convicted & sentenced the appellant in the manner stated above. 3. We have heard learned counsel for the appellant and the learned Public Prosecutor. We have also carefully scrutinized the evidence on record. 4. It is not in dispute that deceased Dinesh died of homicidal death. The autopsy on the dead body of Dinesh was conducted by P.W.17 Dr.Suresh Ohari vide Ex.P.34. He noticed the following injuries on his person: “1. An incised wound eliptical shape 2 1/2” x 3/4” x pleural cavity injuring to left lung lower lobe; 2. Fracture of 8th rib in middle; 3. Left side thoracic cage is full of blood.” -4- In his opinion, the cause of death was lung injury & haemo thorax due to chest injury. 5. P.W.15 Dr. B.K. Examined the injuries of P.W.2 Basant vide Ex.P.30 noticing the following injuries: “1. An incised wound (eliptical shaped) 3” x 1” x (depth ?) on left 6th intercostal space near costal area; 2. An incised wound (eliptical shaped) 1” x 1/4” x (depth ?) on 8th intercostal space at antero axillary line left side.” 6. The prosecution in support of the case has relied on the evidence of occurrence, dying declaration and circumstantial evidence. P.W.2 Basant Kumar and P.W.3 Amit Rawal have been examined as witnesses of occurrence. 7. P.W.2 Basant Kumar is an injured eye witness. At the relevant time, he was student of 12th Standard studying in the Senior Secondary School, Sirohi. He deposed that appellant Kapil had studied with him in the same school, while he was in 11th Standard. Thereafter, he used to visit the school. On the date of incident, he alongwith deceased Dinesh, Ashok and Amit came out of the School. While they were proceeding towards the Hospital Circle, appellant Kapil came on a bicycle from the front side. He got down from the bicycle and reprimanded Dinesh for -5- talking to the A.B.V.P.Students. He took out a knife from his socks and stabbed into the chest of Dinesh. On his intervention, Kapil also gave two knife blows to him. Thereafter, the appellant took the heels with knife in his hand. P.W.4 Ashok took him to hospital on a bicycle. P.W.3 Amit Rawal took injured Dinesh to hospital on a motorcycle of a person passing through the road. While he was admitted in the hospital, he came to know that Dinesh died while on the way to Jodhpur. There is a lengthy cross examination but nothing substantial has been elicited to discredit the testimony of this witness. 8. P.W.3 Amit Rawal is also a student of 12th Standard of the same School and was in the company of deceased Dinesh and injured P.W.2 Basant Kumar at the time of the incident. He deposed that on 21.9.1995 while they were proceeding towards the Hospital Circle, appellant arrived on a bicycle from the front side and stabbed knife into the stomach of Dinesh. He also inflicted injuries to Basant Kumar. Both the injured were taken to the hospital. There is a lengthy cross examination but nothing substantial has been elicited to discredit the testimony of this witness. 9. The Statement of P.W.4 Ashok is almost on the same line. -6- 10. On careful scrutiny of the ocular evidence of all the three witnesses of the occurrence, referred-to above, the same is found to be credit-worthy. The earliest version of the incident finds place in the `parcha bayan' Ex.P.26 given by none else but deceased Dinesh himself. 11. P.W.6 Prithvi Raj Sharma, Judicial Magistrate, Sirohi also recorded the dying declaration of deceased Dinesh vide Ex.P.16, who has stated in terms that outside the school building, Kapil stabbed him. Thus, the prosecution has succeeded in establishing the occurrence by ocular evidence of injured eye witness P.W.2 Basant Kumar and other eye witnesses viz; P.W.3 Amit Rawal and P.W.4 Ashok, amply corroborated by the medical evidence and dying declaration. There is also the evidence of recovery of blood stained knife. In pursuance of the information given by appellant Ex.P.35, a blood stained knife was recovered vide Ex.P.19. The recovery has been made in the presence of P.W.8 Chandrapal Singh and P.W.13 Moola Ram. As per the F.S.L. Report, Ex.P.38, the knife has been found to be stained with blood of human origin. Thus, turning to the nature of offence, it is submitted by the learned counsel for the appellant that the prosecution has suppressed the genesis of the incident. The incident cannot be said to have taken place in the plain and simple manner, as alleged. It is difficult to conceive that on a -7- trivial issue of deceased talking to the A.B.V.P.Students, appellant would have stabbed into the stomach of the deceased. In the facts of the case, appellant must have stabbed on some sort of provocation by the complainant party. 12. Be that as it may, the appellant has only inflicted a single injury. Thus, at the most, the appellant can be clothed with the knowledge to the effect that he was causing an injury, which was likely to cause death. The appellant cannot be said to have acted in a cruel manner. Thus, the offence against him cannot travel beyond Section 304 part II IPC. The learned trial Court has committed error in convicting appellant of offence under Section 302 IPC. 13. As far as the conviction of appellant of offence u/s.324 IPC is concerned, the same does not warrant interference in view of the statement of injured P.W.2 Basant Kumar corroborated by the medical evidence. 14. Consequently, the appeal is partly allowed. The conviction of the appellant for the offence under Sec.302 IPC and sentence of imprisonment for life is set aside. Appellant is convicted for having committed an offence under Section 304 part II IPC and is sentenced to imprisonment already undergone. He has -8- undergone the substantive sentence of four years and four months. Adding the remission period, he has undergone the sentence of more than five years. He has already undergone the sentence of two years awarded by the learned Additional Sessions Judge (Fast Track), Sirohi for the offence u/s.324 IPC. He is in jail. He shall be released forthwith, if not required in any other case. (MANAK MOHTA), J. (N.N.MATHUR), J. RANKAWAT JK, PS