1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR. J U D G M E N T Bhanwar Lal vs. State of Rajasthan D. B. Criminal Jail Appeal No. 456/2003 against the judgment dated 21.3.2002 passed by Additional Sessions Judge (Fast Track) Ratangarh, Distt. Churu, Sessions Case No.11/2002 (41/2000). Date of Judgment :: 18.5.2010 P R E S E N T HON'BLE MR.JUSTICE GOVIND MATHUR HON'BLE MR.JUSTICE C.M.TOTLA Mr. Aziz Khan, for the appellant. Mr. KR Bishnoi, PP, for the State. .... BY THE COURT : (PER HON'BLE MATHUR,J.) Learned Addl. Sessions Judge (Fast Track), Ratangarh, by the judgment and order dated 21.3.2002 convicted the accused appellant for an offence punishable under Section 302 IPC and sentenced to undergo imprisonment for life term with fine of Rs.500/- and further to undergo 1 year's rigorous imprisonment in the event of failure to pay the fine. 2 Briefly stated, facts of the case are that PW-6 Gangaram on 6.10.2002 submitted a report at police station – Sardarshahar with insertion that on 5.10.2002, at about 1.00 pm Kesra Ram and Bhanwar Lal both were quarreling and abusing each other on the road near a water tank. Bhanwar Lal was armed with a Lathi and during the course of quarrel he gave a blow from that to Kesra Ram who consequently fell down and became unconscious. Smt. Udi wife of Kesra Ram and Bhera Ram, his son, immediately carried Kesra Ram to house and then one Compounder was called for preliminary treatment. Due to non- availability of vehicle Kesra Ram could not be taken to the hospital and he died in next morning at about 6-7 a.m. On basis of the information aforesaid a case was registered, investigation was initiated and a charge-sheet as per provisions of Section 173 Cr.P.C. was submitted before the competent court. The case being exclusively triable by the court of sessions, the same was committed to it. Learned trial court framed a charge for commission of an offence punishable under Section 302 IPC and on denial of the same accused was tried. The prosecution substantiated its case by producing 10 witnesses out of whom PW-6 Ganga Ram, PW-8 Udi and PW-9 Bhera Ram were cited as eye-witnesses. PW-3 Dr. K.K. Mishra conducted autopsy on body of Kesra Ram, thus, he proved postmortem report Ex.P/4. As per Ex.P/4 the cause of death was shock due to head injuries 3 as described in the postmortem report itself. PW-10 Bhanwar Lal, Station House Officer, police station – Sardarshahar was the investigating officer, thus, he narrated all the steps taken during the course of investigation. The prosecution also produced several documents with a view to get their contents established. The accused Bhanwar Lal was examined by the court as per provisions of Section 313 Cr.P.C. for getting explanation relating to the adverse material available against him in prosecution evidence. The accused denied all the allegations and pleaded innocence. He also submitted an explanation in terms that a matrimonial engagement was settled between the son of Ganga Ram and his sister-in-law, however, due to breakage of same Ganga Ram was annoyed with him, and as such, he implicated him in a false case. Learned trial court after examining the entire evidence available on record convicted the accused and sentenced him accordingly. In appeal, the only argument advanced by learned counsel for the appellant is that even by accepting the entire case as advanced by prosecution, no offence as punishable under Section 302 IPC is made out. According to learned counsel for the appellant the case in any event does not travel beyond an offence punishable under Section 304 4 Part II IPC. It is asserted that the accused appellant was neither intending to kill Kesra Ram nor he was having any knowledge about the effect and impact of the injury alleged to have been given by him. Per contra, learned Public Prosecutor while defending the conviction urged that the accused gave a severe Lathi blow on the head of the deceased and further he repeated his act, and as such, no error is committed by the court below in convicting him for an offence punishable under Section 302 IPC. Learned Public Prosecutor substantiated his argument by citing the statement of PW-8 Smt. Udi, as per whom, five Lathi blows were given by the accused. We have considered the arguments advanced and also scrutinized the record available. In view of the medical evidence available there is no doubt about homicidal death of Kesra Ram. The recovery of a Lathi, as per Ex.P/3, is also established in view of the statements of PW-10 Bhanwar Lal and also the Motbirs of recovery. Precisely, the question requires consideration is that whether the act of accused amounts to murder as defined under Section 300 IPC or lies in any of the exceptions carved out in the provisions aforesaid. PW-6 Ganga Ram is complainant and also happens to be uncle of 5 deceased Kesra Ram and accused Bhanwar Lal. As per this witness, wives of Kesra Ram and Bhanwar Lal, on the fateful day, were quarreling and abusing each other. Kesra Ram too was involved in the quarrel aforesaid. Bhanwar Lal, who was standing quite close to a water tank, then came forward and gave two Lathi blows to Kesra Ram, consequent to which, he fell down and then was taken to house by Bhera Ram and wife of Kesra Ram. A Compounder then was called for preliminary treatment and he advised to take Kesra Ram for some advanced treatment, but due to non-availability of vehicle he was not taken as such. PW-8 Smt. Udi, is wife of the deceased Kesra Ram and as per this witness she had some hot discussions with her elder sister-in-law Smt. Chuki. At that time Kesra Ram and Bhanwar Lal both were present at the spot. During the course of quarrel Bhanwar Lal gave five Lathi blows to Kesra Ram and out of those one blow was given on shoulder. This witness further stated that her husband was then taken to the house, where he was examined by one Compounder, Mr Sharma, who also gave certain medicines including an injection. This witness further stated that Compounder Mr. Sharma advised to carry Kesra Ram for advanced treatment, however, due to non-availability of vehicle the advice so given was not materialized. 6 PW-9 Bhera Ram, a minor, happens to be son of deceased Kesra Ram. After usual general questions and after getting satisfied regarding his understanding he was examined before the Court. This witness stated that his Aunty Smt. Chuki was abusing his mother, as a consequent to that some quarrel occurred, during that his uncle Bhanwar Lal gave a Lathi blow on the head of his father Kesra Ram, consequently he fell down and then he was taken to the house. This witness also stated about preliminary treatment of Kesra Ram by one Compounder. The conviction of the accused is based on testimony of aforesaid three eye-witnesses coupled with the statements of PW- 3 Dr. K.K. Mishra and PW-10 Bhanwar Lal, the investigating officer. The conviction is further supported by recovery of a Lathi at the instance of accused Bhanwar Lal. From minute examination of the statements of eye- witnesses it reveals that some quarrel, as a matter of fact, occurred between wife of deceased Kesra Ram and wife of accused Bhanwar Lal. During the course of heated arguments, Bhanwar Lal gave two Lathi blows to Kesra Ram, consequently, he fell down and then he was taken to his house. A preliminary treatment was also given to him by a Compounder named “Mr. Sharma”. Adequate evidence is available on record to the effect that the Compounder aforesaid advised for advance treatment but that could not be materialized due to non-availability of 7 of vehicle. Kesra Ram died as a consequent to the head injury in the next morning. From examination of entire evidence we are satisfied that no material is available to establish that accused Bhanwar Lal was having any intention to kill Kesra Ram. As a matter of fact, the evidence available on record also not discloses regarding knowledge of Bhanwar Lal about the effect and impact of the Lathi blows given by him. It is also pertinent to note that the Lathi recovered at the instance of accused was also not having any blood stains, and as such, what it appears is that the Lathi blow was given by accused Bhanwar Lal spontaneously due to heated arguments occurred during quarrel. The quarrel was also for some dispute regarding collection of fire-wood from nearby placed. The accused and deceased are bothers, and as such, in normal course, if not otherwise established, the intention of killing a brother is not required to be presumed or assumed. The case of the accused certainly comes within the purview of exception – (iv) carved out under Section 300 IPC, and as such, the same is not murder as defined. We are of considered opinion that the conviction of the accused for the offence punishable under Section 302 IPC is not at all made out. However, the evidence available is sufficient to hold the accused guilty 8 for offence punishable under Section 304 Part-II IPC. Accordingly, this appeal is allowed in part by modifying the conviction of the accused under Section 304 Part-II IPC from the conviction made by the trial court under Section 302 IPC. The sentence of imprisonment for life term is also modified by imprisonment for a term of 8 years rigorous imprisonment with a fine of Rs.500/- and further to undergo one month's simple imprisonment in the event of default in making payment of fine. ( C.M.TOTLA ),J. ( GOVIND MATHUR ),J. jgoyal