1 D.B. Criminal Appeal No. 1005/02 (Kishan Singh Vs. State) IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR JUDGMENT D.B. CRIMINAL APPEAL NO. 1005/2002 (KISHAN SINGH VS. STATE) D.B. CRIMINAL JAIL APPEAL NO. 91/2003 Appeal Under Section 374 Cr.P.C. against the judgment dated 30.10.02 passed by Additional Sessions Judge, (FT) Rajasamand in Sessions Case No. 28/02. Date of Judgment : 19th February, 2010 PRESENT HON'BLE MR. JUSTICE GOVIND MATHUR HON’BLE MR. JUSTICE C.M. TOTLA Mr. S. Saruparia for the appellant. Mr. A.R. Nikub , P.P. = = = = BY THE COURT :- (PER HON'BLE TOTLA, J.) Appellant challenges his conviction for the offence of Section 302 IPC and awarded sentence of life imprisonment with fine of Rs. 2000/-for causing death of his father Shri Udai Singh. D.B. Criminal Appeal No. 91/03 is the jail appeal whereas, D.B. Criminal Appeal No. 1005/02 is representive appeal. So, both the appeals are decided by this common judgment. Alleged events per prosecution appears to be that on 14.05.02 at about 7:40 AM, SHO Kelwada PW/9 was given information on wireless from control room that in village Thoria, is killed Udai Singh S/o Nanda Singh by his son – recorded in Roznamcha Ex.P/14 and also that information one and SHO proceeding reached at the place of incident in village Thoriya at about 8 AM where at the house of deceased in 2 D.B. Criminal Appeal No. 1005/02 (Kishan Singh Vs. State) verandah was dead body of Udai Singh and his brother Ram Singh (Rai Singh) PW/1 orally reported that in last night at about 11 PM, he being at his house heard crying and help seeking shouting of 'Bhabi' Smt. Badam (PW/10) coming from house of Udai Singh saying “Mare re Mare re daudo”, so he went there and saw that dead body of Udai Singh was lying in compound of Dhaliya) and nephew Kishan Singh with a stick in his hand was standing over roof – smt. Badam Bai was at Beeda (barren land) – looking so, PW/1 went to village and called Naina, Hukum Singh and others and when came back after about an hour or hour and half Smt. Badam was also at home who told of Udai Singh being beaten by Kishan Singh of a lath. PW/1 also stated that Kishan Singh is a habitual quarreller who often quarreled so he himself (PW/1) have constructed and residing in a house at a little distant. Also is narrated that because of non-availability of means could not inform at night and brother is killed by Kishan Singh appellant by blows of lathi. The information was reduced in writing as Ex.P/1 and SHO PW/9 making own endorsement on it directed for registration of case at P.S. where FIR No. 60/02 for the offence of 302 IPC Ex.P/2 registered. PW/9 commencing investigation (i) in presence of PW/1, PW/2, PW/8 inspecting place of occurrence prepared memo and site plan Ex.P3 where at verandah of the house was blood, sample of which and also of plain soil collected and sealed packets marked as A & B and memo Ex.P/5 (ii) in open compound at about 9 ft below a neem tree was a Godri (mattress) having blood stains which also seized and sealed packet marked as C – memo Ex.P/6 (iii) from verandah at a distance of about 3 ½ ft lying was a wood stick having some blood like stains which also seized and sealed packet marked as D and memo Ex.P/7. (iv) dead body examined and inquest report Ex.P/9 prepared (v) Postmortem at 11:45 is conducted by doctor Medical officer PW/6 (vi) taken a piece of dhoti worn by deceased vide P/8 handed over for last rites Packets of 3 D.B. Criminal Appeal No. 1005/02 (Kishan Singh Vs. State) sealed articles safely kept by malkahana incharge PW/7 and handed over to Constable PW/7 and PW/11 alongwith forwarding letter P/13, P/17 who deposited with forwarding letter Ex.P/17 in laboratory obtaining receipt Ex.P/12. Appellant accused arrested on the same day on 14.05.02 at 7:30 PM and after investigation chargesheet submitted. FSL Report is Ex.P/16 and sample collected from site and on Godri and piece of Dhoti was human blood – on dhoti of A group. Appellant is charged that he on 13.05.02 at about 11 Pm in night in village Thoria with intention and in order to cause death of father Udai Singh inflicted blows of lathi on head and other organs caused his death – denying and claimed trial. Among the prosecution witnesses examined PW/1 is first informer who hearing cries of Smt. Badam for help immediately reached there and deposes accordingly. Prem Singh PW/2 brother of deceased, and PW/1 state of living nearby and reaching there on hearing of loud noises and Khum Singh PW/3 also say of incident and consequential death of Udai Singh, PW/4, 5 and 8 are motbirs of investigation. PW/9 SHO I.O. depose of conducting entire investigation, as above, and proves different memos. Head Constable PW/7 Malkhana incharge and Constables PW/11 and PW/7 pertain to safe keeping and delivering articles at laboratory. Smt. Badam Bai PW/10 wife of deceased is eye-witness. Dr. Om Prakash PW/6 who conducted postmortem depose so and report Ex.P/10. Appellant explains that witnesses telling lie and he is ignorant of the incident. Appellant asserts that Smt. Badam PW/10 is telling wrong per guidance of Prem Singh and Ram Singh and that in their cattle shed in verandah (Guhadi premises) ablaze was fire so cattle became berserk and as father Udai singh tried to stop, cattle overrun and he injured. Appellant further states that he falsely implicated because he is only son of deceased and witnesses want to grab his land. NO defence evidence led. 4 D.B. Criminal Appeal No. 1005/02 (Kishan Singh Vs. State) Learned Additional Sessions Judge arrived at conclusions that appellant with intention of causing death voluntarily causing blows of lathi caused death and sentenced as above. Heard learned counsel for the appellant and also learned Public Prosecutor, perused the record, judgment assailed and memo of appeals. On behalf of appellant drawing attention towards contents of FIR and deposition of witnesses particularly that of PW/10, 1 & 2 argued is that definitely PW/1 or PW/2 or any else did not witness the incident – per PW/10 wife of deceased also as she went away on quarrel or best at when first blow was inflicted then she could not have seen the incident – delayed is FIR – PW/3 and PW/4 do not support prosecution and definitely do not depose in consonance with PW/1, 2 or 10. Argued that behaviour of PW/10 Smt. Badam in calling PW/10 who lives at a distance and not adjacent living PW/1 is not normal. Further argued that if there was some dispute between the appellant and his father, then act of smt. Badam PW/10 of going at the field after first blow and to call Rai Singh and then coming back is not natural - that significant are the contradictions and inconsistencies appearing and not proved beyond doubt is that only appellant caused the injuries. Also argued that blood stains are not proved on recovered lathi. Lastly submits that appellant and deceased are son and father so, even if there was some differences between them, still could not be inferred that appellant had intended or knowingly caused such injuries as likely to cause death. Learned Public Prosecutor countering above argues that PW/1 and PW/2 are real brothers who soon reached and saw appellant with a stick and Badam Bai PW/10 eye witness is mother of appellant. Submits that as many as four injuries successively caused, three of which grievous. We have thoughtfully considered the contentions raised. Per evidence of witnesses PW/10, 1, 2 and well supported by Dr. 5 D.B. Criminal Appeal No. 1005/02 (Kishan Singh Vs. State) PW/6 and postmortem report proved is that Udai Singh died very late night of 13.05.02 or very early 14.05.02 because of injuries (i) lacerated wound 5x6x4 cm left frontal parietal region bone depressed –brain material coming out and fracture of temporal region (ii) lacerated wound 4x 3 x 3 cm at upper part of nose (iii) lacerated wound 5 x 5 x 4 cm left temporal region (iv) lacerated wound 2 x 1 x 1cm left hand. All injuries caused by blunt object and in addition of temporal bone and depressed frontal bone were fractures of left elbow and left femur and 2nd metacarpal of left hand. Doctor PW/6 accepts that possible can be the injuries by falling from height or by overrunning of cattle. Only on a bare look at the injuries safely can be said that of injuries in normal course every likelihood was of death. Hukum Singh PW/3 state that he informed of the incident by Rai Singh who coming to his house at about 10 PM told him and he asked PW/1 also to inform villagers then they went to house of Udai Singh where lying dead in verandah with injuries on head leg et was Udai Singh. PW/3 state that he informed on telephone at about 5 :30 AM to P.s. SHO PW/9 depose of having received information from control room. Thus stands explained as to how SHO was informed of the incident. Established per evidence of PW/9 is that from Thoria Choki Gajpur is 2 km from where P.S. is 16 km. The information of the incident was narrated by PW/1 to SHO PW/9 though PW/9 do not specifically say that Ex.P/10 written by him but he categorically say of lodging before him and taken down in writing and PW/9 making own endorsement forwarded to P.S. for registration. FIR is described above. Ram Singh PW/1 in his information said that on hearing crying shouts of ‘Mare re Mare re’ at 11 PM he reached house of Udai Singh where Udai Singh was lying and kishan Singh 6 D.B. Criminal Appeal No. 1005/02 (Kishan Singh Vs. State) standing at roof – Bhabhi Smt. Badam in Beera and then he going to village told Naina, Hukum Singh and others. Further states that when he returned after 1 – 1 ½ hours, Badam Bai was at home. Ram Singh PW/1 in his deposition say that his house is at little distance and at 10-11 PM when he went there, Kishan Singh was beating his father Udai Singh and oozing was blood from hand, head and legs so he (this witness) made him comfortable rest in verandah who was alive – he then going to village telling Naina and Hukum singh came back with them there also came brother Prem Singh – PW/1 in cross-examination says that he informed Hukum Singh who has jeep and a telephoned - denies that because of some ablaze in cattle shed, cattle broke ropes overrun Udai Singh. PW/1 confronted of some portion of his statement under Section 161 Cr.P.C. Ex.D/1 denies to have stated that he not found Smt. Badam Bai when came and she was there only when he returned to village with others. Here it may be mentioned that this contradiction is very minor and insignificant because firstly house of all are in same locality and further Per FIR also Smt. Badam Bai was on beeda i.e. barren land. Per site plan Ex.P/3 and other evidence appears that open compound like Badas and some fields are very near there. Smt. Badam PW/10 mother of appellant and wife of deceased says that son Kishan singh did not work and keep sitting at home, so was differences between father and son on that day they at home after sunset in night were preparing to take meals and the quarrel occurred. PW/10 depose that for several days, some dispute between father and son was on so appellant had beaten and inflicted a blow of lathi to her husband so she going out of house told Prem Singh PW/1 and by the time came back with Ram Singh and some other villagers her husband was dead. In cross-examination again asserts that as appellant inflicted first blow she went out to call Rai Singh. On above basis, contention on behalf of 7 D.B. Criminal Appeal No. 1005/02 (Kishan Singh Vs. State) appellant is that reaction of Badam Bai and also of Ram Singh PW/1 i.e. of PW/10 going out of house and PW/1 going to call is strange. In the opinion of the Court, considering other circumstances like very often quarrel and as dispute between father and son and also that PW/1 began to live at a little distance and also that naturally felt by necessity PW/10 and for (as quarrel occurred and first blow) to someone responsible of family intervene in between father and son explained above. Prem Singh PW/2 real brother of deceased resides just adjacent to the house of deceased with common wall say that on hearing cries he ran to house of Udai Singh where Kishan singh having lathi by it was beating Udai Singh who died about after 15 minutes. Prem Singh PW/2 says that wife of deceased (PW/10) was uttering loud cries and Ram Singh informed Naina, Hukum Singh and others who did came. In cross- examination PW/2 accepts that on cattle shed top was some ablaze (fire) which was being doused by Kishan Singh but assertingly denies of and that because of fire, cattle breaking ropes ran away and as Udai Singh prevented, he overrun by cattle and injured. Drawing attention towards above portion and mention in site plan Ex.P/3 of some fire, for appellant vehemently is submitted that possibilities of cattle having ran away and overrunning the deceased cannot be ruled out. On careful examination, it seems that even in memo Ex.P/3 mention is only of some slight fire – PW/1, PW/10 or I.O PW/9 do not mention of such fire. Therefore, the raised argument cannot stand. Looking to overwhelming evidence, contention of stick having no blood stains is irrelevant. Thus stands proved that appellant had inflicted 3-4 blows of lathi which resulted in death of his father Shri Udai Singh. Now coming to question as to what offence is committed, it surfaces that appellant and deceased son and father - appellant is only 8 D.B. Criminal Appeal No. 1005/02 (Kishan Singh Vs. State) son – some dispute or annoyance for several days because of appellant not doing productive or earning work was – wooden stick or lathi is commonly kept by village agriculturists and not necessarily always a weapon - quarrel began while beginning to take meals and actual beating some time after at 10-11 PM. Further, PW/1 deposes that appellant was very much at home and according to PW/2 also Kishan Singh was there. PW/3 who reached there says that appellant was sitting by his father and also says that at leg of Kishan, the appellant was bleeding. Bhru Singh PW/5 before whom memo Ex.P/09 was prepared speaks that Kishan Singh was sitting there. According to main witness PW/10 she told them not to quarrel and as per her evidence, seems that right some forenoon some dispute and quarrel was going on. In addition to above, injury on leg of appellant. Memo of arrest Ex.P/15 mentions that on left leg is a fresh injury with blood and also a injury with swelling on left hand. Appellant sitting there calmly and perhaps separation with other element tend to establish that appellant not intended to cause death. Taking all these factors cumulatively and as quarrel with abuses were going on for several hours and other reasons and factors as above, it cannot be said that appellant intended to cause death of father. The stick is not a bamboo lathi but was a stick of Berry tree. However, looking to number, nature and organs where injuries inflicted, definite is that appellant had knowledge that likely result is of death. This act of causing bodily injury as likely to cause death comes within the ambit of Section 304 Part I IPC and not Section 302 IPC. For the reasons and on findings as above, appellant is to be convicted for the offence of Section 304 Part I and not under Section 302 IPC. Now coming to sentence, the appellant was arrested on 14.05.02 and thus, nearing eight years in detention. No other criminal antecedent is 9 D.B. Criminal Appeal No. 1005/02 (Kishan Singh Vs. State) attributed to him. But also are more than one injuries above. Taking all the circumstances together, in the opinion of the Court, it will be just and proper to punish the appellant with eight years rigorous imprisonment and fine of Rs. 10,000/-, in default to undergo four months rigorous imprisonment. As per above inferences, appeal deserves to be accepted partly. Accordingly, allowing the appeal partly, while convicting the appellant for the offence of Section 304 Part I IPC and sentencing to nine years rigorous imprisonment with fine Rs.10,000/-, in default of payment of fine for offence of Section 304 Part I IPC, appellant to undergo six months RI, his conviction and sentence for the offence of Section 302 IPC is set aside. As above, both the appeals are decided. (C.M. TOTLA), J. (GOVIND MATHUR), J. bjsh