1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR **** :JUDGMENT: Pappu @ Darshan Singh Vs. State of Rajasthan **** D.B. CR. APPEAL NO.250/2001 AGAISNT THE JUDGMENT AND ORDER DATED 21.3.2001 PASSED BY SHRI NANAGRAM SHARMA, RHJS, ADDL. DISTRICT & SESSIONS JUDGE, SRI GANGANAGAR IN SESSIONS CASE NO.71/2000 <><><> Date of Order : 23rd April, 2008 PRESENT HON'BLE MR. JUSTICE PRAKASH TATIA HON'BLE MR. JUSTICE CHAND MALTOTLA Mr.HHS Kharlia, for the appellant. Mr.VR Mehta, Public Prosecutor. BY THE COURT: (Per Hon'ble Mr. Justice Prakash Tatia) This appeal has been preferred against the judgment and order dated 21.3.2001 passed by the court of Sessions Judge, Sri Ganganagar in Sessions Case No.71/2000 whereby the trial court convicted the accused-appellant Pappa @ Darshan Singh S/o Ghukar Singh under Section 302 IPC and sentenced him to undergo life imprisonment and also imposed a 2 fine of Rs.1,000/- and in default thereof to undergo six months' RI. As per the prosecution case on 17.9.2000 at about 4.00 PM complainant Mewa Singh S/o Jang Singh, resident of Sangatpura gave a Parcha Bayan at Government Hospital, Sri Ganganagar to Shri Sukhchain Singh, ASI, Police Station Mithilirathan stating therein that he has to other brothers and one of his brother Nayab Singh is living separate from his father. His house is near the house of his father. In the previous night at 8.00 PM, there was some voice coming from their lane then complainant's younger brother Kala Singh, who was there asked the accused Pappa @ Darshan Singh and Nakshtra Singh why they are shouting. Nakshtra Singh left the place, but quarrel started between Kala singh and Pappa @ Darshan Singh and it was as mentioned in the Parcha Bayan itself was a ordinary incident. Thereafter, Kala singh went in his house, but Pappa @ Darshan Singh appellant-accused remained standing there with one Lathi. Hearing the voice, when complainant's father Jang Singh came outside the house then Pappa stopped Jang Singh and inflicted one heavy blow of 3 Lathi on the head of Jang singh. Jang Singh instantly fell down there. When Pappa tried to inflict further injuries on Jang singh, the complainant's brother Joginder singh and his mother intervened and Pappa ran away with the Lathi. The injured Jang singh was taken to hospital by complainant's bothers Nayab Singh and Joginder Singh. On the basis of above Parcha Bayan, FIR No.134/2000 was drawn and a case under Section 307, 341 and 323 IPC was registered. During investigation, Jang singh died,therefore, Section 302 IPC was added in the case. After investigation, the challan was filed under Section 302 IPC against the appellant-accused in the court of Civl Judge (Jr.Div.) and Judicial Magistrate, First Class, Sri Ganganagar who committed the case to the court of Sessions Judge where the charge under Section 302 IPC was framed against the appellant- accused, which was denied by the appellant-accused and he sought trial. Before the trial court prosecution produced witnesses PW-1 Mewa Singh, PW-2 Joginder singh, PW-3 Jitendra Kumar, ASI, PW-4 Sube singh, SI, PW- 4 5 Anil Kumar, Head Constable, PW-6 Kailash Chand, Constable, PW-7 Kala Singh, PW-8 Sukhchain Singh and PW-9 Dr. Inder Pal Singh. The accused was examined under Section 313 Cr.P.C. who stated that all the witnesses are from one family and they are giving total false statement. However, the accused did not choose to produce any defence witness. Prosecution produced as many as 18 documents, which includes site inspection report Ex.P/1, seizure memo of the body Ex.P/2 and petitioner/3, site map Ex.P/6 and site report Ex.P/6A. The offence of weapon – Lathi was recovered for which recovery memo Ex.P/7 was drawn. The FIR was exhibited as Ex.P/9. The other documents of sending articles to the FSL and FSL report also exhibited alongwith other documents. Learned counsel for the appellant vehemently submitted that the appellant-accused has already served more than seven years imprisonment as he was arrested on 22.9.2000 and since then he is behind the bar. It is also submitted that apart from the fact that the appellant has been wrongly implicated and all the witnesses produced by the 5 prosecution are highly interested witnesses. The facts reveal that as per the prosecution only in minor incident of quarrel, one injury by one Lathi was inflicted on the head of the victim Jang Singh and that went fatal. Even from the Parcha Bayan itself it is clear that apart from the statement of all the witnesses produced by the prosecution who are interested also that there was no previous enmity between Jang Singh and the accused or any family member of Jang Singh with the accused. It appears that during the course of heated verbal exchange between Kala Singh and accused, Jang Singh might have intervened and in the situation, the accused might have inflicted one injury to teach a lesson to Jang Singh and in that he might have inflicted Lathi blow on Jang Singh and accidentally it might have hit the head of Jang Singh with force. There cannot and could not have been any reason for killing a person simply because there was some verbal quarrel between the son of the deceased with the accused. In view of the above, firstly, the accused deserves to be acquitted from the charge under Section 302 IPC as there was neither any intention of the accused nor it 6 was a pre-determined injury caused by the accused and it was an accidentally death only and in alternative, the case can fall under Section 304 Part II IPC only and the accused has already undergone sentence of more than seven years then he can be awarded the sentence already undergone. Learned Public Prosecutor submitted that even a single blow by the accused may be sufficient to cause death and in this case, the accused inflicted injury with such heavy blow that it resulted into death of Jang Singh. When with one injury if victim died, there was no reason for the accused to inflict more injuries on the body of Jang singh. It is submitted that the injury report as well as Post- Mortem report is corroborating the ocular statement of the witnesses and testimony of the witnesses cannot be rejected only on the ground that they are related to the victim. We considered the submissions of learned counsel for the parties and perused the record also. It is clear from the evidence on record that the complaint was submitted by complainant Mewa singh on 17.9.2000 (orally) upon which his Parcha Bayan was recorded. He stated that he heard some noise 7 from the lane of his house and came out from his house. He saw that Pappa @ Darshan Singh and Nakshatra Singh were shouting and his brother Kala Singh also came on the seen. His brother Kala Singh asked Pappa @ Darshan Singh and Nakshtra Singh to stop shouting upon which Nakshtra Singh left the place, but the appellant-accused Pappa @ Darshan Singh remained there. By that time, the complainant's father came out from the house and saw quarrel between Pappa @ Darshan with Kala Singh. The complainant's mother came from the house and took Kala Singh inside the house. However, Jang singh with whom there was no quarrel was standing at the seen of occurrence and Pappa @ Darshan Singh inflicted injury with Lathi on the head of complainant's father Jang Singh who fell down there and thereafter died. The accused was identified by Mewa Singh. He further stated that when appellant-accused tried to inflict more injuries then complainant and his mother and brother intervened upon which appellant-accused ran with Lathi. The victim was taken to the hospital and there he died. From cross-examination, the defence could not 8 shatter the credibility of the witness Mewa singh nor there is any material contradiction in the statement of the said PW-1 Mewa Singh. The complainant's statement have been corroborated by PW-2 Joginder Singh, his bother and nothing came out from the cross-examination of the PW-2 Joginder Singh so as to pass any doubt on the credibility of the statement of the said witness PW-2 Joginder Singh. The above oral statement about inflicting injury is fully corroborated by the injury report of Jang Singh Ex.P/20. As per the FSL report the victim's shirt and turban as well as Lathi which was recovered from the accused had human blood and the blood group of above three articles were of B+ ('B' Positive). PW-9 Dr. Inder Pal Singh proved the post moretem report and opined that the injury was caused before the death of victim and injury was sufficient to cause death in ordinary course. The post mortem report corroborated the fact of inflicting of injury so as to cause death of the victim. PW-7 Kala Singh, bother of the complainant with whom there was quarrel of the appellant also corroborated the statement of the complainant and gave full narration of the incident 9 how it happened. In view of the above, we do not find any illegality in the finding of the trial court that the victim Jang Singh died due to injury which was inflicted by the appellant by Lathi and Jang Singh died because of that injury. However, so far as conviction of the appellant under Section 302 IPC is concerned, in the facts of the case, we are of the view that prosecution failed to established that appellant-accused had intention to eliminate Jang Singh. For this purpose, it will be relevant to mention here that the incident occurred because of some verbal exchange of words between the victim with the accused and there is no previous enmity between the parties and this fact has been admitted by PW-1 Mewa Singh in his cross- examination specifically, then in that situation, the inflicting of one injury by the accused on Jang Singh, that too, by Lathi, may be sufficient to cause death, but accused might have tried to teach lesson to the victim, but that injury became fatal. The injury was sufficient and likely to cause death in ordinary course of nature, but so far as intention to kill the victim, 10 cannot be inferred from the totality of the evidence available on record, which includes oral statement of the witnesses referred above and the nature of the injury. In view of the above, the conviction of the appellant under Section 302 IPC cannot be sustained and the appellant is liable to be convicted under Section 304 Part II IPC. He has already undergone sentence of more than seven years, therefore, his sentence is reduced to the sentence already undergone. The appeal of the appellant is accordingly partly allowed and the conviction of the appellant under Section 302 IPC is set aside and he is acquitted from the said charge. However, the appellant is convicted under Section 304 Part II IPC and his sentence is reduced to already undergone. The appellant- accused be released forthwith in case he is not needed in any other case. [CHAND MAL TOTLA], J. [PRAKASH TATIA],J. c.p.goyal/-