1 IN THE HIGH COURT OF JUDICATUARE FOR RAJASTHAN AT JODHPUR. JUDGMENT Naku & another vs. The State of Raj. D.B. Criminal Jail Appeal No.910/03 against the judgment dated 11.3.2003 passed by the learned Additional Sessions Judge (Fast Track) No.1, Banswara in Sessions Case No.141/2002. Date of Judgment: March 10,2008. PRESENT HON'BLE MR. PRAKASH TATIA, J. HON'BLE MR. BHANWAROO KHAN,J. Mr. K.R. Bhati ,Amicus Curiae for the appellants. Mr. V. R. Mehta,P.P. for the State. ... BY THE COURT( Per Hon'ble Mr.Tatia,J): This Criminal Jail Appeal is against the judgment and order dated 11.3.2003 passed by the learned Addl. Sessions Judge (Fast Track), Banswara in Sessions Case No.141/2002, whereby the learned Sessions Judge convicted the appellants Naku s/o Punja , by-caste Bheel and Smt. Shyama w/o Naku under Section 302 and 302/34, I.P.C. respectively and sentenced both the accused for 2 life imprisonment with fine of Rs.1000/- and in default thereof, to undergo one month's rigorous imprisonment. As per the prosecution, on 15.4.2002, at about 12.30 a.m., one Naniya s/o Onkar submitted an oral report which was recorded and produced in the court as Ex.P.18 that at about 9.30 p.m. Kanji s/o Bijiya, Jeewana s/o Bijiya and Prabhu s/o Bariya came to his house and told him that Bhanaji s/o Vithhala has been killed by accused Naku and his wife Smt. Shyama. On this information, the complainant Naniya along with other villagers went to the house of Bhanaji where he found that Bhanaji is lying dead in the outer portion of his house. The complainant and other villagers found that Bhanaji had injuries in his chest which according to them was caused by sharp edged weapon and he was bleeding. There, Bhanaji's wife Smt. Babli, brother Sukha told them that the accused Naku and his wife Shyama killed Bhanaji. They also told that Shyama caught hold of Bhanaji and Naku inflicted the injuries on the chest of the deceased. As per the report Ex.P.18, there was old enmity between Bhanaji and Naku and litigation was also going on between them. It is also stated in Ex.P.18 that the dispute was with respect to some hire charges of one machine. On this report, Case No.145/02 under Sections 302 and 302/34 was registered vide 3 Ex.P.1 (F.I.R.). The site was inspected and site inspection report Ex.P.2 was prepared. The blood stained soil was also recovered and for that, report Ex.P.3 was drawn. The photographs of deceased (Ex.P.8 to Ex.P.12) were taken and negatives were also produced during trial by the prosecution. The post-mortem report is Ex.P.18. The accused persons were arrested and knife was recovered for which Ex.P.24 was prepared. Accused Naku's clothes were also seized. The witness Shambhu was examined under Section 164, Cr.P.C. and the police received Ex.P.25 from the FSL. On the basis of above, challan under sections 302 and 302/34, I.P.C. was submitted against both the accused. The charge was framed which was denied by both the accused and both the accused sought trial. The prosecution examined as many as 16 witnesses, namely, PW-1 Naniya, PW-2 Sukha, PW-3 Babli, PW-4 Smt.Bhula, PW-5 Shambhu, PW-6 Barji, PW-7 Naru, PW-8 Prabhu, PW-9 Lal Singh, PW-10 Vithhla, PW-11 Pratap Singh, PW-12 Dr. S.K. Bhatnagar, PW- 13 Manohar Lal, PW-14 Rajendra Singh, PW-15 Pradeep Jain andPW-17 Bhagwat Singh. The statement of the accused were recorded under Section 313, Cr.P.C., however, they did not produce any witness in defence. 4 The learned Amicus Curiae vehemently submitted that it is clear from the prosecution evidence itself that the victim himself came in the house of the appellant-accused Naku and PW-3 Babli wife of deceased Bhanaji clearly stated that before this quarrel, relation between accused Naku and victim, her husband, were good. They used to eat together and used to go to their job together. Their houses are situated nearby. She also admitted that Naku was drinking liquor and deceased went in the house of Naku and started drinking liquor. She also stated that her husband deceased Bhanaji said that you keep quiet and we will talk in the morning, however, the fight started when the deceased and accused were talking and oral quarrel continued for half an hour. In view of the above, it is clear that on spur of moment, knife injuries might have been caused by the accused but it could not have been with intention to eliminate the victim. She specifically admitted that if her husband would not have gone inside the house of accused, even the quarrel would not have taken place. The learned Amicus Curiae also, with the help of site inspection report Ex.P.2, submitted that from the map annexed with Ex.P.2 itself, it is clear that the quarrel took place far away from the house of deceased Bhanaji and that is supported by the 5 prosecution's most important witness PW-3 Babli wife of deceased Bhanaji. The learned Amicus Curiae also submitted that Shyama has been falsely implicated in the case as the quarrel between deceased and the accused took place and it may be an instant action of inflicting injuries by knife by Naku. It is also submitted that the case does not fall under Section 302, I.P.C. and at the most it may be an offence under Section 304 Part II,I.P.C. It is also submitted that there is only one injury on the body of the deceased. The learned counsel for the appellants relied upon the judgments of this Court delivered in the cases of Raju Shikari & anr. vs. State of Rajasthan (2008(1) RLW 537) and Babu Lal v. State of Rajasthan ( 2008 (1) RLW 53). The learned public prosecutor submitted that there are trustworthy eye-witnesses of the incident and there is no enmity of these witnesses with the appellants. All the eye-witnesses supported the prosecution case. However, witness PW-5 Shambhu, the brother of Naku, did not support the prosecution case and was declared hostile. PW-12 S.K. Bhatngar proved the injury report 6 and clearly stated that even in a case of some quarrel, if some one fell down and suffers any injury from the knife, even then the injury which has been suffered by the victim, cannot come. He also stated that the victim died due to shock because of injuries suffered in the chest. The presence of Shyama on the spot at the relevant time, cannot be denied by the appellant and in view of the statements of all the witnesses, she caught hold the victim and her husband inflicted both the injuries on the body of victim. We considered the submissions of the learned counsel for the parties and perused the record. PW-3 Babali wife of the deceased stated that Naku inflicted fatal injury on the chest of her husband and her husband's blood came on the shirt and underwear of the appellant Naku. PW-2 Sukha also stated that he saw Naku and Bhanaji fighting. PW-2 Sukha is elder brother of deceased Bhanaji, however, they were not living together and their houses are separate. He also stated that when he reached to the place of incident, accused Naku and Shyama both ran away. He also stated that if he would have reached in time, he would have prevented Naku from inflicting injury on Bhanaji. Even when PW-2 Sukha may not be an eye- witness to the incident in view of the fact that he reached after 7 the incident, as admitted by him in cross-examination, but he clearly stated that Naku and Shyama ran away in front of him from the place of incident. PW-4 Smt. Bhula wife of younger brother of accused was also produced by the prosecution and she was declared hostile but she admitted that she saw the blood oozing out from the chest of the deceased Bhanaji. She also admitted that that Sukha and Bhanaji's wife PW-3 Babali were present on the spot. She admitted that Bhanaji and Naku were quarreling orally and she also stated that her husband has taken the knife from the hands of Naku and she was told by PW-3 Babali wife of deceased Bhanaji and by Sukha that Naku inflicted injury by knife. Apart from above oral evidence, the blood was found on the shirt and underwear of the appellant Naku and blood stained knife Article-1 was recovered in pursuance of the information given by the accused-appellant Naku himself. The witnesses of seizure memo Ex.P.3, PW-7 Naru and PW-8 and the witness of recovery of knife vide Ex.P.24, PW-4 Bhula were declared hostile, but so far as their statements of recovery of appellant's pent and shirt with blood stains, stands fully proved. The FSL report (Ex.P.25) says that knife had blood stains of human blood of Group-A and deceased Bhanaji's shirt and towel and the soil taken from the spot, all had human 8 blood of Group-A. The same blood was found on the pent and undergarments of the appellant Naku. In view of the above reasons, the prosecution fully proved the fact that the appellant Naku inflicted injury on the chest of the deceased and that caused the death of the victim Bhanaji. In the case of Babu Lal(supra), the deceased and the accused-appellant were father and son and after hot exchange in regard to sale of millet, the appellant in a fit of anger inflicted a knife blow. This Court held that the act of the appellant appears to be sudden and unpremeditated. This Court observed that because of the hot exchanges, the appellant appears to have lost his temper and committed crime and further the appellant did not take undue advantage of the situation. In view of the above circumstances, the Division Bench of this Court in the said case held that the appellant is guilty of committing offence of culpable homicide not amounting to murder punishable under Section304 Part I, I.P.C. In the case of Raju Shikari(supra), while consuming liquor and the deceased and the appellant were neighbour, the accused caused injuries to the deceased, who succumbed to the injuries then in that fact situation this Court observed that probably the 9 appellants would not have anticipated that the act done by them would have escalated to such proportion that Chhanwa might die. This Court observed that the appellants might have thought to inflict injuries to the victim and to frighten him but unfortunately the situation slipped out of their control and went to the fatal extent. With these reasonings and following the judgment of the Hon'ble Apex Court delivered in the case of Kalu Ram v. State of Rajasthan ( (2000) 10 SCC 324), altered the conviction from one under Section 302, I.P.C. to 304 Part II, I.P.C. The learned counsel for the appellants further relied upon another judgment of the Hon'ble Supreme Court delivered in the case of Suresh Sitaram Surve v. State of Maharashtra (2003(1) CJ Cr. 8). In this case, the appellant-accused was resident of the same locality and there was enmity between the deceased and family of the appellant-accused. A day previous to the date of offence, the accused 1 to 6 hurled abuses at the deceased and his family members in front of his house. On the date of incident at about 8.30 p.m, as the deceased was entering the bye-lane reaching to his chawl, the accused persons were pelting stones on the chawl and also hitting the windows with striks. They were armed with different weapon like farshi, gupty, iron bars and striks. Soon 10 thereafter, they surrounded the deceased and began to assault him. Hon'ble the Apex Court observed that the witnesses unequivocally spoke to the fact that the appellant did inflict an injury by piercing gupti into the stomach or abdomen of the deceased. The appellant inflicted one of the four injuries noted in the post-mortem report. The injury was found to be serious injury, whether or not they are sufficient in the ordinary course of nature to cause the death. Then Hon'ble the Apex Court held that “Any one of the is severe enough to infer that it was likely to cause death” and the appellant undoubtedly intended to cause such bodily injury but it cannot be inferred positively that the appellant himself intended to cause death and, thereafter, the appellant was convicted for committing offence under Section 304 Part II, I.P.C. and sentenced the accused to seven years rigorous imprisonment with fine of Rs.1000/-. In the present case also, the appellant Naku is neighbour of deceased with a distance of about 50 ft. only. The appellant was taking liquor and eating onion. Because of some transaction about some machine, there was dispute between the appellant and the deceased, otherwise, they were living together happily and used to go to their jobs together. It appears that while taking liquor, the 11 appellant was also talking with deceased, who might have been responding from near his house and during this, deceased Bhanaji went in the open courtyard of house of the appellant Naku and in that situation, they started fighting and during this, Naku inflicted injury by knife. The total injuries on the body of the deceased are as under:- “1. Incised wound 4-1/2 cm x 1-1/2 cm on the left side of the chest near middle line. 2. Incised would 1 cm x ½ cm near left index finger and thumb. 3. one would on left index finger 1 cm x ½ cm and 4. three bruises on the legs.” Therefore, in all probabilities, it appears that the appellant Naku might have tried to frighten the deceased with a knife only and in that situation, he inflicted the injuries on the deceased. Therefore, the appellant cannot be held guilty for committing offence of murder under Section 302, I.P.C., however, he is guilty of committing offence under Section 304 Part II, I.P.C. Hence the the appeal of the appellant Naku deserves to be allowed in part. So far as conviction of the appellant Shyama is concerned, that conviction is under Section 302 read with 34, I.P.C. The facts considered above clearly reveal that Smt.Shyam could not have any 12 opportunity to form an opinion and intention to kill the deceased because, in a quarrel between the appellant Naku (the husband of appellant no.2 Shyama) and the victim, all of sudden the situation turned wrong and the appellant Naku inflicted knife injury on the chest of the deceased. There is no allegation that there was any preparation for committing offence by both the appellants and, thereafter, they both came to inflict injuries on the deceased with common intention of eliminating the victim or to cause even any grave injury. Appellant Shyama's presence on the spot was natural as houses of the appellant-Naku and the victim Bhanaji were in the same line and not at any distance. Her presence on the spot and if she caught a victim who was quarrellings with her husband and during this time, the injury was inflicted by her husband then that fact itself is only natural and cannot be with knowledge that what husband may do. So far as statements of others witnesses for involvement of Shyama is concerned, they only proved that Shyama was present on the spot but her role in killing Bhanaji is not proved nor it appears to be probable in view of the fact that PW-3 Babali, the best witness of the prosecution-wife of the deceased Bhanaji, stated in her statement that Naku alone was taking his drink and 13 her husband went in the house of the appellant where Naku was drinking and both started fighting after quarrel of half an hour. In that situation, it appears that in the fight, the appellant Naku inflicted injuries on the chest of Naku. The prosecution failed to prove the involvement of accused-appellant Shyama in this incident of killing Bhanaji. Consequently, the appeal of the appellant Naku is partly allowed and the order of conviction passed by the trial court under Section 302, I.P.C. is set aside and the appellant is convicted for the charge under Section 304 Part II, I.P.C. and is sentenced to ten years' rigorous imprisonment and to pay a fine of Rs.1000/- and, in default of payment of fine, to undergo imprisonment for further period of four months. The appeal of the appellant Smt. Shyama is allowed and she is acquitted from charge under Section 302/34 IPC. Accused-appellant Shyama is already on bail and her bail bonds are cancelled and she need not to surrender. ( BHANWAROO KHAN) ,J. (PRAKASH TATIA),J. mlt.