1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR. J U D G M E N T Mohanlal vs. State of Rajasthan D.B.Criminal Appeal No.1017/2003 against the judgment dated 7.3.2003 passed by Additional Sessions Judge, Sangariya, in Sessions Case No.77/2002 (15/2002). Date of Judgment :: 18th February, 2010 P R E S E N T HON'BLE MR.JUSTICE GOVIND MATHUR HON'BLE MR.JUSTICE C.M.TOTLA Mr. Ashok Upadhyay, for the appellants. Mr. KR Bishnoi, PP, for the State. .... BY THE COURT : (PER HON'BLE MATHUR,J.) By the judgment dated 7.3.2003 learned Additional Sessions Judge, Sangariya convicted the appellant accused for commission of an offence under Section 302 IPC and for that sentenced him to undergo imprisonment for life term with a fine of Rs.1000/- and in default to payment of fine the accused was required to further undergo six months rigorous imprisonment. 2 The factual matrix, necessary to be noticed is that on 24.3.2002 Shri Ramdev Singh, the then Station House Officer of Police Station Sangariya, recorded statements of PW-9 Smt. Saroj at the place of incidence and on that basis lodged an FIR to investigate alleged offences under Sections 302 and 450 IPC. PW-9 Smt. Saroj in the statement aforesaid (Ex.P/7) stated that she married with deceased Sohanlal about 8-9 years earlier and since then she was residing with him in a house at Ward No.8. About a period of three months earlier to the date of incident, she came to reside in Ward No.8 at the instance of her father-in-law. The retention of Sohanlal and his family was not liked by Mohanlal (elder brother of deceased), thus, he used to quarrel with them. On the day of incident at about 7:00 PM deceased Sohan after completing his labour work came to home and gave some money to Saroj to bring flour. At that time Ramswaroop asked Sohan to give him a bidi, for that Sohan instructed Sukhpal, his son, to bring a bundle of bidi also. An another son of Sohan viz. Ravi (born from his first wedlock) also came then and stated that he will give beating to Sukhpal. Sohan then asked to Ravi the reason for giving such beating. On this asking, Mohan who was standing near to wall came forward and supported Ravi. Mohanlal suddenly carried a brick and gave a blow from that on the head of Sohanlal, consequently he fell down. Sohan was then taken to hospital and was declared dead. 3 After regular investigation accused Mohanlal was charge-sheeted for the offences punishable under Section 449 and 302 IPC. The case then was committed to the court of learned Additional Sessions Judge No.1, Hanumangarh and was then transferred for trial to the court of Additional Sessions Judge, Sangariya. The prosecution substantiated its case by producing nine prosecution witnesses and also exhibited 24 documents. The accused was put forth for examination as per provisions of Section 313 Cr.P.C. wherein he denied all the allegations, whatever said by the witnesses and also whatever available in evidence against him. The defence produced DW-1 Ravi in witness box, and also got a document i.e. the statement of one Kuldeep Singh as Ex.D/1 exhibited. During trial, PW-1 Ramswaroop; PW-2 Indraj; PW-3 Budhram; PW-6 Pawan Kumar were declared hostile. Budhram is father of the deceased and Pawan Kumar is nephew of deceased. Indraj and Budhram were motbirs, who accompanied investigating agency at the time of recovery of brick said to be recovered on basis of disclosure statement given by the accused. PW-4 is Dr. Naresh Garg who conducted postmortem. PW-7 Ramdev Singh was the investigating officer and PW-5 and PW-8 are the police constables who released and carried samples to Forensic Science Laboratory for forensic test. 4 Learned Additional Sessions Judge convicted the appellant by placing reliance upon the statements of PW-9 Saroj, PW-7 Ramdev Singh and also the medical evidence. Learned Sessions Judge while noticing that some discrepancies occurred in registering recovered material and releasing certain articles for their remission to the Forensic Science Laboratory, held that those were not at all fatal to demolish the prosecution case. It was also held that testimony of PW-9 Saroj cannot be disbelieved merely on the count that other witnesses viz. Ramswaroop, Pawan Kumar, Indraj and Budhram were declared hostile. While pressing the present appeal, the contention of counsel for the appellant is that the entire prosecution story is highly unbelievable and is full of inconsistency. It is urged that PW-9 Saroj at the first instance while making statement before PW-7 Ramdev Singh, stated that a brick blow was given on the head of deceased by Mohanlal and same was the position maintained by her while deposing before the court, but as a matter of fact deceased received two head injuries and both were at the distance of about 3-4 inches. The injuries suffered by deceased as per medical evidence could not have been received by one blow, as such the second injury is absolutely unexplained. It is also urged that the medical evidence is silent about effect of each of the 5 injuries for causing death and as such in no way it could have been determined that which was the injury given by the accused and how that was a reason to cause death of Sohan. It is also urged that in Maalkhana register Ex.P/5-A, only three articles were mentioned but four articles were sent to Forensic Science Laboratory and this discrepancy establishes concoction on part of the prosecution. While pressing the argument aforesaid it is also pointed out that as a matter of fact the brick which is said to be used to give an assault was not registered with Maalkhana record. The other argument advanced is that there are so many inconsistencies even in the statements of PW-9 Saroj and, therefore, her testimony cannot be believed. As per counsel for the appellant, Smt. Saroj while making statement Ex.P/7 stated that one brick blow was given at the head of deceased, but before the court she stated that there was heavy brick throwing and number of brick pieces were lying at the spot. Counsel for the appellant attracted our attention towards site plan wherein no pieces of bricks are shown. Beside the above, counsel for the appellant also urged that the recovery of brick is highly doubtful as the motbirs Indraj and Budhram have not supported the prosecution story. We have examined the entire record and also considered the arguments advanced. 6 True it is, the eye witnesses except PW-9 Saroj were declared hostile as they did not support prosecution case, but merely on that count the testimony of PW-9 cannot be disbelieved. It is pertinent to note that eye witness Ramswaroop is father of the accused and Pawan Kumar is his nephew. So far as PW-9 Smt. Saroj is concerned, we do not find any inconsistency in her statements. While making her statement before PW-7 Shri Ramdev Singh on 24.3.2002, she stated in quite unambiguous terms that Mohanlal gave a brick blow at the head of Sohan and consequent to that he fell down. She maintained the same position while deposing before the court. Something said in addition to giving blow by brick, is not so relevant in present case to make testimony of PW-9 Saroj absolutely disbelievable. We do not find any reason available for this witness to implicate accused falsely. In view of it, we are having no hesitation in holding that the trial court rightly believed with the version given by PW-9 Smt. Saroj. So far as discrepancy in registering some articles in Maalkhana is concerned, we are in agreement with the trial court that the same is nothing but a mere irregularity and in no way hurt merits of the prosecution story. It is also relevant to note that the trial court while holding the present appellant guilty relied upon statements of Saroj, 7 statements of investigating officer and also the medical evidence. The other argument advanced by counsel for the appellant that as per PW-9 Saroj only one brick blow was given by Mohan, but as per medical evidence two injuries were available on the head of deceased and as such who is author of second injury, remains unexplained. We do not find any merit in this contention in view of the fact that one injury was received by a blow given by the accused and the another injury may had been received on falling down of Sohan. PW-9 Saroj was quite consistent in saying that after receiving brick blow deceased fell down. At this juncture the antemortem injuries received by the deceased also deserves consideration, which are as under:- EXTERNAL INJURIES : “1. Lacerated wound : 1” x ¼” x ½” in size center of forehead, blood is present on wound. 2. Lacerated wound : 2½” x ½” x ½” on the junction of parieto-occipital region. Dissection of Scalp : Echymosis and clotted blood present on the corresponding areas of external injury. Skull bone is fractured at frontal area (2” long) and at junction of parieto occipital region (2”).” 8 The injuries aforesaid are grievous and PW-4 Dr. Naresh Garg in quite unambiguous terms opined that intra cranial bleeding because of the injuries was sufficient to cause death in normal course. In this factual position, it is also established that any of the single injury out of two grievous injuries was sufficient to cause death. Now the issue deserves consideration is that whether the act of the appellant covers the ingredients to hold him guilty for committing an offence under Section 302 IPC. From the entire evidence available on record, we do not find any intention on part of the accused to cause death of Sohan. The entire incident was spontaneous and during heat of moment accused gave a brick blow without having any intention to kill but with knowledge that his act may cause death. In view of it at the most it can be inferred that the accused without having any intention to cause death inflicted such a bodily injury that ultimately caused death. Accordingly, the conviction under Section 302 IPC is not sustainable. We are of the opinion that act of the appellant does not travel beyond an offence under Section 304 Part-II IPC. The instant appeal, therefore, deserves to be partly accepted i.e. to declare the judgment 9 impugned illegal to the extent it convicts the appellant for offence under Section 302 IPC. Accordingly, this appeal is allowed in part. The conviction of the accused appellant under Section 302 IPC and life term sentence for that are hereby set aside. The accused appellant is convicted for the offence punishable under Section 304 Part-II IPC and his sentence is accordingly reduced to the term already undergone by him. The accused appellant be released from custody forthwith, if not wanted in any other case. ( C.M.TOTLA ),J. ( GOVIND MATHUR ),J. Mathuria KK/PS.