1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR J U D G M E N T Rameshwar Vs. State of Rajasthan D.B.CRIMINAL APPEAL NO.843/2004 against the judgment dt.10.8.04 Passed by Addl.Sessions Judge cum Special Judge, SC/ST (Prevention of Atrocities) Cases, Pratapgarh in Sessions Case No.29/2004. Date of Judgment: 20th April, 2009 P R E S E N T HON'BLE MR.JUSTICE A.M.KAPADIA HON'BLE MR.JUSTICE DEO NARAYAN THANVI Mr.M.K.Garg ) Mr.Niranjan Singh) for the appellant. Mr.S.S.Sharma, Public Prosecutor. BY THE COURT : (PER THANVI J.) 1. By the instant appeal, the appellant Rameshwar has challenged his conviction & sentence passed under Section 302 IPC by the learned Addl.Sessions Judge cum Special Judge, SC/ST (Prevention of Atrocities) Cases, Pratapgarh vide his judgment dt.10.8.04, whereby he has been convicted of the offence u/s.302 2 IPC and sentenced to imprisonment for life alongwith a fine of Rs.500/- and in default of payment of fine, to further undergo six months' S.I. 2. The prosecution story in brief is that on 5.12.03, Vardi Chand gave a statement before the police that in the evening when he was going to his house and on the way near the house of his brother Bagdi Ram, his nephew Rameshwar (accused) stopped him and made allegation against him for stealing `Soyabin'. Accused Rameshwar, who was having lathi in his hand, started beating him, upon which he became unconscious. On this report, a case for the offences u/ss.341, 323 IPC was registered. Later on, Vardi Chand died and, therefore, investigation commenced under Sec.302 IPC. The clothes of the deceased Vardi Chand and lathi from accused Rameshwar were recovered and on the basis of the recovery and statements of the prosecution witnesses, accused Rameshwar alongwith Heera and Chhagan Lal were chargesheeted under Section 302 IPC. The case was committed by the learned Magistrate to the Court of Sessions. Learned Addl.Sessions Judge cum Special Judge, SC/ST (Prevention of Atrocities) Act Cases, Pratapgarh, to whom the case was transferred, 3 framed charges against all the three accused. The prosecution examined 13 witnesses. The statements of the accused were recorded u/s.313 CrPC. They led no defence. Learned trial Judge acquitted co accused Heera and Chhaganlal but convicted accused Rameshwar of the offence u/s.302 IPC and sentenced him as above. Hence this appeal. 3. It has been argued by the learned counsel for the appellant that despite there being major contradictions in the dying declaration and the statements of the prosecution witnesses as also the fact that no blood came out from the person of the injured, whereas the police has recovered a blood stained lathi and blood stained clothes, are the factors which throws serious doubt on the prosecution story and, therefore, the accused should be acquitted. 4. Per contra, learned Public Prosecutor has supported the impugned judgment of the trial Court. 5. We have heard learned counsel for the appellant as also the learned Public Prosecutor and have also carefully perused the record of the case. We have also 4 examined both the dying declarations, the statements of the prosecution witnesses as well as the medical evidence. It is true that the learned trial Judge acquitted co accused Heera and Chhaganlal because their names were neither in the original Rojnamcha, Ex.P.18 lodged by Hari Singh, Head Constable, who recorded it on the basis of the telephonic message, Ex.P.14 in which the name of accused Rameshwar only was given out but this discrepancy is not sufficient to hold that the accused Rameshwar was not involved in the incident, as there is ample evidence to connect him with the commission of crime and the most important evidence in this regard is the statement of PW 4 Kanwarlal, who is son of deceased Vardi Chand and is a child witness. In this statement, he has named accused Rameshwar, Chhagan and Heera, who were beating his father with `lathis' and iron rod. They also tied his father with bullock cart. Ofcourse in the cross examination, he has said that he heard about the incident from other persons, as he was hearing a religious lecture in the temple but in the later part of his cross examination, he has stated that he immediately reached on the spot and saw the accused persons. Learned trial Judge might have acquitted 5 accused Heera and Chhagan on the basis of the original F.I.R. but in addition to the statement of Kanwarlal (PW 4), there is recovery of blood stained lathi from accused Rameshwar vide Ex.P.6 on the basis of information furnished under Sec.27 of the Evidence Act by accused Rameshwar Ex.P.21 and there were blood stains on it. This lathi and clothes of deceased Vardi Chand were recovered vide Ex.P.10 and were sent to the Forensic Science Laboratory. As per the report of the F.S.L., Ex.P.27, the shirt of the deceased and lathi were found with blood of human origin and were of the same blood group `A'. This shows that the lathi was used in inflicting injuries to the deceased, though as per the injury report, Ex.P.26, the injuries are simple in nature and caused by blunt weapon like lathi and they are not on the vital part but according to the post mortem report, these injuries were the cause of death of deceased. Normally, in case of injury by lathi, it is just possible that the blood may not come out but at the same time, the possibility of coming out of blood cannot be ruled out. The doctor has clearly opined in his post mortem report Ex.P.19 that the cause of death is direct injury resulting to severe pain causing neurogenic shock and the mode of death was syncope. In this way, it is a 6 case of homicidal death, caused by accused Rameshwar. 6. Now the question for consideration is whether the act of accused appellant Rameshwar falls within the category of intentional death or otherwise. From the evidence of the prosecution, it is revealed that the accused Rameshwar who is the nephew of deceased Vardi Chand, stopped deceased on the way and asked him as to why he has stolen `Soyabin' and upon this, he inflicted lathi blows on the deceased, which were not on the vital parts. Deceased Vardi Chand was drunkard, as revealed from the prosecution story and while sustaining these injuries, he fell down and blood also came out. Since the injuries were not on the vital part and were caused by lathi, it cannot be gathered that the accused Rameshwar was having intention to kill his uncle. As the motive behind causing injuries is also not so strong that he had any intention to kill his uncle, the act of the accused Rameshwar at the most, be confined to his knowledge that the linjuries so inflicted might have resulted in death. When the intention is lacking and the injuries are not on the vital parts, the act of the accused Rameshwar definitely falls within the category of culpable homicide not amounting to murder 7 punishable under Sec.304 part II IPC. 7. Consequently, we allow this appeal in part. While altering the conviction of accused appellant Rameshwar, recorded by the learned Addl.Sessions Judge cum Special Judge, SC/ST (Prevention of Atrocities) Cases, Pratapgarh vide his judgment dt.10.8.04 from the offence u/s.302 IPC to Section 304 Part II IPC, he is sentenced to the period already undergone, which is more than five years. However, the sentence of fine is maintained. He shall be set at liberty forthwith, if not required in any other case, on depositing the amount of fine of Rs.500/-, awarded by the trial Court. (DEO NARAYAN THANVI), J. (A.M.KAPADIA), J. RANKAWAT JK, PS