1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR. J U D G M E N T LAXMAN LAL V. STATE OF RAJASTHAN D. B. CRIMINAL APPEAL NO. 556/2003, UNDER SECTION 374 (2), Cr.P.C., AGAINST THE JUDGMENT DATED 12.02.2002 PASSED BY SHRI G.S.SURANA, SESSIONS JUDGE, DUNGARPUR IN SESSIONS CASE NO. 54/2000 (STATE V. MANILAL & OTHERS) DATE OF JUDGMENT: May 22, 2008. PRESENT HON'BLE MR. JUSTICE PRAKASH TATIA HON'BLE MR. JUSTICE CHAND MAL TOTLA Mr. Bhagat Dadhich for Mr. Mridul Jain, for Appellant. Mr. V.R.Mehta, Public Prosecutor, for the State. BY THE COURT: (PER HON'BLE MR. TOTLA, J.) Appellant accused is convicted for the offence under Section 302, IPC and sentence to life imprisonment and fine of Rs.1,000/- in default 3 months' R.I. by judgment and order dated 12.02.2002 of Sessions Judge, Dungarpur, in Sessions 2 Case No.54/2000. This appeal is preferred, challenging the conviction and sentence. Brief relevant alleged facts as per prosecution appears to be that on March 20, 2000, at 6.30 p.m., at General Hospital, Dungapur, one Smt. Shanta w/o. Kalu handed over a written report Ex.P-1 bearing her thumb impression to Sub-Inspector, Dulichand (P.W.10), stating that on that day, i.e., March 20, 2000, on the festival of 'Dhulandi' (Holi of colours), her husband Kalu went around 10 – 11 a.m. to village for playing “Gair” and, after coming back at around 3 O'clock, was asleep on a cot, then about half an hour later, came Manilal and behind him, his wife Smt. Amari and sons Laxman and Tulsiram – Maniram telling Kalu as to how he abused his son, inflicted two slaps to Kalu and took out a knife and stabbed her husband Kalu on various parts of body, whereas Tulsiram kicked and Amri slapped to Kalu. It was also stated that on hearing shouts, Smt. Ganga w/o. Gatu came who and complainant Shanta intervened, but beating continued – hearing noise & shouts, Gatu and Laxman reached, who carried her husband Kalu to Dungarpur Hospital, where he died. On basis of this information, FIR No. 84/2000 registered at P.S. for the offence of Section 302 read with Section 34, IPC. In course of investigation, on next day 21.03.2000 memo of appearance of body of deceased (Ex.P-5) was prepared at 3 7.45 a.m. - site inspected at 10.30 a.m. memo being Ex.P-2 where in the compound of the house, blood was lying, sample of that blood soil and plain soil collected - packets marked is 'B' and 'C' memo is Ex.P-8. Post Mortem conducted on March 21,2000 between 9.30 to 10.45 a.m. - report is Ex.P-12 and deceased had stab two stab wounds on right coastal and memory gland auxiliary region - liver spleen punctured - death occurred as a consequence thereof. Blood stained clothes of deceased – shirt and Dhoti handed over by his wife were seized and sealed vide memo Ex.P-7 and packet marked 'A'. Manilal, Amari arrested on March 22th, 2000 and Laxman arrested on March 31, 2000 at 2 O'clock afternoon vide memo Ex.P-10. Information provided by the appellant was written down Ex.P-11 and, at his instance, knife recovered from bank of pond, concealed in dust, seized and sealed packet marked 'D' and prepared memo Ex.P-6. Packets of sample, seized clothes and weapon recovered knife were sent to Laboratory vide letter Ex.P-3 of office of Police Superintendent, receipt of FSL Ex.P-4 and FSL report also on record. Charge sheet for the appellant and two others submitted, appellant Laxman charged for the offence under Section 302 & 447, IPC and other two charged for the offences of Sections 302 and/or 302/34, 447 IPC, who pleaded not guilty. Another accused Tulsiram apprehended on January 9, against whom a separate charge-sheet submitted 4 and committed to the Sessions case. On behalf of prosecution, are examined 12 witnesses - first 11 witnesses examined prior to charge of Tulsiram who accepted depositions of these, as were. Of the prosecution witnesses PW 1 Smt. Shanta is wife of deceased who lodged FIR, Smt. Ganga PW 2 is neighbour and eye witness, Gatulal (P.W.4) and Laxman (P.W.5) reached scene soon after the quarrel and who also took complainant's husband Kalu to hospital. Soma (P.W.9) is also said to be the witness to this effect, and is declared hostile. Chhabilal (P.W.8) is motbir of site inspection, seizure of cloth and collection of sample, Kotra (P.W.6) motbir of memo of appearance of body, Chhabi Lal (P.W.8) is witness of site inspection, seizure of cloth and collection of sample and Hanja (P.W.7) motbir of recovery of knife. Head Constable Nathulal (P.W.10), Malkhana In-charge of Police Station and Constable Kantilal (P.W.3) are witnesses regarding safe keeping and depositing sealed packets to Lab. Dulichand (P.W.11) is the Investigating Officer who did all above, during investigation, whereas Dr. B.P.Verma (P.W.12) conducted post-mortem. On examination under Section 313, Cr.P.C., appellant accused stated that witnesses are telling lie and no knife or any article was recovered from him and falsely implicated. Learned Sessions Judge inferred, on the basis of evidence 5 and stated reasons that Kalu died of injuries inflicted to him on 21.03.2000 – injuries proved to be caused of knife and by the appellant – any of caused injury sufficient in normal course to cause death – knife recovered on the appellant's information – absolutely no reason to disbelieve witnesses, i.e., direct evidence and accordingly convicted and sentenced the appellant for the offences of Section 302 – acquitted other three - all acquitted for Section 447, IPC. Heard arguments of the learned counsel for the appellant, as well as learned Public Prosecutor for the State and perused the record of the case. Learned counsel for the appellant vehemently argued that (1) said eye witnesses PW 1 and PW 2 are not eye witnesses – as per their evidence, they did not and could not have seen actual occurrence; (2) From the evidence of prosecution itself, it is abundantly clear that deceased was drunk who quarreled and received injuries during festival of “Gair” on Holi festival in village; (3) From Post Mortem Report also, it is proved that deceased in drunken stage; (4) Recovery even as alleged is of after eleven days of incident – from open place – one witness not produced and produced one does not support prosecution; (5) no motive or reason of any such action; (6) acquitted of the offence of Section 447, as such occurrence not in the premises of deceased or complainant and that (7) the incident on the 6 face of it as per prosecution happened in drunkard stage, all of a sudden without any reason, so cannot be beyond Section 304 Part-II, IPC. In support of the above arguments, learned counsel referred to (i) 2006 (2) Criminal Court Cases 215 (Madras) (D.B.) Madavan & Others v. State; (ii) 2003 (2) CJ (Raj.) Cri.838, Ghadsi Ram v. State of Rajasthan; & (iii) (2005) 13 SCC 251 State of H.P. v. Rampal. Learned Public Prosecutor argued that main witness Smt. Shanta (P.W.1) is wife of deceased and the other eye witness Smt.Ganga (P.W.2) is immediate neighbour – absolutely no reason to cast any doubt on their testimony - proved is that other witnesses reached soon after at the place of incident and found Kalu in a blood stained who was immediately told that the appellant inflicted injuries – three stab injuries each of them sufficient to cause death – recovery of knife proved and not necessary to produce every witness – drunken stage does not make any difference as he was asleep and no quarrel at least within preceding few hours – no motive or reason to implicate falsely. We carefully considered contentions. As per I.O. Dulichand (P.W.11), at hospital, Smt. Shanta handed over report Ex.P-1 to him, on which this witness made endorsement and signed on the basis of which S.H.O. registered 7 FIR. Smt. Shanta (P.W.1) deposes that immediately, her husband Kalu was taken to hospital, where he died and she lodged Ex.P-1 with Police. As per Gatulal (P.W.4) and Laxman (P.W.5), they immediately reached house of Kalu, where Kalu was lying in a badly bleeding condition, who was carried to hospital and died. As per post-mortem report of Dr.B.P.Verma (P.W.12), death occurred of the injuries within 12 to 24 hours of the time of examination, so it is proved that death occurred between 10.00 a.m. and 10.00 p.m. on March 20th. All the witnesses PW 1, PW 2, PW 4 and PW 5 stated the incident to be of 3 – 4 O'clock afternoon - so it stands proved that FIR lodged soon after the incident. As per FIR Ex.P-1 (i) that was the day of Holi, i.e., a festival of Colours - Kalu went to play game of “Gair” to village around 10 – 11 forenoon and came back around 3 O'clock; (ii) was sleeping on the cot; (iii) in about half an hour came Manilal immediately followed by his wife Amri and sons Laxman and Tulsiram - Manilal asked her husband as to why he abused his son and slapped him twice - Laxman took knife out and stabbed Kalu. (iv) Also stated in FIR is that Ganga Bai soon came and on her shouting Gatu and Laxman also reached and carried Kalu to hospital, during treatment, Kalu died. As per Smt. Shanta (P.W.1), at about 3 in the afternoon, when her husband Kalu was asleep, first came Manilal and told him as to why he abused his 8 son, then came Smt. Amri and dragged Kalu out where Laxman with Tulsi also came and Laxman inflicted knife blows on chest and back of her husband. Shanta states that immediately came her “Jethani”, (wife of elder brother) Smt.Ganga and accused went away. In cross-examination, PW 1 Shanta clearly stated that she too went where “Gair” was played and persons collected their had lathi, swords and other weapon and she heard that her husband has taken liquor. Smt. Shanta (P.W.1) also states something like that each one playing and dancing, was injured (little) and she does not know if Tulsiram too was injured, but Smt. Shanta is very much positive and definite as to this occurrence that Laxman and other came to her house and Laxman inflicted knife injuries. She also clearly tells that there was no previous dispute and appellant ran away after inflicting injuries upon the victim. As per Smt. Ganga (P.W.2), deceased Kalu is her 'Devar' (younger brother of husband) and their houses are nearby adjoining – Kalu and his wife came after playing “Gair” - at that time about 3 O'clock Manilal and Amri came and talking to Kalu, slapped him, then came Laxman who stabbed knife on chest and back. In cross-examination, she states that Kalu and his wife had come about an hour earlier to incident and she (this witness herself) was sitting outer part of her house as preparatory to take bath - then Laxman came who had a “Kattar” like knife which kept by grooms in 9 marriages. There is no merit in contention that PW 1 and PW 2 did not see the actual inflicting of blows. PW 1 and PW 2 are neighbours and near relatives and their presence is absolutely natural. Gatulal (P.W.4 ) husband of PW 2, states that he was little indisposed, so was at his house - heard shouts of Shanta, so immediately went - Kalu severely bleeding was lying in compound and Shanta told that Laxman caused injuries by knife – in cross examination, states that his wife Ganga also narrated to him of knife blows – as per Laxman (P.W.2), after playing “Gair” when he was coming around 4.00 p.m., Shanta was crying from her home, so he went there and saw that Kalu was lying out of house (in compound) with severe bleeding and Shanta disclosed that Laxman, after stabbing, ran away. As per PW 4, others were called and Kalu was taken to hospital and, as per Laxman PW 5, Kalu hospitalized, where he died. As such it also stands proved that soon after incident, PW 4 and PW 6 came and Smt. Shanta told them there that Laxman has stabbed of knife. From the evidence of I.O. PW 11 Dulichand and Chhabilal PW 8, it is proved that sample of blood lying in the compound of residential premises of Kalu and nearby soil taken and clothes of deceased seized. From the evidence of Malkhana In-charge 10 Constable and I.O., and FSL receipt, it is also proved that these were handed over safely at Laboratory. As per report of FSL, clothes of deceased Kalu and sample collected from compound had human blood of 'B' group. It is argued on behalf of the appellant that as per FIR and version Kalu was sleeping in room - where he was stabbed, but as per evidence produced, he was dragged and injuries inflicted outside, so there is substantial opposite and contradictory evidence as to place of occurrence. Also submitted on behalf of the appellant is that for the offence of Sectin 447, IPC, acquitted - as such learned Sessions Judge has not accepted that trespass was committed - meaning thereby incident could not be in house and/or compound of house. Above contention, on facts proved does not bear any merit. Of course, in FIR (Ex.P-1), it is stated that deceased was sleeping on the cot in the room, but also stated is that on arrival, deceased was asked about abusing son, and slapped twice, meaning thereby that the assailant came when deceased was sleeping and deceased was made out of room. Dr. B.P. Verma (P.W.12) was the Medical Officer and Medical Jurist at Government Hospital, Dungapur and as per his evidence and post-mortem report (Ex.P-12), it is proved that post-mortem conducted on 21.3.2000 between 9.35 and 10.35 A.M. and in the opinion of the Doctor, death occurred 12 to 24 11 hours prior due to Haemorrhage shock resulted by injuries No. 1 and 2 (Liver, spleen puncture). As above, positive and fully worth acceptance is evidence that appellant inflicted blows of knife to deceased. Oral evidence, coupled with medical evidence, itself proves guilt of the appellant. Now, coming to recovery of knife. At the outset, it may be mentioned that as per PW 2, the knife was 1 ft. length - like a “Kattar” - which is normally kept by bridegroom. Further, prosecution has not been able to prove that recovered knife had any blood stains, so there seems no necessity to further examine as to whether or not, recovery has been proved. Suffice it to say, that for sake of argument, even if recovery is taken to be not proved, then also, on no point it will benefit appellant. Now, coming to last point whether the act proved constitutes murder on facts established above. It was day of festival of Holi – that villagers and appellant also played “Gair” in village – deceased and appellant and other drunk in the game of “Gair” and deceased till death drunk – on coming to house of deceased – asked about abusing – then slapped and then knife stabbed – no enmity or motive of incident - happened that some time earlier, deceased stated to have abused Tulsiram who is brother of appellant. All these facts lead to the conclusion that 12 appellant neither intended to cause death, nor intention of causing a bodily injury as is sufficient to cause death, but is proved that – injury inflicted with the knowledge that it is likely to cause death. This act of appellant is an offence punishable under Part II of Section 304, IPC. Looking to the nature of the injuries, in our opinion, sentence of eight years rigorous imprisonment and fine of Rs.2,000/- shall meet the ends of justice. As above, the appeal is to be partly allowed. Appeal is partly allowed. The conviction and sentence of appellant Laxman Lal s/o. Shri Mani Lal Meena for the offence under Section 302, IPC, is (set aside/and) altered to that of Section 304, Part II, IPC and appellant Laxman Lal s/o. Shri Mani Lal is sentenced to eight years' rigorous imprisonment and a fine of Rs.2,000/-, - in default of payment six months' rigorous imprisonment. Accordingly, this appeal, challenging conviction and sentence of judgment and order dated 12.02.2002 in Sessions Case No. 54/2000 passed by the Sessions Judge, Dungarpur stands decided. (CHAND MAL TOTLA), J. (PRAKASH TATIA), J. scd