-1- IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR :: J U D G M E N T :: D.B. CRIMINAL APPEAL NO.844/2002 (Loona Ram & Anr. Vs. The State of Rajasthan) D.B. CRIMINAL APPEAL UNDER SECTION 374(2) Cr.P.C. AGAINST THE JUDGMENT DATED 27.09.2002 PASSED BY THE LEARNED ADDITIONAL SESSIONS JUDGE (FAST TRACK), JODHPUR IN SESSIONS CASE NO.85/2002. DATE OF JUDGMENT : 10th January, 2008 P R E S E N T HON'BLE MR. JUSTICE BHAGWATI PRASAD HON'BLE MR. JUSTICE DEO NARAYAN THANVI Mr. Ranjeet Joshi for the appellants. Mr. J.P.S. Choudhary, Public Prosecutor. BY THE COURT : (PER MR. THANVI,J.) 1. This appeal is directed against the judgment dated 27.09.2002 passed by the learned Additional Sessions Judge -2- (Fast Track), Jodhpur whereby, he convicted and sentenced both accused appellants Loona Ram and Kachara Ram as under : (1) Section 341 IPC : One Month's simple imprisonment. (2) Section 323 or 323/34 IPC : One year's simple imprisonment. (3) Section 302 or 302/34 IPC : Life imprisonment and to pay a fine of Rupees two thousand, in default of payment of fine to further undergo two months' simple imprisonment. 2. Facts leading to this appeal are that on 25.5.2002, at 9.30 pm, Bhoma Ram PW-14 filed a report at police station Khedapa that on the very day morning at 7.30 am, when his mother Smt. Gera Devi was returning from the open place after latrine, both the accused appellants came with lathis in their hands and obstructed her way. Accused appellant Kachara Ram inflicted lathi blow on the head to kill his mother, whereby, she became unconscious. When his father came running to see the incident, accused appellant Loona Ram also inflicted lathi and stone blows on him. Lalu Khan PW-12 and Raju Ram PW-15 reached on the spot and intervened. His mother was taken to M.G. Hosiptal, Jodhpur in unconscious condition. -3- 3. On this information, police registered a case for offence under Sections 341, 323, 447 and 307 IPC. After registration of the case, Smt. Gera Devi died in the hospital. Her post mortem was conducted. Lathis from both the accused appellants were recovered and sent for examination. After usual investigation, accused appellant Kachara Ram was challaned for offences under Sections 341, 323 or 323/34 and 302 IPC and accused appellant Loona Ram was challaned for offences under Sections 341, 323 or 323/34 and 302/34 IPC before the court of learned Judicial Magistrate, Osiyan, who committed the case to the court of sessions. The learned Sessions Judge framed the charges accordingly, to which, the accused appellants pleaded not guilty. Prosecution examined 16 witnesses. Statements of accused appellants were recorded under Section 313 Cr.P.C., to which they denied the allegations levelled against them. No evidence was led in defence. After hearing the arguments, the learned trial Judge convicted both the accused appellants as indicated above. 4. We have heard learned counsel for the accused appellants and the learned Public Prosecutor. 5. In this case, the most important evidence is of eye witnesses Lal Khan PW-12 and Raju Ram PW-15. PW-12 Lal -4- Khan has stated that on 25.5.2002, at 7.30 am, he and Raju Ram PW-15 reached on the spot and saw deceased Smt. Gera Devi returning to her home. Accused appellants Kachara Ram and Loona Ram were having lathis in their hands. Firstly, accused appellant Loona Ram inflicted lathi blow, whereby, Smt. Gera Devi felt down and thereafter, accused appellant Kachara Ram also inflicted lathi blow on the back side of the scalp. On the other hand, Raju Ram PW-15 has stated that the head injury was inflicted by accused appellant Kachara Ram, whereby, Smt. Gera Devi fell down and blood came, thereafter, when Likhma Ram came to intervene, accused appellant Loona Ram inflicted lathi blow on his head. Had they not intervened, accused appellants could have killed her. Thereafter, Smt. Gera Devi was taken to the hospital. Likhma Ram PW-11 has also supported the statement of Raju Ram PW-15 and stated that accused appellant Kachara Ram inflicted lathi blow on the head of Smt. Gera Devi and appellant Loona Ram inflicted lathi blow on his head. Thereafter, Smt. Gera Devi was taken to the hospital at Jodhpur, whereby, she died. PW-14 Bhoma Ram is the son of deceased, who lodged the First Information Report Ex.P-12 and reached on the spot after the incident. He has also narrated in the FIR that accused appellant Kachara Ram inflicted lathi blow on his mother and accused appellant Loona Ram inflicted injury on the head of his father. -5- 6. Thus, it appears from the statements of three witnesses that deceased died on account of head injuries inflicted by accused appellant Kachara Ram. The finding of the learned trial judge based on the testimony of Lal Khan PW-12 that accused appellant Loona Ram also inflicted lathi blow on her head cannot be accepted in the light of the statements of another eye witness Raju Ram PW-15 and the husband and son of deceased, who reached on the spot just after the incident and specifically stated in their statements and in the FIR Ex.P-12 that it was accused appellant Kachara Ram who inflicted head blow and accused appellant Loona Ram inflicted lathi blow on the head of Likhma Ram PW-11. 7. From the perusal of evidence of these four witnesses of the spot, nothing has came out as to what was the motive of inflicting these injuries. In the absence of any motive with regard to the enmity or any other cause, it cannot be inferred that intention of the accused appellants was to kill deceased Smt. Gera Devi. The witnesses have categorically stated that neither there was any dispute between the deceased and the accused appellants nor any quarrel took place prior to the incident. When there was no motive whatsoever, intention of the accused appellants cannot be inferred to kill the deceased. Of-course accused appellant Loona Ram has stated in his -6- statement recorded under Section 313 Cr.P.C. that on the day of occurrence, deceased Smt. Gera Devi came to his house and uttered flighty words. While kicking out, he pushed Smt. Gera Devi, whereby, she felt and blood came from her head. To hide this true incident, Jammu Kumar Jain in collusion with the complainant party booked him in this case. According to him, there was rivalry between him and Jammu Kumar Jain on account of election of Sarpanch, whereas, accused appellant Kachara Ram has also stated that due to party rivalry with Jammu Kumar Jain, he has been wrongly implicated in the case. In the absence of any evidence in cross examination with the eye witnesses on this point, this explanation appears to be after thought. 8. It is an admitted position that accused appellants and deceased are in inter se relations being cousin brothers as stated by Likhma Ram PW-11, who is the husband of deceased. He has also not stated anything about the enmity between him and his cousin brothers. Bhoma Ram PW-14 who is the informant of the case has also stated that accused appellant Loona Ram is his uncle and there was no enmity between his family and accused appellants. When enmity is not established, motive is absent and intention to kill deceased Smt. Gera Devi has not been proved, then it cannot be categorized as a case of culpable -7- homicide amounting to murder, but looking to the nature of the injuries received on the scalp, a fracture of parietal bone, it appears that it is a case in which accused appellant Kachara Ram was having knowledge that by this act of inflicting lathi blow on the head, there is a likelihood of causing death or this injury was sufficient in the ordinary course of nature to cause death and it amounts to culpable homicide not amounting to murder, punishable under Section 304 Part II IPC. 9. Here in the present case, the learned trial judge convicted both the accused appellants for offence under Sections 302 and 302 read with Section 34 IPC by relying upon the evidence of Lal Khan PW-12, who has stated that firstly, accused appellant Loona Ram inflicted lathi blow and, thereafter, accused appellant Kachara Ram inflicted lathi blow on the head, when the deceased fell down. But, this statement of Lal Khan PW-12 cannot be accepted in this light, in view of the testimony of another eye witnesses i.e. Raju Ram PW-15, who was with him, deceased's husband Likhama Ram PW-11 vis-a-vis the informant Bhoma Ram PW-14, who is the son of deceased and has specifically stated that lathi blow on the head of the deceased was inflicted by accused appellant Kachara Ram and accused appellant Loona Ram inflicted lathi blow on the head of Likhama Ram PW-11, husband of the deceased, when he came after the blow on -8- deceased. When common intention has not been proved to kill the deceased, both the accused appellants cannot be held liable under Section 34 IPC. Section 34 of the Indian Penal Code is attracted only when sharing of common intention is established. Here in the present case, there is neither pre-plan or consult nor prior meeting of mind has developed on the spot to bring the case in furtherance of common intention punishable for offence under Section 34 of the Indian Penal Code. 10. We are of the view that this is a case of inflicting injury on the head of the deceased by accused appellant Kachara Ram on the way, while she was returning to her house, punishable under Section 304 Part II IPC and of causing voluntary simple injury on the head of injured Likhama Ram with lathi, who came to see his wife by accused appellant Loona Ram. 11. Consequently, we allow this appeal in part. While, altering the conviction of accused appellant Kachara Ram from offence under Section 302 IPC to Section 304 Part II IPC, we sentence him to the period already undergone, which is about 5 years, 7 months and 15 days. He is acquitted for offence under Sections 341, 323/34 IPC. Accused appellant Kachara Ram is in jail. He shall be released forthwith, if not required in any other case. Likewise, accused appellant Loona Ram is convicted for offence -9- under Section 323 IPC and sentenced to the period already undergone, which is about six months and two days and he is acquitted for offence under Sections 341, 302/34 IPC. (DEO NARAYAN THANVI),J. (BHAGWATI PRASAD),J. ms rathore