1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR S.B. CRIMINAL APPEAL NO.222/1986 Ramdeva vs. State of Rajasthan Date of order : 26th August, 2008 HON'BLE MR.JUSTICE MOHAMMAD RAFIQ Shri Sanjay Mehrishi for the appellant. Shri B.S. Chhaba, PP.. ****** REPORTABLE This appeal is directed against the judgement of learned Sessions Judge, Bundi dated 30.4.1986 whereby the accused-appellant was convicted for offence under Section 304 Part II of the Indian Penal Code and was sentenced to undergo rigorous imprisonment of four years and with fine of Rs.1,000/- with the stipulation that in the event of default in making payment of fine, he shall have to further undergo simple imprisonment of six months. The facts giving rise to this appeal are that on 3.11.1985, one Smt. Tulsa lodged a report with Police Station Talera, Distt. Bundi that in the afternoon of that day, her husband 2 Krishna and son Ram Lal were turning after grazing their cows. Accused- appelalnt Ramdeva inflicted a blow on the head of Krishna with the intention of killing him. The incident took place near Khali situated at some distance from their village. Her son Ramlal came rushing to their house and told the informant about the incident. She and Ramlal along with Ganpat, immediately went to the place of occurrence and brought Krishna to the house. R.S. Gujar of Bhawanipur who was passing by at that time and one another person by the name of Gujar, resident of Gangru, witnessed the incident. Since the injured Krishna was having severe pain, he was taken to the hospital in a tractor. Although apparently no blood was coming out of his body, but it appears that he had sustained a grievous injury in his hand. On receiving this report, the police registered the case for offence under Section 307 IPC. Since there was no 3 doctor available in the Talera dispensary, the injured was moved to Government hospital Bundi where he succumbed of his injury and as such the offence of Section 302 IPC was later added in the matter. After filing of charge sheet, the accused denied the charge of Section 302 IPC, therefore, the trial proceeded. The prosecution examined as many as 11 witnesses and exhibited 9 documents. The accused in his defence, apart from his own statement under Section 313 Cr.P.C., has produced DW-1 Dr. Nirmal Singh as a witness and tendered various documents in evidence. The trial court upon completion of the trial, however, convicted the accused appellant for offence under Section 304 Part-II as aforesaid. Hence this appeal. I have heard Shri Sanjay Mehrishi, learned counsel for the appellant and Shri B.S. Chhaba, learned Public Prosecutor. Shri Sanjay Mehrishi, learned counsel 4 for the appellant has argued that the learned trial court erred in law in relying on the testimony of PW-2 Ram Lal and PW-4 Gopal and further erred in holding that their testimony was corroborated by statement of PW-7 Dr. Kamlesh. It was argued that the informant in the FIR did not mention any weapon with which the accused was armed and simply stated that he delivered a blow on the head of the deceased, still in the Inquest Report the police developed the case that the accused appellant had inflicted a blow with the jelly on the person of the deceased. It was argued that jelly is a sharp edged weapon and when the witnesses have not specified as to the accused caused the blow from which side of the jelly, the normal presumption would arise that it was a sharp side for which a sharp edged weapon could be used. He in this connection relied on the judgement of Supreme Court in Hallu @ Ors. vs. State of Madhya Pradesh-(1974) 4 5 SCC 300 and Bhola Singh vs. State of Punjab-(1999) 9 SCC 50. There was only lacerated wound on the head of the deceased. PW-2 Ram Lal has stated that the accused-appellant inflicted the blow of `ankari' on the head of the deceased. `Ankari' is also known as jelly. PW-4 Gopal and PW-5 Radhey Shyam have also stated about use of jelly / ankari and by that weapon causing injury on the head of the deceased. It was argued that the testimony of PW-4 Gopal and PW-5 Radhey Shyam did not inspire any confidence because their conduct was doubtful. Even though they have stated that they were witnesses of the incident but they never came forward to help the injured and on the contrary, they went away from place of incident to their village and did not inform anyone about the incident till their statement was recorded by the police on the following day i.e. 4.11.85. It was argued that the site plan was stated to have been prepared at 2.00 PM 6 on 4.11.1985 and it was therein that the police mentioned that the deceased was hit by a lathi on the head but thereafter the case was developed. The informant Tulsa was shown as witness to this site plan whereas in her statement, she stated that she brought the deceased first to the dispensary in Talera and thereafter Government Hospital, Bundi and throughout remained with him in the Hospital at Bundi. Her presence was thus wrongly shown at the place of incident. This shows that the site plan was a fake document. It was argued that son of deceased Ram Lal was cited as an eye witness and yet his statement under Section 161 Cr.P.C. was recorded three days after the date of incident. PW-2 Ram lal is a child witness and was hardly of 12 years and therefore he was not capable of understanding the difference between the truth and the falsehood. He could be made to say anything to falsely implicate the appellant. In the face of all these 7 inconsistencies, the charge against the accused appellant was not proved and therefore the accused was liable to be acquitted. Learned counsel for the appellant alternatively argued that occurrence has taken place all of a sudden at the spur of the moment and there was no previous enmity between the parties. The accused cannot be attributed knowledge of the fact that by causing injury on the person of the injured, he was likely to cause death and he could thus at the maximum be held guilty for offence under Section 325 IPC and not under Section 304 Part-II. Learned counsel in support of this argument relied on the judgment of this Court in Mangu vs. State of Rajasthan- 1980 Cr.L.R. (Raj) 525 and argued that the conviction of the accused in that case was eventually changed from Section 304 Part-II to Section 325 IPC and he was extended the benefit of probation considering the fact that a single stone 8 blow resulted in death. Shri B.S. Chhaba, learned Public Prosecutor opposed the appeal and submitted that the statement of informant Tulsa, Ram Lal and Gopal under Section 161 were recorded on 3.11.1985 itself. It was argued that Ramdeva was arrested on 4.11.1985 at about 11.30 AM and at his instance jelly, the weapon of the offence was recovered. Mere mention of the weapon of offence in the site plan would not make any difference. It was so mentioned only in order to mention the place where the accused was hit. Minor contradictions of this nature cannot be a reason to disbelieve the entire prosecution case. It was submitted that the conduct of PW-4 Gopal and PW-5 Radhey Shyam in running from the place of occurrence cannot be said to be unjustified, because that is the normal behaviour of the stranger witnesses these days. These witnesses in any case are independent witnesses and have remained unshaken in the cross 9 examination. Learned P.P. argued that the jelly is a pointed weapon having either two or four metal levers fitted on the lathi and therefore the contention that it is a sharp edged weapon and on that basis, the argument that in the normal course it should be presumed to have been used from the sharp side, cannot be accepted. The judgement of Supreme Court cited by the counsel for the appellant are therefore distinguishable. Learned P.P. referring to the statement of PW-2 Ganpat Lal submitted that even these witnesses have amply proved the spontaneous statement of the child witness Ram Lal and accompanying him and his mother Tulsa to the place of incident and then bringing the injured to his house and thereafter from tractor to Talera dispensary. He has also stated that there was dispute between Ram Lal and deceased about the way to their agriculture field and it was owing to that dispute that the incident took 10 place. The offence for which the accused has been convicted is proved beyond reasonable doubt. I have given my anxious considering to the arguments advanced by learned counsel for the parties and perused the material on record. Evidence available on record both of the eye witness account and the statement of Doctor and medical witnesses clearly justify the conclusions arrived at by the learned trial court. PW-4, Gopal the eye witness has clearly stated that Krishna was going back with his cows and he was accompanied by his son Ram Lal. Accused Ramdeva objected to the cows being taken through his field and Krishna thereupon stated that he would not in future take his cows through his field. Ramdeva however insisted that he would teach him a lesson and that Ramdeva was armed with a jelly. PW-4 Gopal further stated that accused Ramdeva hit the blow of jelly on the head of the deceased Krishna and went 11 away from the site of incidence. The child Ram Lal ran away from the place of incidence. Gopal has corroborated the presence of PW-5 Radhey Shyam. PW-5 Radhey Shyam has also supported the prosecution story by stating that when deceased Krishna and his son Ram Lal were coming back with their cows, one of those cows, went into the field of accused Ramdeva. Accused stated that Krishna always used to enter his cows in his field and he warned that he would now teach him a lesson. However, Krishna with folded handed requested him not to do so and promised that in future he would take care. Accused Ramdeva still hit the blow of `ankari' from the reverse side on the head of the deceased Krishna. Child witness Ram Lal, whose age has been recorded to be 10 to 12 years by the trial court, has also stated that when he accompanied his father for grazing of his cows and they were coming back, accused appellant Ram Deva hit his father on the 12 head with `ankari'. He pointed out towards accused Ramdeva. He told that his father instantaneously became unconscious. He rushed to his house to fetched his mother and both of them brought Krishna to their house and then took him to Talera dispensary in the tractor of Nirmal. This child witness has also stated that at the time of incident PW-4 Gopal and PW-5 Radhey Shyam were also present at the place of incident. PW-3 Ganpat Lal has also corroborated the prosecution story by stating that he met the child witness Ram Lal and informant Tulsa while they were going to the place of occurrence where injured Krishna was lying. He saw both crying and accompanied them. They all brought Krishna to his house and then took him to Talera dispensary in tractor. He also stated that there was a dispute between accused Ramdeva and deceased Krishna about the way. From external examination, injury on 13 the head of the deceased was lacerated wound with the size of 5” x 4” on right fronto-parietal region. However upon internal examination, it was found to be depressed fracture of the right fronto parietal bone in the size of 3” x 2.25” and at the place where the fracture was located, there was rupture of membrane measuring 1” x 1.5” and the crushed blow in the size of 1” x 1.5” was located on the right fronto parietal brain. This was so proved PW-7 by Dr. Kamlesh who also stated that cause of death was depressed fracture of skull and rupture of the membrane and brain. This witnesses has proved the postmortem report-Ex.P-4. The kind of contradictions in the statements of PW-4 Gopal, PW-5 Radhey Shyam and PW-2 Ram Lal which have been pointed out by learned counsel for the appellant are hardly of any significant nature. Argument about the mention of the use of lathi as the weapon of offence in the site plan also would not discredit 14 the statement of these witnesses who have corroborated not only the version but also presence of one another. The judgments of Supreme Court in Hallu @ Ors. vs. State of Madhya Pradesh-(1974) 4 SCC 300 and Bhola Singh vs. State of Punjab-(1999) 9 SCC 50, on which reliance has been placed, can hardly have application to the facts of the present case where the weapon used admittedly was not a sharp edged weapon, but it was a pointed weapon with metal levers fitted on lathi. It is used as a agriculture implement. Since this weapon cannot be treated as a sharp edged weapon, therefore, the argument which proceeded on the premise that it was a sharp edged weapon cannot be accepted. The statement of PW-2 Ram Lal, who is a child witness aged about 10-12 years, cannot be disbelieved just because his statement under Section 161 was recorded two days later than the statement of other witnesses. It was because of the fact 15 that he being a child, the police recorded his statement after he come out of the psychological trauma. In his cross examination, he has completely remained unshaken. He has clearly stated that he accompanied his father and when his father was rendered unconscious, he rushed to his house to call his mother and then with the mother brought the injured father to house and wherefrom he was taken to dispensary at Talera and then to hospital at Bundi. All these facts indicate his level of understanding and it cannot therefore be accepted that he did not understand the gravity of the situation and was not telling the truth. The fact that even though the jelly was pointed weapon and rather than using it from the pointed side, it was only used straight from the blunt side, has already weighted by the learned trial court in holding that the accused- appellant though had the knowledge, but not intention of the fact that he by 16 causing the injury on the head of the injured would thereby cause his death. The use of jelly in the present case makes the case distinguishable from the judgement of the Court in Mangu, supra wherein conviction was altered from Section 304 Part II to Section 325 IPC because in that case the deceased sustained the fatal injury by throwing of stone and it was single stone that resulted in his death. On the contrary, in the present case the evidence has come on record in the statement of both eye witnesses PW-4 Gopal and PW-5 Radhey Shyam that the accused appellant threatened the deceased to teach him a lesson for taking cows through his field. The deceased with folded hands requested him not to do so and promised that in future he would take care, yet however, the accused appellant caused the severe blow on his head by use of jelly. Contention, therefore, that the evidence merely proves the offence under Section 17 325 IPC against the accused appellant and not under Section 304 Part-II is liable to be rejected. In view of what has been discussed above, I do not find any infirmity in the judgement passed by learned trial court. The appeal being devoid of any merits is therefore dismissed. (MOHAMMAD RAFIQ), J. RS/