1 D.B. Criminal Appeal No. 189/03 (Heera Vs. State) IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR JUDGMENT D.B. CRIMINAL APPEAL NO. 189/2003 (HEERA VS. STATE) D.B. CRIMINAL JAIL APPEAL NO. 20/2003 Appeal Under Section 374 Cr.P.C. against the judgment dated 17.12.02 passed by Additional Sessions Judge, (FT) No.2, Banswara in Sessions Case No. 89/02 (105/02). Date of Judgment : 18th February, 2010 PRESENT HON'BLE MR. JUSTICE GOVIND MATHUR HON’BLE MR. JUSTICE C.M. TOTLA Mr. Mridul Jain for the appellant. Mr. Bhagat Dhadich ] Mr. K.R. Bishnoi , P.P. = = = = BY THE COURT :- (PER HON'BLE TOTLA, J.) Appellant challenges his conviction and sentence awarded of life imprisonment for the offence of Section 302 IPC. D.B. Criminal Appeal No. 20/03 is the jail appeal whereas, D.B. Criminal Appeal No. 189/03 is the represented appeal. So, both the appeals are decided by this common judgment. On 28.03.02 at about 7:30 PM in evening, brother of PW/1, Dhula allegedly was beaten by lath by appellant and as a result of injuries, Dhula died. Report of incident was orally given by PW/1 at about 2:25 in night (of 29.03.02) narrating that at about 7:30 he and Vijay pal PW/2 both from his house were going to Dhula's house and as they reached near and just opposite to Dhula's house, came Heera with lath in hand who 2 D.B. Criminal Appeal No. 189/03 (Heera Vs. State) telling as to why his (Heera's) son Kachru is beaten and entering in house of Dhula and inflicted blow of lath on head of Dhula and as Dhula fell down, 2-3 further blows inflicted. PW/1 and PW/2 Vijay pal tried to take care of Dhula who became unconscious and hearing noise came Kalia PW/3 and wife of Dhula (Kamra PW/4) from other house and then several other villagers. Before he could be taken to hospital, Dhula died. In FIR, PW/1 further narrated that on that day Dhula was at the filed of Patidar for reaping where for some reason Dhula slapped Kachra so occurred this incident. Reducing information in writing as Ex.P/1 which also bears signatures of PW/2 SHO registering FIR NO. 81/02 for the offence of Section 302 IPC proceeded for investigation. In course of investigation (i) inspecting place of occurrence, memo Ex.P/3 and site plan Ex.P/4 prepared (ii) examining dead body - memos prepared Ex.p/4 and Ex.P/5 (iii). In compound of house of deceased on floor was blood sample of athat and also plain soil collected and sealed – memo Ex.P/6 (iv) subsequent to postmortem, blood stained shirt seized and sealed packet marked as C (v) postmortem performed and report prepared by Doctor Medical officer PW/4 and report Ex.P/8 prepared. Appellate accused was arrested on 30.03.02 and on his information from his house at his instance, recovered was a bamboo lathi which had some blood and earth like stains – same seized and sealed packet marked as D, respective memors are Ex.P/16, 17 & 9. After usual investigation and recording statements of witnesses and also getting some witnesses examined under Section 164 Cr.P.C., chargesheet against the appellant submitted. Appellant is charged and convicted for causing death of Dhula S/o Dhanji that - at 7:30 PM on 28.03.02 he with intention of causing death voluntarily inflicting injuries of lath at his head, caused death of Dhula 3 D.B. Criminal Appeal No. 189/03 (Heera Vs. State) -claimed trial. Of the nine prosecution witnesses examined PW/1 is first informer and PW/2 Vijay Pal deposed that in their view, blows of lathis to Dhula were inflicted by appellant. Smt. Karma PW/5 is wife of deceased who deposed that she preparing meals at other house, on hearing noise came soon and saw the appellant running away after hitting Dhula. Similar is the testimony of neighbour Kalia PW/3. Roop lal PW/6 is one of the motbirs whose signatures appear on Ex.P/1 to 7 and P/9. PW/9 SHO I.O. registering the case did investigation. PW/7 was malkhana incharge who keeping articles safe handed over to Constable PW/8 who deposited with forwarding letter at FSL. Doctor Shri Heera lal PW/4 performed postmortem and proved report Ex.P/8. Appellant's stand is of plain denial and that witnesses telling wrong. No defence evidence led. Learned Judge inferred of death by injuries voluntarily caused by appellant and also that inflicted were continuous many blows – convicted and sentenced the appellant. Learned counsel for the appellant contended that per FIR lodged by PW/1 he and Vijay pal were going together whereas in deposition PW/1 do not say so, atleast specifically so and Vijay Pal PW/2 speaks of coming from his house. Drawing attention towrds location mentioned in site plan Ex.P/3 and description given by witnesses argued that PW/2 could not have seen the occurrence and if he at all came at the place of incident, it was only after Dhula fell down and assailant ran away. In this context also argued that admittedly PW/3 and PW/4 both came only after the assailant ran away. On the basis and some contradictions argued that safely cannot be inferred that appellant only and none else inflicted injuries. Also argued that contrary and inconsistent are the versions regarding as 4 D.B. Criminal Appeal No. 189/03 (Heera Vs. State) to where exactly the incident occurred. Learned Public Prosecutor argued that categoric is the evidence of PW/1 and PW/2 and as many as three injuries all causing fractures inflicted on head. Thoughtfully considering arguments, we have gone through the evidence recorded, judgment assailed and the memo of appeal. Kusala PW/1 say that on that day of Holi about 6-6:30 PM in evening he alone was coming and also came there Vijay pal and as they both reached house of Dhula, Heera gave a blow of lathi on head of Dhula and on this blow, as fell down appellant inflicting three more blows of lath, ran away. Kushala PW/1 says that came there Kaliya and wife of Dhula and some other and while Heera was taken to hospital by the time they could reach the road – he expired. PW/1 says that then he came to police station and lodged report Ex.P/1 which and registered FIR Ex.P/2 also bears his signatures. On memos Ex.P/3 to Ex.P/7 also are signatures of this witness. PW/1 in cross examination says that the incident occurred on the day of festival Holi and on that day he and Dhula alongwith Kachra in field for reaping of wheat crop where in some fun, deceased gave a slap to Kachra and they abused each other. In detail cross-examination on this point only thing established is that some little scuffle occurred but not for any specific reason or dispute. PW/1 straightly admits that accused is son of his uncle and he going (PW/1) to house of Dhula from a distance of 60-70 ft witnessed the incident and Heera ran away placing lath at his home. This also surfaces that somewhere near also is house of appellant. Vijay Pal PW/2 depose that his house is just near the house of Dhula and Heera and on the day of Holi at about 6-7 PM, he was there just out of house where also came Kusala. Dhula was caring cattle in 5 D.B. Criminal Appeal No. 189/03 (Heera Vs. State) compound where Heera coming from behind gave a blow of lath on his head and Dhula fell down then again Heera gave some blows. PW/2 stated that he instantly went there and Kaliya and Kushala also came there and then came there some others, Dhula died after a while when was being carried to hospital. PW/2 accepts that son of appellant Kachra was slapped so this incident and Dhula beaten. In cross-examination say that hearing noise of beating, he reached there and after lathi blows when he intervened, appellant uttered as to what he (this witness) has to do. From the evidence of PW/2 also surfaces that fields of Heera and Dhula are nearby and that no previous enmity or serious indifference were. Also surfaces that houses and compounds of Heera and Dhula are near. According to Kaliya PW/3 he about seven O'clock at his house, hearing shouts soon arrived there and saw that Dhula lying with bleeding of head and Heera running away with lath - Kushala was speaking of beating by Heera and then they tried to take care of Dhula and when they taking him to hospital reached near road, he expired. PW/3 state that his house is just nearby and he called by Kushala reached running. PW/5 Karma is wife of deceased state that she preparing food at her old hosue heard shouts and as Kushala and Vijay pal loudly crying were running so she also came and saw that Heera was running with lathi and Dhula lying with injuries on his head who when was being taken to hospital died. PW/5 asserts that he saw appellant running from about a distance of 200 ft. Very clearly houses of all these persons are in close vicinity. PW/2 and PW/3 specifically say that very near are their houses. Per site plan also houses of deceased, appellant, PW/2, PW/4 and also PW/1 are near to each other on same way. Agricultural field of deceased and also the appellant and also witness PW/2 is also in that vicinity. It was day of holi 6 D.B. Criminal Appeal No. 189/03 (Heera Vs. State) festival and Holi fire still to be lit. It is very much natural and otherwise also normal is that they being brothers, will be visiting each other in normal course. Appellant himself is son of uncle of PW/1, so, PW/1 and Dhula being real brothers, appellant is their first cousin. For the reasons above, arguments advanced for and questioning the factum of occurrence of incident and appellant inflicting injuries to deceased have no merit. Deceased Dhula died within about an hour or half of the incident and death resulted by injuries (i) lacerated wound 6 x ½ inch – 5 inch above right ear with multiple fractures of skull upto base (ii) lacerated wound 6 x ½ inch on head with bone fracture (iii) lacerated wound 2 x 1 inch with skull fracture and brain hemorrhage. Above injuries caused shock and excessive hemorrhage. Thus, many were fractures of skull and ehse wounds caused of blunt object proven to be by blows of lathi inflicted by appellant. On behalf of appellant, vehemently argued is that in the given circumstances and as lathi not necessarily a weapon and as to how and as lathi not necessarily awhy the incident occurred, neither intention to cause death nor even any knowledge of likeliness to causing death can be attributed nor inferred. On careful analysis and thoughtful examination of evidence as mentioned above very clear is that injuries caused by lath which sort of a article commonly kept by village agriculturists – appellant is son of uncle of deceased – deceased, appellant and other witnesses all living in same locality near each other – incident occurred and injuries inflicted because son of appellant was slapped by deceased Dhula on that very day. Even PW/1 first informer and eye witness say that Kachra came weeping and 7 D.B. Criminal Appeal No. 189/03 (Heera Vs. State) told his father Heera (of slapping) and because only of slapping, appellant did beat Dhula and no animosity or any earlier quarrel. PW/2 also in course of investigation in his statement Ex.D/1 mentions that blow given as his son Kachra was beaten (by deceased). It was a day of Holi festival. On above factors and circumstances, in our opinion, intention to cause any such injury as in normal course to cause death cannot be inferred but seems that while causing injuries appellant did knew that injuries being inflicted is likely to cause death. Thus, the act in such circumstances as above falls within the ambit of Section 304 Part II IPC. Therefore, the appellant is to be convicted for the offence of Section 304 Part II IPC. . Appellant was arrested on 30.03.02 and since that he imprisoned in course of trial and thereafter, thus undergone about eight years, in our opinion, sentence of this period undergone alongwith fine of Rs. 500/- shall suffice. Accordingly, partly allowing the appeal while acquitting the appellant for the offence of Section 302 IPC, he is convicted for the offence of Section 304 Part II IPC and (appellant Dhula for the offence of Section 304 Part II IPC) is sentenced to imprisonment for the period already undergone (eight years) and fine of Rs. 500/-, and in default of payment of fine, to undergo 15 days simple imprisonment. Altering the conviction and sentence to Section 304 Part II IPC as above, the appeals are decided. (C.M. TOTLA), J. (GOVIND MATHUR), J.