1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR. J U D G M E N T BALVINDER SINGH V. THE STATE OF RAJASTHAN D. B. CRIMINAL APPEAL NO. 233/2008 under Section 374 Cr.P.C., against Judgment dated 29.02.2008 passed by Shri Patanjali Sharma, Additional Sessions Judge, Sri Karanpur, District Sri Ganganagar in Sessions Case No. 34/2007. DATE OF JUDGMENT: May 30, 2008. PRESENT HON'BLE MR. JUSTICE PRAKASH TATIA HON'BLE MR. JUSTICE CHAND MAL TOTLA Mr. R.S.Choudhary, for Appellant (s). Mr. V.R.Mehta, P.P. for the State. Mr. Rajendra Charan, for Complainant. BY THE COURT: (PER HON'BLE MR. TOTLA, J.) Accused appellant aggrieved of his conviction and sentence – vide judgment dated 29.02.2008 in Sessions Cased No.34/2007 before the Court of Additional Sessions Judge, Srikaranpur District Sriganganagar, whereby he is convicted under Section 302, IPC and sentenced to life imprisonment with fine of Rs.5,000/-, in default one year's rigorous imprisonment - has preferred this appeal and requests setting aside his conviction and sentence. 2 Relevant facts as per prosecution, appears to be that on May 1st, 2006, at about 7.45 a.m., information received on wireless from control room at Police Station, Lalgarh Jatan that in Government hospital is admitted Nanak Singh – On receiving information, ASI Rati Ram made entry Ex. P/13 in Roznamcha and reached Sri Ganganagar hospital– where intimating Doctor, he recorded statement of Ramkishan PW/14. As per statement of Ramkishan PW/14, on that day was their turn for irrigating their land from 3.00 A.M., so he along with his sons Gurvinder Singh and Nanak Singh was on his land 4 B.G.S. From 5.35 a.m. was turn of Mukhtiyar Singh and Balvinder Singh who sought to take water earlier, which was negatived by the complainant so hot exchanges occurred between them and Mukhtiyar Singh and Mukhtiyar Singh inflicted blow of “Kassi” on Ramkishan while Balvinder Singh inflicted blow of lathi on temporal region (scalp) of Nanak Singh who fell down and became unconscious. Statement i.e. FIR also is that soon Jasvinder Singh caught Ram Kishan and again inflicted injuries of axe on his legas and Gandasi on head. . On shouts and cries, his son Gurvinder Singh reached and intervened so these persons ran away. On this statement, FIR No.1106/06 Ex.P50 registered for offences under Sections 341, 323 and 307 IPC. Nanak Singh died of injuries same day, so also registered under Section 302, IPC. During investigation I.O ASI Rati Ram (1) inspected the place of occurrence where some blood drops found – sample of which and also pf plain soil taken – memos Ex.P25, 25A, 23 and packets marked C & D; (2) body physically examined – memo Ex.P26; (3) got post-mortem conducted- report Ex.P30 (4) shirt on body of Nanak Singh having blood stains seized - memo Ex.P24 packet marked B – body handed over to brother Gurvinder Singh for final rites -memo being Ex.P34; (5) Weared 3 shirt and 'pagri' having blood like spots presented by Ramkishan seized and sealed- memo Ex.P10 packet A; (6) appellant accused Balvinder Singh arrested on May 3rd evening – memo Ex.P30 and other three Mukhtiyar Singh, Jasvinder Singh and Mander Singh also arrested memos Ex.P/31, 32 & 33 (7) as per information Ex.P34 furnished by Balvinder Singh at 11.30 a.m. on 04.05.2006 and at his instance lathi having some blood like spots recovered from his house – memos Ex.P18- 7 & 7A and packet F; (8) as per information Ex.P33 furnished by Shri Mukhtiyar Singh, recovered a “Kassi” from his house lying below bed – memos Ex.P-6, P-7 and pakcet F; (9) Packets and recovered articles kept in Malkhana and delivered to FSL- entires in Malkhana Register Ex.P18 & 19 and other relevant entries of malkhana Exs. P13, 16 & 22 forwarding letter to FSL Ex.P35, receipt Ex.P20 and report Ex.P37. In course of investigation, record of irrigation schedule – Ex.P11 and P12 and obtained hospital admission ticket of Nanak Singh is Ex.P31 and statement of witnesses recorded. Dr. B. M. Sharma PW 15 is the Medical Officer who examined injuries and conducted port-mortem and has proved injury report Ex.P27 to 29 and post-mortem report Ex.P30. After usual investigation and procedure, charge-sheet submitted on June 6th against appellant and Jasvinder Singh, Mander Singh and Mukhtiyar Singh who denied the charge for offences under Sections 302, 324/34, 324/34 and 201/34, IPC and claimed trial. Appellant accused convicted and other three acquitted. Of the prosecution witnesses Gurvinder Singh PW 12 is injured eye-witness who also is brother of deceased. Mela Singh PW 1 and Mithu Singh PW 7 are said to be neighbours having turn of irrigation on that day. As per prosecution, they were either there or reached soon and both of them are declared hostile. Jasveer Singh PW2, Gurjant Singh PW 3, Harbans Singh 4 PW 4, Gurnam Singh PW 8, Gurdas Singh PW 13 and Ikbal Singh PW 14 are motbirs of whatever done during investigation and few of them turned hostile, but have admitted their signatures on concerned memos. Hansraj PW 11 Head Constable is I/C. Gopiram PW 9 Head Constable, Subhash Chandra PW/10 Constable, pertain to depositing sealed packets in Malkhana and delivering them at FSL. Omprakash PW 5 is irrigation Patwari who has deposed regarding turn for irrigation and proved Ex.P/11 & Ex.P/12. Ratiram PW 6 ASI on receiving message on wireless as above reached hospital and also obtained reports Ex.P/27 to Ex.P/29. Balraj Singh PW 16 SHO is I/O whereas Dr. Sharma PW 15 examined injured and conducted post mortem. When examined under Section 313, Cr.P.C., appellant narrated that witnesses telling lie and nothing recovered from him – as per appellant Ramkishan was taken in adoption by Batta Singh, so Ramkishan and Batta Singh were not on normal terms and Ramkishan being mentally disturbed, used to quarrel with villagers and appellant falsely implicated as his agricultural land is nearby. In defence, examined are two witnesses – as per Brijlal DW/1, Ramkishan is mentally disturbed who usually quarrels with villagers. Shyam Sunder Tantia DW/ 2 specialist Psychologist who examined Ram Kishan Singh on January 11th and found him to be mentally retarded and accordingly issued report Ex.D2. Learned Sessions Judge concluded that proved is inflicting of blow of lathi by Balvinder Singh on head of child Nanak Singh. Nanak Singh died of this injury and accordingly convicted and sentenced the appellant - other three acquitted. Learned counsel for the appellant argued that (1) right from inception, the prosecution has come with a case that four named persons have inflicted injuries and so definite conclusion 5 only for one cannot be; (2) if there is any doubt about other accused as is recorded by learned Sessions Judge, then the case for appellant is also false; (3) it cannot be assumed and is highly risky and unsafe to accept that witness telling truth for one but telling lie for other three; (4) only witness is PW/12 Gurvinder Singh, real brother of deceased- so corroboration necessary ; (5) main witness on whose statement, FIR registered, not produced; (6) recovery not proved – any other circumstances against the appellant is not proved; (7) in case injury is proved to be inflicted by appellant, still it cannot be beyond Section 325 or 304 Part II, IPC. Learned Public Prosecutor contended that (1) incident is of night around 5.00 a.m. and so there cannot be any other person ; (2) main witness PW 12 Gurvinder Singh and also his farther Ram Kishan also injured – injury to them proved by evidence of medical officer (3) presence of Gurvinder Singh PW/12 is natural and proved- no reason to tell something which is not perfectly true; (4) Injury on head and temporal region by lathi proved to be inflicted by appellant ; (5) Nanak Singh died of injuries inflicted to him. We have thoughtfully considered rival contentions. As per oral evidence of witness PW 12 and others and also of Dr. B.M.Sharma is proved the injuries and postmortem. Nanak Singh s/o. Ramkishan and two others Ramkishan s/o. Jaisingh and Gurvinder s/o. Ramkishan were examined by him on May 1st respectively at 10.15 a.m., 10.40 a.m and 7.00 p.m. and then post mortem of Nanakram on 2nd May at 9.00 a.m. Nanak Singh received following injuries - Injury report Ex.P27 :- (1)Diffused swelling on left side of skull. 6 (2)Bleeding Left Ear. (3)Was unconscious Injury of blunt object and referred to higher centre. Following injuries on the person of Gurvinder Singh, Ex.P29 :- (1) Contusion 4' x 1 ' Rt thigh (2) Swelling right ankle (3) Swelling left ankle All injuries – caused by blunt object simple in nature of 24 hours duration. On the person of Ram Kishan, following injuries were found Ex.P28 :- (1)Lacerated wound 2” x 1/4” - bone deep on forehead. (2)Lacerated wound. 1-1/2” x 1/6” bone deep left parietal. (3)Lacerated wound 1” x 1/6” near left occipital. (4) Incised wound. 1” x 1/6” right thigh. (5) Abrasion. 2' x 1/6” left forearm. (6)Diffuse swelling - left elbow. (7) Contusion. 2' x 1” left knee back. All, except no.4 which by sharp, of blunt object. No injuries proved to be grievous. As per evidence produced and particularly as per evidence of PW/12 is proved that when deceased was being taken to Bikaner for treatment then around 2 PM he died. Proved by evidence of Medical Officer is that brought back to Sriganganagar- as per evidence of Medical Officer Dr. B.M. Sharma and postmortem report Ex.P/30 found following on post mortem of Nanak Singh :- 7 1. Diffused swelling Left side skull underneath Parietal bone and frontal bone fracture. 2. Left Parietal bone and frontal bone fracture with clotted blood. Death occurred within 24 hours as a result of coma caused due to head injury - injuries sufficient in ordinary course to cause death. So is proved is that at about 10:15 AM above injuries present on the person Nanak Singh who died as a result of above injuries around 2 O' clock and definitely by 4 PM. The injuries proved to be caused in the morning. Evidence and circumstances are to be analyzed for appellant so wherever mention is of other accused person, it is in this context and maintaining continuity. First examining recovery as per IO ASI PW 16 Balraj Singh, he arrested appellant on May 3rd at 5.00 p.m. and appellant Balvinder Singh disclosed to him at 11.30 a.m. on May 4th that lathi is in south east corner of his residential house which he can produce – memo of this information is Ex.P34 and as per IO PW 16, he accompanied appellant who moving forward at 2.15 p.m. entered in a room of his house and picked up lathi Art.1 from south east corner which was seized and sealed and memo Ex.P 8 prepared. Gurvinder PW 12 one of the recovery witnesses is declared hostile, but he has admitted his signatures, as such lathi may be taken to have been recovered. It is also relevant that a “kassi” of iron is said to have been recovered from another person Mukhtiyar Singh about half an hour earlier to this recovery of lathi which too appear from the house. However, as per FSL report Ex.P37, lathi did not have any blood spot. Lathi is not such a article not found commonly, so on the basis of this lathi, no inference can be for appellant. As per FSL report Ex.P37, sample of blood like drops taken from place of occurrence, shirt on person of 8 deceased Nanak Singh, shirt and “pagri” of injured all were found having human blood and shirt of deceased had blood of A-B group, but group of other articles could not be ascertained. As such, conclusion is that on the shirt of person of deceased was blood of A-B group – no conclusion about blood group of other article. As per order-sheet of 8.5.2007, Ramkishan s/o. Jang Singh and adopted son of Banta Singh deleted by prosecution – as per his son, injured Gurvinder Singh PW 12 his father Ram Kishan, is a very very simple and gentle person, therefore, other villagers tell him “Kamla” a word used for person not clever and simple one. In defence, is produced Dr. Shyam Sunder Tantia DW 2 who deposes that on January 11th, he examined Ram Kishan and found him to be a mentally retarded person not competent to take (sound) decision. Considering all these probably valid reasons may have been for non-production of this witness, but factual position remains that he is not amongst the prosecution witnesses examined. Gurvinder Singh PW 12 himself injured is brother of deceased. Proved by the evidence of PW 12 is that his father Ram Kishan is son of Jang Singh – Ram Kishan Singh taken in adoption by Banta Singh brother of Jang Singh (natural father of Ram Kishan), - Ram Kishan succeeded estate of Banta Singh – estate of Jang Singh devolved to his two other sons Darshan Singh and Sukhvinder Singh - Appellant and Jasvinder Singh are sons of Sukhvinder Singh, whereas Sukhvinder Singh and Mander Singh are sons of Darshan Singh. PW 12 accepts that turn of irrigation is not in name of Ram Kishan, though land physically partitioned at least seven years earlier. As per PW 12, they cousins, as per mutual understanding divided irrigation time between them. PW 5 is irrigation Patwari and he states that land of Ram Kishan and Darshan Singh is at 4 BJS, irrigation turn of which falls every Monday morning 3.24 a.m. To 6.00 a.m. - as per slip (record) this turn is in the name of Jang Singh. The Patwari also states that Ram Kishan and 9 Darshan, on their own, have divided turn and time between them. Report of Patwari PW 5 given during investigation is Ex.P11 and relevant entry of register is Ex.P12, so it is proved that for agricultural land of complainant and accused, turn of irrigation is in the name of Jang Singh, grand father of appellant, deceased, PW 12 and father of Ram Kishan. Also according to Mithu Singh PW 7, his land is at 3 BJS and after his turn from 3.24 a.m. is turn of Ram Kishan Singh. Mithu Singh PW 7 clearly states that his own turn of irrigation is not in his name but in the name of Gurcharan Singh and for time upto 1.40 a.m. - so it appears that slip of irrigation in other name and actual irrigation by some other person (in possession) is not rare, rather common. As per FIR Ex.P14, turn of Ram Singh was from 3.00 a.m. and from 5.35 a.m. was turn of appellant. As per evidence of Gurvinder Singh PW 12 and also mentioned in FIR that they Gurvinder Singh PW 12 brother of Nanak Singh and father of Ram Kishan Singh along with Mela Singh were there in the night and early morning for irrigating their land and were irrigating – turn of Balvinder had to be from 5.45 a.m. but (they) broken (taken) water ten minutes earlier, who asked not to do so, so verbal exchanges followed between them and appellant inflicted injury of “Daang” (lathi) on head temporal region of Nanak Singh who fell down and became unconscious. Mukhtiyar Singh inflicted injury to his father Ram Kishan and when this witness was taking his father, injuries to him were o inflicted by them. In cross-examination PW 12 admits that when quarrel occurred, he was at about distance of a Bigha (very little distance) and Nanak was loudly telling that water is taken ten minutes earlier. PW 12 also admits that Nanak Singh was little handicapped of one hand. As observed, injuries of Gurvinder Singh PW 12 and Ram Kishan are relatively minor. All injuries inflicted as quarrel occurred for taking water said to be taken ten minutes earlier. Proved is that appellant accused gave a blow of lathi on head of Nanak Singhl, as a result of which injury – Nanak Singh died. Established 10 are facts that turn of irrigating land from 3.24 a.m. - turn was for lands in possession of appellant and complainant both – as per mutual understanding, the turn and time divided. For irrigation, Gurvinder Singh PW 12, Ram Kishan and Nanak Singh were there and nothing is contrary to statement that turn of appellant was from 5.35 a.m. or around that time. Turn of complainant is said from 3.24 a.m. As per other witness Gurjant Singh PW 3, his turn was upto 1.00 a.m. and then of other so it clearly appears that if not a minute or two, certainly difference of 15-20 minutes for irrigation may cause alarm or anxiety to concerned. As per medical evidence, Nanak was unconscious with solitary injury on head and left ear was bleeding. As per complainant side, turn of appellant's family was from 5.45 a.m., then of accused – time for irrigation as per record from 3.24 a.m. to 6.00 a.m. - quarrel occurred with allegations and counter-allegations for whether or not irrigation breached some minutes earlier – no previous enmity – no immediate prior incident or controversy of any kind – near cousin – solitary injury of lathi – appellant around 21 years at the time of incident and deceased too 14 years – no grevious or substantial injuries to Ram Kishan or Gurvinder Singh – incident clearly appears to have happened on the spur of moment and for few minutes of irrigation – no question of any intention or motive – blow inflicted by lathi. All these factors establish that there was not and could not have been any intention to cause death – certainly there could not have been any knowledge that injury is sufficient or likely to cause death. The intention and knowledge appears for voluntary causing grevious injury. Looking to the totality of facts and circumstances, the act of appellant does not fall within the ambit of Section 302, IPC, but comes under Section 304 Part II, IPC. Now coming to the question of determination of sentence, deceased and appellant are cousins – agricultural land in neighbourhood – no previous dispute – no reason of immediate quarrel except 11 spontaneous few minutes of irrigation – appellant at the time of incident 21 years and when convicted about 23 years, so in the totality of facts and circumstances, in our opinion, sentence of five years with a fine of Rs.25,000/- shall meet the ends of justice. Accordingly, the appeal deserves to be allowed partly. The appeal is partly accepted. Conviction for and sentence to appellant Balvinder Singh s/o. Sukhdev Singh awarded for the offence of Section 302, IPC, by the Court of Additional Sessions Judge, Sri Karanpur District Sri Ganganagar in Sessions Case No.34/2007 vide judgment dated 29.02.2008 is (set aside and) altered to that of Section 304 Part II, IPC and for this, appellant Balvinder Singh s/o. Sukhdev Singh is sentenced to five years' rigorous imprisonment with a fine of Rs.25,000/-, in default of payment, to further undergo two years rigorous imprisonment. (CHAND MAL TOTLA), J. (PRAKASH TATIA), J. scd