1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR JUDGMENT D. B. CRIMINAL APPEAL No.1687/2003 HAMEEDA & Anr V/s THE STATE OF RAJ. DATE OF JUDGMENT ::: FEBRUARY 18, 2008 PRESENT HON'BLE MR. JUSTICE SHIV KUMAR SHARMA HON'BLE MR. JUSTICE GUMAN SINGH Shri Suresh Shani) Shri R.M. Sharma ), for appellants. Shri Ashvini Sharma, P.P. for State. BY THE COURT : (PER HON'BLE GUMAN SINGH,J.) 1. In this appeal, appellants have challenged the judgment dated November 21, 2003 of the learned Additional District & Sessions Judge, (Fast Track), Kama, whereby appellants Hameeda and Ahmaddin were convicted and sentenced as under : HAMEEDA : U/s 302 IPC, 2 to suffer rigorous imprisonment for life and fine of Rs.1000/-, in default to further suffer simple imprisonment for six months. U/s 326 IPC, to suffer rigorous imprisonment for two years and fine of Rs.1000/-, in default to further suffer simple imprisonment for six months. U/s 323 IPC, to suffer simple imprisonment for six months. AHMADDIN : U/s 302/34 IPC, to suffer rigorous imprisonment for life and fine of Rs.1000/-, in default to further suffer simple imprisonment for six months. U/s 323 IPC, to suffer simple imprisonment for six months. All the sentences were ordered to run concurrently. 2. Briefly stated, the prosecution case is that on November 30, 2001 at 6.30 3 a.m., informant Jhaggar resident of Nagla Aram Singh made a written report at police station Pahari, District Bharatpur, wherein it was stated that he along with his brother Naseer had purchased a tractor on Bank-loan and Hameeda had helped them by pledging his land on mortgage with the Bank. The tractor was being plied by Naseer in partnership with the informant (Naseer) and a dispute arose regarding the accounts with Naseer. On November 29, 2001 at about 10.00 p.m. in the night, Naseer and Yusuf proceeded to take the tractor malafidely for unknown destination. They were intercepted at nearby 'Pokhar' of village Aramsingh by informant Naseer, his son Arsad, Jafar and wife Mst. Fata and asked them to not to take away the tractor. Hameeda, Kayam, Sangari, Ahmaddin and Hanni also came there armed with 'lathis' and started beating the informant's sons and wife. Hameeda inflicted 'Tanchiya' below on Akhatar's hand, Naseer inflicted 'lathi' 4 below to Akhatar while Hanni and Habib inflicted 'lathi' blow to Jafar. Ahmaddin inflicted 'lathi' blow to Mst. Fata. Then all the appellants asked to run over Mst. Fata and she was ran over by the tractor driven by appellant Hameeda and Mst. Fata instantly died on the spot. 3. On receipt of the above report, a case u/s 147, 323, 341 and 302, IPC was registered and the investigation commenced. During the investigation, site map was prepared, necessary memos were drawn and autopsy on the body of Mst. Fata deceased was got conducted and after collecting necessary evidence, the case was challaned. On the case being committed, appellant Hameeda was charge- sheeted for the offence u/s 341, 323, 326 and 302 IPC while appellant Yusuf, Ahmaddin, Naseer were charge-sheeted for the offence u/s 341, 323, 326/34 and 302/34 IPC. The prosecution examined as many as 12 witnesses in support of its case and then the statements of the 5 accused were recorded u/s 313 Cr.P.C. In defence four witnesses were examined. After the trial, the learned trial court convicted the accused appellants as indicated hereinabove. 4. We have heard learned counsel for the appellants, learned Public Prosecutor for the State and with their assistance scanned the material on record. 5. Death of Mst. Fata was undeniably homicidal in nature. As per post mortem report (Ex. P 13) of Mst. Fata, the following ante mortem injuries were found on the body : External injuries :- a) Abrasion size of “ 2x1” at the Rt. Side of lower umbilical & Inguinal region. b) Abrasion in Bright reddish Brown in Color. Right side of clavicle #, Edema & effusion present. c) Another abrasion at parieto temporal side of Rt. side, dark- red, “1.5x1” d) External organs of generation – Healthy but blood came through vagina. All the above mentioned injuries 6 were anti-mortem in nature. Internal injuries : I-HEAD AND NECK a) Scalp Skull Bones (Vertex) : Meninges are lacerated congestion present c cerebral laceration at mainly Rt. side of parieto- temporal region c damage of cerebral veins of Rt. side c Contusion & lacerations of dura. Subdural haematoma near ac Midline near 100 ml of dark color blood with underlying Brain tissue which creates secondary pressure at Brain Stem. b) Spinal cord need not be examined unless any indications of disease strychnia poisoning or injury exists. II-THORAX a) At Rt. side 5th - 6th intercostal space of Abrasion of “1x1” dark red color pre. b) Pleurae – Healthy, congested. c) Larynx, Trachea and Bronchi – Health, Congested, No foreign body present. d) Right Lung – Health, Congested. e) Left Lung - Healthy, Congested. f) Pericardium – Healthy, Congested. 7 g) Head with wight – Rt. Chamber full of blood, left chamber empty. III-ABDOMEN a) Walls Rt. side of lower abdominal wall laceration present. b) Peritoneum Laceration present. c) Laceration of abdomen with rupture of abdomen, laceration of small intestines present. Laceration of whole large intestine with rupture of transverse colon present of dark color of blood. In the opinion of doctor the death is due to shock. Shock is due to mainly of Anti-mortem injuries which is mentioned as above. 6. We have also noticed the injuries sustained by injured Arshad, Smt. Leelawati, Akhatar and Jafar. Details of injuries are as under :- Injured Arshad vide injury report ( Ex. P 3) received following injury : Lacerated wound “1x1” on toe of Rt leg. Injured Smt. Leelawati W/o Shri Dharam Singh vide injury report (Ex.P 18) 8 received following injuries : a) Abrasion ½ x ½ Lt forearm mid posteriorly. b) Pain & tenderness Lt lumber of back. No visible injury seen. Injured Akhatar vide injury report (Ex.P 10) received following injuries : a) Incised wound 1 x 1 x 1.5 on little finger of Rt hand upper part of Ant. Aspect. b) Swelling 1 x 1.5 on Ring finger of Rt Hand. c) Swelling 2 x 1 on Writ of Rt hand d) Abrasion 1 x 1.5 Ant. Aspect of Rt thigh e) Bruise .5 x .5 on Writ of left hand. Injured Jafar vide injury report (Ex. P 11) received following injuries : a) Abrasion 1 x 5 on index finger of left hand b) Bruise 1 x 1 on left side of frontal side of skull. 7. On re-appraisal of the prosecution evidence, it is revealed that a dispute arose about the tractor which was purchased by Jhaggar (PW 5) and his 9 brother appellant Naseer, jointly on bank loan and appellant Hameeda had helped by pledging his land to the Bank. The tractor was being plied by Naseer in partnership with the informant and a dispute regarding accounts thereof developed between them. On the fateful night of November 29, 2001, the complainant party apprehended that the tractor was being taken away for unknown destination malafidely. On being intercepted, the appellants assaulted to Arshad, Akhatar, Jaffrar and Mst. Fata who susained the injuries noticed hereinabove. From the testimony of the injured witnesses, namely; Akhatar (PW 2), Jaffar (PW 3) and Arshad (PW 1), it is revealed that deceased Mst.Fatta was inflicted one 'lathi' blow on her head by Ahmaddin and she fell down and then Hameeda started tractor and ran over Mst. Fata who died instantly on the spot. The testimony of these injured eye witnesses is further corroborated by the Jharmal (PW 4) and 10 informant Jhaggar (PW 5). The fact that Mst. Fata sustained laceration with rupture of small and big intestines apart from the laceration of congestion and the right side and temporal region with damages of cerebral veins shows that rupture of internal organs like small and big intestines was caused due to over running of front wheel of the tractor as deposed by the eye witnesses. Dr. Sanjay Choudhary (PW 7),who conducted autopsy on the dead body, has opined that the death of Mst. Fata was caused due to shock on account of aforesaid ante mortem injuries. Kamari (DW 1) and Lallu Khan (DW 2) examined in defence, have deposed that Mst. Fata died due to injuries caused due to fall in stairs while Abdul (DW 3) deposed that Mst. Fata fell down from the roof and became ill and then she died. Thus, the defence led on the point of cause of death of Mst. Fata is found to be self contradictory and improbable in view of the nature of 11 internal intestine injuries found to Mst Fata. Sunil Kumar Jain, Advocate (DW 4) has been examined on the point that a claim petition was filed on account of death of Mst. Fata by her dependents and that was dismissed for non-prosecution. This witness has been cross examined and he has accepted in cross examination that he did not see the FIR pertaining to the accident before filing the claim. In fact, the appellants have not taken the defence that deceased Mst. Fata has died in an accident and the FIR in the present case has been lodged on the following morning at about 6.30 a.m. belies the death due to accident. Thus, the defence led by the appellants has not been able to dislodge the prosecution case of death of Mst. Fata due to run-over by the tractor. From the above discussion, it is revealed that the incident occurred when the appellants were intercepted by the complainant party while they were taking away the tractor at about 10.00 in the 12 night. It is further revealed that the appellants first assailed the complainant party wherein deceased Mst. Fata fell down on receiving the 'lathi' blow and then the tractor was started by appellant Hameeda and she was run over. The manner in which the accident took place, it is revealed that while assault was going on, the tractor was at a distance of 5-10 feet and the same was started by Hameeda who ran over Mst. Fata and went away. This shows that Hameeda did not intend to cause death particularly of Mst. Fata by running over but she was run-over while lying on the ground. Thus, appellant Hameeda can be attributed with the knowledge only and this act does not travel beyond the offence of culpable homicide not amounting to murder punishable u/s 304 Part II, IPC. However, from the evidence adduced by the prosecution, it is established that accused Hameeda had caused grievous hurt to injured Akhatar with sharp edged 13 weapon and had participated in the assault and thus, the offence u/s 326 and 323 IPC have rightly been found proved by the learned trial court. The manner in which Mst. Fata was run over does not contribute common intention to the other appellants as the act of appellant Hameeda is of individualistic character and no common intention of other appellants could be inferred especially in the manner the incident occurred wherein Arshad (PW 1), Akhatar (PW 2) and Jaffar (PW 3) were also injured. 8. Thus, in view of the above discussions, we find that instead of section 302, the prosecution has been successful in proving the offence u/s 304 Part II, IPC along with offence u/s 326 and 323 IPC as against accused Hameeda while the offence u/s 302/34 and 323, IPC is not proved beyond doubt as against appellant Ahmaddin. 9 For these reasons, we dispose of the instant appeal in the following 14 terms :- (i) We allow the appeal of appellant Ahmaddin and acquit him of the charges under sections 302/34 and 323 IPC. The appellant Ahmaddin, who is in jail, shall be set at liberty forthwith, if he is not required to be detained in any other case. (ii) We partly allow the appeal of appellant Hameed and instead of section 302 we convict him under section 304 part II IPC and sentence him to suffer rigorous imprisonment for five years. We however maintain his conviction and sentence under sections 326 and 323 IPC. The sentences shall run concurrently. (iii) The impugned judgment of learned trial court stands modified as indicated above. (Guman Singh),J. (Shiv Kumar Sharma),J. Chauhan/