1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH JAIPUR J U D G M E N T Dharam Singh son of Shri Kishori by caste Jat, Resident of Kanchroli, Police Station Hindaun City. Vs. State of Rajasthan through P.P. S.B.Criminal Appeal No.1108/2006 under Section 374 of the Code of Criminal Procedure against the judgment dated 11.10.2006 passed by Additional Sessions Judge (Fast Track), Hindauncity in Sessions Case No. 06/06 (01/06). Date of Judgment 4th February, 2010 PRESENT HON'BLE MR. JUSTICE K.S. CHAUDHARI Mr. Anurag Sharma for the appellant. Mr. Laxman Meena Public Prosecutor for State. **** BY THE COURT: This appeal has been filed against the judgment dated 11.10.2006 passed by Additional Sessions Judge (Fast Track) Hindauncity in Sessions Case 06/06 (01/06) by which he acquitted the accused-appellant under Section 302 IPC, but convicted him under Section 341, 304 Part-II IPC and sentenced to undergo 7 years 2 rigorous imprisonment and fine of Rs.2,000/- in default of payment of fine to further undergo six months imprisonment under Section 304 Part-II IPC and sentenced to undergo one month's rigorous imprisonment under Section 341 IPC and further observed that both the sentences shall run concurrently. Brief facts of the prosecution case are that PW5-Sher Singh lodged FIR Ex.P/6 on 17.9.2005 and stated that at 10.00 a.m. his father-Prem Singh was going to his field with buffalows near Baghwale well. Accused-appellant- Dharam Singh restrained his father and inflicted blows with iron Tangari on head, ribs and foot of his father. He heard cries of his father and reached on the spot alongwith his wife Sharda and witnesses Shiv Singh and Laxman. During treatment in the hospital Prem Singh died. On this report case under Section 323,341,302 IPC was registered and after completion of investigation challan was filed under Section 341,323,302 IPC 3 in the Court of A.C.J.M.Hindauncity. Case was committed to the Court of Additional Sessions Judge, Hindauncity which was transferred to Additional Sessions Judge (Fast Track) Hindauncity. Charge under Section 341,302 IPC was framed against the accused-appellant to which he denied. During trial 11 witnesses were examined by the prosecution and after recording statement of accused under Section 313 Cr.P.C. and hearing arguments accused-appellant was convicted and sentenced as aforesaid. Heard learned counsel for the parties and perused the record. Learned counsel for the appellant does not press conviction on merits, but submits that looking to the nature of single injury inflicted on hand and no external injury on stomach, and relations of the accused and deceased, sentence awarded by the trial Court may be reduced and the appellant may be released on the sentence already undergone. 4 On the other learned Public Prosecutor submitted that looking to the gravity of offence sentence awarded by the trial Court is appropriate, hence, appeal of the appellant may be dismissed. PW5-Sher Singh has stated that he alongwith his wife Sharda was working in the field, his father Prem Singh was going with buffalows, he heard cries and reached on the spot and saw that accused-Dharam Singh inflicted blow with Tangari on the head of Prem Singh which was sustained by him on his hand. Prem Singh fell down then accused inflicted blow with Tangari on the abdomen of Prem Singh on account of which Prem Singh died. PW4-Sharda also corroborated statement of Sher Singh. Both these witnesses admitted that Shiv Singh and Laxman reached on the spot afterwards meaning thereby they were not the eye witnesses to the occurrence. PW11- Laxman Singh has stated that he alongwith Shiv 5 Singh was going to their home from the field and in the way Prem Singh met him. He has denied that accused inflicted blow on the body of deceased-Prem Singh. He was declared hostile. The prosecution has not examined Shiv Singh. In such circumstances there remains only two eye witnesses namely Sher Singh and Sharda who have corroborated proseuction story and proved that the accused inflicted blow with Tangari on the hand of deceased-Prem Singh on account of which he fell down. Though both the witnesses have stated that accused also inflicted blow with opposite side of Tangari on the abdomen of deceased on account of which Prem Singh died, but PW6-Dr.Vinod Kumar Sharma who was member of the board, conducted postmortem and submitted report Ex.P/9 stated that there was one lacerated wound 1.0x0.3x0.5 cm. on upper 1/3 part of left forearm posteriorly which was antemortem in nature. He further stated that he found oblique rupture of 6.0x1.0x2.0 cm on 6 convex surface of right lobe of liver and deceased- Prem Singh died due to haemorrhagic shock as a result of rupture of liver. He admitted that there was no other external injury on the body of deceased. In such circumstances, it becomes clear that atleast no injury from sharp side of Tangari was inflicted by accused on the abdomen of deceased. This fact also becomes clear that even if any injury from blunt side of Tangari was inflicted on the abdomen of deceased, no external injury was noticed in postmortem and in such circumstances this probability cannot be ruled out that either on account of fall on the surface or on account of application of little force by Tangari on the abdomen of deceased, liver ruptured and Prem Singh died. Learned counsel for the appellant has not challenged conviction and in such circumstances conviction is not tested on merits, but only properiety of sentence awarded to the accused is to be judged. It is admitted position that accused and 7 deceased were real brothers. It is also admitted that on account of accused's evidence Man Singh and Tej Singh, who are close relatives of the accused and deceased, were convicted in a case though deceased and PW5-Sher Singh were interested in their acquittal. It is also admitted that there was no external injury on the abdomen of deceased and deceased died on account of rupture of liver. Evidence also reveals that deceased must be of near about 60 years of age at the time of incident because his son Sher Singh's age has been shown as 40 years and PW5-Sher Singh has deposed his age as 42 years in his statement though in postmortem report his age has been shown as 50 years. Learned counsel for the appellant placed reliance on Raju Singh vs. @ Raju Painter vs. State of Rajasthan reported in 2005 WLC (Raj.) 113 UC in which while altering conviction of accused from Section 302 to Section 304 Part-II IPC accused was released on already undergone 8 (four and half years). He also placed reliance on Anni & Ors. vs. State of Rajasthan reported in 2006(4) WLC (Raj.) 207, in which accused was released on already undergone (four years and five months) in offence under Section 304 Part-II IPC. In AIR 1982 SC, 55 Randhir Singh vs. State of Punjab accused caused death by single kassi blow and his sentence was reduced to 5 years. In AIR 1983 SC 185 Hari Ram vs. State of Haryana accused caused death by jelli blow in the chest and was convicted under Section 304 Part-II IPC and was released on already undergone (5 years). Looking to the cause of death I think it fit and proper that ends of justice will meet in case the sentence of imprisonment awarded by the trial Court is reduced to a period of five years rigorous imprisonment with the fine. Consequently, SB Criminal Appeal No.1108/2006 of the appellant-Dharam Singh son of Shri Kishori is partly allowed and conviction 9 ordered by the trial Court under Section 341,304 Part-II IPC is maintained, but sentence under Section 304 Part-II IPC is modified and the sentence of imprisonment awarded by the trial Court is reduced to five years rigorous imprisonment instead of seven years rigorous imprisonment, but fine imposed by the trial Court is maintained. The sentence awarded to the appellant under Section 341 IPC is also maintained. (K.S.CHAUDHARI), J. teekam