IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR J U D G M E N T Pappi @ Pappu Singh Vs. State of Rajasthan (D.B. Criminal Jail Appeal No. 167/2002) D.B. CRIMINAL APPEAL against the judgment & order dt. 19.1.2002 passed by Additional District & Sessions Judge, Srikaranpur, Sriganganagar in Sessions Case No. 31/2000. Date of Judgement : 12 th August, 2008 PRESENT HON'BLE MR. JUSTICE PRAKASH TATIA HON'BLE MR. JUSTICE C. M. TOTLA Mr. S.P. Bhati, Amicus Curiae for the appellant. Mr. J.P.S. Choudhary, Public Prosecutor. BY THE COURT: (PER HON'BLE TOTLA, J.) Appellant convicted for the offences of Section 302 and 307 IPC vide judgment dated 19.01.02 in Sessions Case No. 31/2000 by learned Additional Sessions Judge, Srikaranpur, Distt. Sriganganagar and sentenced to life imprisonment and fine of Rs. 1000/- in default total six months imprisonment, has preferred this jail appeal for setting aside the conviction and sentence. Alleged brief facts leading to the prosecution appears to be 1 that on 06.08.2000 at 7.30 A.M. one Smt. Pasi W/o Pappu Singh (appellant's wife) with her brother Nand Singh lodged an oral complaint at Police Station Kesrisinghpur stating that she alongwith her husband are residing for last two months at village 38F for earning their livelihood and are living with her mother Smt. Harpal Kaur. Her husband doubting her character often quarrels with her and yesterday i.e. on 5th August at around 10:00 PM, when she, her mother Harpal Kaur, wife of elder brother (Bhabhi) Gurvinder Kaur were sitting in courtyard having gossip and baby Raman Deep daughter of Gurvinder 18 months old in lap of Smt. Harpal, her husband Pappu Singh came, having a knife in hand and telling that he will finish her, inflicted blows of knife on her causing injuries on left nipple and another blow on left buttock and when her mother intervened, he inflicted blows of knife causing injury to baby Ramandeep who died spontaneously and also inflicted injuries on abdomen of Smt. Harpal with intention to kill. Smt. Pasi stated in FIR that on shouting of Smt. Gurvinder husband Pappu Singh ran away and neighbour Bindra Singh and then their relative Nirbhay Sigh came who carried mother Harpal to hospital and she remained whole night by the body of baby Ramandeep andn ow in the morning, she has come with her brother to lodge the report. This information taken down in Roznamcha and on the basis of it, FIR Ex.P/3 134/2000 registered for offences under Section 302, 307, 324 and 323 IPC . In course of investigation, S.H.O, I.O. PW/11 Daulat Ram 2 inspected the place of incident whereby body of baby Ramandeep and also at about a distance of 2 ½ feet was blood said to be of Harpal Kaur, samples of which and plain soil also taken and baby's clothes banyan, underwear, salwar and jamfer of Smt. Harpal, and also salwar of Smt. Pasi having blood stains seized and sealed, memos prepared are Ex.P/10 to Ex.P/20. The injuries of Smt. Harpal and Smt. Pasi examined by Medical Jurist, reports of which and postmortem report of Baby Ramandeep are Ex. P/1, 8, 9,27 & 28. Accused Pappu Singh arrested on 9th August at 16:00 PM on whose information given at 14:00 PM on 10th August (Ex.P/22), a knife (Chhurra) of 30 cm recovered from below a small bridge lying in mustard crop waste, the recovery memos are Ex.P/22 to Ex.P/25. Packets of recovered articles delivered intact at FSL. Appellant accused Pappu Singh S/o Jagar Singh when charged for the offences of Section 302, 307 & 324 IPC that he on August 5th at about 10:00 PM with intention to cause death and such injuries such as sufficient to cause death in the ordinary course of nature inflicted injuries of sharp edged weapon to Ramandeep and Harpal and thereto causing death of Ramandeep and also causing injuries to Smt. Pasi, denied the charges and claimed trial. Of the 12 prosecution witnesses examined, Smt. Pasi PW/3 is wife injured of appellant, , Smt. Harpal PW/4 injured and Smt. Gurvinder Kaur PW/7 are eye witnesses- PW/8 Nand Singh is the brother 3 of complainant and father of deceased and Nirbhay Singh PW/9 is who reached there soon and also have deposed accordingly. PW/1 Harfool Lata Head constable, PW/5 Bhagirath and PW/6 Ashok Kumar are police employees relating to registration of FIR and deposting sealed packets at FSL. Dr. B.M. Sharma PW/10 and Chandrabhan PW/12 examined injured and conducted postmortem of baby Ramandeep. Daulat Ram PW/11 is the Investigating Officer. As per appellant, as stated in course of examination under Section 313 Cr.P.C. He is falsely implicated due to ill will and witnesses telling lie. In defence is examined Dr. Chandra Bhan (who also is PW/12) who deposes that on the person of appellant accused on 09.08.01 were seven abrasions of 2to 4 cms x 1- 3 cm, simple of blunt object – duration more than 48 hours and injury report is Ex.D/7. Learned Sessions Judge inferred that oral evidence completely trustworthy and also recovery of knife and clothes - accordingly appellant held guilty and sentenced to Life imprisonment and fine of Rs. 1000/- in default three months imprisonment for offence under Section 302 IPC and ten years R.I. Anf ine of Rs.500/-, in default 3 months imprisonment for offence under Section 307 IPC. On behalf of the appellant, it is contended by learned counsel for the appellant that (1) opposite and contrary statement as to 4 by whom and when FIR was lodged (2) reasons to believe that FIR post timed by 12-20 hours (3) no reason for Nirbhay singh and Nand Singh to be there soon after the incident (4) no neighbours and children among the prosecution witnesses (5) if information given to P.S. in the night and when police came on the spot, then registered report cannot be FIR (6) recovery of knife not proved and cannot be taken to be on disclosure of the appellant. On behalf of the appellant it is also contended that appellant had no intention to kill neither had any intention of causing injuries which could have caused death and had it been such, he could have very well caused severe blows to Smt. Pasi. Further contended that certainly appellant had no intention of causing any such injury to baby and that if the appellant is found guilty of doing any such act, then blow of injuries if caused to Pashi or Harpal could not have been very grievous and such blow accidentally or incidentally caused injury to Baby. It is contended that it does not come within the ambit of Section 302 IPC and that Section 307 IPC is also not made out. Learned Public Prosecutor contended that evidence is that of wife, mother-in-law and wife of brother – knife recovered so all ingredients proved and so the conviction and sentence awarded is correct. Considered rival arguments of the parties and carefully perused the record. Considering the oral evidence, medical report and opinion for 5 the cause of death of baby Ramandeep, as per postmortem report and evidence of concerned doctor, postmortem of baby aged about 18 months conducted on 6th August at 11:45 PM and cause of death was shock and hemorrhage due to following injuries :- (a) Three incised wounds 3 x 2.5 cm cavity deep left shoulder close to axilla, artery punctured – chest cavity contained blood (b) 4 x 2 cm muscle deep left leg (c) 4 x 1 x 1 cm left leg lateral side. All injuries antemortem and sufficient to cause death in ordinary course of nature. The death caused during 24 hours. So there cannot be any doubt that baby died between afternoon of 5th and morning of August 6th as a result of injuries inflicted/caused to her. On the person of Smt. Harpal found on examination on 6th August at 8:30 A.M. was Incised wound ¾ “ x 1/6 “ x depth could not be ascertained on inner side of abdomen and on X-ray was found air under diaphragm. As per evidence of PW/10 Dr. B.M. Sharma, the injury repaired by surgery and was dangerous to life and could have caused death if not treated timely. Also established from the evidence that she became unconscious soon after the incident and remained admitted in hiospital for 14 – 15 or more days. So provided is that injuries caused to Smt. Harpal were very dangerous to life, likely to cause death. On examination of Smt. Passi on 06th August at 8:20 A.M. found on the person were (i) lacerated wound 2 cm x 1 cm x ½ cm on the left breast just below the nipple, (ii) abrasion 2 cm x 1 cm on the middle of 6 chest. Both injuries simple of blunt object caused within 24 hours. On behalf of appellant, it is contended that very significant contrary statements are of witnesses regarding lodging and timing of FIR and all these cast grave doubt over investigation and all this was to implicate the accused appellant. As per prosecution and as mentioned in FIR Ex.P/3 which was lodged orally at 7:30 AM on August 6th by Smt. Pasi, who came at P.S. with her brother Nand Singh, SHO I.O Daulat Ram and Smt. Pasi have deposed to this effect. Smt. Pasi PW/3 states that her mother was taken to P.S. and then to Kesrisinghpur hospital where treatment declined so she was taken to Ganganagar hospital and the information lodged only in the morning at 7:00 AM coming from Ganganagar. As per evidence of Smt. Harpal, she became unconscious and looking to the above proved injuries and also other evidence, it stands established. According to Nand Singh PW/4, he with Smt. Pasi and Nirbhay Singh went to Police station and he stated that in the night did came a police constable but he and Smt. Pasi went to P.S. in the morning and cases registered. According to Nirbhay Singh PW/9, he arranged a jeep and carried Smt. Harpal to hospital and when reached at P.S. they were asked first to take care for Harpal and than they got admitted Smt. Harpal to hospital. Smt. Gurvinder PW/7 states that Smt. Harpal was taken to hospital in the nigh and P.S. also informed at 1:00 AM in the night but again as per herself, she remained at home the whole night with baby Ramandeep which is very much natural. So as per her evidence, the only inference is that 7 Smt. Harpal was carried to hospital in the night. Looking to the above, it seems that there are some contradictions about the time when FIR was lodged but reason of this is very straight and clear. Baby killed and Injuries to Smt. Harpal were atleast very serious. She was admitted in Female surgical ward and also became unconscious soon after incident and obviously prime attention was to take care of her. The place of occurrence is 15-16 km from P.S. In such conditions, if little information about the incident given or reached to P.S. that cannot be equated with lodging of FIR which was actually recorded at 7-7:30 A.M. Even if it is assumed, for the sake of argument, that FIR lodged or recorded some hours belatedly, even then in the totality of circumstances and facts, that does not in any way affect the prosecution case and credibility of the witnesses. Further, it is argued that when the police man was dispatched to the spot in the night, it is apparent that some information was given at P.S. and in such situation, registered FIR report Ex.P/3 cannot be treated as FIR as investigation began earlier. In the opinion of the Court, this argument does not bear any merit because obviously Smt. Harpal was injured so grievously that the only and foremost attention was and could have been to take care of her which was further necessary as kesrisinghpur hospital declined to treat her and referred her to higher centre. Now coming to the recovery of knife. At the outset, it may be said that it is not very safe to rely on this. Smt Pasi PW/3 states that 8 knife was found in mustard crop waste near her house by Binder Singh who handed over the same to police. Similarly, as per PW/7 Smt. Gurvinder Singh, the knife was thrown by appellant at about 1 ½ bigha distance. PW/9 Nirbhy Singh states that though knife recovered in his presence from near a wall but when recovered, accused was not with police, so recovery becomes little doubtful. However, it is very clear that in the totality of facts, circumstances and quality of of evidence produced, this does not , on any point, adversely affect prosecution. For the appellant, it is contended that three sons of appellant were present and Binder Singh and others did came but none of them is amongst the prosecution witnesses and Nirbhay Singh PW/9 who happens to be a distant relative is prosecution witness which casts serious doubts. It is contended that there are only interested witnesses wife, mother, brother-in-law and his wife nd no independent witnesses. The Court has perused the evidence minutely. It appears tht as per Smt. PW/3 and other evidence, sons of appellant were present but this is to be noted that as stated they are of 10, 8 & 6 years of tender age. Similarly, as the incident occurred within the courtyard of the house of Smt. Pasi, it is but natural that neighbour and others did came afterwards. From evidence, it is clear that Nand Singh was working as cook so it is very natural that he was away for taking bath or so. Nirbhay Singh PW/9 of whose sister-in-law's daughter is PW/3 Smt. Pasi resides at about 10 “murabbas” away from the village which cannot be said to be much distance. So on receiving information, his coming to the spot is 9 natural and in no way strange. It is settled principle of law and evidence that mere non- production of some witness or evidence not by itself create any doubt on the credibility and worthiness of evidence produced and consequently inference - it depends more upon the significance, nature, character and impact of evidence produced or not produced, in the totality of the alleged facts and circumstances. Here the evidence is that of wife Smt. Pasi, her mother and Bhabhi. Further, it is established that doubting character of his wife, the appellant often used to quarrel sometimes drunken. Thus, only conclusion is that the accused voluntarily inflicted all the injuries causing death of Baby Ramandeep and very severe injury to Smt. Harpal so as to endanger her life. Now coming to the last contention for appellant that the act does not constitute murder. For this, the accused has relied upon the fact that absolutely there was no knowledge much less intention that injury to Ramandeep shall be caused and further that Baby was only of 18 months so and (as alleged) injuries were being caused to wife or her mother could not have been fatal but became so as baby was only 18 months old and that injury was at area of shoulder and leg. It is also argued that first of all injury was caused to wife and when Smt. Harpal intervened, only then injury was caused to her so no intention to cause injury to her much less to cause or attempt death. Considering the evidence, it is clear that first of all, accused 10 inflicted injuries to Smt. Pasi stating that he will finish her and when Smt. Harpal intervened, then injuries were caused to her and the baby. There were also some injuries on the person of accused, injury report of which is Ex.D/7. So it is apparent that some sort of scuffle also happened. The baby was in the lap of Smt. Harpal PW/4 who deposes that “जस वर स मर छ र लग, उस वर स मर पत रमनदप भ घयल ह ई" So it seems that probably there was no intention or knowledge of inflicting injuries directly to baby. So in the opinion of the Court, this act of appellant causing death of baby constitutes offence under Section 304 Part I IPC. Now considering for attempt of murder of Smt. Harpal, injury caused to her is quite grievous and severely endangering her life- he became unconscious soon after. She had to be carried to Kesrisinghpur hospital where from she was immediately referred to higher centre. She was admitted at Ganganagar hospital and her injury in abdomen was treated by surgery. She remained in hospital for 15-20 days or more. Further, the injury was caused as above after causing injury to Smt. Pasi, so the knowledge was there that injuries which are being caused were sufficient to cause death in the ordinary course of nature. So this act clearly amounts to attempt to murder. As per above conclusions, the conviction for the offence under Section 307 IPC is to be upheld and conviction for the offence under Section 302 IPC should be altered to Section 304 Part I IPC and for this appropriate sentence will be of 10 years R.I. with fine of Rs. 25,000/- 11 and in default of payment, to further undergo 18 months rigorous imprisonment. Accordingly, the appeal is decided and partly allowed. The conviction of the appellant for the offence under Section 307 and sentence of Ten years rigorous imprisonment and fine of Rs. 500/-, in default to undergo three months imprisonment, is maintained and (but) conviction and sentence for the offence under Section 302 IPC is altered to Section 304 Part I IPC and is sentenced 10 years R.I. with fine of Rs. 25,000/- and in default of payment, to further undergo 18 months rigorous imprisonment. The substantive sentence of ten years as above for the offence under Section 304 Part I IPC and Section 307 IPC shall run concurrently. But for non-payment of fine, 18 months rigorous imprisonment and 3 months imprisonment respectively shall run consecutively. (CHAND MAL TOTLA), J. (PRAKASH TATIA), J. bjsh 12