1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR J U D G M E N T Bhamru & anr. Vs. State of Rajasthan D.B.CRIMINAL JAIL APPEAL NO.21/2003 against the judgment dt.4.12.02 passed by Addl.Sessions Judge (FT), Udaipur in Sessions Case No.75/2002. Date of Judgment: Oct.23, 2008 P R E S E N T HON'BLE MR.JUSTICE A.M.KAPADIA HON'BLE MR.JUSTICE DEO NARAYAN THANVI Mr.K.K.Shah, for the appellants. Mr.J.P.S.Choudhary, Public Prosecutor. BY THE COURT : (PER HON'BLE THANVI J.) 1. This Jail Appeal has been directed against the judgment of the learned Additional Sessions Judge (FT), Udaipur dated 4.12.02, whereby he convicted & sentenced the accused appellants Bhamru and Papiya 2 for the offence under section 447 IPC with three months' R.I., for the offence u/s.336/34 IPC with three months' R.I. and for the offence u/s.302/34 IPC with imprisonment for life alongwith a fine of Rs.5000/- each and in default, to further undergo six months' R.I. All the substantive sentences were ordered to run concurrently. 2. The charges against the accused appellants were that on 28.11.2001 at 8 PM, they committed criminal trespass in the house of complainant Laxman son of Dallaji by caste Vadera at village Gopir (Magvas) of Police Station Jhadol, threw stones and committed murder of his wife Poonki with axe and lathi. The report of the incident was lodged to the police from Govt. Hospital Jhadol by Laxman vide Ex.P.1 in which it is alleged that both the accused threw stones in the house, where his wife and his son's wife viz; Laxmi were cutting vegetables. When both the ladies came out, accused Bhamru, who was having axe in his hand, 3 inflicted blow on the head of his wife Poonki and accused Papiya inflicted lathi blows. On cry by his son's wife Laxmi, Rama came there, whereupon the accused fled away. He also reached there and took her to the hospital. Upon this report, the police registered a case for the offences u/ss.307 & 448/34 IPC and commenced investigation. On 5.12.01, that is after eight days, she died in the hospital, where her post mortem was conducted and the cause of death was due to ante mortem head injuries. After investigation, the police filed challan against both the accused appellants for the offences u/ss.302, 336 and 447/34 IPC. On committal, the learned trial Judge framed charges against the accused for the above offences to which they pleaded not guilty. The prosecution examined 15 witnesses. The statements of the accused were recorded u/s.313 CrPC. They led no defence. After hearing the arguments, the learned trial Judge convicted the accused appellants as above. 4 3. Learned counsel for the accused appellants does not want to press this appeal on merits. He simply submits that this is not a case of intentionally causing the death but it falls under section 304 part II IPC because according to him, on account of the previous litigation between the parties, both the accused are said to have gone at the residence of complainant Laxman and they first threw stones. When the ladies came out, accused inflicted axe and lathi blow. One blow was inflicted with the axe on the head of Poonki, which resulted into her death. The accused were not having any intention to kill Poonki, as the injured died after eight days of the incident. He further submits that though he does not question the legality of the conviction but from the injury report, Ex.P.19, the injuries are lacerated wounds but in the post mortem report, Ex.P.20, they are incised wounds. 4. Learned Public Prosecutor has supported the judgment of the learned trial Court. 5 5. We have re-appreciated the evidence in the light of the submissions made by the learned counsel for the appellants. It is true that in the injury report Ex.P.19, all the five injuries, which are said to have been caused, are lacerated wounds but in the post mortem report, there are nine injuries including three incised wounds on the parietal region and back. The learned trial Judge has rightly discussed with the aid of Modi's Jurisprudence that Dr.Rajveer Singh (PW 12) in his injury report Ex.P.19 has shown the injuries to be lacerated wounds but he has stated that the margin of these injuries was sharp and the sharp margin can be of incised wounds and not of lacerated wounds. Therefore, Dr.Rajveer Singh (PW 12) has given the wrong report by preparing it in a casual manner for which the learned trial Judge has also written to the Collector, Udaipur for taking action or to issue necessary instructions to the department. 6. The only eye witness to the incident is Laxmi (PW 6 8), who was present in the house at the time of incident. She has stated that when they were cutting vegetables, both the accused threw stones on their house and when her mother in law came in the `Otla' (open verandah), accused Bhamru inflicted kulhari blow on the head and accused Papiya inflicted lathi blow. The identity of these two accused is also not disputed because they are relatives of the deceased family. In the cross examination, she has stated that she cannot say that how many blows were inflicted by the accused on the body of Poonki. According to her, her father in law Laxman (PW 1) and Rama came later on and they took her mother in law to the hospital, where she died after eight days. Rama has been produced by the prosecution as PW 9 but he has turned hostile. Laxman (PW 1) has supported the incident. Chatru (PW 3) has been produced as an eye witness but Laxman (PW 1) has stated that his both the sons Chatru and Gopal were not present at the house when the incident took place. This evidence coupled with the 7 testimony of Dr.Anees Ahmed (PW 14), who conducted the post mortem has proved that the deceased Poonki died on account of the multiple injuries caused by lathi and kulhari and the death is homicidal. However, as contended by the learned counsel for the appellants, the intention of appellants to cause death of Poonki is lacking. Had it been so, the accused appellants would have left Poonki in a dying condition and would have entered into the house of deceased at the initial stage. But they first threw stones and when the ladies came out from the kitchen, they inflicted blows, for which they were having knowledge that by such blows, death can be caused. Their case falls under Clause III of Section 299, which defines “culpable homicide not amounting to murder”, punishable u/s.304 part II IPC. 7. Consequently, this appeal is allowed in part. While maintaining the conviction & sentences recorded by the Additional Sessions Judge (FT), Udaipur vide his judgment dt.4.12.02 against accused appellants 8 Bhamru and Papiya for the offences u/ss.447 & 336/34 IPC with three months' R.I. on each count, their conviction for the offence u/s.302/34 IPC is altered to Section 304 part II IPC and they are sentenced to the period already undergone, which is about 7 years and both are fined with a sum of Rs.5000/- each and in default, to further undergo three months' R.I. All the substantive sentences shall run concurrently. Both the accused are in jail, they shall be set at liberty forthwith if not required in any other case, on depositing the amount of fine. (DEO NARAYAN THANVI), J. (A.M.KAPADIA), J. RANKAWAT JK, PS