1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR. JUDGMENT BABU SINGH vs. THE STATE OF RAJASTHAN. D.B. Criminal Appeal No.1134/03 under section 374 Cr.P.C. against the judgment and order dated 20.09.2003 passed by the Additional Sessions Judge, (Fast Track), Rajsamand in Sessions Case No.29/2003. Date of Judgment: 14th July, 2010 PRESENT HON'BLE MR. JUSTICE PRAKASH TATIA HON'BLE MR. JUSTICE KAILASH CHANDRA JOSHI Mr. Sandeep Mehta for the appellant. Mr. K.R.Bishnoi , Public Prosecutor. BY THE COURT (PER HON'BLE JOSHI, J.): This criminal appeal has been preferred by accused Babu Singh s/o Ram Singh r/o Rajwa, Police Station Bhim, against the judgment and order dated 20.09.03 passed by the learned Additional Sessions Judge (Fast Track), Rajsamand in Sessions Case No.29/2003 whereby the accused appellant was convicted for the offence under section 302 of the Indian Penal Code and sentenced to undergo life imprisonment and a fine of Rs.1000/- and in default of payment of fine, to further undergo six months' simple imprisonment . 2 The brief facts of the prosecution story are that complainant Tara Singh lodged a report in the police Station Bhim, stating the fact that on 15.03.84, his uncle Mod Singh came from Rajwa to his village Dhura-ka-Vaniya and at that time accused appellant Babu Singh was standing in the way in front of deceased Mod Singh's house. Babu Singh wrongfully restrained Mod Singh and started to beat him with an axe. The accused appellant inflicted one injury on the head and another on the hand of the deceased. On hearing the hue and cry, the complainant along with his mother and wife of Mod Singh, came there. At that time accused appellant ran away. On 16.03.84 they went for treatment of the deceased at Beawar hospital. In the FIR it is also mentioned that due to the time consumed in the treatment, FIR could not be lodged in time. On the basis of Ex.P/1, first information report, criminal case No.31/84 under section 341 and 323 of the Indian Penal Code was registered and the investigation commenced. During the course of investigation, on 21.03.84 the injured Mod Singh succumbed to death on account of the alleged injuries. Therefore, offence under section 302 IPC was also added. On 21.03.84 after conducting the autopsy on the body of the deceased, an un-numbered report was sent by Police Station Beawar to Police Station Bhim for necessary action. During the course of investigation, the statements of witnesses were 3 recorded and after usual investigation, a charge sheet was submitted in the court of Munsif and Judicial Magistrate, Bhim who committed this case to the court of Addl. District & Sessions Judge, Rajsamand for regular trial. Further the case was transferred to the court of Addl. District & Sessions Judge ( Fast Track), Rajsamand. During the course of trial, the accused absconded on 01.07.88 from judicial custody and remained absconded upto 09.03.03. After the arrest he was produced in the trial court on 10.03.03 and after that the trial started on 20.03.03. The learned trial court charged the accused appellant Babu Singh for the commission of offence under section 302 IPC and the accused did not plead guilty and claimed to be tried. The prosecution examined 12 witnesses to prove the alleged offence of charge. The incriminating evidence available on record against the accused was put for explanation under section 313 of the Code of Criminal Procedure. Accused appellant Babu Singh produced no evidence in defence. After hearing both the parties, learned trial court vide judgment dated 20.09.03 convicted the accused appellant under section 302 IPC and recorded the order of sentence of life imprisonment and imposed Rs.1000/- as fine and in default of payment of which the accused appellant was to further undergo 6 months' simple imprisonment. 4 In the present case, the contention of the learned counsel for the accused is that the learned trial Judge erred in holding the accused appellant guilty under section 302 of the Indian Penal Code because of the fact that neither the injury reports, nor the post mortem report had been proved by the medical officer who conducted the autopsy on the body of the deceased Mod Singh or who examined the injuries on the body of the deceased. In the absence of the medical report or injury report, the cause of death cannot be attributed to the accused appellant. However, PW/12 Dr.R.R. Heda was examined by the prosecution to prove the bed head ticket of deceased Mod Singh which had been exhibited as Ex.P/8. Per contra , the learned Public Prosecutor contended that although post mortem report and the injury report had not been exhibited or proved by the prosecution in the trial court but as per statement of eye witnesses , namely PW/3 Tara Singh , PW/4 Champa and PW/5 Dakhu, the fact of inflicting the injuries on the body of deceased by accused appellant Babu Singh by an axe, is well established and proved and there is no major contradiction or infirmity in the statement of these three eye witnesses and they had corroborated the story of the prosecution as narrated in the FIR. He further argued that The first information report was lodged without any inordinate delay and the presence of all the 5 three eye witnesses was natural and, therefore, conviction and sentence passed by the learned trial court deserves to be confirmed and the fact of the injuries found on the body of the deceased was proved by PW/12 Dr.R.R. Heda. We have given our thoughtful consideration to the rival submissions made on behalf of the parties and have scanned the evidence available on record. It is admitted fact that prosecution had not examined the doctor who conducted the autopsy on the body of the deceased Mod Singh and had also not examined the doctor who examined the injuries on the body of the deceased Mod Singh. The eye witnesses may prove this fact that injuries were inflicted by accused appellant Babu Singh on the body of deceased but whether those injuries were sufficient in the ordinary course of nature to cause death of the deceased, had not been proved by the prosecution. To prove the offence punishable under Section 302 of the Indian Penal Code, it is essential for the prosecution to prove that the injuries inflicted by the accused appellant were sufficient to cause death of deceased, in the ordinary course of nature and it is the gravity and the nature of the injuries, which are necessary to be considered for proving this fact. Then, if the expert evidence to establish nexus between the injuries and the death is concerned, because the doctor who conducted autopsy passed away and therefore, neither 6 injury report , nor post mortem report has been duly proved by the prosecution. There is no cogent evidence to show that the death of deceased Mod Singh occurred on account of injuries inflicted by accused appellant. However, the eye witnesses PW/3 Tara Singh , PW/4 Champa and PW/5 Dakhu deposed that accused appellant inflicted injuries on the head of deceased and this part of statement had not been shattered in cross examination. Further, as per the evidence deposed by PW/12 Dr.R.R.Heda it is proved that Dr.Heda examined the injuries on the body of deceased Mod Singh and at that time the brain material was visible from the wound of the scalp. It clearly shows that there was a fracture on the head of the deceased. Thus, the fact of causing of simple and grievous injuries on the body of deceased is well proved. The names of eye witnesses find place in the FIR which was promptly lodged. These witnesses were not inimical to the accused and there is no reason to disbelieve the testimony to the extent that the accused appellant inflicted the injuries which were witnessed by them. Coming to the nature of injuries, it may be reiterated that no expert evidence had come on record and therefore, it is unsafe to treat the injuries of such a nature, that death may occur as a result of those injuries. As a result of aforesaid discussions, accused 7 appellant Babu Singh is found guilty only of offence under section 323 and 325 of Indian Penal Code and the offence under section 302 IPC is not proved against him. In view of the aforesaid discussion , there is no evidence on record about the fact that death of the deceased Mod Singh was due to the injuries caused by accused appellant Babu Singh. However, the offence under section 323 and 325 IPC is proved on the basis of unshattered evidence of eye witnesses and of PW/12 Dr.R.R.Heda. Accordingly, the appeal filed by the accused appellant Babu Singh deserves to be partly allowed and is accordingly, partly allowed and his conviction and sentence under section 302 IPC is set aside and he is acquitted of the offence charged. However, he is held guilty for commission of offence under section 323 and 325 IPC. As per record he has remained in custody for more than seven years. Therefore, he is punished for the commission of offence under section 323 and 325 IPC for the sentence already undergone. He be set at liberty if not required in any other case. (KAILASH CHANDRA JOSHI),J. (PRAKASH TATIA), J. l.george