1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR. J U D G M E N T Chamna @ Samiya vs. State of Rajasthan D.B.Criminal Jail Appeal No.570/2003 against the judgment dated 2.5.2003 passed by Additional Sessions Judge (Fast Track), Bali, in Sessions Case No.77/2002(13/2001). Date of Judgment :: 30th March, 2010 P R E S E N T HON'BLE MR.JUSTICE GOVIND MATHUR HON'BLE MR.JUSTICE C.M.TOTLA Mr. BP Mathur, amicus curiae, for the appellant. Mr. KR Bishnoi, PP, for the State. .... BY THE COURT : (PER HON'BLE MATHUR,J.) By judgment dated 2.5.2003 learned Additional Sessions Judge (Fast Track) Bali, convicted the accused appellant for an offence punishable under Section 302 Indian Penal Code and sentenced to undergo rigorous imprisonment for life term with a fine of Rs.500/- and further to undergo one month's rigorous imprisonment in event of failure to pay the fine. 2 The case of the prosecution is that on 3.1.2001 PW-6 Sonaram son of Sankla submitted a written report at Police Station Nana stating therein that his younger brother Jalaram was going to Paldi District Sirohi alongwith Dhanna son of Bhuraji and Narsa son of Kana Gameti for availing labour. At about 12:30 PM when they were on way Chamna @ Samiya son of Somaji, who was keeping the enmity with Jala came and demanded money for purchasing liquor. On denial Chamna @ Samiya gave a knife blow on the chest of Jala consequent to which he fall down and died. Chamna @ Samiya ran away in the forest while keeping the knife with him. The police registered a case on basis of the information aforesaid, regular investigation was made, accused Chamna @ Samiya was charge sheeted, case committed to the court of Sessions and a charge for commission of an offence under Section 302 IPC was framed. On denial, the accused was tried. The prosecution supported its case by producing 17 witnesses (PW-1 to PW-17) in witness box and also number of documents. The accused was put forth for examination as per provisions of Section 313 Cr.P.C. to explain the evidence available against him as produced by the prosecution. Out of 17 witnesses produced by the prosecution two witnesses Narsa and 3 Dhanna were the eye witnesses but they did not support prosecution story, thus, were declared hostile. PW-14 Dr. Mahendra Dabi conducted autopsy on the body of deceased Jalaram, thus, he proved the postmortem report Ex.P/23. As per Ex.P/23, the deceased was having following antemortem injuries:- Punctured wound : Elliptical in shape, size – 1 inch x ½ inch x 3½ inch, located over anterior aspect of right upper half of chest wall just above and medially to right nipple. Wound is through and through entered in middle lobe of right lung, cut the lung margin and wound opened at posterior aspect. Direction of wound is oblique and medially. Upper margin of wound is blunt and lower margin of wound is sharp. The cause of death as per Ex.P/23 was haemorrhagic shock due to injury to vital part (right lung). PW-12 Shri Chhogaram was Station House Officer at Police Station Nana and, therefore, being investigating officer he narrated the steps taken during the course of investigation. As per this witness a knife (chhuri) was recovered from the accused as per recovery memo Ex.P./7 in presence of Shri Mana and Shri Kala. 4 PW-15 Kala did not support the prosecution case by stating that knife was not recovered in his presence. During the course of investigation while arresting the accused his blood stained pant was also recovered as per recovery memo Ex.P/11 in presence of Surendra Singh and Rashid Khan. Surendra Singh and Rashid Khan supported the prosecution and as such so far as seizure of blood stained pant of accused is concerned, that is established. Ex.P/25 is the Forensic Science Laboratory report, according to that on serological examination the blood smeared soil collected during the course of investigation, bushirt, banian, pant and shoe of deceased Jala, pant of accused Chamna @ Samiya and the knife (chhuri) recovered were found to be stained with human blood. As per this report the shirt and banian of deceased and the knife (chhuri) were found to be stained with “B” group of blood. On basis of the evidence available, there is no dispute that the death of Jalaram was a culpable homicide and being the recovered chhuri having the blood stained matching with the blood stains found on the clothes of deceased was the weapon of offence. True it is, the eye witnesses have not supported the prosecution case, but the circumstances 5 available are adequate to reach at the conclusion that the accused gave a knife blow to the deceased Jalaram, consequent to which he died. It is pertinent to note that so far as going of Jalaram for Paldi is concerned, that is not in dispute. The knife recovered and the clothes of deceased were having blood stains of same blood group. The pant of the accused was also having human blood stains. No explanation is given as to how human blood stains were available on the pant aforesaid. Pertinent to note here that PW-6 Sonaram in quite unambiguous terms stated that the accused after giving a knife blow to Jalaram ran away from the spot by carrying knife (chhuri) with him. In such circumstances availability of blood stains near pocket of the pant worn by accused adequately supports the prosecution story. As such, we are in agreement with the finding given by learned trial court to the extent that Jalaram died because of a knife blow given by accused Chamna @ Samiya. However, the issue survives is that whether the offence committed by the accused amounts to murder as defined under Section 300 IPC. From the evidence available we do not find any material to reach at the conclusion that the act done by the accused was with intention to cause death. No doubt the accused caused a bodily injury on a vital part of deceased which was sufficient to cause death. 6 The offence, as such, comes within the ambit of provisions of Section 304 part-I IPC. Accordingly, this appeal is partly allowed. The conviction of the accused made by the trial court under the judgment and order impugned for Section 302 IPC is quashed, but he is convicted for an offence punishable under Section 304 part-I IPC. Accordingly the sentence of life term too is quashed and the accused is sentenced for a term of ten years rigorous imprisonment with a fine of Rs.500/- and further to undergo one month's rigorous imprisonment in event of failure to make the payment of fine aforesaid. ( C.M.TOTLA ),J. ( GOVIND MATHUR ),J. Mathuria KK/ps.