1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR. J U D G M E N T KANA RAM @ AAKASH V. THE STATE OF RAJASTHAN D. B. CRIMINAL JAIL APPEAL NO.1127/2003 Against the judgment dated 26.07.2003 passed by Shri M.L.Sharma, RHJS, Additional Sessions Judge Deedwana, in Sessions Case No.8/2003 DATE OF JUDGMENT 12.03.2010 PRESENT. HON'BLE MR. JUSTICE GOVIND MATHUR HON'BLE MR. JUSTICE C. M. TOTLA Mr. Vineet Jain, amicus curiae, for Appellant. Mr. A.R.Nikub, PP, for the State. BY THE COURT: (PER HON'BLE TOTLA, J.) Assailed in this appeal is appellant's conviction and sentence awarded of life imprisonment for the offence of Section 302 IPC. Events leading to appellant's prosecution allegedly are that on 20.08.2002, at about 5.00 P.M., Kishna Ram PW 5 presented a written report Ex.P6 at Government hospital, Nimbi Jodha to head constable chowki, Nimbi Jodha, police station, Ladnu, informing that dhanis (residential hut like at agriculture fields) of sons Kana Ram and Bhanwar Lal are neighbours – both brothers quarreled for dispute regarding boundary of agriculture field and Kanaram s/o. Aashuram inflicted blow of axe at head of Bhanwara s/o. Aasu Ram – Bhanwara, bleeding from head has become unconscious who brought and admitted in hospital, is not speaking. Head constable chowki, making on endorsement on this, presenting requisition inquired from medical officer, giving letter Ex.P11 about fitness of Bhanwara Ram to give statement. Medical officer describing of scalp wound and brain material coming and injured not 2 responding to light, stating conditions to be very very poor, referred, writing treatment slip Ex.P10 to higher centre. Above report was presented by head constable at police station and the then incharge ASI PW 15 registered FIR No.173/02 Ex.P20 for the offences of Sections 307, 323 and 447 IPC. Bhanwara Ram succumbed to injuries. SHO PW 1 commencing investigation on 21.8.02 morning (i) examined dead body which was at Government hospital and prepared memos Exs. P1 and P8, (ii) seized clothes, shirt baniyan and pants of deceased, preparing memo Ex.P2 and packet marked A, (iii) visiting place of occurrence at agriculture field, prepared memo and site plan Ex.P12, (iv) collected and sealed sample of blood spread there and also plain soil, preparing memo Ex.P3 and packets marked B and C, (v) SHO PW 12 on that very day, arrested appellant accused at 4.00 P.M. vide memo Ex.P4 and seized cloth pant he was wearing on having blood like stains, preparing memo Ex.P5 and packet marked E. (vi) post-mortem conducted at hospital, Ladnu by doctor PW 2 – report Ex.P3. On appellant's disclosure, recorded by PW 1 as Ex.P22 and at instance of appellant axe from room of his residential premises, recovered and sealed are having blood stains on metallic portion-packet marked D - memo and site plan Exs.P14 and P15. Packets of different articles intactly delivered at FSL and after other investigation, charge-sheet submitted. FSL report Ex.P18 mentions of A group blood on pant, baniyan of deceased on pant worn by the appellant and also on recovered axe. Appellant charged that he on 28.8.02, at about 3.45 O'clock afternoon at or near Meghwalon-ki-Dhani inflicting blow of axe, murdered brother Bhanwara Ram claimedl trial. Among 18 prosecution witnesses, PW 9 is mother and PW 17 wife of deceased, are eye-witnesses. Kishna Ram PW 5 lodged FIR who, Tulchha Ram PW 6 and Bhagirath PW 8 3 depose of having soon reached at the place of occurrence. PW 5 who lodged FIR is declared hostile. PWs 3, 11, 12 and 16 are motbirs of proceedings undertaken during investigation. PW 15 ASI registered FIR and SHO PW 1 is investigating officer. Dr. Devendra Kumar Sharma PW 10 proves signatures of other medical officer Dr. Ramjan posted at the hospital on prescription slip Ex. P10 and P11. Dr. Omprakash PW 2 medical officer, hospital, Ladnu proves post-mortem and preparation of report Ex.P3 by him. Head Constable PW 14 and Constable PW 13 relate to safe depositing packets at laboratory, whereas PW 18 Patwari deposed about revenue record. Appellant when asked to explain, states that he does not who killed brother Bhanwara Ram and he arrived there on hearing cries of mother and while he carried brother to hospital, his clothes were stained of blood. However, no defence evidence preferred. Learned counsel appearing on behalf of the appellant extensively reading statements of mother PW 9, wife PW 17 and also first informer PW 5, contends that none of these witnesses did see or could have seen the occurrence. Argued is that (i) though in course of examination-in- chief, PW 9 and PW 17 say of incident of happening before them but what they state in cross-examination clarifying suggest that they did not and could not have seen the occurrence, (iii) Kishan PW 5 first informer declared hostile do not support or corroborate, (iv) no other neighbour or any other witness says of any such incident or of any dispute between appellant and the deceased. Submitted that appellant and deceased are real brother and explanation of appellant that his pant stained while taking injured brother at hospital, is quite probable. Lastly submits that no motive for the incident appears and dispute between brothers was regarding boundaries of field and only one is the blow and no fact showing any knowledge or likelihood much less intention of causing 4 death, so act of appellant, if proved, can at best come within under Section 325 or 304 Part II and appellant has already suffered about eight years. Learned Public Prosecutor submits that though are real brothers, but injury inflicted is at head of a heavy article at. Thoughtfully considering arguments, we have carefully gone through the evidence, record of the case, judgment assailed and memo of appeal. A look at testimony of PW 5 who is uncle of deceased and appellant, Tulchha Ram PW 6, Bhagirath PW 8, of mother Smt. Soni PW 9 and also wife Smt. Durga PW 17 provenly disclose that between 3 and 4 afternoon, Bhanwara Ram sustained a big injury, at head, at there agriculture field – he was taken to hospital Nimba Jodha, where Dr. Ramjan and Dr. Devendra Kumar Sharma PW 10 attending, found his condition very very poor, he not responding to light and brain material coming out, so immediately referred to higher centre. Also appears as is deposed by some witnesses, including wife PW 17 that deceased scummed while was being taken to Jaipur for treatment. Further stands proved that PW 5 lodged report Ex.P6 to incharge chowki and the head constable, police chowki Nimba Jodha after inquiry from the doctor and as deceased not in conscious and fit state was referred to higher centre, himself taken report at police station, where case registered. As above, almost soon after FIR Ex.P6 was lodged by PW 5. In report Ex.P6, PW 5 mention of appellant and deceased being sons and in evidence clearly says that both are sons of his brother. In relation, particular in rural areas not is uncommon to say sons of brothers as sons. In FIR Ex.P6 is narrated that between brothers occurred quarrel regarding boundary of agriculture field and appellant gave a blood of axe at head. 5 Kishna Ram PW 5, declared hostile, says that he going there on calling of mother of appellant, did not see any bleeding and but he arranging jeep of Bhagirath, carried Bhanwara to hospital. Though PW 5 is declared hostile, but he says that mother and wife of deceased both told of Kana Ram giving the blow, though when confronted of FIR Ex.P5 and statements in course of investigation, denies of disclosing as above that mother and wife told of deceased having given blow by appellant – but admits of deceased being unconscious but again in cross-examination, says neither of observing or hearing of any such incident. Tulchha Ram PW 6 says that his and deceased's agriculture field are adjacent with common boundary and he when having rest below a tree at 3.45 P.M. afternoon, hearing shouts, hurriedly went there the women, that is Bhabhi and mother of appellant were weeping and Bhanwara Ram lying below- who then taken to hospital. Per Bhagirath Ram PW 8 at about 4 O'clock, Kishna Ram runningly came to him and telling of Kanaram having inflicted blow of axe at head of Bhanwara Ram, asked him (PW 8) to hurriedly bring jeep so he (PW 8) taking his jeep, went to field, where below babul tree, an unconscious bleeding from head, was Bhanwra – mother and wife weeping and Kana Ram standing there, that Bhanwara taken in his jeep to hospital, Nimbi Jodha, where doctor asked for taking to higher hospital, so on way to Sujangarh and then as Bhanwara Ram died, body kept at hospital. These all witnesses narrate of minimum after the incident. Smt. Soni PW 9, mother, tells that she, wife Smt. Durga of son Bhanwara and appellant Kana Ram, all were sitting below babul tree and Kana Ram gave an axe blow at head to Bhanwara who fell down and bleeded – on her and Durga's cries, came Kishna and Tulchha Ram who arranging jeep of Bhagirath taken Bhanwara to hospital, from where referred to Jaipur and Bhanwara died when taken to Sujangarh. PW 9 in cross-examination says that she often remains ill and eye sight also 6 diminished when on hearing loud voices, came there with daughter-in-law and saw Bhanwara injured and she not know was how he injured. Wife of deceased Smt. Durga PW 17 says that at noon, she, mother-in-law and husband Bhanwara, all were sitting at field and Kana Ram gave blow of axe to husband. As she and mother-in-law cried, came Chimna Ram, Tulchha Ram and others who carried to hospital. PW 17 when confronted of part of her statement recorded in course of investigation, accepts that husband was talking with mother and as she (PW 17) hearing cries of runningly reached saw husband bleeding from head and Kishna Ram standing there with axe and mother-in-law weeping. Carefully examining evidence of PW 17, minimum appears that she was at the field and at field her husband was talking to mother and then Kishna Ram gave a blow of axe at head and instantly and then witness observed axe in the hands of appellant. May be noted that no other person was there and appellant with axe in hand had at that very time, with no other circumstance and fact can lead to only one conclusion of appellant having given the blow. Seems that PW 9 and PW 17 withered a little in cross-examination because appellant and deceased real brothers. As shall follow, axe is recovered on disclosure and at the instance of appellant. Testimony of mother and also of other witnesses is also of inflicting blow by appellant. Appellant was arrested on next day evening. Investigating officer PW 1 says that appellant informed him that axe (concealed by him) below mattresses is in a room of his residential house and the information reduced in writing Ex.P22. SHO PW 1 further says that axe was recovered and sealed vide memo Ex.P14. Witnesses Rameshwar PW 11 and Mohan PW 12 support this recovery. Though PW 12 does not say of actual recovery before him, but admits of his signatures whereas PW 11 is very categorically of recovery before him from dhani of appellant. Therefore, recovery is proved. Pant on the person of the appellant at the time of his 7 arrest, was also collected and sealed. All these packets were intactly delivered at the FSL and on serological examination, was found that on all, except control soil, was human blood and on baniyan pant of deceased, pant of appellant and on axe recovered was human blood A group. Finding of blood is material incriminating piece of evidence. All witnesses who were or arrived at the place of incident, depose of severe bleeding injury at the head of the deceased. Dr. Omprakash PW 2 posted as medical officer, Ladnu, performed post-mortem of deceased Bhanwara Ram on 21.8.02 at 9.30 a.m. - per deposition of PW 2 and post-mortem report Ex.P3, deceased had injury - “Straight linear wound 8” x 2.5” at central parietal region upto depth of brain cutting skin muscles, bones and brain – resulting in brain material coming out and blood clotted around there.” Injury ante-mortem and cut wound so of sharp object and death occurred due to this injury between about 3.00 P.M. to 9.00 P.M. on 20.8.02. Therefore, established is that death homicidal due to above injury. Provenly appellant did inflict injury of heavy sharp object axe at head of Bhanwara who died of this injury. No motive appears specific reason on event. No other circumstances, leading to incident, surfaces either from testimony of mother or wife of deceased. Appellant and deceased were real brothers. As no earlier quarrel was so should be taken that no earlier in difference or dispute perhaps was. Injury inflicted is one. Bhanwara Ram was taken to hospital in jeep of Bhagirath PW 8 (which also mentioned in the FIR) who (PW 8) deposes that when he with jeep reache at field, also there standing near injured was Kana Ram. FIR is lodged by PW 5 who is uncle of appellant and deceased and 8 also a neighbour agriculturists. In the FIR Ex.P6, specific is mention that in some dispute regarding boundary of agriculture field, both brothers entered in quarrel. Looking to this specific averment with above other elements – clear seems that blow was given when in course of general talking and/or normal activities something arose instantly. All these taken cumulatively, in our opinion, leads to inference that appellant never intended to cause death or to cause any such injury likely to cause death. Therefore, the act does not constitute murder. Blow is given by axe at head and was with so intensity and force that brain material came out and deceased felling down became unconscious, leads to conclusion that inflicter did know or/and had reason to know that injury in normal course was likely to cause death. As such, the case of the appellant constitutes offence punishable under Section 304 Part I IPC. Taking all the established facts together for determining sentence and as the deceased and appellant are real brothers with no criminal antecedents of any nature attributed to appellant so just and appropriate is to award sentence of eight years rigorous imprisonment and fine Rs.3,000/-, in default five months rigorous imprisonment. For the above reasons, appeal is to be accepted partly. While setting aside conviction and also sentence awarded to appellant Kana Ram @ Aakash s/o. Aashu Ram for the offence of S.302 IPC, he (Kanaram @ Aakash s/o Aashu Ram) is held guilty and convicted for the act of offence punishable under Section 304 Part I IPC and for this offence, is sentenced to eight years rigorous imprisonment with fine of Rs.3,000/-, in default five months rigorous imprisonment. Appeal decided accordingly. (C. M. TOTLA), J. (GOVIND MATHUR), J. 9 scd