1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR J U D G M E N T Shambhu S/o Jokhiya Vs. State of Rajasthan D.B. CRIMINAL APPEAL NO. 355/2003 Against the judgment & order dt. 15.02.2003 passed by Additional District & Sessions Judge (Fast Track), Banswara in Sessions Case No. 203/2001. Date of Order : 13th May, 2008 PRESENT HON'BLE MR. JUSTICE PRAKASH TATIA HON'BLE MR. JUSTICE CHAND MAL TOTLA Mr. Mridul Jain, for petitioners. Mr. V.R. Mehta, Public Prosecutor. BY THE COURT: (PER HON'BLE TOTLA, J.) This appeal challenging the conviction and sentence of the appellant is preferred against judgment dated 15.2.2003 passed in Sessions Case No. 203/2001 by the court of Additional Sessions Judge (Fast Track), Banswara whereby, the appellant has been convicted under Section 302 IPC and sentenced to life imprisonment with Rs. 10,000/- fine, indefault of payment of fine, to further undergo one months rigorous imprisonment. As per the prosecution, summary of the case is that on 25th 2 June, 2001 at 7:15 in the evening, one Narayan lal lodged an oral complaint at Police station Mahi dam, District Banswara to the effect that about 15 years ago, one Jokhiya S/o Khatu was killed by Bhogji and Rajki who after being released from jail did not return to village and went towards Aaspur. On 25th June, in the morning around 7 AM, complainant alongwith Dilip Chand, Shankar, Deva, Nathu, Welji had taken Smt. Mani w/o Welji for treatment to Banswara hospital. The complainant, Nathu, Dilip, Shankar, Deva came back by 5:30 PM by bus from Banswara to Mahi Dam and alighted at Mahi Dam. While walking to Dam site, at about 6:45 PM, opposite to shop of Madrasi doctor, Shambhu S/o Jokhiya and Roop lal came across them. On seeing Nathu, Roop lal asked Shambhu that your enemy is coming. Shambhoo said that Nathu is my enemy whose nephew Bhogji killed his father and is also keeping his sister as wife and told that he shall take revenge and after telling this, Shambhoo took knife (churri) out of his waist and attacked Nathu causing injuries of knife on face, buttocks and back and when complainant and others intervened, Shambhoo attempted to injure them also and didn't allow complainant and his colleagues to go near Nathu. After killing Nathu, appellant Shambhoo dragged dead body of Nathu in the nearby bush (bagad) where the body is lying. The complainant further stated that neighbouring shopkeepers have also seen the incident. This complaint lodged at Police Station Mahi Dam written down as Ex.P/9 on basis of which FIR No. 93/2001 (Ex.P/1) for the offence of Section 304 read with Section 34 IPC was registered. 3 During investigation, site of incident inspected at 7:15 AM in the morning of 26.06.2001, memos of which Ex.P/2 & Ex.p/3 prepared, where blood also was lying, sample of which and plane soil taken- sealed packet marked A & B, memo prepared Ex.P/7. Dead body examined by police officials, memos of which is Ex.P/8. Worn shirt on the body of Nathu was seized by cutting it, memo of which is Ex.P/4 packet marked C and postmortem report is Ex.P/13 Accused appellant Shambhu was arrested on 27.06.2001 at 6:10 PM on whose information, knife is said to be recovered from his house from a drum (kothi) made of soil and sealed packet marked D, respective memos are Ex.P/11, Ex.P/12, Ex.P/6 and Ex.P/3 is the site plan. Other accused Roop lal also arrested on 30.06.2001 at 8:30 PM. The sealed packets were deposited in Malkhana, register entries of which are Ex.P/17 and packets sent to FSL with forwarding letter of police station Ex.P/16 and that of S.P. Ex.P/14. Receipt of laboratory Ex.P/15 and laboratory report is Ex.P/18 (marked by Court under Section 293 Cr.P.C.) After usual investigation, chargesheet for the offences under Section 302 IPC submitted on 21.08.2001 against appellant Shambhoo (and Roop lal) who pleaded not guilty. Learned Sessions Judge vide judgment dated 15.02.2003, acquitted accused Roop lal and convicted and sentenced the appellant Shambhoo as above. On behalf of prosecution, 13 witnesses examined out of 4 which Narayan PW/1 is the complainant who is also witness of site inspection and in whose presence, memos were prepared. Dilip PW/4, Shankar PW/5 and Deva PW/6 are the eye witnesses who have supported the prosecution. PW/9 Nanka is son of deceased who deposed that on being informed, he went to the site. Chandraveer Singh PW/8 was Incharge police station who wrote down the information of Narayan as Ex.P/9, registered case Ex.P/1 and during investigation after arrest of appellant, on his information and instance recovered knife (chhuri). Kailashgiri PW/7 is the SHO who arrested another accused Roop lal- Dharji PW/2 and Amra PW/3 are motbirs of site inspection, recovery etc. Bhanwar Singh PW/13 was malkhana incharge and Nepal Singh PW/10 and Manohar lal PW/11 constables are witnesses of depositing the articles at FSL. Dr.S.K Bhatnagar PW/12, Medical Jurist of Banswara conducted the postmortem and proved the report Ex.P/13. On the body of deceased, found three incised wound on head, two on neck on around left shoulder and one on buttocks and four abrasions/bruises on abdominal area. Depressed fracture on right side of face including compression of eye. 4Th, 5th and 6th rib of left and some of right side lungs were broken and lungs burst. All these injuries led to death of Nathu. On examination under Section 313 Cr.P.C., accused appellant stated that witnesses are telling lie, he does not know about the incident and he implicated in a false case. No defence evidence led. Learned Additional Sessions Judge relying on the evidence, 5 convicted the appellant and acquitted other accused Roop lal. Learned counsel for the appellant argued that:- 1. The main injuries causing fracture etc are inflicted by another person named in the F.I.R. 2. As per medical evidence, it is clear that said incised would can be caused by blows of stone or on falling. 3. Substantial contradiction and omissions in statement of witnesses as compared to what was stated during investigation. 4. On material points, different versions of witnesses. 5. No reason of causing injuries -appellant could not have known and had no reason of knowing that Nathu and others shall be coming or be there at particular time or occasion and that too on the way. 6. Recovery at the instance of the appellant cannot be accepted-both the witnesses PW/2 Dharji and PW/3 Amra stated contrary to the prosecution. 7. The case does not fall under murder and at best can be under Section 304 IPC. In support of above contentions, reliance is placed on decision of Rakesh Vs. State of Rajasthan reported in 2003(20 CJ (Raj.) Cri.994. Learned Public Prosecutor argued that FIR is lodged soon after the incident. No reason to disbelieve the witnesses and no reason for them to tell something which is not true. The knife was recovered and the motive and reason of incident is also on record. 6 We have perused the record carefully and have given thoughtful consideration to the rival contentions. Here it may be mentioned that wherever name of another person (accused) appears, then it is only in the context of analyzing for appellant (Shambhoo). First dealing with recovery, Investigating officer, ASI PW/8 Chandraveer Singh states that he arrested accused Shambhoo on 27.06.01, memo of which is Ex.P/11 and memo of appellant's disclosure for 'Chhuri' is Ex.P/12 which bears his and appellant's signatures. As per ASI PW/8 Chandraveer Singh at the instance of appellant, recovered 'Chhuri' memos are Ex.P/6 & site plan Ex.P/3. As per contents of recovery related memos, appellant disclosed that knife used was concealed by him in his residential house lying in earthern kothi and recovered from him. The incident is of 25.06.01 and recovery made on 28.06.01- First motbir Dharji PW/2 states that knife was recovered from the place of incident on day of occurrence and not taken from the house of Shambhoo and also stated that policeman came just after the incident. As per second motbir, Amra PW/3 knife not recovered from the house of accused appellant Shambhoo. Signatures of these witnesses are on memos Ex.P/3, Ex.P/6. Narayan PW/1, Dilip PW/4, Shankar PW/5 and Deva PW/6 all stated that little time after the occurrence, police men came and also say that (named) person inflicted a stick blow on the hands of the appellant and the knife fell down then and there which was seized by the police. Looking to these facts, 7 alleged recovery cannot be safely taken as true. The incident is reported at Police Station Mahi Dam by Narayan lal PW/1. The accompanying persons Dilip Chand, Shankar, Deva all have stated that from Banswara, they took bus at 5 PM in the evening and reached Mahi Dam at about 6 PM and while going on foot, when reached near the shop of Madrasi doctor, the appellant and Roop lal met them and the incident followed. As such, the occurrence happened around 6:30 PM in the evening, and as per the Investigating Officer SHO, P.S. Mahi Dam, PW/8 Chandraveer Singh, on information given by Narayan Ex.P/9 written and F.I.R. Ex.P/1 registered which bears signatures of Narayan PW/1. PW/1 Narayan has also stated accordingly. The time of lodging the report is 7:15 PM and the place of occurrence is said to be 2 km from the police station. As per PW/12 Dr.S.K. Bhatnagar and postmortem report Ex.P/13, dead body examined at 9:30 in the morning of 26.06.01 and the death occurred within 6-24 hours. Thus, it is proved that Nathu died between morning and night of 25.06.01. As per PW/12 Dr. S.K. Bhatnagar and postmortem report Ex.P/13, following injuries were found on the body of deceased :- 1. Seven incised wounds (i) 4 cm x 1 cm bone deep right forehead (ii)3 x ½ cm bone deed right frontal region (iii)3 x ½ bone deep right temporal region (iv)3 cm x ½ x muscle deep back of neck near left shoulder (v)4c x ½ cm x muscle deep 3 cm above injury (vi)3 x ½ cm muscle left scapular region (vii)4 x ½ cm muscle deep left buttock 2. Four bruises (i) 7 x 4 cm right chest (ii)5 x 4 cm right chest (iii)7 x 4 cm chest abdomen 8 (iv)5 x 5 cm left elbow On opening the body found ; Right of face fractured and depressed including compression of eye, clots of subdural hamatoma 4 x 4 x 3 cm on frontal lock, Left 4th, 5th and 6th rib broken Right four ribs broken- lungs ruptured beneath filled with blood and air. As per Medical officer, death occurred due to head and lung injuries. In cross-examination opined that injuries caused on chest cannot be of sharp weapon and can be by falling on hard stone like object. Similarly sharp weapon injury can be caused by fall on sharp stone. The only inference can be that death homicidal- cumulative effect of injuries caused death as injuries on head as well as on chest all very significantly grievous and sufficient to cause death. The FIR lodged by PW/1 Narayan at about 7:15 PM in the evening that is within about an hour of the incident. Narayan PW/1 deposes that he and Dilip, Shankar, Deva, Nathur accompanied Welji and wife of Welji Smt. Mani to Banswara hospital in the morning for treatment of Smt. Mani and in hospital remained for 5-6 hours and while returning in evening reached Mahi Dam where near shop of Madrasi doctor,Shambhoo and Roop lal came across. On seeing Nathu, Roop lal asked Shambhu that enemy is coming and he (appellant) looking said that he shall take 9 revenge and on this, Shambhoo took knife (chhuri) out of his waist and inflicted injuries o neck and leg of Nathu who fell down, then other person who was with appellant, inflicted injuries of stone at chest and abdomen of Nathu. As per Narayan PW/1, they could not save Nathu and when Nathu died on the spot, appellant dragged his dead body to Bagar and danced over it. In cross-examination, he clearly states that ribs broken due to blows of stone inflicted by person other than appellant Shambhoo. Narayan PW/1 further states that the appellant danced on and around dead body which was mentioned by him while writing FIR and statements during investigation but the same are not mentioned in Ex.P/1 and Ex.D/9. Dilip PW/4, Shankar PW/5 and Deva PW/6 all three state that they went with Welji for treatment of his wife to Banswara hospital and when they (other than Welji and wife) on way back were near Madrasi's shop at about 6 PM in the evening, appellant Shambhoo and Roop lal came across and on seeing Nathu, Roop lal asked Shambhu that your enemy is coming. Shambhoo took knife (chhuri) of his waist and inflicted injuries of knife on head, back, buttocks of Nathu and the person who was with Shambhoo also inflicted blows of stones on the chest and abdomen of deceased Nathu. Dilip PW/4 in cross-examination states that ribs broken because of stone blows and Shankar PW/5 states that no bleeding occurred of stone blows. As per Deva PW/6, appellant inflicted three injuries – statement of these witnesses recorded during investigation are Ex.D/3, D/4 and D/5 which do not find mention of Shambhoo or anyone 10 dancing on and around the body of deceased. Certainly, no reason appears to not to believe or question that appellant inflicted injuries of sharp weapon to Nathu. As such, proved is that appellant Shambhoo did inflict all blows of knife on the person of deceased Nathu. Established also is that injuries other than of sharp object not attributed to the appellant and also proved that Nathu has died due to cumulative effect of injuries caused – injuries of sharp weapon i.e. incised wounds itself also sufficient for and likely to cause death. Now coming to the last contention, established is that deceased and others did go to Banswara hospital in the morning from where coming back- appellant accompanied by one person whomsoever he was- not knowing that deceased will be coming in the evening or at that particular time- will cross the way. Certainly it seems that they came across all of a sudden. All the injures of sharp weapon inflicted by the appellant and injuries of blunt object inflicted by other person. Injuries caused by appellant of sharp object were likely to cause death and also that injuries caused by other person by blunt object also very substantial and grievous. So in the circumstances, intention of causing death can neither be inferred nor proved. Proved is that appellant voluntarily caused injuries by sharp weapon to Nathu knowing that injuries are sufficient and likely to cause death. This act of appellant is punishable under Section 304 Part I of IPC. Accordingly, the appeal is partly allowed. The conviction of 11 the appellant Shambhoo S/o Jokhiya for the offence under Section 302 IPC is (set aside and) altered to Section 304 Part I IPC and appellant is sentenced to ten years rigorous imprisonment and fine of Rs. 7000/- in default to undergo six months rigorous imprisonment. The impugned judgment of the trial court stands modified as indicated above. (CHAND MAL TOTLA), J. (PRAKASH TATIA), J.