1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR. J U D G M E N T Dula Ram vs. State of Rajasthan D.B.Criminal Appeal No.796/2003 against the judgment dated 17.7.2003 passed by Additional Sessions Judge, Deedwana, in Sessions Case No.36/2002. Date of Judgment :: 10th March, 2010 P R E S E N T HON'BLE MR.JUSTICE GOVIND MATHUR HON'BLE MR.JUSTICE C.M.TOTLA Mr. Rajesh Panwar, for the appellant. Mr. Anil Upadhyay, PP, for the State. .... BY THE COURT : (PER HON'BLE MATHUR,J.) For the offences punishable under Sections 302, 324 and 323 IPC, the accused appellant was convicted under judgment dated 17.7.2003, passed by learned Additional Sessions Judge, Deedwana and was ordered to be sentenced as under:- 2 302 IPC : life term with a fine of Rs.500/- and in default to which further to undergo five months rigorous imprisonment; 324 IPC : one year's rigorous imprisonment with a fine of Rs.200/- and in default to which further to undergo two months simple imprisonment; and 323 IPC : three months rigorous imprisonment with a fine of Rs.100/- and in default to which further to undergo one month's simple imprisonment. In brief, the facts of the case are that PW- 4 Smt. Bhanwari Devi on 2.9.2002 made a statement before the Station House Officer of Police Station Maulasar that on the same day at about 09:00 AM her son Dula Ram gave an axe blow on the head of his wife Smt. Shanti and also gave an axe blow to her when she went into the room on hearing cry of Smt. Shanti. As per statement, Dula Ram then ran away from the house and on way he also gave an axe blow to Smt. Soni who was passing through the path. Smt. Bhanwari Devi also stated that from last about 15 days Dula Ram was not feeling well and he was making a complaint about his mental condition. On basis of the statement aforesaid (Ex.P/16) a case was registered for the offences punishable under Sections 302 and 307 IPC and after regular investigation a charge sheet was filed. The matter then was committed for trial and charges were 3 framed for the offences punishable under Sections 302, 307, 323 and 324 IPC. The accused appellant denied the allegations and desired for trial. The prosecution supported its case with the aid of 22 witnesses, out of whom PW-4 Bhanwari Devi and PW-5 Soni Devi are the eye witnesses. The prosecution also got 43 documents (Ex.P/1 to Ex.P/43) exhibited. PW-21 Jitendra Singh being investigating officer stated about the steps taken while investigating the matter and PW-16 Dr. Moti Raj conducted autopsy on the body, thus approved his postmortem report. As per the postmortem report the body was having an antemortem incised wound 3½” x 2” x 2” deep from left nuchel line to neck. And the cause of death in opinion of Dr. Moti Raj was shock because of head injury and loss of blood as a consequent to the injury aforesaid. The weapon of offence was recovered on 2.9.2002 on basis of disclosure made by the accused. The weapon was having blood stains matching with the blood group of deceased Smt. Shanti. The Forensic Science Laboratory's report is available on record as Ex.P/24. PW-4 Smt. Bhanwari Devi, who is mother of accused, was declared as hostile witness, however, the trial court while relying upon the statements of PW-5 Smt. Soni Devi, PW-10 Hardeen Ram, PW-11 Nathi Devi, PW-12 Rampal and the investigating officer PW-21 4 Jitendra Singh, found the accused appellant guilty for the offences concerned and sentenced accordingly. While challenging the conviction recorded and the sentence awarded, the contention of counsel for the appellant is that even by accepting the entire case of the prosecution no case of culpable homicide amounting to murder is made out as in the instant matter motive and intention of causing death is conspicuously absent. While opposing the argument advanced, learned Public Prosecutor urged that the injury given by accused to his wife on a vital part clearly establishes that he was intending to kill Smt. Shanti. He further pointed out that the accused after giving axe blow to his wife also assaulted his mother Bhanwari Devi and PW-5 Smt. Soni Devi with axe and that clearly establishes that he wanted to abscond from the place after committing the offence. Having considered the arguments advanced and on examination of record, we are of the view that ample evidence is available on record to establish the fact relating to death of Smt. Shanti as a consequent to axe blow given by the accused. True it is, PW-4 Smt. Bhanwari Devi did not support the prosecution case, however, the statements 5 of PW-5 Smt. Soni Devi in detail narrates the entire incident. As per Smt. Soni, on the date of occurrence when she was on way to her parental field one other lady Manbhari wife of Balu Ram came to her and informed that Dula Ram has given an axe blow to Smt. Bhanwari. She also found Smt. Bhanwari lying down unconscious on path. She further stated that Dula Ram killed his wife. In cross examination too she reiterated with all confidence whatever she stated during examination in chief. It is pertinent to note that Smt. Soni is real sister of accused and she also received an injury because of an axe blow given to her by accused Dula Ram. PW-10 Hardeen Ram, PW-11 Nathi Devi and PW- 12 Rampal also deposed before the court and corroborated whatever stated by Smt. Soni. The evidence relating to recovery of blood stained weapon and medical evidence also establishes killing of Smt. Shanti as per prosecution story. As already stated above, blood stained axe was recovered from the accused and the blood stains matched with blood group of deceased Smt. Shanti. Learned counsel for the appellant too looking to all the facts and circumstances of the case confined his argument to the extent of determination of offence committed by the appellant. Thus, precisely the question before us is whether the instant one is a 6 case of murder or culpable homicide not amounting to murder? As per parcha bayan Ex.P/16, Dula Ram gave a single blow to Smt. Shanti and then to Smt. Bhanwari and then while running he also gave certain injuries to Smt. Soni who is his real sister. PW-4 Smt. Bhanwari Devi was declared hostile, however, PW-5 Smt. Soni stated that when he was going to the place of occurrence she found her mother lying unconscious on the way and she was having an injury. No evidence is available on record to establish intention of the accused to give a bodily injury to Smt. Shanti with an intention to kill her. It is also the position admitted that deceased was having a single antemortem injury. If the accused was having any intention to kill her then he had opportunity or to say that no one was there to stop him from doing so. In these circumstances we are of the view that the offence committed by the accused is of giving a bodily injury sufficient to cause death without having intention to kill Smt. Shanti, therefore, the conviction under Section 302 IPC is not proper. So far as conviction of the accused under Sections 324 and 323 IPC are concerned, those have not been even challenged in this appeal by counsel for the appellant. In view of whatever discussed above, we are inclined to accept this appeal in part. Accordingly, 7 the same is partly allowed. The judgment impugned dated 17.7.2003 is set aside to the extent of conviction of appellant Dula Ram son of Keshra Ram for an offence under Section 302 IPC and he is convicted for an offence under Section 304 part-II IPC. Accordingly, the sentence of life term with fine of Rs.500/- is also modified and is substituted by sentence of rigorous imprisonment for a term of eight years with fine of Rs.500/- and in default to which further to undergo five months rigorous imprisonment. The conviction and sentence awarded by the trial court for commission of offences under Sections 324 and 323 IPC are maintained. ( C.M.TOTLA ),J. ( GOVIND MATHUR ),J. Mathuria KK/ps.