D.B. Criminal Appeal No. 712/2005 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR JUDGMENT Seesh Ram Versus The State of Rajasthan D.B. CRIMINAL APPEAL NO. 712/2005 Date of Judgment : 12.11.2010 PRESENT HON'BLE MR. JUSTICE PRAKASH TATIA HON'BLE MR. JUSTICE KAILASH CHANDRA JOSHI Mr. Vineet Jain ] Mr. Gaurav Singh ] for the appellant Mr. K.R. Bishnoi – Public Prosecutor BY THE COURT (PER HON'BLE JOSHI, J.) Aggrieved by the judgment and order dated 10.08.2005 passed by the learned Additional District and Sessions Judge, Rajgarh, District Churu in Sessions Case No. 37/2004, appellant Seesh Ram S/o Ramehwar, by caste Prajapat, resident of Gogatia Charanan, Tehsil Taranagar, District Churu preferred this appeal. By the aforesaid judgment the learned trial court held the accused appellant guilty for the commission of offence under Section 302 IPC and sentenced him to undergo life imprisonment alongwith a fine of Rs.10000/- and further to serve two months' rigorous imprisonment in default of payment of fine. Page 1 of 11 D.B. Criminal Appeal No. 712/2005 The necessary facts giving rise to this appeal are that one Kashiram lodged a written report at the Police Station Taranagar on 21.11.2004 at 7.00 p.m. alleging inter alia that his daughters Gulab and Lichhama were married with Seesh Ram and Jai Singh respectively, both sons of Ramehwar, 8 years back from the date of lodging of the report. On that day at about 1.00 p.m. he received information to the effect that his daughter Gulab was being harassed and beaten by her husband. On receiving this information, he alongwith one Khyaliram reached the Village Gogatia Charanan by a jeep, where he came to know that Gulab, Lichhama and Seesh Ram had gone to the field. Then they reached the filed of his son-in-law and there they saw that Gulab was being assaulted by Seesh Ram with a rubber strap and kicks while Lichhama was trying to intervene. When they scolded, Seesh Ram ran away. His daughter Gulab lost her consciousness due to the injuries on her body. Gulab was brought to the Government Hospital, Taranagar by them, where doctors declared her dead. On the basis of the aforesaid information, FIR No. 234/2004 under Section 302 IPC was registered at the Police Station Taranagar and the investigation commenced. During the course of investigation, autopsy was conducted on the body of Gulab, statements of the witnesses Page 2 of 11 D.B. Criminal Appeal No. 712/2005 were recorded, accused appellant Seesh Ram was arrested and after usual investigation, charge-sheet was filed against Seesh Ram under Section 302 IPC in the court of Judicial Magistrate, Taranagar, from where the case was committed for the trial to the court of Additional District and Sessions Judge, Rajgarh, District Churu. The accused was charged for the offence under Section 302 IPC. During the course of trial, the prosecution examined as many as 8 witnesses, namely, P.W.1 Dr. Mohammad Haleem Khan, P.W.2 Karni Singh, P.W.3 Lichhama, P.W.4 Kashiram, P.W.5 Khyaliram, P.W.6 Manphool, P.W.7 Jinkuram, P.W.8 Banwari Lal, to prove the offence charged. The incriminating evidence was put to the accused for explanation under Section 313 CrPC and the accused in his defence examined 2 witnesses, namely, D.W.1 Pokar Ram and D.W.2 Chhotu Ram. The learned trial corut vide judgment dated 10.08.2005 convicted the accused appellant under Section 302 IPC and sentenced him as indicated in the earlier paras. During the course of the trial, the prosecution examined P.W.1 Dr. Mohammad Haleem Khan who was member of the Medical Board who conducted the autopsy on the body of deceased Gulab. He found the following external injuries on her body :- Page 3 of 11 D.B. Criminal Appeal No. 712/2005 (i)Four contusions of size 3 cm to 10 cm x 2 cm to 10 cm overlapping each other over postro lateral aspect of left thigh. (ii) Lacerated wound 1 cm x 1 cm x bone depth over anterior aspect of left knee joint. (iii) Three abrasio contusion of size 4 cm to 12 cm x 2 cm over postro lateral aspect of left thigh and overlapping each other. (iv) Five contusions 5 cm to 11 cm x 2 cm to 10 cm over antero -medial aspect of left thigh and overlapping each other. (v) Two abrasio contusion 8 cm x 2 cm and 10 cm x 2 cm over antreo-medial aspect of left thigh. (vi) Eight contusions 4 cm to 14 cm x 2 cm to 10 cm over right thigh overlapping each other. (vii) Four abrasio contusion 5 cm to 10 cm x 2 cm over right thigh at its antreo-medial aspect and overlapping each other. (viii) Three abrasio contusion 6 cm to 12 cm x 2 cm over post. aspect of right thigh. (ix) Six contusions of size 4 cm to 7 cm x 2 cm x 8 cm over left leg. (x) Five abrasio contusion 3 cm to 6 cm x 2 cm over left leg overlapping each other. (xi) Five contusion 4 cm to 7 cm x 2 cm to 10 cm over right leg. (xii) Four abrasio contusion 4 cm to 6 cm x 2 cm over ant. aspect of right leg. (xiii) Four contusion 8 cm to 10 cm x 2 cm to 10 cm over ant. aspect of abdomen. (xiv) Four contusion 2 cm to 4 cm x 2 cm over face. (xv) Elevan contusions 7 cm to 15 cm x 2 cm x 10 cm over back of chest overlapping each other. (xvi) Six abrasio contusion 6 cm x 8 cm x 2 cm over back of tronk. (xvii) Nine contusions 4 cm to 12 cm x 2 cm to 10 cm over lower part of back overlapping each other. Page 4 of 11 D.B. Criminal Appeal No. 712/2005 As per the opinion of the Board, the cause of death of the deceased was coma secondary to neurogenic shock because of multiple injuries over the body. All the injuries were ante-mortem in nature. Further he proved the postmortem report (Ex.P.1), thus, from the evidence of P.W.1 Dr. Mohammad Haleem Khan, it is proved beyond reasonable doubt that the death of deceased Gulab was homicidal in nature. Now we have to see whether the prosecution has succeeded to prove the fact that the homicidal death was caused by the present accused appellant Seesh Ram. In this regard the prosecution examined P.W.3 Lichhama, P.W.4 Kashiram and P.W.5 Khyaliram as the eye-witnesses of the incident. The prosecution examined P.W.6 Manphool as the witness of recovery of rubber strap having 2 screws of iron and other articles at the instance of the accused appellant in pursuance to the information recorded under Section 27 of the Indian Evidence Act. P.W.2 Karni Singh and P.W.7 Jinkuram are the police witnesses who deposed about the various steps taken during the investigation and further P.W.7 Jinkuram deposed that after the investigation he filed the charge-sheet under Section 302 IPC against the accused appellant. Page 5 of 11 D.B. Criminal Appeal No. 712/2005 P.W.8 Banwari Lal deposed about the site inspection memo (Ex.P.7) and the recovery of the pieces of glass bangles and other articles vide memo Ex.P.8. He further deposed about the arrest of the accused appellant by the Station House Officer. P.W.3 Lichhama, P.W.4 Kashiram and P.W.5 Khyaliram who were examined as the eye-witnesses of the incident, deposed that the accused Seesh Ram used to beat his wife Gulab and all the 3 witnesses while corroborating the facts of the First Information Report deposed that the accused Seesh Ram on the relevant date started beating Gulab with rubber strap. Lichhama intervened during the course of the incident and at that time she was pushed by Seesh Ram. After reaching of Kashiram and Khyaliram, accused Seesh Ram ran away from the place of the incident with the rubber strap. At that time Gulab lost her consciousness and then she was brought to the Government Hospital, Taranagar, where she succumbed to the injuries. Further P.W.4 Kashiram deposed that he submitted the First Information Report (Ex.P.3) to the police. The accused appellant in his statement under Section 313 CrPC stated that the prosecution evidence is false and he took a specific plea that Gulab had illicit relations with Jai Singh and for this reason Lichhama murdered Gulab and he was falsely implicated with the connivance of his in-laws. Page 6 of 11 D.B. Criminal Appeal No. 712/2005 D.W.1 Pokar Ram and D.W.2 Chhotu Ram deposed that the police arrested Seesh Ram and at that time they were present there. D.W.1 Pokar Ram deposed that police told him that Seesh Ram caused death of his wife and that he did not see the in-laws of the Seesh Ram in the village and neither he see Seesh Ram beating his wife. Learned trial court while relying upon the oral evidence of the eye-witnesses P.W.3 Lichhama, P.W.4 Kashiram and P.W.5 Khyaliram held the accused appellant guilty for the commission of offence under Section 302 IPC. Learned counsel for the accused appellant vehemently contended that there was inordinate delay in filing the First Information Report to the police because as per the statements of the eye-witnesses the incident took place at about 1.00 or 1.30 p.m. On 21.11.2004, whereas the First Information Report (Ex.P.3) was presented by P.W.4 Kashiram on the same day at 7.00 p.m. and thus, this inordinate delay of 6 hours has not been properly explained by P.W.4 Kashiram and on the contrary, P.W.4 Kashiram admitted in his cross-examination that soon after reaching the hospital, he informed the police about the incident, therefore, the learned counsel for the accused appellant argued that the statements of the eye-witnesses cannot be relied upon and the other evidence against the Page 7 of 11 D.B. Criminal Appeal No. 712/2005 accused appellant is also not of such nature so as to connect him with the alleged crime. Learned counsel for the accused appellant contended that in the presence of P.W.3 Lichhama aged 22 years, P.W.4 Kashiram aged 42 years and P.W.5 Khyaliram aged about 27 years, it was not possible for the accused appellant to continue such a brutal beating to his wife with a rubber strap and there is no evidence on record that any of these 3 persons intervened while the accused was beating his wife. Learned counsel for the accused appellant further argued that no independent injury was sufficient in the ordinary course of nature to cause death of the deceased because although the total number of injuries were 84, but all the injuries were either contusions or abrasions and only 2 injuries were lacerated wounds which were of the size 1 cm x 1 cm. over the anterior aspect of the left knee joint and further all the injuries were on the lower part of the body, therefore, the intention to cause the death of the deceased cannot be inferred against the accused appellant and to the worst, the accused can only be held liable for the offence under Section 304 Part I IPC. Per contra, learned Public Prosecutor while defending the judgment of the learned trial court argued that the learned Page 8 of 11 D.B. Criminal Appeal No. 712/2005 trial court dealt with the first argument of the learned counsel for the accused appellant in detail and held that there was no inordinate delay in lodging the First Information Report, particularly when the daughter of the complainant Kashiram died before him due to the injuries and in such circumstances it is but natural for the father of a girl to first approach the doctors and to get her daughter's treatment and after reaching the hospital it was also natural that after the death of his daughter, he must be mentally abnormal for some time to lodge the First Information Report. We have gone through the evidence adduced by the prosecution and also pondered over the arguments advanced by both the parties. The cross-examination of the P.W.4 Kashiram was made at length in the trial court and even after perusing the cross-examination of this witness and other eye-witnesses, it can be said that the testimony of the 3 eye-witnesses inspire faith and confidence and there presence at the scene of occurrence was natural as deposed by P.W.4 Kashiram that he was informed about the incident and he immediately started with P.W.5 Khyaliram for the residence of the accused appellant, where they came to know that Seesh Ram, Gulab and Lichhama were at their field and then both of them went to the field, where they witnessed the incident. Thus, in our view, delay of 5 or 6 hours Page 9 of 11 D.B. Criminal Appeal No. 712/2005 in lodging the FIR cannot be said to be inordinate delay in lodging the First Information Report. Coming to the next argument advanced by the learned counsel for the accused appellant, we have perused the injury report of the deceased. There were total 84 injuries on the body of the deceased Gulab and except 2 lacerated wounds, all the injuries were either contusions or abrasions, that too on the lower part of the body and no grievous or fatal injury was found on the upper part of the body. As per the statement of P.W.1 Dr. Mohammad Haleem Khan, the cause of death was the cumulative effect of the above injuries, which was coma secondary to neurogenic shock due to multiple injuries over the body. Now we have to appreciate the evidence of P.W.1 Dr. Mohammad Haleem Khan in the light of the contention raised by the learned counsel for the accused appellant. Had there been any intention on the part of the accused appellant to cause death of his wife, he would have caused injuries on the vital parts of the body or on the upper parts of the body like face, chest etc., thus, in the absence of any injury on the vital parts or upper part of the body and simply causing contusions, abrasions and 2 lacerated wounds, we can very well infer that there was no intention on the part of the accused appellant to cause death of Page 10 of 11 D.B. Criminal Appeal No. 712/2005 his wife, but there was intention of causing such bodily injuries as is likely to cause death because while causing such number of injuries with a rubber strap, there was intention only to cause bodily injuries, but he must have knowledge that the cumulative effect of such number of injuries is likely to cause death, therefore, we are of the view that the commission of offence under Section 304 Part I IPC is proved against the accused appellant Seesh Ram instead of offence under Section 302 IPC. In view of the discussion made above, the conviction of the accused appellant Seesh Ram under Section 302 IPC is altered to Section 304 Part I IPC and so far as the sentence is concerned, accused appellant Seesh Ram is sentenced for the commission of offence under Section 304 Part I IPC to undergo 10 years' rigorous imprisonment and to pay a fine of Rs.2000/- and in default of payment of fine, further to undergo 2 months' rigorous imprisonment. Accordingly, the appeal preferred by the accused appellant Seesh Ram S/o Ramehwar is partly allowed to the extent indicated above. [KAILASH CHANDRA JOSHI],J. [PRAKASH TATIA],J. Pramod Page 11 of 11