1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR. JUDGMENT KALU @ DEVA & ANR. vs. STATE OF RAJASTHAN. D.B. Criminal Appeal No.1117/2003 under section 374 (2) Cr.P.C. against the judgment and order dated 12.09.2003 passed by the Additional District & Sessions Judge, (Fast Track) , Pratapgarh in Sessions Case No.34/2003. Date of Judgment: 17 August , 2010 PRESENT HON'BLE MR. JUSTICE PRAKASH TATIA HON'BLE MR. JUSTICE KAILASH CHANDRA JOSHI Mr.Rakesh Arora ] for the appellants. Mr.Vipul Singhvi ] Mr.K.R.Bishnoi , Public Prosecutor. BY THE COURT (PER HON'BLE JOSHI, J.): Accused Kalu @ Deva, s/o Hakara , b/c Meena, r/o Kulmi, Police Station Jakham, and Dalji s/o Phooliya, b/c Meena, r/o Pleta have preferred this appeal, against the judgment and order dated 12.09.03 passed by the learned Addl. District & Sessions Judge (Fast Track), Pratapgarh in Sessions Case No.34/2003, whereby they have been convicted for the 2 commission of offence under section 302/34 IPC and sentenced to undergo life imprisonment and a fine of Rs.5,000/- and in default of payment of fine, to further undergo six months' simple imprisonment. The facts of the prosecution story, as unfolded during the trial, are that on 25.02.02, complainant Kalu s/o Hukiya, gave an oral information at the police station Jakham, stating that when he was returning to his house at 05.30 PM, one Rama Meena informed him near Jakham Gate,that at about 03.00 PM Homla had gone to to the forest for grazing his cattle, where Devji had also reached. There they heard the hue and cry of a lady. They had seen that Smt. Mahili d/o Kalu Meena, was being beaten by her husband, Kalu @ Deva and her brother -in- law Dalji. Dalji had caught hold of Smt. Mahilil and Kalu was beating her, as a result of which, Mahili had died. On this information, a criminal case No.20/2002 was registered and the investigation commenced. During the course of investigation, statement of the witnesses were recorded, accused appellants were arrested, autopsy was conducted on the body of deceased Smt. Mahili, silver ornaments which were worn by the deceased at the time of her death, were recovered and after usual investigation, a charge sheet was filed in the court of Judicial Magistrate, First Class, Pratapgarh, from where the case was committed to the 3 court of Sessions Judge, Pratapgarh and ultimately the case was transferred for trial to the court of learned Addl.District & Sessions Judge, (Fast Track),Pratapgarh. Accused appellants were charged for the commission of offence under section 302/34 IPC, to which accused appellants did not plead guilty and claimed to be tried. The prosecution examined as many as 18 witnesses namely, PW/1 Devji, PW/2 Rama, PW/3 Dr.Vimal Chandra Gandhi, PW/4 Narbda, PW/5 Peera, PW/6 Lalu, PW/7 Bakshu, PW/8 Sugna, PW/9 Narain Lal, PW/10 Parbat Singh, PW/11 Faiz Mohammed, PW/12 Shanker, PW/13 Praveen Vyas, PW/14 Kanaihayalal, PW/15 Chokha, PW/16 Shanker Lal, PW/17 Kalu and PW/18 Amarchand. Accused were asked to explain the incriminating evidence produced by the prosecution during the course of trial and accused appellants adduced no evidence in their defence. The learned trial court, vide judgment dated 12.09.03, found both the accused appellants guilty for commission of offence under section 302/34 IPC and sentenced them as narrated above. Prosecution, in this case, examined two eye witnesses , namely, PW/1Kalu s/o Hukiya Meena and PW/2 Rama and both 4 the eye witnesses did not corroborate the prosecution story and, therefore, they were declared hostile by the prosecution. PW/3, Dr.Vimal Chandra Gandhi conducted autopsy on the body of deceased Mahili and he noticed the following internal injuries:- Spleen Ruptured at two places (Lacerated ) “(i) 6” x 1 ½ “ x ½ ” - around lower end of spleen Kidneys - Both kidney bruised (ii) 2 “ x ½” x 1/2” - at middle 1/3rd of inner aspect of spleen. “ No external injury was found on the body of deceased Mahili and as per the opinion of PW/3, Dr. Vimal Chandra Gandhi, the cause of death of the deceased was haemorrhagic shock due to rupture of spleen. PW/4, Narbada deposed that the accused appellant Kalu used to reside in her village at his in-laws' house. Six months previous to the recording of her statement in the court, the marriage of Peera had taken place in the village and the accused appellant Kalu was also present in the marriage of Peera. On the date of marriage, Kalu consumed liquor and started scolding his wife Mahili. Kalu told Mahili that he will see her after reaching his house. Three days after the marriage of Peera, Dalji came to their residence and on the call of Dalji , 5 Mahili and Kalu started for their village. When Mahili started from her house, she was wearing a silver ornament 'Hansli' in her neck and artificial tops in her ears. On the same day, in the evening at 05.00 PM , she had heard that Mahili had died in Hemlarail. PW/5, Peera also corroborated the evidence of PW/4.Narbada. Thus, both these witnesses deposed about the fact of deceased Mahili being last seen alive with both the accused appellants Kalu @ Deva and Dalji when they started for their village. PW/6, Lalu deposed that six months prior to recording of his statement in the court, on 25th date in the day at 03.30 PM while he was rowing his boat in the Jakham river, there he saw Kalu, r/o Kulmi and Dalji, r/o Pleta , who was the brother in- law of Kalu ,were coming by boat. With them was a child of the age of 1 ½ to 2 years. At the relevant time , he was rowing boats through contractor in Jakham Dam. On the next day, he had heard the news of Mahili's death in the Hemlarail forest. PW/7, Bakshu is the formal witness of the Panchnama and further he also deposed that the Investigating Officer 6 inspected the site of incident before him and prepared the site inspection memo Ex. P/6 and memo of supurdginama of the dead body, Ex.P/7. PW/8 , Sugna deposed that six to seven months prior to the recording of her statement in the court, she was grazing goats in the forest. At 03.00 PM the accused Kalu @ Deva and Dalji passed by her, with the child but there was no lady with them at that time. PW/9, Narain Lal deposed that on 04.03.02 he was posted as Constable at Police Station Jakham. On that day, the investigating officer PW/10 Parbat Singh arrested Dalji the accused, through arrest memo Ex.P/18. At the instance of the accused Dalji, a silver 'Hansli' was recovered from the box of Dalji from his residence and memo Ex.P/1 was prepared by the investigating officer. PW/18, Amarchand corroborated the evidence of PW/9 Narain Lal . PW/10, Parbat Singh was the investigating officer, who deposed about the investigation conducted by him. PW/11, Faiz Mohammed deposed that on 30.03.02 he was posted as Assistant Sub-Inspector of Police Station, Jakham. In criminal case No.20/2002, after completion of the investigation, 7 when the file was received , he filed a charge sheet in the court. PW/12 Shankar corroborated the evidence of PW/7, Bakshu. PW/13 Praveen Vyas was the investigating officer. PW/14, Kanaihayalal deposed about the preparation of memo Ex.P/13 and P/14. PW/15, Chokha deposed that as the Sarpanch of Gram Panchayat Gyaspur, he conducted the identification parade of a silver 'Hansli' and prepared the memo Ex.P/13 and P/14 and the 'Hansli' was identified by Kalu ,as that of his daughter Mahili. PW/16, Shankar Lal deposed about keeping the silver 'Hansli' in sealed state in the Malkhana of Police Station Jakham, as incharge of Malkhana of Police Station , Jakham. PW/17, Kalu deposed that to 1 to 1 ½ years prior to the recording of his statement in the court, while he was coming from Pal Naka, at about 05.00 PM , Rama met him on the way and Rama informed him that his daughter had been murdered by Dalji and Kalu. Dalji had caught hold of Mahili and Kalu had kicked Mahili with his foot as a result of which, Mahili sustained injuries in her stomach. As per information received from Rama, Kalu reported the matter to the Police Station , Jakham which is Ex.P/10. 8 Further, PW/17 Kalu deposed about the execution of memo Ex.P/5, P/6 and P/7 and identification memo Ex.P/13. Both the accused appellants, in their statements stated that they were innocent and had been falsely implicated. The main contention of the learned counsel for the accused appellants was that there was no external injury on the body of deceased Mahili and on internal examination the spleen was found ruptured and there was a wound of 6” x 1 ½ “x 1 ½ ” in the lower side of the spleen and another wound of 2' x ½' x ½' in the middle of the spleen. As per the opinion of PW/3, Dr.Vimal Chandra Gandhi who conducted the autopsy of the deceased, the cause of death was rupture of the spleen. The learned counsel for the accused appellants contended that there was no evidence adduced by the prosecution to infer any intention to cause the death of the deceased Mahili , because Mahili was kicked by foot and hands and in the absence of any external injury, the intention to cause death on the part of the accused appellants could not be inferred and the guilt of the accused appellants could not travel beyond the provisions of Section 302-II IPC. The learned counsel for the accused appellants relied on 9 the following judgments :- 1. Rajinder v. State of Haryana [WLC 2006 (2) 313] and 2. Khuman Singh & Ors. vs. State of M.P. [ 2005 Cr.L.R. (SC) 164. Learned counsel for the accused appellants further contended that both the eye witnesses, PW/ 1 Devji and PW/2 Rama, did not corroborate the prosecution story and there was only the circumstantial evidence of the fact that Mahili was last seen alive, together with both the accused while they had started from the residence of Mahili's father and soon after the incident when both the accused appellants were crossing the Jakham river, they were seen without Mahili by PW/6 Lalu and PW/8 Sugna. But the circumstantial evidence is a very weak piece of evidence . The learned Public Prosecutor, vehemently defended the judgment of the learned trial court and argued that there was a strong chain of circumstantial evidence which only proved the guilt of the accused and the evidence regarding this fact that Mahili was last seen alive with both the accused, was a trustworthy evidence and remained unshattered. This evidence was supported by independent witnesses and, therefore, even if PW/1, Devji and PW/2, Rama did not corroborate the evidence , the prosecution had succeeded to prove the guilt of the accused appellants, beyond any reasonable doubt. 10 We have perused the authorities cited by the learned counsel for the accused appellants. In Rajinder's case (supra), the Hon'ble apex Court held as under :- Clause © of section 299 and clause (4) of Section 300 both require knowledge of the probability of the act causing death. It is not necessary for the purpose of this case to dilate much on the distinction between these corresponding clauses. It will be sufficient to say that clause (4) of Section 300 would be applicable where the knowledge of the offender as to the probability of death of a person or persons in general as distinguished from a particular person or persons- being caused from his imminently dangerous act, approximates to a practical certainty. Such knowledge on the part of the offender must be of the highest degree of probability, the act having been committed by the offender without any excuse for incurring the risk of causing death or such injury as aforesaid”. In Khuman Singh's case (supra), the Hon'ble apex Court has held as under : “Penal Code, 1860 – Secs. 302 or 304 Pt.II- Murder case – Proof – Deceased was assaulted by lathi and stones – It was the injury caused to liver resulting in profuse bleeding which caused the death – Occurrence 11 took place suddenly- No premeditation on part of appellants – Quarrel arose from a trivial issue – Accused persons assaulted the deceased in such a manner that deceased suffered several fractures, but injury which caused the death of deceased was one suffered by him on account of rib bone puncturing the liver – This injury was not intended by appellant- Held , appellants are guilty of offence u/s 304 Pt.II IPC”. We have considered the rival contentions of both the parties and scanned and evaluated the evidence available on record. It is a matter of common knowledge that a blow with a little force, may result in the rupture of an enlarged spleen causing death of the victim and the criminal liability, arising out of such case, will depend upon the knowledge of the accused about such an enlargement of the spleen. Here, in the present case, the spleen of the deceased was neither enlarged nor was she suffering from any ailment, therefore, only an unusually grave blow can cause rupture of the spleen. The abdominal area has many vital parts and an unusually forceful blow, therefore, can cause grave results. Therefore, it shall have to be inferred that a person doing such a type of act, must be aware that he may, thereby, cause the 12 death of the victim and that will be a culpable homicide, not amounting to murder. The accused kicked deceased on her abdominal area and caused rupture of her spleen and thereby caused her death. The evidence of res gestia and the conduct of the accused appellants Dalji and Kalu is sufficient to gather that the beating was given with a common intention. Both were seen together soon after the alleged incident. There was no explanation from any of the accused about the accusations, rather they evaded their replies and either made a plane denial or pleaded ignorance to the questions put to them under section 313 Cr.P.C. The distinction between ' murder' and 'culpable ' homicide not amounting to murder may create confusion. The confusion is caused, if Courts losing sight of the true scope and meaning of the terms used by the legislature in these sections, allow themselves to be drawn into the minute abstractions. The safest way of approach to the interpretation and application of these provisions seems to be to keep in focus the keywords used in the various clauses of Sections 299 and 300. Clause (b) of Section 299 corresponds with clauses (@) and (3) of Section 300. The distinguishing feature of the mens rea requisite under clause (2) is the knowledge 13 possessed by the offender regarding the particular victim being in such a peculiar condition or state of health that the internal harm caused to him is likely to be fatal, notwithstanding the fact that such harm would not, in the ordinary way of nature, be sufficient to cause death of a person in normal health or condition. It is noteworthy that the 'intention to cause death' is not an essential requirement of clause (2). Only the intention of causing the bodily injury coupled with the offender's knowledge of the likelihood of such injury, causing the death of the particular victim, is sufficient to bring the killing within the ambit of this clause. This aspect of clause (2) is borne out by illustration (b) appended to Section 300. Thus, in view of the aforementioned discussions , the conviction of the accused appellants Kalu @ Deva and Dalji under section 302/34 IPC is not sustainable and it cannot be maintained and the conviction has to be in terms of Section 304-II/ 34 IPC. Accordingly, the conviction of both the accused appellants, is modified from section 302/34 IPC to that of section 304 Part II read with section 34 of Indian Penal Code. Coming to the question of sentence, the accused appellants have been in judicial custody since 12.09.2003, after the judgment of the learned trial court. Looking to the facts and circumstances of the case, the 14 accused appellants are punished for the commission of offence under section 304-II/34 IPC to the sentenced already undergone by them. Resultantly, the appeal preferred by both the accused appellants, is partly allowed, in the aforementioned terms. (KAILASH CHANDRA JOSHI),J. (PRAKASH TATIA), J. l.george