1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR. J U D G M E N T Lakhma vs. State of Rajasthan D.B.Criminal Jail Appeal No.213/2004 against the judgment dated 12.2.2004 passed by Additional Sessions Judge (Fast Track), No.1, Udaipur, in Sessions Case No.138/2002. Date of Judgment :: 19th March, 2010 P R E S E N T HON'BLE MR.JUSTICE GOVIND MATHUR HON'BLE MR.JUSTICE C.M.TOTLA Mr. Sushil Mathur] Mr. Y.L.Mathur ] for the appellant. Mr. K.R. Bishnoi, PP, for the State. .... BY THE COURT : (PER HON'BLE MATHUR,J.) By the judgment impugned dated 12.2.2004, learned Additional Sessions Judge (Fast Track) No.1, Udaipur recorded conviction against accused appellant Lakhma for the offences punishable under Sections 452, 323, 341, 336, 427, 302/34 Indian Penal Code and sentenced as under:- 2 Section 452 IPC : One year's rigorous imprisonment with a fine of Rs.100/- and in default of which to further undergo 15 days rigorous imprisonment; Section 323 IPC : Three months' rigorous imprisonment; Section 341 IPC : One month's simple imprisonment; Section 336 IPC : One month's simple imprisonment; Section 427 IPC : Three months' rigorous imprisonment; and Section 302/34 IPC : Life imprisonment with a fine of Rs.1000/- and in default of which to further undergo six months' rigorous imprisonment. As per prosecution case, on 20.2.2002, complainant Manna son of Lala Gameti, submitted a first information report Ex.P/58 at police station Gogunda stating therein that on 19.2.2002 at about 08:00 PM when he was standing on a hill close to his house, Harji son of Amra Gameti was coming after satisfying natural call, Lakhma son of Parta and Chaina son of Parta, resident of Nathiathal came and stopped Harji. Lakhma then gave an axe blow on the head of Harji, consequent to which he fell down. 3-4 lathi blows then were given by Chaina to Harji. The accused persons ran away from the spot on coming of Smt. Nani, Varda, Poona, Khamana etc. While running from the spot accused persons also threw stones at the residence of Khamana and Harji. Harji died at the spot as a consequent to axe and lathi blows given by Lakhma and Chaina. 3 The investigating agency registered a case and arrested the accused Lakhma. After completing the investigation the appellant was charge sheeted, case was committed to the Sessions court and on denial of charges trial for the offences punishable under Sections 452, 323, 341, 302/34, 336, 427 IPC was conducted. The case of accused Chaina was splitted he being absconding. To support the prosecution case 19 persons were produced in witness box and number of documents were exhibited. The accused was put forth for examination as per provisions of Section 313 Cr.P.C., wherein he denied all the allegations and whatever stated by the witnesses. He did not choose to produce any evidence in defence. The trial court while relying upon the prosecution, convicted accused Lakhma. While assailing validity of the conviction recorded and sentence awarded, the contention of counsel for the appellant is that the trial court failed to appreciate the contradictions existing in the statements of the eye witnesses and also the absence of motive for commission of crime. It is pointed out by counsel for the appellant that as per Ex.P/58 PW-4 Varda came to the spot and he saw the entire incident, but Varda deposed contrary to that. He has also pointed out that there is material 4 contradictions in statements of PW-3 Poona and PW-12 Khamana, who both are said to eye witnesses of the incident. Learned counsel for the appellant has also urged that even by accepting the prosecution story the offence under Section 302/34 IPC is not made out in view of the fact that there is no evidence to establish that the accused appellant was intending to kill Harji or to give him any bodily injury with knowledge of its sufficiency to cause death. While opposing the appeal, learned Public Prosecutor urged that the contradictions pointed out by counsel for the appellant are totally immaterial and there is no reason to disbelieve testimony of the eye witnesses. Learned Public Prosecutor further pointed out that the axe recovered from accused Lakhma at his instance and the medical evidence corroborates whatever stated by the witnesses. Heard learned counsel for the appellant as well as learned Public Prosecutor and scrutinised the record. PW-1 Dr. Rajesh Chhajed conducted autopsy on dead body of Harji son of Amra, thus, he proved the postmortem report, according to which the body was having a single head injury and coma due to that was cause of death. 5 PW-15 Manna submitted the first information report Ex.P/58, stated that on a previous night to Holi, at about 09:00 PM when he was standing outside his home, Harji was coming and then Lakhma and Chaina came to the residence of Harji. Lakhma was carrying axe and Chaina was having a lath with him. As per this witness Lakhma gave an axe blow on the head of Harji consequent to which he fell down and then Chaina gave lathi blow. PW-13 Smt. Nani also supported the prosecution story. PW-12 Khamana, an another eye witness, in quite specific terms stated that Lakhma gave an axe blow on the head of Harji and Chaina gave a lathi blow. All these persons also stated that the entire incident took place in the court yard of the residence of Harji. It is also relevant to note that on basis of a disclosure statement made by accused Lakhma an axe was recovered. The other witnesses PW-6 Rata and PW-10 Jeta also supported the prosecution case. When all the eye witnesses supports the prosecution case substantially and contradiction pointed out is just in style of narration of the facts or in mentioning irrelevant circumstances, then those are required to be ignored. In the instant case learned counsel for the appellant as a matter of fact failed to point out any substantial and relevant 6 contradiction in the statements of the eye witnesses. As such the prosecution case to the extent of causing death of Harji due to axe blow given by Lakhma stands sufficiently established. Now the issue deserves consideration is that whether on basis of the incident as narrated by the eye witnesses and established with aid of other evidence is sufficient to held the Lakhma responsible for commission of an offence punishable under Section 302/34 IPC. PW-15 Manna and PW-12 Khamana who are eye witnesses stated that accused Lakhma gave an axe blow on the head of Harji and immediately after coming of other persons such as Varda, Nani etc. he alongwith Chaina ran away from the spot. The accused persons were having axe and lathi with them and if they were intending to kill Harji then instead of running from the spot they could have given certain more serious blows to the deceased. The availability of single injury and that too without availability of sufficient motive is an important factor to reach at the conclusion that accused Lakhma was not intending to kill Harji though the injury given by him ultimately resulted into the death. The injury given by the accused was certainly sufficient to cause death but absence of intention to cause death brings case of the accused within the purview of an offence punishable 7 under Section 304 part-II, instead of Section 302/34 IPC. So far as conviction under other offences is concerned, those are stand established on basis of evidence available and learned counsel for the appellant has made no effort to challenge the same. For the reasons stated above, this appeal is allowed in part. Accused Lakhma son of Parta Gameti is acquitted from the charge of an offence punishable under Section 302/34 IPC but he is convicted for an offence punishable under Section 304 part-II IPC. The conviction for other offences punishable under Sections 452, 323, 341, 336, 427 IPC is maintained. Accordingly, while maintaining the sentence for all the offences except the offence punishable under Section 302/34 IPC the appellant accused is sentenced to undergo rigorous imprisonment for a term of nine years with a fine of Rs.500/- and in default to make payment of fine as aforesaid he shall be required to undergo further simple imprisonment for a period of one month. All the sentences be run concurrently. ( C.M.TOTLA ),J. ( GOVIND MATHUR ),J. Mathuria KK/ps.