Rajasthan High Court - Jodhpur
State Of Rajasthan vs Inder Raj on 22 January, 2018
Author: Sangeet Lodha
Bench: Sangeet Lodha, Manoj Kumar Garg
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
D.B. Criminal Appeal No. 489 / 1993
State of Rajasthan
----Appellant
Versus
Inder Raj s/o Shri Heera Ram, b/c Bawari, r/o Sanju, Tehsil
Degana.
----Respondent
_____________________________________________________
For Appellant(s) : Mr. J.P.S.Choudhary, Public Prosecutor.
For Respondent(s) : Mr. Aditya Singh Rathore on behalf of
Mr.Suresh Kumbhat
_____________________________________________________
HON'BLE MR. JUSTICE SANGEET LODHA
HON'BLE MR. JUSTICE MANOJ KUMAR GARG Judgment Per Hon'ble Mr.Sangeet Lodha,J.
22nd Jaunary, 2018
1. This appeal is directed against judgment dated 30.5.92 passed by the learned Sessions Judge, Merta in Sessions Case No.34/91, whereby the respondent Inder Raj was acquitted of the charges for offence under Sections 302, 449 IPC, however, has been convicted for the offences under Sections 325, 448 IPC and sentenced to imprisonment already undergone and a fine of Rs.500; in default of payment of fine, to undergo further simple imprisonment for three months.
2. In nutshell the prosecution case is that informant Genaram (PW 3) submitted a written report at 7.30 P.M. to SHO, Police (2 of 8) [ CRLA-489/1993] Station, Degana stating therein that on 20.11.90 at about 3.00 P.M. his brother Dularam was sleeping on the roof of his house, accused Inder Raj armed with stick entered the house. Pemaram who had seen Indraraj entering the house being suspicious, followed him. While he was searching the accused in the house, he heard the shout from the roof "ekjs js ekjs js" and therefore, immediately rushed to the roof where he saw accused Indraraj beating Dularam by stick. Seeing Pemaram, the accused Indraraj climbed down from the roof and ran away. Pemaram found that Dularam has died and thereupon he went to the agriculture field of informant Genaram and narrated the incident.
3. On the basis of the written report, the police registered the FIR for offence under Section 302 IPC and the investigation commenced.
4. During the investigation, the police drawn necessary memos. After inquest proceedings, the dead body was subjected to autopsy, and the statements of witnesses were recorded under Section 161 Cr.P.C. The accused respondent was arrested and at his instance, blood stained stick was recovered. The blood stained cloths of the deceased, blood stained stick, soil and cot thread recovered from the place of the occurrence were sent for examination to the Forensic Science Laboratory.
5. After completion of the investigation, the police filed charge sheet against the accused respondent for offence under Section 302, 452 IPC before the Additional Chief Judicial Magistrate, Merta on 19.12.90. The matter was committed to the court of Sessions (3 of 8) [ CRLA-489/1993] Judge, Merta for trial. The trial court framed the charges against the accused respondent for offences under Sections 302, 449 IPC. The accused respondent denied the charges and claimed trial.
6. The prosecution in support of its case examined as many as 10 witnesses PW-1 to PW-10 and produced the documentary evidence Ex.P/1 to Ex.P/14 and also exhibited various articles marked as Article-1 to Article-6. No evidence was produced by the accused respondent in his defence, however, the statements of Pemaram and Mohanram recorded by the police under Section 161 Cr.P.C. were exhibited in evidence as Exhibit-D/1 and D/2.
7. The accused respondent was examined under Section 313 Cr.P.C., wherein he revealed that on the date of occurrence, he along with deceased Dularam and Pemaram (PW-2) were consuming liquor at Dularam's house, Dularam started abusing accused Indraraj and during the quarrel, when accused respondent pushed Dularam, he fell down on long bed rail (ish) of the cot and suffered the injuries. He also denied the presence of Mohanram at the place of occurrence and stated that at the relevant time, he was not residing with his father in the house nearby, rather he was residing in his own house 150-200 steps away. He further stated that Pemaram has given false statement lest the police may not implicate him in the case.
8. Learned trial Judge after considering the evidence available on record and submissions of the Public Prosecutor and the counsel for the defence arrived at the conclusion that the factum of accused respondent inflicting injury by lathi blow on the person (4 of 8) [ CRLA-489/1993] of Dularam stands proved beyond doubt, however, the injury caused was not sufficient in the ordinary course of nature to cause the death. Further, it was also not found proved that accused intended to inflict any specific injury. Accordingly, the accused respondent was acquitted of the charge for offences under Sections 302, 449 IPC, however, he has been convicted for offences under Sections 325, 448 IPC and sentenced as indicated above. Hence, this appeal by the State.
9. We have heard the learned Public Prosecutor and learned counsel for the respondent.
10. Learned Public Prosecutor contended that the learned trial Judge has seriously erred in acquitting the accused of the charge under Section 302 and 449 IPC. It is submitted that the testimony of eye witness Pemaram (PW-2) having been found reliable, ignoring the corroborative evidence, the finding arrived at by the trial court that the accused had no intention to kill the deceased Dularam is ex facie perverse. Learned Public Prosecutor would submit that as per the deposition of Medical Officer, the cause of death was grievous head injury which is proved to be caused by the accused respondent and thus, learned trial Judge was not justified in acquitting the accused respondent of the charge under Section 302 IPC, observing that the injury inflicted was not sufficient in ordinary course of nature to cause death.
11. On the other hand, learned counsel appearing for the accused respondent contended that Dr. Chainroop Sethia (PW-1) , who performed autopsy on the body of the deceased has nowhere (5 of 8) [ CRLA-489/1993] deposed that head injury caused was sufficient in ordinary course of nature to cause death and thus, when it has come on record that injury was caused on account of a sudden quarrel at the time when the deceased and the accused respondent were consuming liquor, no inference of intention on the part of the accused respondent of causing injuries with an intention to kill could be drawn. It is submitted that the findings arrived at by the trial court after due appreciation of the evidence on record cannot be said to be erroneous or perverse so as to warrant interference by this Court.
12. We have considered the rival submissions and carefully scanned the evidence on record.
13. As per the Postmortem Report (Exhibit-P/1), following ante mortem injuries were found on the body of the deceased :
1. Lacerated wound at right pinna 2x3 cm size.
2. Abrasion 2x1 cm size on left leg below knee.
3. Swelling 5x3 cm present at right temporal region. When scalp was cut, the collection of blood about 10 cc. was found.
Right temporal bone was having fracture. Other bone of the skull was found healthy.
The Dr. Chainroop Sethia (PW-1) has deposed that the cause of death was head injury leading to intracranial haemorrhage. He further stated that the head injury could have been caused on account of fall on long trail of the cot as well. It is pertinent to (6 of 8) [ CRLA-489/1993] note that he has nowhere stated that the head injury caused was fatal.
14. Pemaram (PW 2) on whose testimony the prosecution case rests, in his examination-in-chief stated that Dularam and Indraraj while indulged in conversation picked up quarrel thereupon Dularam asked Indraraj to go home. Indraraj went home but returned back in a short while armed with lathi. On seeing Indraraj armed with lathi, Pemaram followed him to the house of Dularam. While he was searching the accused respondent in Dularam's house, he heard the shout from roof "ekjs js ekjs js", he immediately rushed to the roof where he saw Indraraj armed with lathi. He shouted "feu[k ekjs js " and then while he was going up, seeing him, accused respondent jumped down in the plot of Genaram. He further deposed that hearing the alarm raised, Mohanram rushed to the place of occurrence and asked what is the matter then, he informed him that Indraraj has killed Dularam. He deposed that Indraraj gave lathi blow on Dularam's head.
15. In cross examination, Pemaram (PW 2) stated in unequivocal terms that he, Dularam and Indraraj were enjoying affectionate relationship and on the date of occurrence at about 12-1 pm, they were consuming liquor, however, since Dularam asked for the food, he had left the place to bring the food but did not return with the food.
16. Mohanram (PW 4) has deposed that he had seen Indraraj armed with lathi on the roof of Dularam's house and further that (7 of 8) [ CRLA-489/1993] Pemaram (PW 2) informed him that Indraraj had inflicted lathi blow on Dularam. He further deposed that he saw Indraraj running away while jumping down in the plot of Genaram.
17. The evidence discussed above clearly indicates that accused Indraraj gave a lathi blow on the head of Dularam and the injury inflicted was the cause of death of Dularam. The ocular evidence stands corroborated by medical evidence. We do not find any reason to differ with the conclusion arrived at by the learned trial Judge in this regard after due appreciation of evidence on record in its entirety and objectivity. .
18. As noticed hereinabove, Dularam and Indraraj were enjoying affectionate relationship. Further, it is also the prosecution's case that they while consuming liquor were indulged in conversation and all of a sudden, picked up quarrel. The only injury caused by the accused respondent by blunt weapon on the person of Dularam is not found fatal. It is not even the case set out by the prosecution that head injury caused to Dularam was sufficient in ordinary course of nature to cause death. There is nothing on record suggesting that the accused respondent had intention to cause death of deceased Dularam or to cause such bodily injury which was likely to cause death.
19. In "Shri Narain Ors. vs. State of Rajasthan", 1979 WLN 307, a Bench of this court where two grievous injuries caused on the head of the deceased were not explained by the Medical Officer examined before the court to be individually sufficient in ordinary course of nature to cause death, the court opined that there is no (8 of 8) [ CRLA-489/1993] alternative but to alter the conviction of the accused to Section 325 IPC.
20. In "Balu vs. State of Rajasthan", 2004(3) WLC 35, where the incident occurred suddenly as the accused were abusing and there was no enmity between the parties, in absence of any evidence suggesting an intention on the part of the accused to cause death or to cause such bodily injury which was likely to cause death, the conviction and sentence of the accused under Section 304 Part II, IPC was set aside and instead the accused was convicted for offence under Section 325 IPC.
21. Similarly, in "Mahinder Singh vs. State of Delhi", 1975 Cr.L.J. 1320, the Hon'ble Supreme Court where the injury caused by the accused were not such as to cause the death of the deceased convicted him for offence under Section 325 IPC.
22. In view of the settled position of law discussed hereinabove and the conclusion arrived at by us as aforesaid, we are of the considered opinion that the learned trial Judge has committed no error in acquitting the accused respondent of the charge for offence under Section 302, 449 IPC and instead convicting him for offence under Section 325, 448 IPC so as to warrant interference by this court.
23. In the result, the appeal fails, it is hereby dismissed.
(MANOJ KUMAR GARG)J. (SANGEET LODHA)J. Aditya/