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2006 DIGILAW 1025 (RAJ)

Thawar Mal v. State of Rajasthan

2006-03-29

SHASHI KANT SHARMA, SHIV KUMAR SHARMA

body2006
JUDGMENT 1. :- Instant criminal appeal has been filed by accused appellant Thawar Mal against the judgment dated 30.6.2001 passed by the learned Addl. Sessions Judge (Fast Track) Sikar whereby the appellant Thawar Mal was convicted for the offence under Section 302 Indian Penal Code and was sentenced to life imprisonment and Rs. 500/- fine and in default to further suffer simple imprisonment for one month. 2. The brief facts relevant and essential for the disposal of the appeal are as under : 3. On 12.9.99 Bhagirath lodged a written report Ex.P/1 in police station, Kotwali, Fatehpur wherein it was mentioned that on that day i.e. 12.9.99 at about 10 pm his neighbour Thawar Mal @ Gadha was abusing them. His father Moolaram went near wall and asked Thawar Mal why he was abusing them. Thawar Mal inflicted injury on the head of his father Moolaram by a Sabbal and then ran away. His father was taken to Government Dhanuka Hospital, Fatehpur where he died. On this written report Ex. P/1, police registered a case for the offence under Section 302 Indian Penal Code and started investigation. Police prepared site plan Ex. P/3 and seized clothes of deceased Moolaram through seizure memo Ex.P/4. Accused appellant Thawar Mal was arrested by the police and Sabbal was recovered by the police on the information and at the instance of accused appellant. Autopsy was done on the body of deceased. After completion of investigation, police filed challan against the accused appellant Thawar Mal for the offence under Section 302 Indian Penal Code before the concerned Magistrate wherefrom the case was committed to District and Sessions Judge, Sikar and ultimately the case was transferred to learned Addl. Sessions Judge (Fast Track) Sikar where the case was tried. 4. After hearing charge arguments, charge for the offence under Section 302 Indian Penal Code was framed against accused Thawar Mal. He denied the charges and claimed trial. Prosecution examined as many as 18 witnesses namely PW1 Bhagirath, PW2 Chunni Lal, PW3 Manohari Devi, DW4 Mohani, PW5 Banwari Lal, PW6 Hansraj, PW7 Rajanikant, PW8, Ranuram, PW9, Raju PW10, Fatehchand, PW11, Subhash, PW12, Lalaram, PW13, Prahald, PW14 Vidhgyadhar Jat, PW15 Mahaveer Prasad, PW16 Kishan Lal, PW17 Chiranjeelal and PW18 Surendra Singh. Accused appellant Thawar Mal was examined under Section 313 Criminal Procedure Code He did not examine any defence witness. Accused appellant Thawar Mal was examined under Section 313 Criminal Procedure Code He did not examine any defence witness. After hearing arguments of the both the parties, the learned Addl. Sessions Judge (Fast Track) Sikar convicted the accused appellant Thawar Mal for the offence under Section 302 Indian Penal Code and passed the sentence as indicated above. 5. We have heard learned counsel for the parties. 6. Learned defence counsel has contended that the prosecution has not proved any case against the accused Thawar Mal. It is also contended that statement of prosecution witnesses are not reliable, therefore, the appeal should be allowed and the accused appellant should be acquitted of the charge for the offence under Section 302 Indian Penal Code. 7. In alternative it is also contended that even according to prosecution accused appellant Thawar Mal has inflicted only one injury and after causing that injury he ran away from the place of occurrence. It is also contended that after reading all the evidence it is dear that accused had no intention of causing death of Moolaram because if he would have had intention of causing the death of Moolaram then he would have repeated the blow and would have not run away from the place of occurrence. It is also contended that even if court comes to the conclusion that appellant has inflicted one injury on the person of Moolaram even then it is a case of Section 304 Indian Penal Code. On the other hand, learned Public Prosecutor has supported the judgment of the trial court and has contended that the trial, court has rightly convicted the accused appellant for the offence under Section 302 Indian Penal Code. It is contended that prosecution has examined PW1 Bhagirath as an eye witness and there is no reason to disbelieve the statement of this witness. It is also contended that statement of Bhagirath PW1 is corroborated by the statements of PW2 Chunni Lal, PW3 Manohari Devi and PW5 Banwari Lal. It is also contended that prosecution story is also corroborated by the statement of PW17 Dr. Chiranjee Lal and post mortem report Ex.P/13. It is also contended that prosecution has fully proved that accused appellant has inflicted injury on the head of deceased Moolaram by Sabbal and Moolaram died of that' injury on the same day. 8. It is also contended that prosecution story is also corroborated by the statement of PW17 Dr. Chiranjee Lal and post mortem report Ex.P/13. It is also contended that prosecution has fully proved that accused appellant has inflicted injury on the head of deceased Moolaram by Sabbal and Moolaram died of that' injury on the same day. 8. We have considered the arguments raised by both the sides and examined the entire evidence available on record. We have examined the statement of PW1 Bhagirath minutely. He is son of the deceased. He has lodged the written report Ex.P/1 in police station Kotwali, Fatehpur on the same day promptly. This witness Bhagirath has clearly stated in his statement that on 12.9.99 at about 10 pm his neighbour Thawar Mal was abusing them. His father came out of the house and asked the accused why he was abusing. Thawar Mal inflicted injury by Sabbal on the head of Moolaram. His father fell down on the ground and Thawar Mal ran away from the place of occurrence. His father was taken to hospital where he died. He also gave statement that he lodged written report Ex.P/1. We have examined his statement minutely. We do not find any reason to disbelieve his statement. Statement of Bhagirath is also corroborated by the statements of PW2 Chunnilal, who is neighbour of both the parties. He has fully corroborated the statement of Bhagirath and has stated that in his persons Thawar Mal inflicted injury by Sabal on the head of Moolaram. Statement of Bhagirath is also corroborated by statement of PW3 Manohari Devi wife of deceased Moolaram who is natural witness of this occurrence. Statement of Bhagirath is also corroborated by the statement of PW4 Mohni. Prosecution story is fully corroborated by PW17 Dr. Chiranjeelal and post mortem report Ex. P/13. We have examined entire evidence in detail and we are of the view that prosecution has fully proved that accused Thawar Mal has inflicted one injury on the head of Moolaram by Sabbal on 12.9.99 at about 10 pm. It is also proved that Moolram has died because of that injury on the same day. 9. In this case we have to examine what offence is committed by the appellant. It is also proved that Moolram has died because of that injury on the same day. 9. In this case we have to examine what offence is committed by the appellant. When we examine all the facts and circumstances of the case we notice that Thawar Mal has inflicted only one injury and after inflicting that injury he ran away from the place of occurrence. Looking to all facts of the case it becomes clear that accused appellant Thawar Mal had no intention of causing death or causing such bodily injury which was sufficient in ordinary course of nature to cause death because if he would have had such intention then positively he would have repeated the blow and he would have not run away from the place of occurrence after causing only one injury. After considering all the facts and circumstances of the case we come to the conclusion that appellant accused Thawar Mal had intention to cause injury which may likely to cause death of Moolaram and with this intention he has inflicted injury on the person of Moolaram with Sabbal, therefore, accused appellant Thawar Mal should be convicted for the offence under Section 304I Indian Penal Code instead of under Section 302 Indian Penal Code. In our considered opinion this appeal should be partly allowed and accused appellant Thawar Mal should be convicted under Section 304I Indian Penal Code. 10. For these reasons, we partly allow the appeal and instead of Section 302 we convict the appellant Thawar Mal under Section 304 Part-I Indian Penal Code and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1,000/-, in default to further suffer six months rigorous imprisonment. Impugned judgment of the trial judge stands modified as indicated above.Appeal Partly Allowed *******