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2010 DIGILAW 723 (RAJ)

Mogji v. State of Rajasthan

2010-03-31

C.M.TOTLA, GOVIND MATHUR

body2010
JUDGMENT 1. - By judgment dated 8.5.2003, learned Additional Sessions Judge (Fast Track), Dungarpur, convicted the appellant accused for the offences punishable under Sections 302, 325 and 323 Indian Penal Code and also awarded sentence as under: 302 IPC : Life Imprisonment with a fine of Rs. 1000/- and further to undergo one year's simple imprisonment in event of default of making payment of fine; 325 IPC: Three years' rigorous imprisonment with a fine of Rs. 500/- and further to undergo six months' simple imprisonment in event of default of making payment of fine; and 323 IPC: One year's rigorous imprisonment with a fine of Rs. 100/- and further to undergo one month's simple imprisonment in event of default of making payment of fine. 2. As prosecution that he rushed to his younger brother Mogji's house on hearing cry of Smt. Kesar at about 02:00 AM. At that time his , r prosecution story, one Bhema son of Deva Meena on 17.3.2002 at about 08:00 AM orally reported at Police Station Aa.mother Smt. Goman and Thawra son of Bhagwan also came there. All these persons found that Mogji son of Deva Meena gave a lathi blow to Smt. Kesar consequent to which she died. Bhema then went to the residence of Thakur Gordhan Singh and narrated the entire incident before him and then he came to the police station. 3. On basis of the information aforesaid a criminal case was lodged, regular investigation was conducted, a charge sheet was filed, case was committed to the Court of Sessions and charges for the offences punishable under Sections 302, 325 and 323 IPC were framed. On denial of charges, trial was conducted. 4. The persecution supported its case with the aid of 14 witnesses and 21 documents (Ex. P/ 1 to Ex. P/21). As per provisions of Section 313 Cr.P.C. accused appellant was put forth to explain the circumstances available against him in the evidence adduced by the prosecution. As per the accused he was falsely implicated in a criminal case due to some dispute relating to partition of land. 5. Learned trial Court after examining the entire record convicted the accused for the offences punishable under Sections 302, 325 and 323 IPC and sentenced accordingly. 6. As per the accused he was falsely implicated in a criminal case due to some dispute relating to partition of land. 5. Learned trial Court after examining the entire record convicted the accused for the offences punishable under Sections 302, 325 and 323 IPC and sentenced accordingly. 6. In appeal, it is urged by counsel for the appellant that the evidence available on record is not at all adequate to establish guilt of the appellant for the offence punishable under Section 302 IPC. It is also urged that the witnesses on whom the trial Court relied upon are not trustworthy. 7. We have examined the arguments advanced and also scrutinised the entire record. 8. PW-5 Dr. Prakash Bakhru conducted autopsy on the dead body of deceased Kesar and, thus, proved the postmortem report Ex. P/13. As per medical evidence the cause of death was the head injury i.e. the injuries those are injury No. 1, 3 and 4. Dr. Prakash Bakhru also examined Smt. Goman, mother of accused, who also received injury due to the blow said to be given by accused. Smt. Goman was haining two grievous injuries and three simple injuries. 9. PW-14 Shri Banshilal was Station House Officer of Police Station Aaspur and he investigated the entire matter, thus, narrated all the steps taken during the course of investigation. 10. PW-1 Bhema is real brother of accused Mogji and he stated that on hearing cry he rushed to the house of Mogji where he found that his uncle Thawra was also present. He further stated that Mogji did not allow them to enter into their house, however, their mother Goman was already present in the house. This witness then went to the house of Thakur Gordhan Singh and informed him about the incident. 11. PW-2 Smt. Goman is mother of accused Mogji and she too was injured. As per this witness Mogji gave a wood blow on the head of Kesar as a consequent to which she died. She further stated that Mogji gave two wooden article blows to her. As per this witness accused also tried to burn Goman and Kesar by pouring Kerosene. In cross examination this witness accepted that she is having four sons and some dispute remains between them regarding partition of land. 12. PW-3 Thawra is uncle of accused Mogji and he proved recovery of blood stained clothes as per Ex. As per this witness accused also tried to burn Goman and Kesar by pouring Kerosene. In cross examination this witness accepted that she is having four sons and some dispute remains between them regarding partition of land. 12. PW-3 Thawra is uncle of accused Mogji and he proved recovery of blood stained clothes as per Ex. P/10 and Ex. P/11. 13. PW-4 Dhulia son of Kachru established recovery of certain articles as per Ex. P/6 , P/10 and P/11 and also proved the arrest of Mogji before him. 14. PW-7 Gordhan Singh son of Dulhe Singh stated that on 17.3.2002 Bhemji and Thawra came to him and informed that Mogji has killed his wife Kesar and also gave beating to Smt. Goman. This witness then went to the residence of Mogji where he found Mogji sitting inside the room, an earthen lamp was lightened and Mogji's mother was lying outside the room. Inside the room dead body of Kesar was lying and on asking Mogji said that he killed Kesar in heat of moment. 15. The evidence discussed above clearly establishes that death of Kesar was a culpable homicide due to the cause referred in Ex. P/13. As per Smt. Goman who is an eye witness of the incident, accused Mogji gave a wooden article blow on the head of Kesar and that resulted into her death. Smt. Goman herself is injured and she suffered two grievous and three simple injuries. Smt. Goman is mother of accused and as such in normal course there is no possibility of giving any false evidence by her against her son. No material is available on record on basis of which it can be inferred that there was something so serious or abnormal compelling Smt. Goman to give false evidence against her own son. As such, we are not at all impressed with the argument advanced by counsel for the appellant that the evidence available is not trustworthy. As a matter of fact all the witnesses on whom the trial Court relied upon appears to be quite innocent and trugtworthy. They have stated all the facts in most straight forward manner. Smt. Goman is mother of accused, Bhema is real brother of accused and Thawra is real uncle of accused. Beside the above, two sisters-in-laws of accused also deposed against him. They have stated all the facts in most straight forward manner. Smt. Goman is mother of accused, Bhema is real brother of accused and Thawra is real uncle of accused. Beside the above, two sisters-in-laws of accused also deposed against him. An independent person Thakur Gordhan Singh in quite unambiguous terms narrated the event of incidence and in his presence the accused categorically stated that he gave a wooden article blow during heat of moment. On basis of the evidence available, we are having no doubt that Smt. Kesar died because of a wooden article blow given by accused and Smt. Goman suffered two grievous and three simple injuries because of beating given by accused Mogji. As such, the offence punishable under Sections 325 and 323 IPC are established beyond any doubt. 16. The important issue now survives is that whether Culpable homicide of Kesar amounts to murder or not. 17. From the statements of PW-7 Gordhan Singh it is quite clear that wooden article blow was given by the accused to Smt. Kesar during heat of moment. The accused certainly caused a bodily injury that resulted into death, but no material is available on record to establish his intention to cause death. The weapon of offence is also a usual equipment used in agriculture and other labour activities. The accused was in his house and if he was intending to commit murder he would have used some deadly weapon. It is also relevant that no effort was made by the accused to run away from the spot though he was having ample opportunity to do so. On scrutiny of the evidence available, we found that the accused is not guilty for causing a culpable homicide amounting to murder. His act does not travel beyond an offence punishable under Section 304 part - II IPC. 18. This appeal, for the reasons mentioned above, is allowed in part. The conviction of the accused for the offences punishable under Sections 323 and 325 IPC is maintained. The sentence given for the offences aforesaid too is maintained. However, the conviction under Section 302 IPC is set aside and, thus, the sentence of life imprisonment with fine of Rs. 1000/- is also set aside. The conviction of the accused for the offences punishable under Sections 323 and 325 IPC is maintained. The sentence given for the offences aforesaid too is maintained. However, the conviction under Section 302 IPC is set aside and, thus, the sentence of life imprisonment with fine of Rs. 1000/- is also set aside. The accused is convicted for an offence punishable under Section 304 part - II IPC and for that he is sentenced to undergo ten years rigorous imprisonment with a fine of Rs. 500/- and further to undergo one month's simple imprisonment in event of failure to make the payment of fine.Appeal partly allowed. *******