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2017 DIGILAW 2124 (RAJ)

Babu Khan @ Alim Khan v. State of Rajasthan

2017-10-04

GOVIND MATHUR, VINIT KUMAR MATHUR

body2017
JUDGMENT : Govind Mathur, J. This appeal is before us to examine correctness of the judgment dated 3.10.2008, passed by learned Additional Sessions Judge (Fast Track), Nagaur, recording conviction of accused Babu Khan @ Alim Khan for the offence punishable under Section 302 Indian Penal Code. 2. In brief, facts of the case are that on 28.7.2007 at about 10:00 PM a written report addressed to Station House Officer, Police Station, Mundwa was submitted to Shri Girdhardan, Assistant Sub Inspector, Police Station, Mundwa at Government Hospital, Nagaur by Hakam Ali stating therein that on the same day at about 06:30 PM his wife Smt. Bhanwari Bano, Akhtar, Mainu were taking care of cattle grazing in their fields. At that time his brother Babu Khan alias Alim Khan, Razia, Daud, Sabir, Kamudi, Baudi, Dakha came there and tried to raise fencing. On being objected, a lathi blow was given to Smt. Bhanwari Bano by Babu Khan and Daud caused an injury by 'kawadia' to Akhtar. Sabir was armed with a kassi and he along with other persons participated in the incident. As a consequence to the incident aforesaid Smt. Bhanwari Bano died at the spot and an information in this regard was given to him telephonically by his son. 3. On basis of the written report, a case was lodged for the offences punishable under Sections 147, 148, 149, 447, 323 and 302 Indian Penal Code. After regular investigation accused Babu Khan and Daud Khan were charge sheeted and were charged for the offences punishable under Sections 302/34, 447 and 323 Indian Penal Code. On denial of the same trial commenced as desired. 4. The prosecution supported its case with the aid of 16 witnesses, several documents and two articles. An opportunity was given to the accused persons to explain the adverse circumstances and evidence against them. The accused persons availed opportunity as per provisions of section 313 Code of Criminal Procedure, 1973 to explain adverse and incriminating circumstances available against them in prosecution evidence. A document was also exhibited in defence. 5. The trial court, after examining the entire evidence available on record, acquitted accused Daud Khan, however, recorded conviction of the appellant for the offence punishable under Section 302 Indian Penal Code. Accordingly, he has been sentenced to undergo life term imprisonment with a fine stipulation. 6. A document was also exhibited in defence. 5. The trial court, after examining the entire evidence available on record, acquitted accused Daud Khan, however, recorded conviction of the appellant for the offence punishable under Section 302 Indian Penal Code. Accordingly, he has been sentenced to undergo life term imprisonment with a fine stipulation. 6. In appeal, the only argument advanced by learned counsel appearing on behalf of the appellant is that even by accepting the prosecution case, the offence said to be committed by the appellant does not travel beyond an offence described under Section 304 Part-II Indian Penal Code. As per learned counsel for the appellant deceased Smt. Bhanwari Bano though suffered seven injuries but out of those one was a fatal injury and remaining are simple abrasions. It is further submitted that the entire incident is an out come of spontaneous heated circumstances and no evidence is available on record to establish any intention on part of the accused to kill Smt. Bhanwari Bano. 7. Learned Public Prosecutor, while opposing the appeal, submits that the appellant caused a serious head injury to deceased Smt. Bhanwari Bano and that itself is sufficient to establish his intention to cause murder of Smt. Bhanwari Bano. It is asserted that the accused forcefully entered into the fields of deceased and then caused a fatal injury. 8. Heard learned counsels and scanned the entire record. 9. At the threshold, we would like to state that there is no doubt about homicidal death of Smt. Bhanwari Bano. As per medical evidence available on record the cause of death of Smt. Bhanwari Bano was shock due to the injury to spinal cord and brainstorm. 10. Learned trial court recorded conviction of the accused appellant mainly by relying upon the evidence adduced by Shri Akhtar Khan (PW-1) son of deceased Smt. Bhanwari Bano. Shri Akhtar Khan (PW-1) is an injured eye witness and according to him on the fateful day at about 06:00-06:30 PM, he alongwith his mother Smt. Bhanwari Bano and brother Moinuddin were taking care of cattle grazing at their fields and at that time Babu Khan with Daud and Sabir came there. Smt. Razia, Kamudi, Baudi and Dakha were also accompanying them. Shri Babu Khan happens to be real uncle of this witness being elder brother of Shri Hakam Ali, husband of Smt. Bhanwari Bano. Smt. Razia, Kamudi, Baudi and Dakha were also accompanying them. Shri Babu Khan happens to be real uncle of this witness being elder brother of Shri Hakam Ali, husband of Smt. Bhanwari Bano. According to Akhtar Khan (PW-1), he made a request to Babu Khan for not raising any kind of fence at the land disputed. Accused Babu Khan did not give any heed and continued with fencing at the disputed land. Smt. Bhanwari Bano also objected raising of fence at the disputed land, therefore, accused Babu Khan caused a head injury to her. The other persons accompanying Shri Babu Khan too participated in the quarrel and caused injuries to this witness as well as to Moinuddin. As per this witness, he informed Shri Hakam Ali (PW-2) about the incident and then Smt. Bhanwari Bano was taken to Government Hospital, Nagaur where she was declared dead. 11. Shri Hakam Ali (PW-2) stated before the court that after receiving the information he rushed to the hospital and on availing necessary details he submitted a report in writing to the Station House Officer, Police Station, Mundwa. 12. From perusal of the evidence discussed above, it is apparent that the entire incident occurred as there was some dispute pertaining to land whereon the accused made an effort to raise fence. This act was objected by the deceased and during this course accused caused a fatal injury to deceased. Suffice to mention that the weapon offence is nothing but a lathi and further that the appellant was not carrying any other lethal weapon with him. There is no evidence available on record to establish that the accused came to the disputed land with an intention to cause death of Smt. Bhanwari Bano. As a matter of fact the parties had some dispute pertaining to their ancestral land and while making an effort to mark the land or to say have possession over the land the crime in question occurred. In entirety, we are of considered opinion that by no stretch of imagination the crime committed by the appellant could have been treated as a murder as defined under Section 300 Indian Penal Code and punishable under Section 302 Indian Penal Code. On appreciation of the evidence available on record, we are of the opinion that the crime committed is nothing but an offence punishable under Section 304 Part-II Indian Penal Code. 13. On appreciation of the evidence available on record, we are of the opinion that the crime committed is nothing but an offence punishable under Section 304 Part-II Indian Penal Code. 13. In view of the finding arrived, this appeal is allowed in part. The conviction of accused Babu Khan alias Alim Khan son of Salim Khan for the offence punishable under Section 302 Indian Penal Code is set aside. The accused appellant is convicted for an offence punishable under Section 304 Part-II Indian Penal Code and is sentenced to undergo rigorous imprisonment for a period of eight years with a fine of Rs. 15,000/-, out of that a sum of Rs. 10,000/- is required to be paid to complainant Shri Hakam Ali as per provisions of section 357 Code of Criminal Procedure, 1973.