Har Chand Vs. State of Rajasthan - Court Judgment

Excerpt:
- section 2(k), 2(1), 7 & 40 & juvenile justice (care and protection of children) rules, 2007, rule 12 & 98 & juvenile justice act, 1986, section 2(h): [altamas kabir & cyriac joseph, jj] determination as to juvenile - appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - appellant was arrested on 30.11.1998 when the 1986 act was in force and under clause (h) of section 2 a juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years - it is with the enactment of the juvenile justice act, 2000, that in section 2(k) a juvenile or child was defined to mean a child who had not completed eighteen years of a ge which was given prospective prospect - appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the juvenile justice act, 2000, came into force - juvenile act, of 2000 has been given retrospective effect by rule 12 of juvenile justice rule, 2007 - as such, accused has to be treated as juvenile under the said act. - both accused as well as val chand started quarreling and grappled with each other. he also failed to restrain and pacify. both rama as well as smt. 13. the blood stained soil collected from the place of occurrence as well as the blood stained clothes removed from the dead body, besides the axe so recovered, were kept safely in a sealed packet and, lastly, they were deposited with the rajasthan state forensic science laboratory (rfsl), jaipur, for chemical examination. 11. since appellant was not represented by any advocate, initially dhirendra singh was appointed as amicus curiae to provide him necessary legal aid but, however, since shri dhirendra singh failed to do so, the services of shri a. 12. we have heard the learned amicus curiae for the appellant as well as the learned public prosecutor for the state and perused the impugned judgment as well as the record of the trial court thoroughly and considered the same carefully. dhuli, who were closest relation of the deceased as well as the appellant, did not support the prosecution story and so far as evidence, as well as p. nani, wife of the deceased, as well as p. 7 kumari sangeeta, who is child witness and is the daughter of the deceased, were not present at the time of occurrence and the learned trial judge failed to appreciate their evidence correctly. there is no other admissible as well as reliable evidence to hold that val chand was actually subjected to any such voilent assault by the appellant as a result of which his death had occurred. nani as well as kumari sangeeta, and on the contrary, a scuffle had started between the appellant as well as the deceased val chand and, as is revealed by ex. however, the learned trial judge failed to appreciate this defence theory of the appellant. the appellant had a very strong motive and he armed himself with an axe being a deadly weapon, and entered the house of the deceased and threatened him in case he was not provided with a residential accommodation immdiately he would be done to death. 5 dhuli have also admitted that both appellant as well as deceased were having strained relations because of dispute about the provision for the house accommodation or partition of the one being exclusively occupied by the deceased from which the appellant was forcibly ousted and compelled to live in a rented house. thus, presence of blood stains on the cemented floor as well as in the 'parsal' as is borne out of the statements of p. specialists in surgery, and who attended to the injured-val chand at the dungarpur hospital clearly stated that the injured was unconscious and his condition was serious, smt. , both appellant as well as the deceased were in the house whereat the occurrence took place. they are not wholly reliable witnesses. however, to the extent indicated hereinbefore, they can be relied upon along with the other cogent and reliable evidence of the prosecution. he also failed to pacify the appellant. 8, as well as the statement of p. nani, it is clearly borne out of the evidence discussed hereinbefore that, though daya and rama had a separate house to live in whereas there was only one ancestral house in occupation of the deceased. therefore, on careful and cautious analysis of her evidence, on availability of other reliable evidence, her statement can be safely relied upon which appears to be untainted, truthful and reliable. 47. therefore, it was at the spur of moment that he gave such an only blow and he scrupuloush avoided repetition of head injury as well as the use of sharp-cutting-edged side of the axe. nani and, lastly, daya (brother) all failed to pacify them, the so-called tibial and nose injuries have not been clearly explained it the right sequence of the incident. the same could have been caused by fall was well. 49. thus, a time well over, 48 hours passed before the deceased succumbed to his injuries. so the trial judge has committed an illegality factually as well as legally while holding the appellant guilty of an offence punishable under section 450. i.a.s. godara, j.1. this appeal has been preferred by the appellant, through the jail, against the judgment and order dated 30-5-1994, passed by the learned additional sessions judge no. 1, udaipur whereby the appellant has been convicted under sections 302 and 450, i.p.c. he has been awarded sentence of life imprisonment under section 302, i.p.c. besides a fine of rs. 1000/- and, in default of payment of fine, six months' r. i. besides, he has been convicted under section 450, i.p.c. and sentenced to undergo 5 year's r. i. and to pay fine of rs. 250/- and, in default, to further undergo 3 months' r.i.2. in brief, the prosecution story, giving rise to the present appeal is as follows: this incident is alleged to have taken place on 31 -10-90 at about 10 a. m. at the residence of val chand (deceased), situated in the village karchha. p. w. 3 daya, p. w. 16 rama and the appellant are real brothers of val chand (deceased). val chand was the youngest brother. p. w. 4 hakar is their mother and p. w. 5 smt. dhuli is their married sister. p. w. 6 smt. nani is the wife of val chand (deceased) while p. w. 7 kumari sangeeta is the daughter of the deceased.3. at the time of the occurrence, val chand was present in the 'dhalia' situate in the rear portion of his residence which is shown by mark 'a' in ex. p. 2 (site plan). p. w. 4 smt. hakar, p. w. 5 smt. dhuli, p. w. 6 smt. nani and p. w. 7 kumari sangeeta were present in the house. accused, being armed with an axe, entered the house of val chand and challenged val chand in a threatening posture that in case he (val chand) did not provide him with a house, he would be done to death. the accused without losing any time, immediately inflicted injuries on both legs of val chand with the axe. smt. nani immediately rushed to intervene but she was pushed away by the accused. both accused as well as val chand started quarreling and grappled with each other. they entered the room of the residence of val chand. smt. hakar and smt. dhuli also unsuccessfully tried to intervene and save val chand but without any success. they were also pushed away by the accused. in the mean time, p. w. 3 daya also turned up. he also failed to restrain and pacify. the accused pulled out val chand from his room and brought him to the tadsal marked by 'c' in ex. p. 2 (site plan). it was there in the padsal that the accused inflicted an injury on the head of val chand from the reverse side of the axe, as a result, val chand fell down on the ground and became unconscious. accused immediately went away from there. p. w. 16, rama, who was at his field, came to the spot. both rama as well as smt. nani immediately took val chand to kherwada primary health centre, whereat he was given medical aid by p. w. 8 dr. surendra kumar san war and, looking to the serious condition of the injured val chand, he was immediately referred to the general hospital, dungarpur. he was medically attended to by medical officers at dungarpur. however, since it was aneuro-surgical case and no special services were available there, the patient was referred for further treatment to the ahmedabad hospital. rama and smt. nani, firstly, took val chand to himmatnagar whereat p. w. 19 dr. chiman bhai sanka bhai patel, a private medical practitioner, attended him and since it was a serious case, he further advised to take val chand to the ahmedabad hospital. it was on 1-11-90 when val chand was being taken to ahmedabad at about in the afternoon of 1-11-90, itself, val chand succumbed to his injuries. therefore, his dead body was brought back to his village on 1-11-90.4. p. w. 6 smt. nani lodged ex. p. 8 verbal report with p. w. 20 badami lal, officer-in-charge of the police station, kherwada on 2-11-90 at 4-15 a.m. smt. nani while reporting the aforesaid incident, also alleged that the appellant was annoyed with val chand since he was not provided with a residential accommodation in the parental house occupied by val chand.5. on the basis of ex. p. 8 report, badami lal immediately registered ex. p. 9 f. i. r. he started investigation himself. he inspected the site and prepared ex. p. 2 site plan. he noticed blood stains at the site. he took blood stained soil into his possession. he prepared a panchayatnama and inquest report of the dead body of val chand. he also got performed post-mortem of the dead body of val chand by p. w. 11 dr. ramesh chander, medical officer-in-charge of p. h. c., chhani, on 2-11-90, vide 4 postmortem report. he noticed as many as 7 injuries on the dead body. he also found lacerated wound on both legs of the deceased, as a result .of which tibia bones of both legs were found to be fractured. besides, nasal bone was also found to be fractured. he found a lacerated wound measuring 2.5 cm. x 0.3 cm. x muscle deep with a bruise 4 cm. x 4 cm., situated about 8 cm. above upper margiri of left ear on left parietal region of scalp. the margins of wound were irregular, contused, gaping and, on dissection of the wound, a haematoma measuring 8 cm x 8 cm was found to be present on left parietal region below skin. on further dissection, left parietal bones were found to be depressed and comminuted fractures were noticed, as detailed in. 14 (p. m. r.). rest of the injuries were in the nature of abrasions. they were simple. the medical officer opined that the death of val chand was caused due to the said head injury resulting in a comma.6. the investigating officer seized a baniyan and a payjama found on the dead body, vide ex: p. 11. he arrested the accused appellant on 6-11 -90, vide 22. accused gave him information ex. p. 23 on 7-11-90, that he had hidden the axe in his rented house which he could get recovered at his instance. accordingly, the investigating officer recovered and seized an axe vide ex. p. 13. the blood stained soil collected from the place of occurrence as well as the blood stained clothes removed from the dead body, besides the axe so recovered, were kept safely in a sealed packet and, lastly, they were deposited with the rajasthan state forensic science laboratory (rfsl), jaipur, for chemical examination. on chemical examination vide. 24 report, both the apparels were found stained with human blood and so also the axe was also found to be stained with human blood. on completion of investigation, the officer-in-charge of the police station, kherwada filed a charge-sheet under sections 302 and 452, i.p.c., in the court of the then munsif & judicial magistrate, first class kherwada, who immediately committed the accused to the court of the learned additional sessions judge no. 2, udaipur to stand trial for commission of the aforesaid offences.7. the presiding officer of the court of the additional sessions judge no. 2, udaipur, after hearing the parties, charged the accused-appellant with the commission of offences punishable under sections 302, 449 and 450, i.p.c. (alternatively) to which the accused-appellant pleaded not guilty and claimed to be tried and hence the trial commenced.8. the prosecution examined as many as 20 witnesses, namely, p. w. 1 punji ram, p. w. 2, nawal singh, p. w. 3 daya, p. w. 4 smt. hakar, p. w. 5-dhuli, p. w. 6 smt. nani, p. w. 7, kumari sangeeta, p. w. 8 dr. surendra kumar sanwar, p. w. 9 gotamlal, p. w. 10 dr. s. m. shakil, p. w. 11 dr. ramesh chand, p. w. 12 dr. j. k. tot, p. w. 13 dr. leela chobisa, p. w. 14 bheru singh, p. w. 15 bhanwar singh. p.w. 16 rama, p. w. 17nathulal, p.w. 18 sukh lal, p.w. 19 dr. chiman bhai sanka bhai patel and p. w. 20 badami lal.9. the accused-appellant was also examined under section 313, cr.p.c. he denied his involvement in the alleged incident. he brushed aside statements of p. w. 6 smt nani and p. w. 7 kumari sangeeta as being false and concocted ones. he further stated that smt. nani was not present at the site, at the time of the alleged occurrence. besides, he also stated that val chand had struck his head with the 'chokhat' of his room as a result of which he received the fatal injury. he also alleged that smt. nani and others did not take appropriate steps for proper and timely treatment of val chand as a result of which he had succumbed to his injuries. since val chand and his wife were annoyed with him, so he was falsely implicated. he did not adduce any defence evidence.10. lastely, this case was transferred from the court of additional sessions judge no. 2, udaipur to the court of additional sessions judge no. 1, udaipur who, after hearing the counsel for the parties, convicted and sentenced the accused-appellant as aforesaid and hence this jail appeal.11. since appellant was not represented by any advocate, initially dhirendra singh was appointed as amicus curiae to provide him necessary legal aid but, however, since shri dhirendra singh failed to do so, the services of shri a. k. singh were provided to the appellant, in the aforesaid capacity.12. we have heard the learned amicus curiae for the appellant as well as the learned public prosecutor for the state and perused the impugned judgment as well as the record of the trial court thoroughly and considered the same carefully.13. the learned amicus curiae, assailing the impugned judgment, contended that the learned trial judge had committed serious illegality and irregularity in concluding guilt of the appellant under sections 302 and 450, i.p.c. since p. w. 3 daya, p. w. 16 rama, p. w. 4 smt. hakar and p. w. 5 smt. dhuli, who were closest relation of the deceased as well as the appellant, did not support the prosecution story and so far as evidence, as well as p. w. 6 smt. nani, wife of the deceased, as well as p. w. 7 kumari sangeeta, who is child witness and is the daughter of the deceased, were not present at the time of occurrence and the learned trial judge failed to appreciate their evidence correctly. there is no other admissible as well as reliable evidence to hold that val chand was actually subjected to any such voilent assault by the appellant as a result of which his death had occurred.14. the learned counsel has also contended that there was an inordinate delay in lodging ex. p. 8 report on the basis of which ex. p. 9 f. i. r. was chalked out by p. w. 20 badami lal, s. h. o., kherwada. both rama and nani admitted that while proceeding from their village to dungarpur, kherwada fell in the way and the deceased was also taken to the kherwada hospital for medical aid and thereafter he was taken to dungarpur and onwards. besides, after death of val chand, his dead body was again brought to his village but the incident was not reported to the police station at kherwada. therefore, it is further contended that there was inordinate delay, asaresult of which, smt. nani and others took undue advantage of such an inordinate and unexplained delay resulting in embellishments in the ex. p. 8 report. there was, admittedly, a dispute going on between the appellant and the deceased in regard to the residential accommodation and partition of the parental house in the occupation of the deceased. therefore, smt. nani who might have, naturally, prompted her minor daughter sangeeta to depose against the appellant, being the wife of the deceased is highly interested and as such her presence at the time of the alleged occurrence is not believable and there is no other evidence to connect the accused with the alleged crime. besides, on the basis of statement of p. ws. daya, hakar, dhuli and rama, it is also argued that the appellant never intended to assault val chand fatally and so he did not inflict injury, as alleged by smt. nani as well as kumari sangeeta, and on the contrary, a scuffle had started between the appellant as well as the deceased val chand and, as is revealed by ex. p. 2 injury report, appellant was also hurt in the incident, while the appellant was getting out of the house of the deceased, the latter ran after him and while doing so he struck his head against the 'chokhat' of the door of his room, as a result of which he was seriously hurt. however, the learned trial judge failed to appreciate this defence theory of the appellant.15. the learned public prosecutor has seriously opposed the aforesaid contentions and further argued that the learned trial judge has appreciated the prosecution evidence in its right perspective and the finding of guilt so arrived at by the learned trial judge is not against the evidence on record. the appellant had a very strong motive and he armed himself with an axe being a deadly weapon, and entered the house of the deceased and threatened him in case he was not provided with a residential accommodation immdiately he would be done to death. he intentionally caused a fatal injury with the axe on the head, being a vital part of the body of the deceased, which ultimately resulted in his death. therefore, this appeal deserves to be dismissed.16. before embarking upon initial analysis of the prosecution evidence, it is to be noted that the factum of unnatural and real death of val chand is not disputed. he was the real younger brother of the appellant. p. w. 3 daya and p. w. 16 rama are their elder brothers. though p.ws. smt. hakar, daya and smt. dhuli were named as eye-witnesses in the ex. p. 8 report yet they have, for the reasons not quite unobvious, resiled from their previous police statements and have tried to save the appellant and hence they were declared hostile to the prosecution and were cross-examined by the learned p. p. p. w. 16 rama, admittedly, was at his field and arrived at the scene of occurrence after some time. therefore, statements of p. w. 6 smt. nani, wife of the deceased and their daughter p. w. 7 kumari sangeeta, who is a child witness, are material.17. p. w. 3 daya, p. w. 4 hakar and p. w. 5 dhuli have also admitted that both appellant as well as deceased were having strained relations because of dispute about the provision for the house accommodation or partition of the one being exclusively occupied by the deceased from which the appellant was forcibly ousted and compelled to live in a rented house. it was on 31 -10-89, at about 10 a.m. that the appellant came to the house of the deceased whereat the occurrence took place. so are the statements of p. w. 6 smt. nani and p. w. 7 kumari sangeeta as regards the date, time and place of occurrence. p. w. 20 badami lal, as supported by p. w. 1, punjilal and p. w. 9 gautam lal, stated that he had inspected the site and prepared site plan ex. p. 2, in presence of both the said motbirs. he has observed in ex. p. 1 site memo and ex. p. 2 site plan that blood stains were lying in the inner part of the house marked 'b' and the 'parsal' abutting the front portion of the residence of the deceased. both punjilal and gautam lal have corroborated his statement. besides, badami lal collected dried blood stained (scratched) soil from the place of occurrence and duly sealed its packet. thus, presence of blood stains on the cemented floor as well as in the 'parsal' as is borne out of the statements of p. w. 1 punjilal and p. w. 17 nathu lal, besides p. w. 9 gautam lal, leave no doubt that the occurrence took place in the house of the deceased. this fact is further strengthened from the chemical report of r. f. s. l., jaipur, ex. p. 24 keeping in view statements of p. w. 20 badami la), p. w. 14 bheru singh and p.w. 15 bhanwar singh.18. it is also not disputed that val chand met with an unnatural death though it is a matter of serious challenge as to whether he had died because of having struk his head against the chokhat of the door of his room, as is the defence theory, or he was fatally assaulted by the appellant.19. p. ws. daya, smt. hakar, smt. dhuli, rama, besides p. w. 6 smt. nani and p. w. 7 kumari sangeeta have stated that val chand died due to the injuries, mainly head injury. p. w. 20 badami lal, who prepared ex. p. 3 panchayatnama of the dead body, p. w. 1 punjilal and p. w. 9 gautam lal have also supported it.20. as regards medical evidence, both p. w. 6 smt nani and p. w. 16 rama have stated that the deceased was taken to kherwada, dungarpur and himmatnagar for treatment and he died while in transit to ahmedabad and so his dead body was brought back to their village.21. p. w. 8 dr. s. k. sanwar, gave him medical first aid at kherwada and referred him to general hospital, dungarpur vide ex. p. 8. p. w. 13 dr. leela choubisa, who was on emergency duty at the general hospital, dungarpur attended to him and, referred him to the male surgical ward vide ex. p. 12. she stated that it was a case of multiplie injuries and the deceased was bleeding from the nose. although, right from p.w.6 nani to p.w. 10 dr. s.m. shakeel and p. w. 12 dr. rot, who are jr. specialists in surgery, and who attended to the injured-val chand at the dungarpur hospital clearly stated that the injured was unconscious and his condition was serious, smt. leela choubisa, contrary to it stated, without any rhyme or reason, that the injured was conscious. this is a false statement since the injured had fallen in an unconscious condition the moment he received the head injury. both dr. shakeel and dr. rot have stated that no neuro-surgical expertise was available at dungarpur hospital and even blood could not be made available for transfusion to the injured and hence he was further referred to ahmedabad vide ex. p. 12. on the way to ahmedabad, he was taken to aprivate clinic of p. w. 19 dr. patel who took his own time and lastly vide ex. p. 19, he too referred him to ahmedabad and, on the way to ahmedabad val chand succumbed to his injuries, on 1 -11 -90 (a. n.)- his dead body, on being taken to his village, was subjected to post-mortem by p. w. 11 dr. ramesh ahari, medical officer-in-charge, p. h. c., channi on 2-11 -90, and as many as 7 injuries, as noted above, were found on the dead body. he found nasal bone and tibia bones of both legs fractured. on dissection of the wound found on left parietal region, situated 8 cms. above upper margins of left ear of the size 2. 5 cms. x o. 3 cm x muscle deep and further dissection confirmed left parietal bone's comminuted fracture and its depression was further detected that there was a haematoma 5.00 cms. x 5.00 cms. x 1.00 cm. thick on left side of dura-metter of left cerebal hemisphere of scalp. on its removal, it was further found that membrane was punctured and the brain was found lacerated in an area of 1.4 cm. x 1.00 cm x 1.00 cm, containing dark blood.22. as a result, it was opined that the death was result of the head injury received by the deceased.23. though the prosecution did not seek opinion of the medical officers whether such head injury resulting into damaging brain was sufficient in the ordinary course of nature to cause death, it can very conveniently and positively be concluded that the brain, besides the heart, is the most delicate part of the human body and its survival. so when the same was damaged as a result of which head injury bringing the injured into a state of unconsciousness and resultant coma, his death was almost inevitable and hence such an injury is held to be sufficient in the ordinary course of nature to cause death. there is no serious challenge to it. thus, medical evidence has gone unchallenged as regards violent and unnatural death of val chand is concerned.24. therefore, we now revert to determine (1) whether the deceased was fatally hurt by the appellant accused or the deceased was hurt accidentally while running out of his room by striking his head against the 'chokhat' of the door; (2) in case he was so hurt by the appellant, whether it is a case of murder, homicide not amounting to murder or a simpliciter case of causing grievous hurt. (3) whether the appellant acted in exercise of private right of defence of his person while so injuring the deceased; and (lastly) (4) whether the appellant is rightly held guilty of offence punishment under section 450, i. p.c.25. we take up the points ad-seriatim.26. re: 1 as discussed hereinbefore, the deceased succumbed to his head injury and also received grievous injuries on his nose and both tibial bones.27. the prosecution examined p. w. 3, daya p. w. 4 smt. hakar, p. w. 5 smt. dhuli besides p. w. 6 smt. nani and p. w. 7 kum. sangeeta as eye-witnesses to the occurrence. however, daya, smt. hakar and smt, dhuli, while resiling from their police-statements under section 161, cr.p.c., have not supported their earlier versions, denying that the appellant had inflicted such injuries with axe on the body of the deceased. they were got declared hostile to the prosecution and cross-examined by the prosecution and were confronted with police statements.28. p. w. 3 daya, who is the eldest brother of the appellant, did state that, on the fateful day, at about 10 a.m., both appellant as well as the deceased were in the house whereat the occurrence took place. some altercation took place between them. it related to some family dispute. he resides in the adjoning house. they grappled with each other and, as a result, appellant-harchand fell to the ground. then, val chand while running out of the house, struck his head against the gate of the room and got injured his head.29. p. w. 3 smt. hakar also, toeing the version of her son p. w. 3, narrated that both her sons had so grappled and, on falling down of har chand, the appellant was so hurt while attempting to run out of the room.30. similarly, p. w. 5 smt. dhuli stated that both appellant and deceased started quarrelling and the deceased assaulted the appellant who fell down and the deceased while attempting to run out of the gate, was hurt by striking against the same.31. they have also admitted the defence version that both p. w. 6 smt. nani and her daughter p. w. 7 kum. sangeeta were not present there at the time of the occurrence who had gone to the field to fetch fodder.32. since daya, smt. hakar and smt. dhuli are the brother, mother and sister of the appellant, as also of the deceased, and, on the death of val chand, as is most usual and as the proverb goes 'blood is thicker than water', instead of helping the widow and a helpless destitute daughter of the deceased son, they have turned hostile to come to the rescue of the appellant. they have admitted their presence at the place of the occurrence. it is most natural and it is also borne out of ex. p. 8 f. i. r. they have also supported the prosecution story as regards the date, time and place of the occurrence. besides, they have also admitted presence of the appellant at the place of occurrence and a quarrel having ensued between them in regard to family (property) dispute and then deceased's having been so hurt at the same time, though they have, designedly, in order to defend the appellant, given a different version of the deceased's head injury. they are not wholly reliable witnesses. however, to the extent indicated hereinbefore, they can be relied upon along with the other cogent and reliable evidence of the prosecution.33. p. w. 6 smt. nani, wife of the deceased, stated that both val chand deceased and the appellant had a dispute about the partition of the house since their both elder brothers were living in a newly built up house and, due to some differences and a dispute, the appellant was then living in a rented house. so the appellant came to the deceased, armed with an axe, and aquarrel ensued. she went to extent of deposing that the appellant exhorted that he would not leave him (deceased) alive. this is not borne out of ex. p. 8 and the attending circumstances. she stated that p. ws. smt. hakar, smt. dhuli and kum. sangeeta were also present in the house. val chand was standing in the 'dhalia' and he was threatened to vacate the house for him and he too inflicted injuries with the axe on the legs of val chand deceased. when smt. hakar and smt. dhuli and lastly, she herself tried to intervene, they were all pushed away. in the meantime, p. w. 3, day a also came there. he also failed to pacify the appellant. lastly, the appellant gave a blow of reverse (blunt) side of the axe on the head of val chand who fell down and became unconscious. she, along with p. w. 16 rama, as is also rama's statement, took the injured to kherewada, dungarpur and himmatnagar who breathed his last, on the way to ahmedabad. she lodged 8 report with the police. she emphatically denied the defence suggestion, as has been toed by p. ws. smt. hakar, smt. dhuli and daya, as above, that she had gone to fetch fodder from the fields, along with her daughter, and was not present at the time of the occurrence. this version is also borne out ex. p. 8 report. since p. w. 3 daya, being the eldest brother, who also turned hostile. smt. nani stated in her lengthy cross-examination that daya too aided and abetted the murder of her husband but it is out of consideration since there is no such allegation in ex. p. 8 nor such was the prosecution story.34. she has stated that both legs were of the deceased were cut by the appellant with the axe but no incised injury was found at the time of autopsy of the dead body though tibial bones were found to be fractured.35. she took the deceased to kherewada, dungarpur, himmatnagar and, lastly on way to ahmedabad, he died. naturally, her explanation is quite natural and worth acceptance when she has stated that she was with her husband attempting to get him treated at different hospitals and places and she could not have, naturally, kept her husband in a precarious condition to lodge report with the police at kherwada or elsewhere. naturally, no other family member too, in the circumstances, mentioned hereinfore, could be expected to lodge report against the appellant and hence, after taking dead body back to her house, she got her statement ex. p. 8 recorded in the form of f. i. r., with p. w. 20 badami lal, s. h. 0. therefore, as is seriously challenged from the defence side, no unexplained delay is there. there is also nothing against the conduct and reliability of smt. nani. she is wife of the deceased and her presence at the place of occurrence is most natural and worth believable. she would be the last person to depose falsely against the appellant to save the real author of the injuries to the deceased, if it were so.36. she did admit in her cross-examination that p.w.1 punji ram had got ex. p. 8 report written to the s. h.o. p. w. 20 badami lal ex. p. 9 an r i. r. under section 154, cr.p.c., based on ex. p. 8 reports was chalked out at the police station. both ex. p. 8 and ex. p 9 bear signatures of smt. nani who has stated that she reached the police station at 4 p.m. on 2-11 -90, and lodged the report. maybe, since all the facts were explained to p. w. 1 punji lal who accompanied her to the police. ex. p. 8 was scribed in his presence, and she did state that contents of ex. p. 8 were correct to her knowledge and no challenge was made to p. w. 20 badami lal that ex. p. 8 version was not given by p. w. 6 smt. nani and hence there is nothing to disbelieve the version 6f ex. p. 8, as well as the statement of p. w. 6 smt. nani. she suffers from no disqualification nor there is any infirmity in her statement to view the same with suspicion. her graphic account of the whole incident belies all objections against the same.37. besides, though motive is not an ingredient of the offence and not necessary to be proved but, in the case in hand, even p. ws, daya, smt. hakar and smt. dhuli, as also deposed to by smt. nani, it is clearly borne out of the evidence discussed hereinbefore that, though daya and rama had a separate house to live in whereas there was only one ancestral house in occupation of the deceased. prior to few months from the occurrence, since the wife of the appellant was allegedly pushed away by the deceased and, being annoyed, appellant's wife reported the matter to the police and she started living separately, when the appellant was at kuwait. on return from kuwait, the appellant got annoyed as he alone was not provided with any house to live in while, including the deceased, all others had their houses, so the appellant wanted a share in the house occupied by the deceased and hence he had approached him to get the matter settled for ever. this was the apparent motive for the appellant to have picked up a quarrel with the deceased and to have assaulted him. no argument against the same is sustainable.38. likewise, the medical evidence, as discussed hereinbefore, corroborates the version of p. w. 6 smt. nani as is also borne out of 8 report.39. p. w. 7 kum. sangeeta, aged about 7 to 8 years is a child witness. her presence along with her parents, in the house is most natural. in her unsworn statement, she has deposed that it was the appellant who had come armed with an axe, inflicted injuries on the legs and head of her father (deceased) with the axe. she maintained that she along with her mother p. w. 6 nani was present and refuted the suggestion that they were at their fields and came there after the incident. she is a child witness and being daughter of the deceased, total possibility of any prompting by her mother p. w. 6 smt. nani cannot be excluded. however, besides the testimony of smt. nani, there is other circumstantial evidence to the effect that the appellant alone inflicted injuries on the person of the deceased resulting in his death. therefore, on careful and cautious analysis of her evidence, on availability of other reliable evidence, her statement can be safely relied upon which appears to be untainted, truthful and reliable. there is one more important factum of recovery of the axe, vide ex. p. 13. p. w. 20 badmi lal, as corroborated by ex. p. 13, recovery memo, stated that he arrested the appellant vide ex. p. 22 arrest memo who gave him information under section 27. evidence act, vide ex. p. 23 that he had kept the axe in his rented house and, in furtherance of such information, he got the axe recovered vide ex. p. 13 recovery memo, prepared in presence of p. w. 9 gautam lal, sarpanch and p. w. 18 sukhlal, who are signatories thereof, besides the appellant. though both gautam lal and sukhlal have turned hostile and denied to have witnessed the recovery of the axe, however, they did admit their signatures on ex. p. 13 and did not give any plausible explanation to have signed ex. p. 13.40. there is nothing on record to disbelieve the testimony of p. w. 20 badami lal. appellant has signed ex. p. 22, ex. p. 23 and ex. p. 13. that being so, having regard to the totality of facts and circumstances, the prosecution has proved beyond doubt that the axe was recovered on the basis of disclosure statement ex. p. 23 made by the appellant and the same was immediately sealed and kept intact and sealed till the same was deposited with the r. s. f. s. l. for chemical examination along with the blood stained soil and clothes of the deceased, as are the statements of p. w. 20 badami lal, p. w. 14 bhairon singh and p. w. 15 bhanwar singh. on chemical examination, vide ex. p. 24, all those articles including the axe were found to be stained with human blood. there is nothing against it. though blood grouping could not be determined yet the scratched soil taken from the place of occurrence and the blood stained clothes taken from the body of the deceased and so also the axe bore human blood stains and the appellant did not explain the same otherwise.41. therefore, the factum of discovery of the blood stained axe further strengthens the prosecution story that the appellant did use the axe to assault the deceased as are the statements of p. w. 6 mani and p. w. 7 kum. sangeeta.42. p. ws. daya, smt. hakar and smt. dhuli have falsely stated that when both the appellant and the deceased grappled with each other, har chand fell down and val chand while attempting to run out of the house struck against the 'chokhat' of the door and got hurt. this was theirs a never case during investigation. blood stained, that too of human, axe has been discovered pursuant to disclosure statement of the appellant and that too from his own residence. this supports the versions of p. w. 6 smt. nani and p. w. 7 kum. sangeeta, as is also borne out of ex. p. 8 report. deceased had no rhyme or reason to run out of his own house so forcefully. besides the seat of head injury by itself leaves no doubt that the same was inflicted with such a deadly weapon and else the same must have been either on the frontal or mid part of the head. so this is nothing but an after thought defence and is brushed aside as a false and concocted one.43. therefore, the learned trial judge has rightly believed the statements of p. w. 7 smt. nani and p. w. 7 kum. sangeeta along with the supporting evidence, discussed hereinbefore, and also committed no error in discarding the defence theory. accordingly, point no. (1) is decided affirmatively in favour of the prosecution.44. re: (21 and (3) since both pointes are interrelated, the same are conveniently disposed of together.45. as discussed and held above, it was the appellant alone who went to the house of his younger-deceased brother to demand share in and partition of the ancestral house which was then in exclusive occupation of the deceased and the appellant alone did not have any house falling to his share and as such relations between the two were strained. he demanded settlement of this problem but a sudden quarrel started and, in the process, as is stated by p. w. 6 smt. nani, the appellant inflicted injuries on the legs of the deceased but by the reverse side of the axe, though the scuffle did not end at that stage also and, while exchanging hot words, this all culminated into grappling with each other and, lastly, the appellant gave a blow of the reverse side of the axe on the left parietal region. he did not wait or stop, thereto repeat any blow. he immediately went away. however, this head injury brought the deceased to a stage of unconsciousness which he never regained, ultimately, after more than 48 hours, he succumbed to the same injury.46. as regards injuries of the appellant, as is borne out of the statement of p. w. 8 dr. s. k. sanwar and ex. d. 2, m. l. r. prepared by him, show that the appellant received three minor injuries in the form of laceration, abrasion and a bruise and the appellant has denied the incident and his role in the same. it is never the case of the appellant that since he was subjected to any assault or that he reasonably apprehended any threat or grievous or even simple injuries much less death, likely to be caused by the deceased to enable him to have acted in exercise of private right of person and thereby causing injuries to the deceased in exercise of such a right. there is absolutely no evidence that he was subjected to any such assault by the deceased. on the contrary he took an axe and went to the house of the deceased and threw him a challenge to settle the dispute of house for ever. their mother and sister were present there. they conversed and exchanged hot words, grappled with each other, during the process the appellant appears to have inflicted injuries on the legs of the deceased though the injury of nasal bone is unexplained. the appellant took care not to use sharp-edged-cutting side of the axe. he had every opportunity to do so. his dominant intention was to persuade the deceased to give him share in the house since, out of all the four brothers, he alone was without his own house and he wanted a separate share in the house in occupation of the deceased. however, the deceased was not agrreable to the same and so this unfortunate row resulted in scuffling, and grappling with each other, lastly, in the inflation of the head injury. thus, the appellant did not act in exercise of his private right of person since the deceased did not possess any weapon to assault him. he was not aggressive. he was in his own house. this was the appellant alone who went there armed and throwing such a challenge to give his share in the house, after a sufficiently long gap of time resulting in exchange of hot wards, scuffling and grappling, the appellant seized the opportunity of landing a single blow of blunt side of the axe on the head of the deceased.47. therefore, it was at the spur of moment that he gave such an only blow and he scrupuloush avoided repetition of head injury as well as the use of sharp-cutting-edged side of the axe. this head injury alone proved to be fatal while the rest of the injuries did not contribute to the death of the deceased. since both the brothers were quarrelling am i their mother, sister and smt. nani and, lastly, daya (brother) all failed to pacify them, the so-called tibial and nose injuries have not been clearly explained it the right sequence of the incident. however, it all leaves no doubt that the appellant alone is the author of all such injuries. he is not even prima facie found to have acquired any sort of right of private defence of person and so to have acted in exercise thereof therefore, the learned trial judge rightly negatived this plea and we also do not feel any justification to arrive at a different conclusion.48. in this view of the matter, now it is to be considered as to what offence has been committed by the appellant. as is borne out of the aforesaid discussions, the appellant came with a dominant intention to insist for provision for his residence and consequential share in the same house to which the deceased appears resistent and so the gradual scuffle and grappling ensued and the appellant used the axe, only from its blunt and reverse side in assaulting the deceased, out of seven injuries of ex. p. 14 p. m. r., besides the tibial and nasal bone, excluding head injury, rest and simple and their origin too is not clear. the same could have been caused by fall was well. however, theory of accidental causation by stirking against the 'chokhat' has already been negatived. so the appellant did not intend to cause any injury with the sharp-cutting side. besides, though he had every opportunity, he did not assault the deceased at the first sight. he did not repeat head injury too. the deceased did not get a proper medical treatment. he was taken to kherwada, dungarpur and himmatnagar. it took about 48 hours to transport him from one hospital to another. he was unwarrantedly retained by dr. patel for x-ray etc. and, lastly, again referred to ahmedabad hospital. he ought to have been despatched in an ambulance, under medical care, to ahmedabad whereat neuro-surgical expertise was available. rest of all intermediaries hardly proved to be of any help of him. dr. snaked also stated that immediate blood transfusion was needed hut nobody volunteered the same and so blood deficiency too also contributed to his death. dr. paid also stated that it could not he said with certainty that even after proper and timely treatment, the death could have been avoided.49. thus, a time well over, 48 hours passed before the deceased succumbed to his injuries. 50. that being so. having regard to the totality of circumstances, the appellant did not intend to cause death with the intention or knowledge as required by section 300. i.p.c. and looking to the nature of the dispute, antecedents, resultant quarrel, nature of injuries caused, time gap between the incident and death, nature of treatment given, the appellant can be clothed with the knowledge that the injury which he was causing was likely to cause the death hut without any intention localise death or cause such bodily injury as was likely to cause death. therefore, the offence under the circumstances, so committed by the appellant would he one which would fall under section 304 part ii. i.p.c. and not under section 302. i.p.c. as held by the trial court.51. both the points are decided accordingly.52. re: 4. as regards commission of offence punishable under section 450. i.p.c. as already detailed herein before, appellant and the deceased are real brothers. they were living jointly in the same house. however, barely almost 6 months or so prior to the incident, since the deceased quarrelled with the appellant's wile and so she started living separately in a rented house. at the time, the appellant was at kuwait whereat his deceased brother too used to work. on appellant's return, following the deceased's return earlier, he wanted a separate provision for residence or a share in the ancestral house then in exclusive use of the deceased. he entered the house to which he had a bona fide claim as a co-sharer and his dominant intention was only to assert his right and claim and not either to insult or annoy or intimidate any or the inmates of the house, it was in presence of his mother, sister and the deceased himself. he went to the deceased and insisted for the settlement of his demand for residential accommodation. however, their conversation picked up heat and. after quite some, the unfortunate incident occurred. besides. p. w. 5 smt. dhuli has staled that the appellant came to fetch firewoods from there. p. w. 7 ku. sangeeta too stated that the wife of the appellant came to their house to fetch food-grains and she was collecting the same, it all tends to show that ingredients as required by section 441. i.p.c. specially the requisite criminal intention (mensuria) is missing. since fire-woods, food-grains etc. were lying stored/collected in the ancestral/parental house so the house was not inaccessible to the appellant and his family members. that being so. where' no offence of criminal trespass is made out no offence punishable under section 450, i.p.c. could he held to have been made out. so the trial judge has committed an illegality factually as well as legally while holding the appellant guilty of an offence punishable under section 450. i.p.c. so the accused is entitled to he acquitted of this offence.53. this point stands decided against the prosecution.54. in the result, on the basis of facts and circumstances discussed herein before, this appeal is worth acceptance in part. the appellant is proved to be guilty of commission of an offence punishable under section 304 part ii. i.p.c. while he deserves to be acquitted of offences punishable under sections 302 and 450 i.p.c.55. therefore, this appeal is accepted in part. the appellant-accused is acquitted of the offences punishable under sections 302 and 450.i.p.c. and sentences passed thereunder are set aside. instead, he is convicted of offence punishable under section 304 part ii. i.p.c. and is sentenced to 6 year's rigorous imprisonment and a fine of rs. 1,000/-. in default of payment of fine, he is to further undergo sentence of one year's rigorous imprisonment. on realization of fine, the same is ordered to he paid as compensation to smt. nani. wife of the deceased and ku. sangeeta jointly.