Ramlal @ Habudia Vs. State of Rajasthan - Court Judgment

MATHUR, J.

In view of the fact that earlier appointed amicus curiae is not in position to assist the Court in the matter, we appointed Shri Birbal Saran as an amicus curiae. He, after going through the entire record, has assisted the Court.

The judgment impugned is dated 4.7.2005, passed by learned Additional Sessions Judge (Fast Track) No.1, Bhilwara in Sessions Case No.78/2004, convicting the accused appellant for an offence punishable under Section 302 Indian Penal Code, and awarding sentence for life term with a fine of Rs.2000/-.

In brief, facts of the case are that on 29.6.2003 a written report was submitted by one Shri Mahavir Prasad Kumhar to the Station House Officer, Pander at 06:10 PM with assertion that his younger brother Sanwarlal Kumhar and Lalaram Kumhar went to Shahpura from their village to purchase some domestic goods. While returning they stayed to drink water at their agricultural land close to the road of village Kadisahna, where accused Ramlal son of Bhuju Kumhar came and gave an axe blow on the head and neck of Sanwarlal. Lalaram, Bheru Kumhar and Chauthmal Balai witnessed the incident. Sanwarlal then was taken to the hospital for treatment, where he died.

On basis of the report aforesaid a criminal case was lodged and regular investigation commenced for an offence punishable under Section 302 Indian Penal Code. The investigating agency after concluding the investigation submitted its report to the competent court.

Learned Additional Sessions Judge, Gulabpura Camp Shahpura framed the charge against the accused and on denial of the same trial commenced. The prosecution during the course of trial supported its case with the aid of 22 witnesses (PW-1 to PW-22) and by exhibiting documents Ex.P/1 to Ex.P/35. An opportunity was given to the accused appellant to explain the adverse circumstances appearing in the prosecution evidence. The accused denied all the allegations and stated that he has been falsely implicated in the criminal case. Learned trial court settled two issues for convenient adjudication and those are:-

(1)Whether the accused on 29.6.2003 at about 04:00 PM made an assault on Sanwarlal Kumhar with an intention to cause his death? Whether Sanwarlal died on 29.6.2003 because of injuries received on his head and neck? And

(2)If the conclusion of the issue above mentioned is established beyond shadow of doubt, then for what sentence the accused is liable?

The trial court after examining the entire evidence available on record held the accused appellant guilty for the offence punishable under Section 302 Indian Penal Code, thus, recorded the conviction and awarded the sentence.

In appeal, the argument advanced by learned amicus curiae is having two folds:-

(1) that the evidence available on record is not sufficient to establish guilt of the accused appellant.

(2) even on acceptance of the prosecution case absolutely, the act of the accused appellant does not travel beyond the offence punishable under Section 304 Part-I Indian Penal Code.

We have considered the arguments advanced and also the record available.

Dr. Ashok Kumar Jain (PW-15) conducted autopsy on the body of deceased Sanwarlal, thus, he has verified the postmortem report submitted by the medical board. As per the postmortem report Ex.P/23 the person of deceased Sanwarlal was having following five injuries:-

(1) lacerated cut wound 3” x 1” x 1 cm on face at upper lip extending upto tip of nose.

(2) swelling with asymmetry of face distributed to whole of right side of face.

(3) lacerated wound 2” x 1 cm x 1 cm on right chick, 3” below right eye.

(4) lacerated wound 6” x 1” x 1 cm on left parietal bone just near to midline of skull.

(5) lacerated wound 3” x cm x cm on left frontal bone 2” alone left eye brow.

Out of five injuries aforesaid, the injury No.4 was found fatal and as per the medical opinion death was caused due to brain injury resulting from head injury. In view of the medical evidence available on record, there is no doubt about homicidal death of Sanwarlal.

Learned trial court founded its conclusions on the testimony of the eye witnesses viz. Lalaram (PW-7), Manoharlal Paliwal (PW-9), Bheru Kumhar (PW-13) and Chauthmal (PW-17).

PW-7 Lalaram is the person who was accompanying deceased Sanwarlal. As per this witness he and Sanwarlal while coming from Shahpura stayed at their well in village Kadisahna, accused Ramlal was already present there and he abused them. While going on cycle towards the village accused Ramlal came from back and gave an axe blow on the head of Ramlal. An information then was given to Mahavir about the incident and Sanwara was taken to the hospital, where he died.

PW-9 Manoharlal though was cited as an eye witness, but as a matter of fact he has not supported the prosecution case. He simply stated that on 29.6.2003 at about 05:00 PM he heard some hue and cry and somebody informed him that accused Ramlal has given an axe blow to Sanwarlal. This witness quite specifically stated that being standing about 150 meters away, it was practically impossible for him to recognise any person involved in the incident.

PW-13 Bheru Kumhar stated that he heard some hue and cry and on reaching at the place of occurrence he found Sanwarlal lying down on the road with certain injuries on his head and mouth. As per this witness Chauthmal, Lalaram and Manoharlal informed him about giving axe and lathi blows to Sanwarlal by Ramlal. A definite statement was given by this witness that he saw Ramlal running from the spot carrying a lathi and a stone in his hands.

PW-17 Chauthmal is an independent person who categorically stated that Ramlal gave an axe blow to Sanwarlal and on seeing other persons coming towards him he fled from the spot. In cross examination this witness reiterated the incident with assertion that accused Ramlal was having an axe and he gave a blow from it on the head of deceased.

PW-18 Bherulal was the Station House Officer of police station Pander and he investigated the entire matter. Thus, he narrated all the steps taken during the course of investigation.

On pondering of the statements given by the eye witnesses PW-7, 9 and 17 with adequate corroboration from PW-13, we are having no doubt that an axe blow was given by the accused on the head of deceased Sanwarlal which resulted into his death. As such, the involvement of the accused in the crime in question is established beyond any shadow of doubt. The only question, that requires consideration, is about the nature of offence committed him.

On examination of entire evidence, we do not find any material available on record to disclose that the accused was having any intention to kill Sanwarlal. As per the prosecution witnesses, on reaching at the well in village Kadisahna accused first abused the deceased and Lalaram, and subsequent thereto he gave an axe blow. The accused after seeing certain other persons coming towards the spot of occurrence, fled therefrom, leaving the weapon of offence at the spot itself. From the statements of PW- 9 and 17, it appears that some altercations occurred between the accused and the deceased before assault. He has given one grievous injury. The accused was having axe in his hands, thus, he would have any intention to kill Sanwara, he would have repeated his act. The accused must be having a knowledge that the bodily injury given by him by sharp edged weapon like axe may cause death, but was not intending to kill Sanwara, therefore, we can impute only this much intention of the appellant that the injury inflicted by him on the vital part of the body of the deceased was likely to cause death and this act comes within the purview of Section 304 Part-I Indian Penal Code.

For the reasons given above, this appeal is allowed in part. The conviction and sentence of the accused appellant for an offence punishable under Section 302 Indian Penal Code recorded by the trial court is set aside. The accused appellant is held guilty for an offence punishable under Section 304 Part-I Indian Penal Code. Accordingly, he is sentenced to undergo ten years rigorous imprisonment with a fine of Rs.500/-. In event of default in depositing the fine, the accused appellant shall be liable to further undergo one month's rigorous imprisonment.