ANKERI Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) This is an unfortunate case where the husband, wife and their minor daughter were tried for offences punishable u/ S. 302 read with S. 34 and Ss. 323 and 324 read with S. 34, I.P.C. The Sessions Court convicted all the three accused u/ S. 302 read with S. 34, I.P.C. and sentenced each of them to undergo life imprisonment and to pay a fine of Rs. 50/- each, in default of payment of which to undergo one month's R.I. The husband Harphool and the daughter Saroj were further convicted u/S.324 read with S. 34, I.P.C. and sentenced to undergo four months' R.I. The wife Ankeri was convicted u/ S. 324, I.P.C. and sentenced to undergo four months' R.I. All the three of them were further convicted u/S. 323 and S. 323 read with S. 34, I.P.C. and sentenced to undergo two months' R.I. All the three of them preferred an appeal to the High Court. The Division Bench of the High Court having noticed that Saroj (daughter) was aged only 14 years, set aside her conviction and sentence and remitted the case to the Magistrate for disposal according to law. So far as Harphool and Ankeri, namely, the husband and wife, are concerned, the High Court confirmed their convictions and sentences passed by the learned Sessions Judge. Both of them preferred a special leave petition to this Court against the judgment of the High Court but leave was granted in respect of Ankeri and dismissed as against the husband Harphool. Therefore, we are concerned only with Ankeri, the wife. The prosecution case is that there was some quarrel between the accused and the deceased Raju regarding the picking up of fire-wood in the field. Thereupon, Harphool inflicted a jaili blow over the head of Raju and also on the eyes. Raju fell down. P.W. 9 the wife of the deceased, who was also working in the field ran towards the field where her husband fell down and it is alleged that the accused Ankeri gave a kulhari (axe) blow over her head and Saroj, the daughter, also inflicted jaili blow over her. The further case of the prosecution is that all the three accused lifted the deceased, took him and threw him near the telephone pole and started beating him. In the meantime, P.W. 1, the Sarpanch and others came and they questioned the accused as to why they were beating him. After inflicting some more blows, the accused went away. The injured persons were taken to the hospital. The deceased died and P.W. 9 was treated for her injuries. The prosecution mainly relied on the evidence of P.Ws. 1 and 9 and the accused pleaded not guilty. The learned Sessions Judge as well as the High Court have examined the evidence of P.Ws. 1 and 9 in detail. The doctor who examined the deceased found 17 injuries, out of them except injuries Nos. 6 and 7, rest were found to be incised but simple. On internal examination, the doctor found fracture on the-skull but there was no corresponding external injury. The doctor opined that the injuries Collectively with their Internal effect were sufficient in the ordinary course of nature to cause the death. He also opined that depressed fracture on the temporal region was also sufficient in the ordinary course of nature to cause the death by itself. The doctor also found some injuries on P.W. 9 including an incised wound, a contusion and an abrasion.

(2.) The presence of P. W. 9 at the scene of occurrence cannot be doubted and her evidence is corroborated by the evidence of P.W. 1. Therefore, the prosecution has established the participation of Harphool and his wife Ankeri, the appellant before us.

(3.) So far as the appellant is concerned, Mr. S. M. Jain, learned Senior Counsel, submits that it is not a case where she could be convicted by application of Section 34 for the reason that it is only Harphool who started the attack and the head injury which resulted in the fracture could have been caused only by him. The further submission is that there was no intention whatsoever on the part of the appellant to cause the death of the deceased; nor it can be said that she shared the common intention with her husband Harphool, inasmuch as no injury alleged to have been caused by her was at least grevious and doctor's opinion being that injuries were simple and in those circumstances, the offence at the most committed by her would be culpable homicide, not amounting to murder.