HARLAL ALIAS HARLAL Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) THIS appeal has been filed by the accused appellant against the judgment and order dated 17. 12. 1987 passed by the learned Sessions Judge, Bhilwara in Sessions Case No. 5/87, by which he acquitted the accused appellant of the charges for the offence under sections 147, 323 IPC, but convicted him for the offence under section 304 Part-I IPC in place of 302 IPC and sentenced him to undergo seven years RI and to pay a fine of Rs. 1,000/-, in default of payment of fine, to further undergo RI for six months. By the same judgment, the learned Sessions Judge has acquitted the accused Narain, Chatra, Naula, Surja and Ramnath of the charges for the offence under sections 147, 323/149 and 302/149 IPC.

(2.) THE facts giving rise to this appeal, in short, are as follows :- On 12. 11. 1986 at about 7. 00 PM, a report Ex. P/6 alleged to have been written by PW-8 Sonath was presented in the Police Station Kachhola District Bhilwara by PW9 Devi Lal and in that report, it was stated that on that day at about 2. 30-3. 00 PM, PW8 Sonath was in his house and his sister Mst. Ladu (hereinafter referred to as the deceased) wife of Gopi was being brought in a Truck by PW1 Jagdish Chandra and DW1 Babu and when PW8 Sonath Saw deceased, he found that she had already died and she was having injuries on her head, back and left ribs and blood was also coming out. It was further stated in the report that he heard that she was being killed by her in-laws' of the village Onkarpura and he sent PW-5 Mauja to give information about the death of the deceased and thereafter, after half an hour, his niece Jadav, PW7 (wife of the accused appellant) came there and told him that she alongwith deceased and her children Mema and Jailal was going towards village Ghewariya and when they reached near the Bhuriya Valley near Richiya Magra, then on the way, her husband (accused appellant) and other accused persons Chatra, Surja, Narain, Naula and Ramnath met and at that time, accused appellant was having a lathi in his hand and when accused appellant tried to take his wife PW-7 Jadav forcibly, deceased intervened and upon this, accused appellant gave a lathi blow on the head of the deceased, as a result of which, she fell down on the earth and, thereafter, she was further beaten by the accused appellant. It was further informed by PW7 Jadav that she was also beaten by the accused appellant and she was forcibly taken by the accused persons in the village Onkarpura where she was put in a room and the room was closed and, thereafter, after one hour, accused Chatra opened the door and she was informed that deceased had been taken to village Ghewariya and, thereafter, she also went to village Ghewariya and PW7 Jadav came to know that her mother had died. On this report, police registered the case and chalked out regular FIR Ex. P/11 and started investigation. During investigation, post mortem of the dead body of the deceased was got conducted by PW2 Dr. Satya Prakash on 13. 11. 1986 and the post mortem report is Ex. P/2, where it was opined that the cause of death of the deceased was head injury resulting in extradural haemorrhage. After usual investigation, the police submitted challan against the accused appellant and five other persons in the Court of Magistrate and from where the case was committed to the Court of Session. On 23. 2. 1987, the learned Sessions Judge, Bhilwara framed the charges for the offence under sections 147, 302, 323 IPC against the accused appellant and for the offence under sections 147, 302/149, 323/149 IPC against rest accused persons. THE charges were read over and explained to the accused persons, who pleaded not guilty and claimed trial. In support of its case, the prosecution examined as many as 12 witnesses and got exhibited several documents. THEreafter, the statements of the accused persons under section 313 Cr. P. C. were recorded. In defence, one witness was produced by the accused persons. After conclusion of trial, the learned Sessions Judge, Bhilwara through his judgment and order dated 17. 12. 1987 acquitted the accused Narain, Chatra, Naula, Surja and Ramnath of all the charges framed against them and also acquitted the accused appellant of the charges for the offence under sections 147, 323 IPC, but convicted him for the offence under section 304 Part-I IPC in place of 302 IPC and sentenced in the manner as indicated above holding inter-alia :- 1. That theory of the defence that deceased received injuries because of falling from the Tractor was disbelieved and thus, the learned Sessions Judge did not place reliance on the statements of PW1 Jagdish Chandra and DW1 Babu. 2. That PW7 Jadav, wife of the accused appellant, was assessed as an eye witness of the alleged incident, but her whole statement was not found believable by the learned Sessions Judge and that part of her statement where she has stated that accused appellant gave lathi blow on the head of the deceased, was found reliable. 3. That statement of PW7 Jadav on the point that other accused persons also beat deceased was not found believable by the learned Sessions Judge. 4. That in giving lathi blow on the head of the deceased, the accused appellant had no intention to murder her and therefore, he came to the conclusion that the act of the accused appellant would be covered by the provision of Section 304 Part-I IPC and thus, he had convicted the accused appellant for the offence under Section 304 Part-I IPC instead of 302 IPC. Aggrieved from the said judgment and order dated 17. 12. 1987 passed by the learned Sessions Judge, Bhilwara, this appeal has been filed by the accused appellant.

(3.) PW2 Dr. Satya Prakash states on oath that on 13. 11. 1986 he was Medical Officer, in the Primary Health Centre Kachhola and on that day he conducted the post mortem of the dead body of the deceased and found the following external and internal injuries :- External injuries (1) Lacerated wound 2cm x 1cm x 1/2 cm irregular margins, on left temporal region, clotted blood coming out. (2) Bruise 1cm x 1cm in between two breasts. (3) Abrasion 2cm x 1cm in right lower leg. (4) Abrasion 1cm x 1cm on right knee anteriorly. Internal injury (1) Fracture of temporal bone 1cm x 1cm depressed area extradural haemorrhage present dura and brain tissues congested. He has further stated that the cause of death of the deceased was head injury resulting in extradural haemorrhage. He has proved the post mortem report Ex. P/2.