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IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR.
J U D G M E N T
Dula Ram vs. State of Rajasthan
D.B.Criminal Appeal No.796/2003
against the judgment dated
17.7.2003 passed by Additional
Sessions Judge, Deedwana, in
Sessions Case No.36/2002.
Date of Judgment :: 10th March, 2010
P R E S E N T
HON'BLE MR.JUSTICE GOVIND MATHUR
HON'BLE MR.JUSTICE C.M.TOTLA
Mr. Rajesh Panwar, for the appellant.
Mr. Anil Upadhyay, PP, for the State.
....
BY THE COURT : (PER HON'BLE MATHUR,J.)
For the offences punishable under Sections
302, 324 and 323 IPC, the accused appellant was
convicted under judgment dated 17.7.2003, passed by
learned Additional Sessions Judge, Deedwana and was
ordered to be sentenced as under:-
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302 IPC : life term with a fine of Rs.500/- and in
default to which further to undergo five months
rigorous imprisonment;
324 IPC : one year’s rigorous imprisonment with a fine
of Rs.200/- and in default to which further to undergo
two months simple imprisonment; and
323 IPC : three months rigorous imprisonment with a
fine of Rs.100/- and in default to which further to
undergo one month’s simple imprisonment.
In brief, the facts of the case are that PW-
4 Smt. Bhanwari Devi on 2.9.2002 made a statement
before the Station House Officer of Police Station
Maulasar that on the same day at about 09:00 AM her
son Dula Ram gave an axe blow on the head of his wife
Smt. Shanti and also gave an axe blow to her when she
went into the room on hearing cry of Smt. Shanti. As
per statement, Dula Ram then ran away from the house
and on way he also gave an axe blow to Smt. Soni who
was passing through the path. Smt. Bhanwari Devi also
stated that from last about 15 days Dula Ram was not
feeling well and he was making a complaint about his
mental condition. On basis of the statement aforesaid
(Ex.P/16) a case was registered for the offences
punishable under Sections 302 and 307 IPC and after
regular investigation a charge sheet was filed. The
matter then was committed for trial and charges were
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framed for the offences punishable under Sections 302,
307, 323 and 324 IPC. The accused appellant denied the
allegations and desired for trial.
The prosecution supported its case with the
aid of 22 witnesses, out of whom PW-4 Bhanwari Devi
and PW-5 Soni Devi are the eye witnesses. The
prosecution also got 43 documents (Ex.P/1 to Ex.P/43)
exhibited. PW-21 Jitendra Singh being investigating
officer stated about the steps taken while
investigating the matter and PW-16 Dr. Moti Raj
conducted autopsy on the body, thus approved his
postmortem report. As per the postmortem report the
body was having an antemortem incised wound 3½” x 2″ x
2″ deep from left nuchel line to neck. And the cause
of death in opinion of Dr. Moti Raj was shock because
of head injury and loss of blood as a consequent to
the injury aforesaid. The weapon of offence was
recovered on 2.9.2002 on basis of disclosure made by
the accused. The weapon was having blood stains
matching with the blood group of deceased Smt. Shanti.
The Forensic Science Laboratory’s report is available
on record as Ex.P/24.
PW-4 Smt. Bhanwari Devi, who is mother of
accused, was declared as hostile witness, however, the
trial court while relying upon the statements of PW-5
Smt. Soni Devi, PW-10 Hardeen Ram, PW-11 Nathi Devi,
PW-12 Rampal and the investigating officer PW-21
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Jitendra Singh, found the accused appellant guilty for
the offences concerned and sentenced accordingly.
While challenging the conviction recorded
and the sentence awarded, the contention of counsel
for the appellant is that even by accepting the entire
case of the prosecution no case of culpable homicide
amounting to murder is made out as in the instant
matter motive and intention of causing death is
conspicuously absent.
While opposing the argument advanced,
learned Public Prosecutor urged that the injury given
by accused to his wife on a vital part clearly
establishes that he was intending to kill Smt. Shanti.
He further pointed out that the accused after giving
axe blow to his wife also assaulted his mother
Bhanwari Devi and PW-5 Smt. Soni Devi with axe and
that clearly establishes that he wanted to abscond
from the place after committing the offence.
Having considered the arguments advanced and
on examination of record, we are of the view that
ample evidence is available on record to establish the
fact relating to death of Smt. Shanti as a consequent
to axe blow given by the accused.
True it is, PW-4 Smt. Bhanwari Devi did not
support the prosecution case, however, the statements
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of PW-5 Smt. Soni Devi in detail narrates the entire
incident. As per Smt. Soni, on the date of occurrence
when she was on way to her parental field one other
lady Manbhari wife of Balu Ram came to her and
informed that Dula Ram has given an axe blow to Smt.
Bhanwari. She also found Smt. Bhanwari lying down
unconscious on path. She further stated that Dula Ram
killed his wife. In cross examination too she
reiterated with all confidence whatever she stated
during examination in chief. It is pertinent to note
that Smt. Soni is real sister of accused and she also
received an injury because of an axe blow given to her
by accused Dula Ram.
PW-10 Hardeen Ram, PW-11 Nathi Devi and PW-
12 Rampal also deposed before the court and
corroborated whatever stated by Smt. Soni. The
evidence relating to recovery of blood stained weapon
and medical evidence also establishes killing of Smt.
Shanti as per prosecution story.
As already stated above, blood stained axe
was recovered from the accused and the blood stains
matched with blood group of deceased Smt. Shanti.
Learned counsel for the appellant too looking to all
the facts and circumstances of the case confined his
argument to the extent of determination of offence
committed by the appellant. Thus, precisely the
question before us is whether the instant one is a
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case of murder or culpable homicide not amounting to
murder?
As per parcha bayan Ex.P/16, Dula Ram gave a
single blow to Smt. Shanti and then to Smt. Bhanwari
and then while running he also gave certain injuries
to Smt. Soni who is his real sister. PW-4 Smt.
Bhanwari Devi was declared hostile, however, PW-5 Smt.
Soni stated that when he was going to the place of
occurrence she found her mother lying unconscious on
the way and she was having an injury. No evidence is
available on record to establish intention of the
accused to give a bodily injury to Smt. Shanti with an
intention to kill her. It is also the position
admitted that deceased was having a single antemortem
injury. If the accused was having any intention to
kill her then he had opportunity or to say that no one
was there to stop him from doing so. In these
circumstances we are of the view that the offence
committed by the accused is of giving a bodily injury
sufficient to cause death without having intention to
kill Smt. Shanti, therefore, the conviction under
Section 302 IPC is not proper. So far as conviction of
the accused under Sections 324 and 323 IPC are
concerned, those have not been even challenged in this
appeal by counsel for the appellant.
In view of whatever discussed above, we are
inclined to accept this appeal in part. Accordingly,
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the same is partly allowed. The judgment impugned
dated 17.7.2003 is set aside to the extent of
conviction of appellant Dula Ram son of Keshra Ram for
an offence under Section 302 IPC and he is convicted
for an offence under Section 304 part-II IPC.
Accordingly, the sentence of life term with fine of
Rs.500/- is also modified and is substituted by
sentence of rigorous imprisonment for a term of eight
years with fine of Rs.500/- and in default to which
further to undergo five months rigorous imprisonment.
The conviction and sentence awarded by the trial court
for commission of offences under Sections 324 and 323
IPC are maintained.
( C.M.TOTLA ),J. ( GOVIND MATHUR ),J. Mathuria KK/ps.