Rajasthan High Court - JodhpurSmt.Keshar vs State & Ors on 9 August, 2012Author:Govind MathurBench:Govind Mathur1.



             D.B. CRIMINAL APPEAL NO.298/2012

                           Smt. Keshar
                               Vs.
                    State of Rajasthan & Ors.


               DATE OF ORDER :        9th August, 2012


             HON'BLE MR. JUSTICE GOVIND MATHUR
             HON'BLE MS. JUSTICE NIRMALJIT KAUR

Mr. Tanwar Singh Rathore, for the appellant.
Mr. KR Bishnoi, Public Prosecutor.
                                ...This appeal by the complainant Smt. Keshar arises out of

the judgment and order dated 01.11.2011 passed by learned

Sessions Judge, Dungarpur recording conviction of accused-

respondents for culpable homicide not amounting to murder

under Section 304 Part-III.P.C. and awarding sentence to

undergo seven years' rigorous imprisonment with a fine of

Rs.5000/-. In the event of default in payment of fine, further to

undergo three months' simple imprisonment.The appeal is barred by limitation from 51 days, thus, an

application as per provisions ofSection 5of Limitation Act is also

preferred.     Learned counsel for the accused-respondents is

having no objection if the delay caused is condoned. Accordingly,

the application is allowed, the delay in filing the appeal is

condoned.2.With the consent of learned counsel for the parties and

learned Public Prosecutor the appeal is heard finally today itself.The short case of the prosecution, inter alia is that on

22.6.2011 at about 5:00 pm accused Lal Shankar and Harish

were quarelling with Mohan Ram, a neighbourer of deceased

Suraj Mal. With the intention to disburse the quarelling parties,

Suraj Mal intervened     but he was slapped and pushed by Lal

Shankar and Harish, consequently he fell down and suffered a

head injury. Smt. Keshar, the appellant, made a report of the

incident at Police Station, Vardha on which a case was lodged

against the accused-respondents for the offences punishable

underSections 447,323and504I.P.C.          During the course of

treatment   injured    Suraj   Mal     died    on   01.7.2011,   thus,

investigation for offence punishable underSection 302I.P.C. was

also initiated.   A police report then was filed before the

competent court and the case was committed to the Court of

Sessions.   Learned    Sessions    Court      charged   the   accused-

respondents for the offences described underSections 447,504and302I.P.C. and on denial of the same, the trial commenced.The prosecution supported its case with the aid of 15

witnesses including eye-witnesses Smt. Keshar (PW-1), Jayanti

lal (PW-4), Mohan Ram (PW-5), Shankar Lal (PW-9) and Jagdish3.(PW-13). The statements of Dr. Tarun Kumar (PW-10) and Dr.

Manish Bajaj (PW-11) who treated the deceased too were

recorded.   Dr. Govind Gupta (PW-6), who conducted autopsy on

the person of deceased was examined as PW-6. An opportunity

was given to the accused-respondents to explain the adverse

circumstances available in the prosecution evidence, wherein the

accused-respondent Harish pleaded alibi       whereas accused-Lal

Chand termed the entire case as false and concocted. In defence

statements of DW-1 Harish Chandra and DW-2 Moti Lal were

recorded.   After recording the entire evidence, the trial court

acquitted the accused-respondents from the charge pertaining to

offence underSection 302I.P.C. but recorded conviction for the

offence described under Section 304 Part-III.P.C. and sentenced

them accordingly.In appeal, the contention of learned counsel for the

appellant is that the trial court failed to appreciate that as per

the eye-witnesses the accused persons brutally assaulted the

deceased for about 10-15 minutes and, as such, they were

having an intention to kill Suraj Mal. It is also stated that as per

the medical opinion, the deceased was having a serious internal

head injury and that was the cause of death.        The trial court

failed to notice that the head injury was given by the accused-

respondents.4.While opposing the appeal, the submission of learned

counsel for the accused-respondents is that              even as per

prosecution evidence the accused persons were not at all

intending to indulge in any quarrel with the deceased, but only

on his intervention a slap was given resulting into his fall on the

ground, that resulted into a   head injury, as such, the crime if

any committed by the accused persons does not travel beyond

the offence described and punishable under Section 323 I.P.C.Heard learned counsel for the parties.From perusal of facts averred in the judgment impugned it

reveals that PW-1 Smt. Keshar stated that in the evening of 22nd

June, 2011 Lal Shankar and Harish were quarelling with Mohan

Ram and Jayanti. Her husband Suraj Mal intervened and tried to

stop the accused-respondents from uttering abusive words. The

accused   persons     then   gave    fist   blows   to    Suraj   Mal,

consequentially he fell down. Mohan Ram, Jayanti, Jagdish and

Champa then carried Suraj Mal to his house and then to

Dungarpur Hospital. He remained indoor patient at the Hospital

for 2-3 days.       Suraj Mal then was taken to Udiapur for

treatment, where he stayed for 5-6 days.        On 30th of June he

returend to his native place and on 30th July he died.5.PW-4 Jayanti Lal stated that on 22.6.2011 at about 5:00

pm he and his father were at their floor mill. Accused Lal

Shankar and Harish came there and started quarelling with

them.   Deceased Suraj Mal, uncle of this witness came at the

spot of occurrence and intervened in the matter. Accused Harish

then gave a fist blow and also gave certain blows by foot.

Deceased Suraj Mal then fell down and was taken to Dungarpur

Hospital. After 2-3 days injured Suraj Mal was taken to Udaipur,

wherefrom he was again brought to Dungarpur. On 01.7.2011

he died.PW-5 Mohan Ram (brother of deceased Suraj Mal) stated

that on 22.6.2011 at about 5:00 pm he and his son Jayanti were

on their floor mill. Accused Harish and Lal Shankar came there

and started abusing them. Shri Suraj Mal then came to the spot

and intervened in the matter. The accused persons gave him

fist blows, consequently he fell down. Suraj Mal then was taken

to Dungarpur Hospital, where he remained as an indoor patient

for about 2-3 days. He was then taken to Udaipur for further

treatment. He remained under treatment at Udaipur for 5-6

days, then was brought to Dungarpur, where he died on 01st

July, 2011.6.PW-9 Shankar Lal stated that accused Lal Shankar and

Harish on 22nd June at about 5:00 pm were quarelling with

Mohan Ram. Suraj Mal, Keshar and Jagdish came there. Suraj

Mal was beaten by Lal Shankar; consequentially he fell down.

Suraj Mal was taken to Dungarpur Hospital, where he remained

indoor patient for 2-3 days. He then was taken to Udaipur

wherefrom he returned to Dungarpur and subsequent thereto

died on 1st June, 2011.PW-13 Jagdish (grand-son of deceased) also stated that

accused Harish and Lal Shankar were abusing Mohan Ram. Shri

Suraj Mal intervened in the matter and he was beaten by the

accused persons. He received injury on falling down. Shri Suraj

Mal remained in hospital for three days at Dungarpur and then

he was taken to Udaipur. On 1st July Shri Suraj Mal died.The prosecution also produced Dr. Tarun Kumar (PW-10)

to support prosecution case. Dr. Tarun Kumar stated that Suraj

mal was admitted to Geetanjali Hospital, Udaipur on 24th Jund,

2011 and remained under treatment upto 30th June, 2011. He

also stated that on the basis of CT Scan Report, Suraj Mal was

found to be having brain hemorrhage. PW-11 Dr. Manish Bajaj

also stated that being referred by Dr. Tarun he scanned Suraj

Mal and gave his report, that is available on record as7.Exhibit-P/9.    PW-6 Dr. Govind Gupta, the Medical Jurist, who

conducted autopsy on the person of deceased Suraj Mal stated

the cause of death was ante-mortem head injury.On examination of the evidence adduced by the eye-

witnesses referred above, it is clear that as a matter of fact the

accused persons were having no grievance with deceased Shri

Suraj Mal, but with Mohan Ram. They were abusing Mohan Ram

when deceased Suraj Mal intervened in the matter.             On his

intervention,   the   accused   persons   gave   him   fist   blows,

consequently he fell down and received injury.    Suraj Mal then

was taken to Dungarpur Hospital where he remained indoor

patient for about 2-3 days and then he was taken to Udaipur,

where also he availed treatment for about five days. Suraj Mal

then returned to Dungarpur on 30th June and died on 1st July.The treating doctors PW-10 and PW-11 also stated about

brain hemorrhage suffered by the deceased, however, no

evidence is available on record to establish that the accused

persons were having any intention to kill Suraj Mal or to give

him any such bodily injury that may result into death. The

culpable homicide in the instant matter is apparently committed

without any pre-meditation in a sudden flight in a heat of passion

upon a sudden quarrel. No undue advantage appears to be taken8.by the accused persons.       It also appears that the remedial

         treatment was given to Suraj Mal at Dungarpur as well as

         Udaipur and after availing it he returned to Dungarpur where he

         did on 1st June, 2011. The death might have been caused on not

         resorting to proper and skillful treatment. In any case, we are

         satisfied that the trial court rightly acquitted the accused-

         respondents from offence punishable underSection 302I.P.C.

         The appeal is having no merit, hence dismissed.It is made clear that the adjudication of issue in this appeal

         filed by the complainant in no manner shall adversely affect the

         appeal preferred by the accused persons questioning validity,

         correctness and propriety of their conviction for the offence

         punishable under Sections 304 Part-II and 447 I.P.C.Let the record of S.B.    Criminal Appeal No.984/2011 (Lal

         Shankar @ Lalit @ Lala & Anr. Vs. State of Rajasthan) be

         de-tagged from this appeal.[NIRMALJIT KAUR], J.                    [GOVIND MATHUR], J.


Sanjay
 9.