Mangia vs The State of Raj.

Banwari Lal Sharma, J.—This appeal has been filed against the impugned judgment of conviction and order of sentence dated 14.03.1990 passed by the learned Additional Sessions Judge, Rajasamand in Criminal Case No. 7/1988 whereby the appellant-accused was convicted for the offences under Sections 304-II, 447 and 323 IPC and was sentenced as under:-

U/s.304-II IPC: Four years'' rigorous imprisonment.

U/s.447 IPC: One month''s simple imprisonment

U/s.323 IPC: Six months'' simple imprisonment.

The brief facts of the case are that on 08.06.1987, at about 8.45 p.m., one Bhera appeared before the SHO, PS, Rail Magra and submitted a report, on that day, some scuffle took place between his brother Lehru and Mangia, regarding few bundles of grass, said to have been stolen by Manglu. The said incident was reported to him and his younger Kanna by their mother Jamni on which he and his brother Kanna went to Lehru''s house and when they were talking to Lehru, Mangia (appellant-accused) came there armed with lathi and gave a blow on the head of Lehru due to which he fell down. Thereafter, he further gave 3-4 lathi blows on the hands and back of Lehru and when his mother Jamni came to rescue, she was also beaten. On their raising hue and cry, Dalu Nath, Bholi Ram and Ganga Ram also reached there and appellant-accused Mangia ran away from the place. Thereafter, Lehru was taken to hospital and the matter was reported to the police. Thereafter he was referred to the hospital at Udaipur, where he succumbed to the injuries.

On the basis of the report, an FIR was registered for the offences under Sections 307 and 323 IPC but after the death of Lehru, the case was converted into Section 302 IPC. After completion of investigation, the police filed charge-sheet for the offences under Sections 302, 323 and 447 IPC. The learned trial court, thereafter, framed charges for the aforesaid offences to which the appellant-accused denied and claimed trial.

To substantiate the charges, the prosecution examined as many as 16 witnesses and exhibited documents. Thereafter, the appellant-accused was examined under Section 313 Cr.P.C. in which he stated the prosecution evidence as false and that he has been falsely implicated and did not lead any evidence in defence.

The learned trial court, after hearing, vide impugned judgment of conviction and order of sentence dated 14.03.1990, convicted and sentenced the appellant-accused as aforesaid. Hence, this appeal.

I have heard learned counsel for the appellant and the learned Public Prosecutor.

Learned counsel for the appellant submitted that at the most, the matter comes under the purview of Section 325 IPC only as from the evidence adduced by the prosecution, neither there is intention to kill Lehru nor knowledge that the act of the appellant-accused is sufficient to cause death in the ordinary course of nature. In absence of the same, Section 304-II IPC does not attract. It was submitted that there was no motive to kill Lehru. It was further submitted that the appellant-accused has remained in custody for about three years, therefore, his sentence may be reduced to already undergone. He has placed reliance upon the judgments delivered in the cases of Shanker Vs. State of Rajasthan [2010 (2) WLC (Raj.) 680 ] and Anil Kumar Chouhan Vs. State of Rajasthan .

Per contra, the learned Public Prosecutor supported the impugned judgment of conviction and order of sentence and submitted that the prosecution has been successful in establishing its case beyond reasonable doubt and thus the learned trial court has rightly convicted him. So far as sentence is concerned, it was submitted that the learned trial court, while considering the over-all facts and circumstances of the case, has only sentenced for four years'' imprisonment, which does not warrant any interference. It was thus prayed that the appeal of the appellant-accused may be dismissed.

I have considered the rival submissions made at the Bar and perused the material available on record.

Before parting with the judgment, I deem it appropriate to scan the evidence led during trial.

Kanna (PW-1), in his statement, deposed that they are three brothers. His brother Lehru and mother live separately and the appellant-accused is his cousin. On the date of incident, at about 7.00 p.m. in the evening he was at house then accused Mangu came to his house and asked to take care of Lehru on which he went to the house of Lehru. When they were talking to Lehru, accused Mangu came there armed with lathi and gave lathi blow on the head of Lehru and further gave 3-4 lathi blows and when his mother tried to intervene, she was also beaten. Thereafter, accused ran away and Lehru was taken to the hospital at Rail Magra and the matter was reported to police and thereafter Lehru was referred to the hospital at Udaipur where he died.

Bhera (PW-2), though turned hostile, but he stated that on the date of incident, at about 6-7 p.m. in the evening, one Pratap Bali came to him and told that there is scuffle between Lehru and Mangia due to which he went to the house of Lehru where he found Lehru lying on chabutri and blood was oozing from his head. His mother told him that Mangia has beaten Lehru. He did not report the matter to the police. In cross-examination, he stated that he went to the police for reporting the matter to the police on the instructions of the doctor at Rail Magra.

Munshi Khan (PW-3) in his statement stated that on 08.06.1987, when he was going to Neema Khera from Sachera in his truck No. RRL 3619, the same was stopped by some persons near a temple at Menia Village and told that somebody has been beaten and he has to be taken to the hospital on which he took them into the truck to Rail Magra. It was also stated by him that the said person was having injury on his head. Thereafter, when again went to Rail Magra, one constable stopped his truck and asked him to leave an injured person at Udaipur as they were not having any vehicle on which he brought that person to Udaipur.

Sawai Ram (PW-4), though turned hostile, but in his statement, he deposed that at the time of incident, at about 5 O''clock, he was sitting in his house when they heard some cry from the house of Lehru where he saw the mother of Lehru who told that Mangia, after beating Lehru, ran away.

Bholiram (PW-5) also turned hostile, but he deposed in his statement that there was some scuffle between Lehru and Mangu. When he returned from his well, he saw some persons at the door of Lehru and Lehru was lying on the floor and blood was oozing. He did not saw Mangu. The brothers of Lehru, viz., Kanna and Bhera were also there. Some other 5-7 persons including Savaram and Gangaram were also there. They also stated that Mangia inflicted injuries but did not state that from which weapon, the beatings were given.

Gangaram (PW-6), in his statement, deposed that at the time of incident, he went to the house of Lehru on hearing cries then he saw that Lehru was lying and there was injury on his head. On being asked, mother of Lehru told that Mangia has beaten Lehru.

Kera (PW-7) proved Panchnama of body (Ex.P/10).

Shambhoo Singh (PW-8) also turned hostile. He in his statement deposed that nothing was recovered in-front-of him. However, he admitted his signatures on recovery memo (Ex.P/6).

Ramchandra (PW-9) stated that on 19.06.1987, he received three sealed packets which he deposited at FSL, Jaipur.

Dalunath (PW-10) also turned hostile. He deposed in his statement that he did not saw any incident.

Dr. Anil Choudhary (PW-11), in his statement that he examined the injuries of deceased Lehru when he was alive and prepared injury report (Ex.P/15). He found the following injuries:-

(1) Diffuse Bruise 1/2" X 1/4" over both eye-lids.

(2) Diffuse swelling 3"X2" over right sided frontol parietal part of scalp.

(3) Swelling 2" diameter (app.) on left fore-arm in lower 1/3rd part.

It was also stated by him that all the injuries were caused by a blunt weapon. Thereafter, the injured was referred to hospital at Udaipur. It was also stated by him that the injury No. 2 was dangerous to life.

Dr. Pramod Kumar (PW-12) stated that on 09.06.1987, he was posted as Medical Jurist at General Hospital, Udaipur. He conducted postmortem of the body of the deceased and prepared postmortem report (Ex.P/16), wherein the cause of death was shown as coma due to head injury with trauma of liver.

Jamni (PW-13), in her statement, deposed that her son Lehru was killed by accused Mangu. She does not know as to why he was killed. When she went to intervene, she was also given beatings.

Dr. Babulal (PW-14), who examined the injuries of Jamni (PW-13) and found one injury, viz., painful swelling 2 X 1/4" at the level of L-4 and L-5 vertebra, caused by blunt weapon.

Rajendra Kumar (PW-15) investigated the matter and deposed about the investigation.

Mohan Singh (PW-16), in his statement deposed that on 08.06.1987, he received oral information from Bhera, on which he registered case No. 57/1987 and thereafter he went to the place of incident and prepared site inspection memo (Ex.P/3). Thereafter, he recovered blood-stained godri and prepared Ex.P/4.

From a careful scrutiny of prosecution evidence, it reveals that Kanna (PW-1) and Jamni (PW-13) are the eye-witnesses. There statements are corroborative to each other. No contradiction is revealed from their statements. It was stated by them the appellant-accused, armed with lathi, reached at the house of the deceased and gave lathi blow on the head of the deceased. Dr. Pramod Kumar (PW-12), who conducted postmortem, opined the cause of death in his report (Ex.P/16) as coma due to head injury with trauma of liver. Though, other witnesses have turned hostile but they, in their respective statements, clearly stated that they saw the deceased lying on the floor at the place of incident in injured condition. The first injury was inflicted by the appellant-accused on the head of the deceased, which is vital part and this injury resulted into diffuse haematoma of huge size over fronto parietal scalp, extra dural haematoma over both cerebral hemisphere on parietal sides, diffuse haematoma over right cerebral hemisphere over parietal and temporal side and depressed fracture of right tempo-parietal and temporal bone extending to left parietal bone and was the cause of death. From the perusal of nature of injuries, it reveals that the lathi blow was inflicted with such a great force, which resulted into above injuries. Not only this, after this injury, more blows were inflicted, which clearly shows that the appellant-accused was having knowledge that the injury on head of deceased shall result into his death. Thus, it cannot be said that the case falls only under the purview of section 325 IPC. The learned trial court, while considering all these aspects of the matter, has rightly held the petitioner-accused guilty for the offence under Section 304-II IPC.

So far as motive is concerned, motive in criminal case is irrelevant where evidence of the eyewitnesses is available. In this case, there were two eye witnesses, therefore, the absence of motive could have no importance whatsoever.

So far as sentence is concerned, the appellant-accused was sentenced for four years for the offence under Section 304-II IPC.

In the matter of Shankar (supra), an old lady was murdered and while considering the matter as 24 years old, the Division Bench of this court reduced the sentence to already undergone.

In the matter of Anil Kumar Chouhan (supra), the Division Bench of this court while considering the matter as 28 years old and that the incident had essentially been the result of a love affair, reduced the sentence to already undergone.

The Hon''ble Supreme Court, in the matter of Sunil Kumar and Another Vs. State of U.P., (2010) 1 JT 1 : (2010) 1 SCALE 36 : (2010) 2 SCC 5 : (2010) 2 SCR 289 : (2010) AIRSCW 6885 , for the offence punishable under Section 304-II IPC, where the incident took place in the year 1982 and sentence awarded was 4 years, observed as under:-

"In fact, the punishment is on the lenient side. After all, one young life was lost at the young age of 22 years. While considering the sentence, merely because the appeal pended and merely because the incident had taken place long back would not by itself justify any interference with the punishment, particularly when the punishment itself is a lenient one."

In the case in hand also, one person of 30 years of age died and the learned trial court, while considering over-all facts and circumstances of the case, awarded only 4 years'' sentence for the offence under Section 304-II IPC, which, in view of the aforesaid judgment of the Hon''ble Court, is a lenient view and does not warrant any interference.

In view of the above, I find no ground to interfere with the impugned judgment of conviction and order of sentence. The appeal has, therefore, got no merit and deserves to be dismissed, which is hereby dismissed.

The appellant-accused is on bail. He is directed to surrender before the learned trial court for serving the remaining sentence forthwith, failing which, the learned trial court is directed to take steps to send him in State custody.

Record of the court below be sent back with a copy of this judgment.