Mehfooz and Others vs State of Rajasthan

On 6.12.2004, at about 8:00 PM, Puja daughter of Basanti Devi, the eyewitness and the first informant was assaulted by the appellant Tikam @ Tinchu and Mehfooz, who caused her injuries with knife.

On 12.1.2005 at 11:50 PM, after the thirty-seven days of the occurrence, Puja died while admitted in JLN Hospital, Ajmer. The cause of death, as per the opinion of the doctor was Septicemia.

The trial court vide the impugned judgment dated 22.4.2009, held the appellants Tikam @ Tinchu and Mehfooz, guilty of offence under Section 302/34 IPC. Both these appellants were also convicted for the offence under Section 4/25 of Arms Act, as from each appellants, Tikam @ Tinchu and Mehfooz, knife was recovered. The appellant Tikam @ Tinchu, Mehfooz, Subhash and Chandra Prakash @ Chandya @ Chand were also convicted for the offence under Section 120-B IPC read with Section 302 IPC. Furthermore, Mehfooz, Subhash and Chandra Prakash @ Chandya @ Chand were also convicted for the offence under Section 3(2)(5) of SC/ST (Prevention of Atrocities) Act, 1989 (hereinafter to referred as the SC/ST Act).

Having convicted the appellants, Tikam, @ Tinchu, Mehfooz, Subhash and Chandra Prakaash @ Chandya @ Chand, for the aforesaid offences, the trial court vide a separate order of even date, sentenced them as under:-

Accused-appellant Mehfooz:

U/s 302 r/w 34 IPC- to undergo life imprisonment and to pay a fine of Rs. 5,000/-, in default of payment of fine to further undergo six month S.I.

U/s 4/25 Arms Act- to undergo one year R.I., and to pay a fine of Rs. 1,000/-, in default of payment of fine to further undergo one month S.I.

U/s 3(2)(5) of SC/ST Act- to undergo life imprisonment and to pay a fine of Rs. 5,000/-, in default of payment of fine to further undergo six month S.I.

Accused-appellant Chandra Prakash @ Chandya @ Chand, and Subhash:

U/s 302 r/w 120-B IPC- to undergo life imprisonment and to pay a fine of Rs. 5,000/-, in default of payment of fine to further undergo six month S.I.

U/s 3(2)(5) of SC/ST Act- to undergo life imprisonment and to pay a fine of Rs. 5,000/-, in default of payment of fine to further undergo six month S.I.

Accused-appellant Tikam @ Tinchu:

U/s 302 r/w 34 IPC- to undergo life imprisonment and to pay a fine of Rs. 5,000/-, in default of payment of fine to further undergo six month S.I.

U/s 4/25 Arms Act- to undergo one year R.I., and to pay a fine of Rs. 1,000/-, in default of payment of fine to further undergo one month S.I.

Hari Narayan, another co-accused of the appellants, deserted the trial before his statement under Section 313 Cr.P.C. could be recorded. He was later apprehended and a separate statement under Section 313 Cr.P.C. was recorded and vide a separate judgment dated 28.10.2014, Hari Narayan was convicted for the offence under Section 120-B IPC read with Section 302 IPC and Sections 3(2)(5) of SC/ST Act. Vide a separate order of even date, Hari Narayan was sentenced as under:-

Accused-appellant Hari Narayan:

U/s 302 r/w 120-B IPC- to undergo life imprisonment and to pay a fine of Rs. 5,000/-, in default of payment of fine to further undergo six month S.I.

U/s 3(2)(5) of SC/ST Act- to undergo life imprisonment and to pay a fine of Rs. 5,000/-, in default of payment of fine to further undergo six month S.I.

Aggrieved against his conviction and sentence, Hari Narayan has filed D.B. Criminal Appeal No. 1058/2014.

A Division Bench of this Court headed by Mr. R.S. Chauhan, J., of which one of us, Mr. Kanwaljit Singh Ahluwalia, J., was also a member, on 20.2.2015, had passed the following order:-

"D.B. Criminal Appeal No. 1174/2009 preferred by Tikam @ Tinchu, D.B. Criminal Appeal No. 414/2009 filed by Subhash and D.B. Criminal Appeal No. 1/2010 filed by Mehfooz and another, are listed for hearing. Meanwhile, Hari Narayan, who at the stage of recording of statement under Section 313 Cr.P.C. had absconded, has preferred D.B. Criminal Appeal No. 1058/2014 against the impugned judgment dated 28.10.2014.

Mr. Vinay Pal Yadav appearing for Hari Narayan submits that the entire prosecution evidence led against Hari Narayan is same as has been led against remaining co-accused, as this appellant had only deserted the trial at the stage of recording statement under Section 313 Cr.P.C. Mr. Vinay Pal Yadav further submits that no evidence in defense has been led.

Therefore, the Registry is directed to prepare minipaper book containing statement of Hari Narayan under Section 313 Cr.P.C. The needful shall be done by the Registry within one week from today. Appeal of the appellant Hari Narayan [D.B. Criminal Appeal No. 1058/2014] shall be taken up for separate and simultaneous disposal along with D.B. Criminal Appeal No. 1174/2009, D.B. Criminal Appeal No. 414/2009 and D.B. Criminal Appeal No. 1/2010.

Mr. Yadav, undertakes to furnish minipaper book qua Hari Narayan in D.B. Criminal Appeal No. 1058/2014 within two days from today.

List these cases on 25.2.2015, along with connected matter. "

Consequently, we will decide D.B. Criminal Appeal No. 1058/2014 separately by passing a separate judgment, however, simultaneously along with D.B. Criminal Appeal Nos. 1174/2009, 414/2009 and 1/2010.

First, we shall decide the appeals preferred by Tikam @ Tinchu, Subhash, Mehfooz and Chandra Prakash @ Chandya @ Chand.

The criminal proceedings were set into motion on the basis of written report (Exhibit-P/6) presented by Basanti Devi (P.W.4), before Kailash Chand (P.W.19) who then posted as S.I., at Police Station Alwar Gate, Ajmer. The written report when translated into English, reads as under:-

"To

SHO, Police Station Alwar Gate, Ajmer.

Sub: For lodging of the report.

Sir,

It is submitted that I, Basanti Devi wife of Ramji Lal is resident of Nonkaran Ka Hatta, Nagra, Ajmer. At present, I am residing at Nagra, Ajmer. Today on 6.12.2004, at about 8:00 PM, I was making bidis at home. My daughter, Puja had gone nearby to purchase vegetables. At that time, I was informed by the resident of Mohalla that two boys are giving beating to Puja. I came running and saw that opposite the house of Moti, my Nandoi (husband of sister of husband), two boys, Tikam and Mehfooz, with the intention to kill, were causing knife injuries to my daughter, Puja. I raised noise. Residents of Mohalla were attracted. Both the accused leaving my daughter, Puja, ran away from the spot. I saw that my daughter, Puja had suffered knife injuries in the abdomen, on both thighs, right feet and elbow of right hand. Due to causing of knife injuries, blood was oozing out. Then police came and brought my daughter to the hospital. I am making the report. Action be taken."

On the basis of above written report (Exhibit-P/6), a formal FIR (Exhibit-P/24) was registered at Police Station, Alwar Gate, Ajmer, for the offence under Sections 341, 326 and 307/34 IPC. Subsequently, the offence under Section 302 IPC was also added. During the course of investigation, the Investigating Officer on 7.12.2004 recorded the statement (Exhibit-P/53) of Puja under Section 161 Cr.P.C. at JLN Hospital, Ajmer. The said statement has been treated as dying declaration by the prosecution. Furthermore, during the investigation, a news cutting (Exhibit-P/10) of daily newspaper, Dainik Nav Jyoti, was also recovered, on which, at the vacant space of advertisement, according to the prosecution, Tikam @ Tinchu had written as under:-

The prosecution relied upon the dying declaration (Exhibit-P/53) and document (Exhibit-P/10) to say that Hari Narayan, Subhash and Chandra Prakash @ Chandya @ Chand were part of the conspiracy and at their instance, Tikam @ Tinchu and Mehfooz had committed the murder. The prosecution further relied upon the report (Exhibit-P/51) submitted by the State Forensic Science Laboratory, Rajasthan, wherein it is opined that the handwriting on the newspaper cutting and the specimen handwriting are having significant and sufficient similarities.

On the basis of report of investigation, all the five accused were committed to the court of Sessions and the trial was entrusted to the court of Special Judge, SC/ST (Prevention of Atrocities) Cases, Ajmer. The appellants were charged for the various offences. They pleaded not guilty and claimed trial. The prosecution commenced its evidence.

Mahendra Singh (P.W.1) in the court stated that he knew Puja and Basanti. Seven months before his deposition in the court, he had not seen any quarrel or fight with Puja. He was not present at the house. He further stated that regarding the occurrence pertaining to Puja, he has read about the same in the newspaper. The witness was declared hostile having not supported the prosecution case. The witness was confronted with his previous statement (Exhibit-P/2) recorded under Section 161 Cr.P.C., but the witness maintained that the accused persons in the court were not present at the scene of occurrence. Surendra Kumar (P.W.3) another eyewitness of the occurrence had turned hostile and has not supported the prosecution case. This witness further stated that in his presence, no site plan was prepared.

However, Basanti Devi, eyewitness of the occurrence and mother of the deceased, appearing as P.W.4 reiterated as to what was stated by him in the written report (Exhibit-P/6).

In the court, Basanti Devi (P.W.4) stated that Puja was her daughter. She used to live with him. On the day of the occurrence, she was making bidis in the house. At about 8:00 PM, Puja had gone to purchase vegetables. Nobody had accompanied her. She had gone alone. This witness heard noise that her daughter has been killed. She went running towards Hatta (Small crossing) of Nankaran and saw that two persons armed with knives, were causing injuries to Puja. They were not tall but of short stature. Puja disclosed their names to her as Mehfooz and Tikam @ Tinchu. She lodged the report at the police station. The police came at the spot. She took Puja to the hospital. Due to injuries suffered, her daughter''s clothes were stained with blood. The witness further stated that she had seen both the persons present in the court while running away from the spot. This witness identified Tikam @ Tinchu and Mehfooz, as the assailants. This witness further proved the written report (Exhibit-P/6) lodged by her. She further stated that the police had taken the clothes of Puja into possession vide memo Exhibit-P/7. She further stated that Puja had not disclosed her, as to why Tikam @ Tinchu had caused her injuries. She further stated that the other accused present in the court are not known to her. She had not named them earlier in her complaint. She further stated that in her statement (Exhibit-P/8), she had not named Chandra Prakash @ Chandya @ Chand, Hari Narayan and Subhash, as accused on whose asking Mehfooz and Tikam @ Tinchu had committed the murder of her daughter, Puja.

Dr. Ashutosh Vyas (P.W.20) on 6.12.2004, was posted as Medical Jurist at JLN Hospital, Ajmer. He had examined Puja, daughter of the complainant on 6.12.2004 and vide injury report (Exhibit-P/24) had found the following injuries:-

"(i) Stab wound 2.5 x 1.0cm, deep on right lateral side M/3 of abdomen, obliquely placed. Margins clean cut regular, Fresh bleeding present.

(ii) Stab wound 3.0 x 1.0cm, muscle deep on right lateral side of right thigh M/3 part, muscle deep, Margins clean cut regular. Bleeding was present.

(iii) Lacerated wound 0.5cm x 0.2cm, on right elbow, skin deep.

(iv) Lacerated wound 4cm x 1cm, on right leg, muscle deep.

(v) Stab wound 2cm x 0.5cm, on left thigh U/3 part, muscle deep."

As stated earlier, Puja died in the hospital on 12.1.2005 at 11:30 PM and her autopsy was conducted by Dr. R.K. Mathur (P.W.16) on 13.1.2005. As per Post Mortem Report (Exhibit-P/23), doctor who conducted the autopsy had found following injuries on her person:-

"(i) Partly healed wound, 3cm x 1cm, on the right fossa, obliquely placed.

(ii) Healed wound on the right thigh 3cm situated laterally, in middle 1/3 part.

(iv) healed wound on the right leg 4cm x 1cm.

(v) Healed wound on the left thigh 2cm x 1cm."

The doctor further stated that Puja was operated upon. Her hands were having stitched wounds and she was smelling of bad smell as her body was filled with pus. According to the opinion of the doctor, cause of death was Septicemia. In cross-examination, this witness admitted it to be correct that in case, Septicemia is controlled, death will not take place. The doctor further admitted to be correct that pus in the body of the deceased and Septicemia had proved to be cause of death. However, the witness further stated that there is no document available with him to say, as to on which date, Septicemia had developed.

As stated earlier, the statement of Puja recorded under Section 161 Cr.P.C., after her death is being treated as dying declaration. She stated that she was residing with her mother. Three years before the occurrence, she was married with Pukharaj Sharma. Six months thereafter, due to strained relationship with her husband, she returned to the house of her mother. She started work of catering. A girl named Sadhna, met her during the course of business. She informed that her brother is confined in jail. Sadhna asked her to meet her brother in the jail. Five years ago, she went to jail and met the appellant, Chandra Prakash @ Chandya @ Chand and later came in contact with his brother Suraj and developed illicit relations with him. The parents of Suraj were annoyed and opposed to the marriage. Therefore, she had lodged a report against Suraj and his parents for the offence of rape at Mahila Police Station. Due to which, Chandra Prakash @ Chandya @ Chand, Hari Narayan and Subhash were having grudge against her. They had given threat to her mother. Few days before the occurrence, she has received phone from Chandra Prakash @ Chandya @ Chand, Hari Narayan and Subhash and they threatened her that she will be liquidated, as she had lodged the report against their parents. She further stated that on 6.12.2004, she was returning after purchasing vegetables and opposite the house of Moti, Tikam @ Tinchu and Mehfooz caused him knife blows and they also told that Chandra Prakash @ Chandya @ Chand and his brothers Hari Narayan and Subhash had ordered them to commit her murder.

Bajrang Lal Sharma (P.W.5) was posted as Constable at Police Station Kotwali. This witness stated that S.I., Rambhanwar Singh (P.W.22) presented a cutting of daily newspaper Dainik Nav Jyoti and the same was taken into possession vide Exhibit-P/9 and the cutting of the newspaper is Exhibit-P/10. We have already reproduced the relevant portion from the newspaper cutting (Exhibit-P/1).

S.I., Rambhanwar Singh (P.W.22), appearing in the court stated that vide Exhibit-P/3, and Exhibit-P/4, Tikam @ Tinchu and Mehfooz were arrested on 17.12.2004, respectively. This witness further stated that the accused appellant Tikam @ Tinchu on 19.12.2004 at 5:00 PM, suffered disclosure statement (Exhibit-P/27) that he can get newspaper cutting recovered by way of which he had informed that work assigned to them has been executed by committing the murder of Puja.

The case of the prosecution is that Head Constable, Kesa Ram (P.W.8) on 17.12.2004, had recovered a cutting of newspaper Dainik Nav Jyoti dated 8.12.2004, from the accused Chandra Prakash @ Chandya @ Chand, who was arrested in a case FIR No. 27/04 registered at Police Station Kotwali, Ajmer, for the offence under Section 307, 386 and 120-B IPC and Section 3/25 of Arms Act. Kesa Ram (P.W.8) had presented the newspaper cutting before S.I., Rambhanwar Singh in the presence of Constable Bajrang Lal (P.W.5) and Constable Mangal Chand (P.W.9).

Having noted the testimony of prominent witnesses, we shall now briefly notice the evidence of remaining witnesses.

Prakash Chandra (P.W.2) had attested arrest memo Exhibit-P/3 and Exhibit-P/4, whereby the accused Tikam @ Tinchu and Mehfooz were arrested.

Indraj Meena (P.W.6) stated that he on 12.12.2004, was posted as Constable at Police Station Alwar Gate, Ajmer. In his presence, the Investigating Officer had taken clothes of the deceased into possession at the hospital vide memo Exhibit-P/7.

Ram Pratap (P.W.7) stated that accused Mehfooz and Tikam @ Tinchu got a separate knife recovered vide memo Exhibit-P/11 and Exhibit-P/14. This witness got exhibited knife recovered from Tikam @ Tinchu, as Article No. 3 and from accused Mehfooz as Article No. 6.

Karan Singh (P.W.11) Constable stated that in his presence, Inspector had arrested Subhash vide memo Exhibit-P/19. This witness further stated that vide memo Exhibit-P/20 Chandra Prakash @ Chandya @ Chand was also arrested. In cross-examination this witness stated that both Subhash and Chandra Prakash @ Chandya @ Chand had come out of jail, on the day they were arrested.

A perusal of the arrest memo of Subhash and Chandra Prakash @ Chandya @ Chand reveal that former arrest of Subhash was effected on 5.1.2005, whereas arrest of Chandra Prakash @ Chandya @ Chand was effected on 17.1.2005.

Balram (P.W.12) Constable also attested the arrest memo Exhibit-P/19, whereby Subhash was arrested.

Ram Kailash (P.W.13) had attested the arrest memo Exhibit-P/21, whereby the appellant Hari Narayan was arrested.

Sheeshram (P.W.14) was also posted as Constable, he had witnessed the arrest memo Exhibit-P/3, whereby Tikam @ Tinchu was arrested. This witness has also witnessed the arrest memo Exhibit-P/4, whereby the Mehfooz was arrested. This witness has also witnessed the recovery of knife from both the accused.

Kamlesh (P.W.15) had attested the Panchayatnama of death of Puja.

Sitaram (P.W.18) had prepared the report under Section 173(3) and had presented the same in the court.

Kailashchand (P.W.19), as stated earlier, had gone to hospital where the complainant had presented the written report (Exhibit-P/6).

Baluram (P.W.21) deposed regarding deposit of various sealed packets to Malkhana.

Rambhanwar Singh (P.W.22) has proved various facets of investigation, regarding arrest, recovery of knives, newspaper from the accused.

Kailashdan Ratnu (P.W.23) was posted as DSP, Ajmer. He stated that under his supervision, Rambhanwar Singh had conducted the investigation.

Rameshwarlal (P.W.24) stated that on 7.12.2004, he had recorded the statement (Exhibit-P/53) of Puja deceased, correctly. In cross-examination, he stated that the investigation was made on 10.12.2004 and when he recorded the statement of Puja, she was fit to make statement.

Thereafter, the statement of the accused was recorded under Section 313 Cr.P.C. All incriminating evidence was put to them. They pleaded innocence and stated that they have been falsely implicated.

Three accused, Chandra Prakash @ Chandya @ Chand, Subhash and Hari Narayan being brothers have been convicted under Section 120-B IPC read with Section 302 IPC. To secure conviction, the prosecution has relied on newspaper cutting (Exhibit-P/10). According to the prosecution, the contents upon the newspaper were written in the handwriting of Tikam @ Tinchu and Tikam @ Tinchu after naming the above three accused, stated that as per their desire, he had finished the work of Puja. To be precise, writing , has been used as incriminating evidence.

This newspaper cutting came into possession of Kesaram (P.W.8), when on 17.12.2004 was posted as Head Constable at another Police Station namely Kotwali, Ajmer as In-charge of Malkhana. This witness stated that the said newspaper cutting was recovered from Chandra Prakash @ Chandya @ Chand, when his arrest was effected on 17.12.2004. In cross-examination, this witness stated that seizure memo (Exhibit-P/10) has not been written in his presence and newspaper cutting (Exhibit-P/9) is part of paper, which is published from various places. What is to be noted is that the witness stated that when the newspaper cutting (Exhibit-P/10) was recovered from Chandra Prakash @ Chandya @ Chand during personal search. He was not present at that time.

This witness further stated that C.I. Saheb, Nirmal Sharma had handed over newspaper cutting (Exhibit-P/10) for depositing the same in the Malkhana. Nirmal Sharma has not been examined by the prosecution.

Two questions arises for our consideration. Firstly, if newspaper cutting (Exhibit-P/10) was in possession of the police in another case, in which arrest of Chandra Prakash @ Chandya @ Chand was effected on 17.12.2004, there was no necessity for the prosecution to record the disclosure statement of the accused Tikam @ Tinchu (Exhibit-P/27) on 19.12.2004. The document was already in possession of the police and no disclosure was required. Furthermore, the disclosure statement (Exhibit-P/27) is not witnessed by any independent witness.

Relying upon the judgment of Hon''ble Apex Court in the case of Harjit Singh and Others Vs. State of Punjab, , a Division Bench of this Court of which one of us (Kanwaljit Singh Ahluwalia, J.) was a Member in Rameshwar and Dinesh @ Pillu Vs. State of Rajasthan, D.B. Criminal Appeal No. 158/2010, decided on 10.11.2014, has observed as under:-

"Having appreciated the evidence of the witness, it is to be noted that disclosure statement Ex-P/22 as made by Munesh is not attested by any witness what to say of any independent witness. Ex.P/22 is recorded on 31st July, 2006 at 11 P.M. It is only signed by SHO Police Station, Bhusawar Distt. Bharatpur. It was held in Harjit Singh and Ors. Vs. State of Punjab AIR 2002 Supreme Court 3040 that disclosure statement should be signed by independent person and Investigating officer should not associate any eye witness with the recovery memos. In the present case, no witness was associated at the time when disclosure statement was made. It is necessary for the prosecution to prove that the disclosure statement was made voluntary without any duress or coercion. To justify voluntary character of disclosure statement, it ought to be recorded in the presence of witnesses, it is to be noted that Section 27 of Indian Evidence Act is an exception to Section 25 of the Indian Evidence Act which says that nothing stated to police is admissible in evidence. Since Section 27 carve out an exception, it is necessary that prosecution must show some material to the Court to be satisfied that same was not fabricated, therefore, it is necessary that it should have been made in presence of some witnesses." 46. The witness further stated that above said newspaper cutting (Exhibit-P/10), was taken by Rambhanwar Singh, SI.

This witness further stated that he had given the cutting Exhibit-P/10 to Rambhanwar Singh, S.I. (P.W.22). To this effect, no entry was made in Exhibit-P/16. Exhibit-P/16 is Malkhana Register. The witness further stated that Nirmal Sharma, S.H.O., has given him an oral direction and not written direction. No entry to this effect has been made in Malkhana Register.

To us, recovery of newspaper cutting (Exhbit-P/10) is a crude padding, as the same was allegedly effected from Chandra Prakash @ Chandya @ Chand in another case on 17.12.2004. Purportedly a disclosure statement of Tikam @ Tinchu was recorded on 19.12.2004 regarding the recovery of Exhibit-P/10. There is no entry in the Malkhana Register (Exhibit-P/16) at police station Kotwali, Ajmer. Thus, it cannot be ruled out that when Tikam @ Tinchu was arrested, he was made to write contents of Exhibit-P/10 on a newspaper cutting. In the era of mobile phone, when messages can be relayed the investigating agency want us to believe that the accused had incriminated himself by writing the same on vacant portion of the newspaper. Furthermore, it is also contended before us that on 17.12.2004, Tikam @ Tinchu was arrested and on the same day, arrest of Chandra Prakash @ Chandya @ Chand is shown in another case at another police station and newspaper cutting is not taken into possession in pursuance of disclosure made by accused Tikam @ Tinchu. It is difficult to believe that Tikam @ Tinchu will also know that on the same day co-accused Chandra Prakash @ Chandya @ Chand has been arrested in another case. Furthermore, non-examination of SHO Nirmal Sharma, who had effected the recovery of Exhibit-P/10 from the accused Chandra Prakash @ Chandya @ Chand is to be construed against the prosecution. Kesaram (P.W.8) examined by the prosecution has categorically stated that no recovery of newspaper cutting (Exhibit-P/9) was effected in his presence.

Taking totality of circumstances, we are of the view that no reliance can be placed upon Exhibit-P/10 and since we have doubted the recovery of Exhibit-P/10 from the accused Tikam @ Tinchu, we are of the view that possibility that same is manipulated document cannot be ruled out. No reliance upon newspaper cutting (Exhibit-P/10) can be placed and as effect thereof, the report of FSL that the handwriting on the Exhibit-P/10 tally with the specimen handwriting of the accused is not of much consequence.

Having ruled out newspaper cutting (Exhibit-P/10), from consideration, we are left with the statement (Exhibit-P/53) recorded by the investigating officer under Section 161 Cr.P.C. on 7.12.2004. We have already noted that Puja died on 12.1.2005 at 11:30 PM. When Puja had allegedly made statement Exhibit-P/53, she had no expectation of death, as 37 days later, due to infection and Septicemia, her death had occurred. There is no medical evidence on record that when police officer, Rameshwar Lal (P.W.24) had obtained any certificate regarding fitness of the injured Puja to make statement. Even though, Dr. Ashutosh Vyas (P.W.20) has stated that when he had medico-legally examined the injured Puja, was conscious. Having noted that newspaper cutting (Exhibit-P/10) is a manipulated document, we are convinced that it is not safe to rely upon part of the statement of Puja under Section 161 Cr.P.C., which is neither recorded in the presence of doctor nor by the Judicial Magistrate.

Basanti Devi (P.W.4) in written report (Exhibit-P/6) which was prepared at the hospital has not named three accused, as one who had facilitated the causing of injury to Puja. Furthermore, Basanti Devi while appearing in the court as P.W.4, has not named three accused Chandra Prakash @ Chandya @ Chand, Hari Narayan and Subhash as accused in examination-in-chief. In cross-examination she stated that as to why injuries were caused to her daughter, she is not aware of any reason. In the court, this witness stated that-

She further deposed:

If the story narrated in statement of injured Puja (Exhibit-P/53) is believed that Puja was having illicit relations with Suraj, brother of three accused and she had lodged a report against Suraj and parents of these three accused, it cannot be said that Basanti Devi (P.W.4) was not aware of these facts, as her daughter was living with her. Therefore, silence on the part of the Basanti Devi (P.W.4) qua these material facts also made introduction of these three persons, namely Chandra Prakash @ Chandya @ Chand, Hari Narayan and Subhash, as accused in statement (Exhibit-P/53), doubtful.

Consequently, we grant benefit of doubt to the accused appellants, namely Chandra Prakash @ Chandya @ Chand, Hari Narayan and Subhash, qua offence under Section 120-B read with Section 302 IPC.

Having doubted the involvement of these three accused in the offence, we shall also record their acquittal for the offence under Section 3(2)(5) of SC/ST Act.

As a result of above, we accept D.B. Criminal Appeal No. 414/2009 preferred by Subhash and D.B. Criminal Appeal No. 1/2010 filed by Chandra Prakash @ Chandya @ Chand and set aside their conviction and sentence awarded by the trial court and acquit them of all the charges.

Now, we are left with the case of appellants, Tikam @ Tinchu and Mehfooz.

Admittedly, both the appellants, Tikam @ Tinchu and Mehfooz had given knife injuries to Puja. Basanti Devi (P.W.4) had seen them causing injuries to Puja. We have partly not relied upon part of statement (Exhibit-P/53) so far involvement of three accused, Chandra Prakash @ Chandya @ Chand, Hari Narayan and Subhash is concerned. However, Puja stated in her statement (Exhibit-P/53) that both the appellants Tikam @ Tinchu and Mehfooz had caused her injuries.

A perusal of the evidence of Dr. Ashutosh Vyas (P.W.20) reveals that injury No. 1 having dimension of 2.5cm x 1.0cm was caused in the abdomen. Injury No. 2 was incised wound on right thigh having dimension of 3cm x 1cm, muscle deep. Injury No. 3 was 0.5cm x 0.2cm, wound on right elbow. Injury No. 4 was 4cm x 1cm, muscle deep wound on right leg and injury No. 5 was stab wound, muscle deep on left thigh. Injuries No. 3 and 5 were declared simple. In the present case, as per Post Mortem Report (Exhibit-P/23) death had occurred on 12.1.2005 after 37 days of the causing of injuries and cause of death is Septicemia.

A Division Bench of this Court in Narayan Lal vs. State of Rajasthan, (Rajasthan, Jaipur Bench) 2010 WLC (Raj) (UC) 256, stated that in the case where death occurred after four days due to septicemia which developed later on, the court examined the question whether the offence will fall under Section 302 IPC or can be altered to 304-I and 304-II IPC. Their Lordships in the above stated judgment observed as under:-

"21. Now, the question is, as to whether the learned trial court has correctly recorded conviction of the accused-appellant under Section 302 IPC or the same requires to be altered to section 304 Part I or 304 Part II IPC.

In the case of Kesar Singh and Another Vs. State of Haryana, , the Hon''ble Supreme Court in paragraphs 20 and 21, regarding the distinction between the knowledge and intention, has held as under:

"20. We must keep in mind the distinction between knowledge and intention. Knowledge in the context of Section 299 would, inter alia, mean consciousness or realization or understanding. The distinction between the terms ''knowledge'' and ''intention'' again is a difference of degrees. An inference of knowledge that it is likely to cause death must be arrived at keeping in view the fact situation obtaining in each case. The accused must be aware of the consequences of his act.

Knowledge denotes a bare state of conscious awareness of certain facts in which the human mind might itself remain supine or inactive whereas intention connotes a conscious state in which mental faculties are roused into activity and summed up into action for the deliberate purpose of being directed towards a particular and specific end which the human mind conceives and perceives before itself.

This was discussed extensively in Jai Prakash Vs. State (Delhi Administration), , stating:

We may note at this state that ''intention'' is different from ''motive'' or ''ignorance'' or ''negligence''. It is the ''knowledge'' or ''intention'' with which the act is done that makes difference, in arriving at a conclusion whether the offence is culpable homicide or murder. Therefore, it is necessary to know the meaning of these expressions as used in these provisions...

....The ''intention'' and ''knowledge'' of the accused are subjective and invisible states of mind and their existence has to be gathered from the circumstances, such as the weapon used, the ferocity of attack, multiplicity of injuries and all other surrounding circumstances. The framers of the Code designedly used the words ''intention'' and ''knowledge'' and it is accepted that the knowledge of the consequences which may result in doing an act is not the same thing as the intention that such consequences should ensue. Firstly, when an act is done by a person, it is presumed that he must have been aware that certain specified harmful consequences would or could follow. But that knowledge is bare awareness and not the same thing as intention that such consequences should ensue. As compared to ''knowledge'', ''intention'' requires something more than the mere foresight of the consequences, namely the purposeful doing of a thing to achieve a particular end."

Kenny in "Outlines of Criminal Law" (17th Edition at page 31) has observed:

Intention : To intend is to have in mind a fixed purpose to reach a desired objective; the noun ''intention'' in the present connection is used to denote the state of mind of a man who not only foresees but also desires the possible consequences of his conduct. Thus if one man throws another from a high tower or cuts off his head it would seem plain that he both foresees the victim''s death and also desires it : the desire and the foresight will also be the same if a person knowingly leaves a helpless invalid or infant without nourishment or other necessary support until death supervenes. It will be noted that there cannot be intention unless, there is also foresight, since a man must decide to his own satisfaction, and accordingly must foresee, that to which his express purpose is directed.

Again, a man cannot intend to do a thing unless he desires to do it. It may well be a thing that he dislikes doing, but he dislikes still more the consequences of his not doing it. That is to say he desires the lesser of two evils, and therefore, has made up his mind to bring about that one.

Russell on Crime (12th Edition at Page 41) has observed:

"In the present analysis of the mental element in crime the word ''intention'' is used to denote the mental attitude of a man who has resolved to bring about a certain result if he can possibly do so. He shapes his line of conduct so as to achieve a particular end at which he aims." It can thus be seen that the ''knowledge'' as contrasted with ''intention'' signifies a state of mental realisation with the bare state of conscious awareness of certain facts in which human mind remains supine or inactive.

On the other hand, ''intention'' is a conscious state in which mental faculties are aroused into activity and summoned into action for the purpose of achieving a conceived end. It means shaping of one''s conduct so as to bring about a certain event. Therefore in the case of ''intention'' mental faculties are projected in a set direction. Intention need not necessarily involve premeditation. Whether there is such an intention or not is a question of fact."

In the instant case, Ex.P-9 parcha-bayan was recorded wherein it was specifically stated that two accused including appellant came at the time when function of Republic Day in the school was going-on and inflicted blows by knife and katar on the person of the deceased. As per statement of PW-4 Smt. Geeta Sharma, it appears that the injury at the abdomen was inflicted by co-accused Dhiru @ Cylinder. The injuries which have been assigned by PW-4 Smt. Geeta Sharma to accused-appellant are on the shoulder and at the back side of chest. The above two injuries are not sufficient in the ordinary course of nature to cause death. It is further important to take note that the deceased did not die soon after the incident but while the deceased was under treatment, after a couple of days, he died because of septicemia. In the above circumstances, from the nature of injuries on the person of deceased and injuries assigned to the accused-appellant, it can only be gathered that the accused-appellant was having knowledge that his act might result into the death of the deceased. By no stretch of imagination the act of the accused-appellant can be said to be one from which intention of the accused to kill the deceased be gathered because the appellant inflicted injuries on the shoulder and at the back of the deceased. In the opinion of the doctor also, the above two injuries were not the cause of death. If that be so, in our opinion, the accused appellant was not liable to be convicted under Section 302 IPC but was liable to be convicted under Section 304 part II IPC.

In the case of Bhagwan Bahadure Vs. State of Maharashtra, , it has been observed by the Hon''ble Supreme Court that it cannot be said as a rule of universal application that whenever one blow is given Section 302 IPC is ruled out. It would depend upon the facts of each case. The weapon used, size of the weapon, place where the assault took place, background facts leading to the assault, part of the body where the blow was given are some of the factors to be considered".

In the case of State of Punjab Vs. Tejinder Singh and another, , in the facts where two persons inflicted Gandasa blows on the deceased, the altercation had already taken place four days prior to the incident over the boundary line of the plots of the parties, the accused persons came heavily armed shouting that the deceased should not be spared at a point of time when his wife had brought breakfast for him and he had gone to the hand pump to bring water in a pitcher, the Hon''ble Supreme Court has observed as under:

In view of our above findings we have now to ascertain whether for their such acts A-1 and A-2 are liable to be convicted under Section 302 read with Section 34, IPC. It appears from the evidence of PW-4 and PW-5 that the deceased was assaulted both with the sharp edge and blunt edge of the gandasas and the nature of injuries also so indicates. If really the appellants had intended to commit murder, they would not have certainly used the blunt edge when the task could have been expedited and assured with the sharp edge. Then again we find that except one injury on the head, all other injuries were on non-vital parts of the body. Post-mortem report further shows that even the injury on the head was only muscle deep. Taking these facts into consideration we are of the opinion that the offence committed.by the appellant is one under Section 304 (Part I), IPC and not under Section 302, IPC." 26. In the case of Jayaraj Vs. State of Tamil Nadu, , it has been observed that in a case where the death occurred after nine days of the incident, it cannot be held to prove that the injury was sufficient to cause death in the ordinary course of nature.

In view of the fore-going discussion, the answer to the point No. 2 is that the judgment of conviction recorded against the accused-appellant under Section 302 IPC is not liable to be maintained and instead he is liable to be convicted and sentenced for the offence under Section 304 part II IPC."

In another case, where death had taken place after 17 days, due to septicemia and bad sore, a Division Bench of this Court in the case of Smt. Leela Devi and Others Vs. State of Rajasthan and Another, had converted the offence to Section 304-II IPC.

Considering that the deceased had died after 37 days of the occurrence, and the cause of death was septicemia and nature of the injuries is not such that they would have caused death, in the ordinary course of nature, the offence if any in our opinion in the present case will not fall under Section 302 IPC, but under Section 304-I IPC.

Having converted the offence from Section 302 IPC to Section 304-I IPC, we set aside the life imprisonment awarded upon the appellant Tikam @ Tinchu and Mehfooz, and sentence them to ten year R.I and with a fine of Rs. 10,000/-, in default of payment of fine to further undergo one year R.I.

Having converted the offence under Section 302/34 IPC, qua the appellants Tikam @ Tinchu and Mehfooz, to offence under Section 304-I IPC, we are left to examine conviction of the appellant, Mehfooz for the offence under Section 3(2)(5) of SC/ST Act.

A Division Bench of this Court in the case of Ramkaran vs. State of Rajasthan [D.B. Criminal Appeal No. 945/2004] decided on 25.11.2014, of which one of us, Mr. Kanwaljit Singh Ahluwalia, J., was a member, had considered the application of Section 3(2)(5) of SC/ST Act in the case, where conviction of accused is also recorded under the provisions of IPC. In that case, it was argued before us that until prosecution is able to satisfy the court that the offences was committed by the accused with an intention to humiliate a member of SC and only on the ground that the victim belong to SC community then only Section 3(2)(5) of SC/ST Act shall be attracted.

We considered the arguments raised by the counsel in the case of Ramkaran (supra), and came to the conclusion that regarding application of Section 3(2)(5) of SC/ST Act, argument has not been raised before this court for the first time and observed as under:-

"A Division Bench of this Court in the case of Manohar Singh vs. State of Rajasthan reported in 2000(2) RCC 894, in similar circumstances, held as under:-

"10. The doctor opined that from the external injuries, the possibility of rape being committed, cannot be denied. The doctor also seized the ''ghaghra'' of the prosecutrix on which spots of semen were detected. He further stated that the accused Manohar Singh was also examined on 19.12.1996. He was found fit for indulging in sexual intercourse. The prosecution has produced the FSL report dated 2.9.1997, which shows that human semen was found on the ''ghaghra''. Thus, on careful consideration, we find the testimony of P.W.8 Mst. Ramila as trustworthy. The learned Judge has rightly held the accused appellant guilty of rape.

The next question, which arises for consideration is whether the conviction of the appellant under Sec.3(2)(v) of the Act is justified and legal?

We have, recently in a case of Pappu Khan vs. State of Rajasthan, "D.B. Criminal Appeal No. 722/98 decided on 2.9.1999", examined the scope and ambit of Sec.3(2)(v) of the Act. It is held therein that for the offence under Sec.3(2)(v) of the Act, beside the ingredients of respective offence of Indian Penal Code, the prosecution is further required to establish that the accused being a person of non S.C./S.T. has committed the crime on a person of S.C./S.T. for the reason that such person belonged to such community or tribe."

The view taken by the Division Bench of this Court was subsequently followed by another Division Bench of this Court in the case of Sohan Singh and Another Vs. State of Rajasthan, . Their Lordships, while examining the law laid in Manohar Singh''s case (supra) further to fortify had relied upon the observations of the Hon''ble Apex Court in Masumsha Hasanasha Musalman Vs. State of Maharashtra, . Since their Lordships relying upon the observations of the Hon''ble Apex Court in a very lucid manner had answered the above question. With all reverence to Their Lordships, the relevant portion of the judgment is reproduced as under:

"10. We have considered the rival submissions, and have also gone through the record carefully. We may first take up the sustainability of the conviction u/s. 3 (2)(v) of the Act. We may gainfully recapitulate the language of Sec. 3(2)(v) which reads as under:-

"(v) committed any offence under the Indian Penal Code punishable with imprisonment for a term of ten years or more against a person or property on the ground that such person is a member of a Scheduled Caste or a Scheduled Tribe or such property belongs to such member, shall be punishable with imprisonment for life and with fine." 11. Our attention has been invited by the learned counsel for the appellants, to a recent judgment of Hon''ble the Supreme Court in Masumsha Hasanasha Musalman Vs. State of Maharashtra, , which was a case relating to murder, wherein the accused was convicted for the offence u/s. 304-II IPC and Sec. 3(2)(v) of the Act, and under the former he was sentenced to 5 years rigorous imprisonment while under the later he was sentenced to life imprisonment. These convictions were confirmed by the High Court. In appeal the Hon''ble Supreme Court noticed that there was no dispute about the deceased dying homicidal death, and considering the nature of injuries, confirmed the conviction u/s. 304-II IPC. Facts in that case were that between 7.00 and 8.00 p.m. on the fateful day Saoji Gamaji Jadhav, a member of Scheduled Caste, who had returned to his house at dusk, and after some time had left the house informing his wife that he would be going out for some time, and would return soon, thereafter. After about half an hour of the deceased left his home, the appellant came to the house of the deceased and enquired from his wife about the deceased. At that time the appellant was carrying a ''jambiya''. On coming to know from her that her husband had gone out of the house, the appellant started running through the lane. The wife getting suspicious followed, and near the hospital of Dr. Kalwaghe, she saw the appellant stabbing the deceased who fell down and died. It is on these facts Hon''ble the Supreme Court has held as under:-

"To attract the provisions of Sec.3(2)(v) of the Act, the sine qua non is that the victim should be a person who belongs to a Scheduled Caste or a Scheduled Tribe and that the offence under the Indian Penal Code is committed against him on the basis that such a person belongs to a Scheduled Caste or a Scheduled Tribe. In the absence of such ingredients, no offence u/s. 3(2)(v) of the Act arises. In that view of the matter, we think, both the trial Court and the High Court missed the essence of this aspect." 12. With the above findings the conviction u/s. 3(2)(v) was set aside. In our view, the judgment in Masumsha Hasanasha Musalman''s case fully supports the contention of the learned counsel for the appellants, and since in the present case also, there is not an iota of material on record, even to indicate that, either of the offence was committed "on the basis" that the victim belongs to Scheduled Caste. Accordingly, the conviction for the offence, u/s. 3(2)(v) of the Act, is very much required to be set aside."

Recently, another Division Bench of this Court in Subhan Khan Vs. State of Rajasthan, , on similar facts had formulated the same view."

In view of consistent interpretation of law by various Division Bench of this Court, who in turn relied upon the observations made by the Hon''ble Apex Court, we are of the view that in the present case, neither any evidence has been led by the prosecution nor there is any material before us to infer that injuries were caused on the ground that Puja was a member of SC community or the accused intended to humiliate her for the reason that she belong to SC community.

Consequently, we set aside the conviction of appellant Mehfooz for offence under Section 3(2)(5) of SC/ST Act also. However, we maintain the conviction of the appellant Tikam @ Tinchu and Mehfooz for offence under Section 4/25 of Arms Act and the sentence awarded on the count shall run concurrently with the sentence awarded to the appellant under Section 304-I IPC.

In view of above, D.B. Criminal Appeal No. 1/2010 qua Mehfooz and D.B. Criminal Appeal No. 1174/2009 preferred by Tikam @ Tinchu stand disposed of.