R.S.CHAUHAN, J. - (1.) HAVING been convicted for offence under Section 302 IPC, having been sentenced to life imprisonment and having been imposed with a fine of Rs.5,000/- and further having been directed to undergo a sentence of five months' rigorous imprisonment in default thereof, by judgment dated 11.05.2012 passed by the Additional Sessions Judge No.1, Hanumangarh, the appellant, Anil Kumar, has knocked at the doors of this Court.
(2.) IN a nutshell, the facts of the case are that on 23.07.2010, the Police Station Hanumangarh Junction received a telephonic call from the Government Hospital, Hanumangarh Town that Shyamlal has been brought to the hospital in an injured condition. Consequently, Lekhram (P.W.10) was deputed to the Hospital in order to record the statement of Shyamlal. At about 7:50 PM, Shyamlal's statement (Ex.P.7) was recorded. In his statement, he claimed that on 22.07.2010 after doing their day's labour, around 8:00 PM, he and his friend, Anil Kumar, came back to their homes. Instead of going to their respective homes. they decided to have some liquor at a Rehari (a temporary shop constructed for the market day). While consuming liquor, both got into an oral argument, which culminated into a fight. As soon as Shyamlal came down from Rehari, Anil kicked him on his stomach and ran away. Shyamlal came back to his house. In the morning, his stomach pain increased. Therefore, he took some medicines at home. Since his condition was not improving, on 23.07.2010, his mother hospitalized him in the Government Hospital at Hanumangarh Junction. On the basis of this report, a formal FIR, FIR No.476/2010, was chalked out for offences under Sections 341, 323 IPC. During the course of investigation, as his condition continued to deteriorate, Shyamlal was referred to P.B.M., Hospital, at Bikaner. After he was operated upon, he expired on 25.07.2010. Therefore, the offence under Section 302 IPC was added. In order to support its case, the prosecution examined sixteen witnesses and submitted fourteen documents. However, the defence neither examined any witness, nor submitted any documents. After going through the oral and documentary evidence, by judgment dated 11.05.2012, the learned Judge convicted and sentenced the appellant as aforementioned. Hence, this appeal before this Court. Mr. M.K. Garg, the learned counsel for the appellant, has strenuously raised the following contentions before this Court : firstly, according to the statement of Shyamlal (Ex.P.7), neither Krishan Kumar (P.W.1), nor Smt. Devki (P.W.2) was present at the time of the incident. Yet the prosecution produced both of them as eye-witnesses. Considering the fact that they are brother and mother of Shyamlal, they are interested witnesses. Moreover, Krishan Kumar is a chance witness. Therefore, their testimonies should have been discarded by the learned Judge. However, he has relied upon their testimonies for convicting the appellant. Secondly, there is a contradiction between the testimonies of Krishan Kumar (P.W.1) and Smt. Devki (P.W.2) with regard to the fact as to how many times the appellant had kicked Shyamlal on his stomach. According to Krishan Kumar (P.W.1), the appellant had twice kicked Shyamlal. But according to Smt. Devki (P.W.2) he kicked him only once. Since there is contradiction between the two on a material point, their testimony is untrustworthy. Thirdly, the learned Judge has misapplied the law. Relying upon the medical evidence, the learned Judge has concluded that due to the kick caused by the appellant, the deceased had suffered a rupture in his small intestine. The learned Judge has further observed that due to the said rupture, Shyamlal had to undergo an operation. He died immediately after the operation. Therefore, the learned Judge has concluded that the appellant "intended to cause the death" of Shyamlal. Hence, he has convicted the appellant for offence under Section 302 IPC. However, according to the learned counsel, if the evidence is appreciated in a holistic manner, according to Krishan Kumar (P.W.1) and Smt. Devki (P.W.2) and according to the statement of Shyamlal (Ex.P.7), both, the appellant and Shymlal were friends. They were drinking prior to the alleged assault. According to the Krishan Kumar (P.W.1) and Smt. Devki (P.W.2), the appellant had complained to Krishan Kumar (P.W.1) that Shyamlal was calling him obscene names. Shyamlal informed his brother that the appellant had taken some money from his pocket. According to both, Krishan Kumar (P.W.1) and Devki (P.W.2), while the appellant was leaving, he slapped Shyamlal and kicked him on the stomach. Thereafter, he fled. Thus, the entire incident occurred on a trifle issue and, that too, as part of a drunken brawl. Moreover, according to Dr. Mohd. Saleem (P.W.16), the deceased had died due to peritonitis. According to Dr. O.P. Saini (P.W.11), peritonitis is a condition when the peritoneum cavity i.e. abdominal cavity is filled either with liquid or with an infected liquid due to which infection spreads. Such infection causes septicemia. According to the learned counsel, such medical complications are not within the knowledge of the general public. Thus, considering the fact that entire incident occurred on trifle matter, considering the fact that the appellant had kicked Shyamlal only once, obviously he had neither "the intention", nor "the knowledge", that he is likely to cause the death of Shyamlal. Therefore, according to the learned counsel the case is covered neither under Section 299 IPC, nor under Section 300 IPC. Thus, the case falls neither under Section 302, nor under Section 304 part II IPC. At worst, the case falls under Section 325 IPC of causing grievous hurt through use of a blunt weapon. Hence, according to the learned counsel, the learned Judge has erred in convicting the appellant for offence under Section 302 IPC.
(3.) ON the other hand, Mr. K.R. Bishnoi, the learned Public Prosecutor, has vehmently raised the following contentions before this Court: firstly, since Shyamlal's statement (Ex.P.7) was recorded while he was hospitalized, he may not be able to reveal each and every detail of the incident. Secondly, the testimonies of Krishan Kumar (P.W.1) and Smt. Devki (P.W.2) are corroborated by medical evidence. Hence, the veracity of their testimonies cannot be doubted. Thirdly, according to Shyamlal's statement (Ex.P.7) and according to the testimonies of Krishan Kumar (P.W.1) and Smt. Devki (P.W.2), it is the appellant who had started the confrontation with Shyamlal. Therefore, he is the aggressor. Moreover, the appellant had run away after kicking Shyamlal. Thus, it is obvious that he knew the nature of his act. Fourthly, considering the fact that he had kicked Shyamlal on the stomach, a vital part of the body, his "intention to kill" and "knowledge" that by such kicking on the stomach, in all probability, he is going to cause Shyamlal's death is writ large. Therefore, the learned Judge was certainly justified in concluding that the appellant had both the "intention" as well as the "knowledge" to cause the death of Shyamlal. Thus, the learned counsel has supported the impugned judgment. Heard the learned counsel for the appellant and perused the impugned judgment. It is true that Shyamlal, in his statement (Ex.P.7) does not mention the presence of his elder brother, Krishan Kumar (P.W.1) and of his mother, Smt. Devki (P.W.2) at the time of incident. But their presence cannot be doubted as it is most natural. According to Shyamlal it was the evening hour when he and Anil Kumar had come back from the day's work. According to Krishan Kumar (P.W.1), he was returning back home after work. Moreover, the occurrence had taken place near Krishan Kumar's house. Therefore, his presence near his house in the evening is most natural. Thus, he cannot be termed as a "chance witness". Furthermore, the presence of Smt. Devki (P.W.2), in her own home in the evening, is quite natural. Further merely because these witnesses are closely related to Shyamlal, their testimonies cannot be doubted on the ground that they are interested witnesses. While dealing with the testimony of interested witness or related witness, the trial Court is required to seek corroboration from independent evidence, oral or documentary, to the testimony of such a witness. In the present case, the testimonies of Krishan Kumar (P.W.1) and Smt. Devki (P.W.2) are corroborated by Shyamlal' statement (Ex.P.7). Moreover, their testimonies are further corroborated by the medical evidence. Therefore, the learned Judge was justified in treating them as trustworthy witness. ;