S. K. SHARMA, J. - (1.) INSTANT criminal appeal has been filed by accused appellant Parmanand against the judgment dated 25. 4. 2003 passed by the learned Judge (SC/st cases), Jhalawar whereby accused appellant Parmanand was acquitted of the charge under Section 3 of SC/st (Prevention of Atrocities cases) Act but was convicted for the offence under Section 302 IPC and was sentenced to undergo life imprisonment and fine of Rs. 5,000/- in default to further suffer imprisonment for six months RI.
(2.) THE brief facts relevant and essential for the disposal of the appeal are as under: On 7. 01. 2001 at about 4 am Ramchandra was coming from Ghatoli to his village and accused appellant Parmanand was going to Ghatoli. Parmanand stopped Ramchandra and hit him with stone. Ramchandra fell down and accused appellant Parmanand ran away from the place of occurrence. Ramchandra said about this incident to Anar Singh who informed to the brother of Ramchandra and brother of Ramchandra Bapulal came to Ramchandra and took him to his village. Ramchandra told about this incident to his brother Bapulal, wife Kanauz Bai and to his father Ratanlal. On the same day a verbal report was lodged in the police where police registered a case under Sections 341 and 323 IPC. Ramchandra was taken to hospital where Dr. G. S. Chouhan examined his injury and prepared injury report Ex. P. 4 and ultimately Ramchandra died on 9. 1. 2001. Autopsy was done on the body of deceased Ramchandra and post mortem report was prepared as Ex. P/7. Police added section 302 IPC and Section 3 of SC/st Act and started investigation. During investigation accused Parmanand was arrested and on his information and at his instance stone was recovered. Statement of witnesses were recorded under Section 161 Cr. P. C. Site plan was prepared and after completion of investigation challan was filled before the learned ACJM court Aklera for the offence under Section 302 IPC and section 3 of SC/st Act, wherefrom the case was committed to learned Special Judge (SC/st cases) Jhalawar. After hearing arguments, charge for the offence under Section 302 IPC and Section 3 of SC/st Act was framed against the appellant Parmanand who denied the charge and claimed trial. Prosecution has examined as many as 15 witnesses namely PW 1 Kanauz Bai, PW. 2 Ratan Lal, PW 3 Bapulal, PW 4 Ramkalyan, PW. 5 Bhairulal, PW 6 Anar Singh, PW. 7 Phoolchand, PW. 8 Mod Singh, PW. 9 Dr. G. S. Chauhan, PW. 10 Dr. G. S. Chauhan, PW. 11 Chouthmal, PW. 12 Hari Singh, PW. 13 Sanjay Sharma, PW. 14 Manohar Lal and PW. 15 Hetram Meena. Accused was examined under Section 313 Cr. P. C. and he has not examined any defence witness. After hearing both the parties, learned trial judge convicted the accused appellant for the offence under Section 302 IPC and sentenced him as indicated herein above. We have heard learned counsel for the parties. Learned defence counsel has argued that prosecution has not proved any case beyond reasonable doubt against the accused appellant. It is contended that trial Court has based its convicted on the dying declaration made by deceased Ramchandra. It is also contended that prosecution has not proved that verbal report Ex. P/1 was made by deceased as PW. 12 Hari Singh in charge police station himself admitted in his cross examination that report about incident was not dictated by Ramchandra. It is also contended that even if court comes to the conclusion that appellant Parmanand has inflicted one injury by stone on the person of Ramchandra even then offence under Section 302 IPC is not made out. It is also contended that even according to prosecution there was no previous enmity between the accused and the deceased. It is also contended that even according to prosecution accused appellant has hit Ramchandra with stone and then ran away. It is also contended that Ramchandra did not died on the spot and he died after two days. It is also contended that if accused appellant Parmanand had any intention of causing death or causing bodily injury which was sufficient in the ordinary course of nature of cause death or to cause any injury which was likely to cause death of Ramchandra then he would have not run away after hitting the stone only once. If he would have such intention then he would have repeated the blow which he did not do. It is also contended by the learned defence counsel that utmost this case is covered under Section 304 Part II, therefore, this appeal should be allowed.
(3.) ON the other hand, learned Public Prosecutor has supported the judgment of the trial Court and has contended that Ramchandra had told the entire incident to his wife PW. 1 Kanauz Bai, to his PW 2 Ratanlal and his brother Bapulal. He had told to all of them about entire incident and told that Parmanand had hit him with stone and caused injury by doing so. It is also contended that there is no reason to disbelieve all these three witnesses and dying declaration made by Parmanand to them is fully proved. It is also contended that trial Court has rightly convicted the appellant for the offence under Section 302 IPC and this appeal should be dismissed. We have considered the submissions raised by both the counsel and have perused the entire evidence made available on record. We agree with the argument advanced by defence counsel that dying declaration made in first information report does not help the prosecution because PW 12 Hari Singh in charge of police station himself had said in his cross examination that FIR was not dictated by deceased Ramchandra but it was dictated by other person who accompanied him. But there are other dying declarations made by Ramchandra to his wife Kanauz Bai, to his brother Bapulal and to his father Ratanlal. We have examined statements of these witnesses. We have no reason to disbelieve the statements of these witnesses. PW 1 Kanauz Bai wife of deceased has clearly stated that her husband Ramchandra has told her that when he was coming from Ghatoli, Parmanand met him on the way and hit him with stone. He fell down and Parmanand ran away. We are of the view that this statement of Kanauz Bai is fully reliable and comes within the purview of dying declaration made by deceased Ramchandra to his wife. PW2 Ratanlal has given statement in the Court in which he said that Ramchandra told him that Parmanand has hit him with stone. We have no reason to disbelieve the statement of this witness also. He is a nature witness. He is further of deceased. PW. 3 Bapulal has also given statement that Ramchandra told him that accused Parmanand has hit him with stone and ran away. We have also no reason to disbelieve the statement of this witness. The statement of this witness is also natural Prosecution story is also corroborated by the statement of PW. 9 Cr. G. S. Chauhan, injury report Ex. P. 4 and X- ray plate Ex. P/5 and X-ray report Ex. P/6 and post mortem report Ex. P/7. After examining entire evidence available on record we come to the conclusion that prosecution has fully proved that Ramchandra was coming from Ghatoli to his village on 7. 1. 2001 and Parmanand met him on the way Parmanand stopped him and hit him with stone and ran away. Ramchandra died on these injures on 9. 1. 2001. It is also clear that accused appellant has caused him only one injury and then he ray away. It is also clear that appellant has inflicted this injury without pre-meditation. It is also clear from the statements of PW 1 Kanauz Bai and PW. 3 Bapulal that there was no enmity between accused appellant and deceased. After considering all the facts and circumstances of the case we come to the conclusion that accused appellant has not inflicted this injury with the intention to cause death or cause such bodily injury which was sufficient in the ordinary course of nature to cause death. We have also come to the conclusion that accused has not caused this injury with the intention of causing such bodily injury as was likely to cause death, therefore, offence under Section 302 IPC or 304 Part I IPC is not made out against the appellant. We are of the considered opinion that by hitting Ramchandra with stone accused appellant had done an act with knowledge that it was likely to cause his death but without any intention to cause his death or to cause such bidily injury as was likely to cause death. In this way he has committed offence punishable under Section 304 Part II IPC. ;