SHARMA, J. - (1.) RADHA Kishan, an old vegetable vendor, while he was selling Tomatos and onions, was assaulted with Dharia and lathi on March 23, 2002 as a result of which he sustained injuries on the head and left leg. He was admitted to Hospital where he died on April 7, 2002 i. e. after fourteen days of incident. Chhitar Lal, Kana Ram @ Kanha and Chauth Mal, appellants herein, were put to trial for having committed murder of RADHA Kishan, before the learned Additional Sessions Judge (Fast Track) No. 1 Kota, who vide judgment dated September 4, 2002 convicted and sentenced each of the three appellants under Section 302 IPC to suffer imprisonment for life and fine of Rs. 2000/-, in default to further suffer simple imprisonment for six months.
(2.) IT is the prosecution case that on March 26, 2002 at 10. 20 AM SHO Police Station Khatoli recorded parcha bayan (Ex. P-17) of Radha Kishan at Primary Health Centre Khatoli wherein he stated that on the preceding Saturday around 4 PM while he was sitting on a chabutri (platform) in front of the house of Bheru Lal, in Bairwa Basti and selling Tomatos and Onions, Chhitar Lal, Kana and Chauth Mal came armed with Dharia and Lathis. Chhitar Lal gave blows with Dharia on his head and right leg. Kana gave lathi-blow on his left ear and Chauth Mal also gave blows with lathi. Hearing hue and cry Raghunath Kumar and Mohan Rao rushed to the and intervened. Radha Kishan further stated that he was beaten up because of the dispute in regard to partition of land. Since he was all alone he could not lodge the report in time. IT was his son Siya Ram who took him to hospital for treatment. On that report a case under Sections 307, 323 and 34 IPC was registered and investigation commenced. During the course of investigation injured Radha Kishan succumbed to his injuries and Section 302 IPC was added. Statements of witnesses got recorded, necessary memos were drawn, accused were arrested and on completion of investigation charge sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 1 Kota. Charge under Section 302 IPC was framed against the appellant, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 19 witnesses. In the explanation under Sec. 313 Cr. P. C. , the appellants claimed innocence. No witness in defence was however examined. The learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above. Prior to his death, injuries sustained by Radha Kishan were examined vide injury report (Ex. P-10) which reads as under:- 1. Lacerated wound 2 x 1cm upper part of Lt. leg. 2. Lacerated wound with swelling 2 x 1cm lower part of Lt. leg. 3. Incised wound 2 x 11/2 x 1/2cm on scalp. (left parietal region) 4. Incised wound 2 x 11/2cm x 1/2cm on lt. ear. 5. Incised wound 1 x 11/2cm over pinna of lt. ear. 6. Bruise 3 x 3cm on Lt. fore arm lower 1/3 part. Dr. Roop Chand Meena (PW. 12) conducted autopsy on the dead body and drew Postmortem Report (Ex. P-16 ). According to Dr. Roop Chand Meena (Pw. 12) the cause of death was head injury leading to multiple fracture and haematoma. We have heard rival submissions and with the help of learned counsel scanned the material on record. Learned trial Court convicted and sentenced the appellants after having placed reliance on Parcha Bayan (Ex. P. 17) of Radha Kishan. In the opinion of learned trial Court Parcha Bayan was admissible under Section 32 of Evidence Act as dying declaration of Radha Kishan. According to learned trial Court Tulsi Ram (PW. 13) who recorded Parcha Bayan and Dr. Roop Chand Meena (PW. 12) who attested it were reliable witnesses and their testimony could not be shattered despite searching cross- examination. Factual situation that emerges may be summarised thus:- (i) Bheru Lal (PW. 1) Mohan Lal (PW. 2) and Raghunath (PW. 3), who were examined as eye witnesses of the occurrence, did not toe the prosecution line and they were declared hostile. The Only evidence against appellants is the Parcha Bayan of deceased which gets corroboration from the testimony of Tulsi Ram SHO (PW. 13) and Dr. Roop Chand Meena (PW. 12 ). (ii) According to injury report (Ex. P. 10) three incised wounds were found on left parietal region, back of left ear and pinna of left ear and two lacerated wounds on left leg. (iii) No specific injury was attributed to appellant Chauth Mal whereas injury with lathi on the left ear was attributed to appellant Kana but no injury with blunt weapon was found on the left ear of the deceased. (iv) Radha Kishan died after 14 days of the incident. (v) Appellants and the deceased belonged to same family. (vi) The occurrence was a sudden affair (vii) Something which has not been completely unravelled might have sparked off the incident. (viii) There was a dispute between the appellants and the deceased in regard to partition of land.
(3.) ON a careful analysis of the evidence adduced at the trial it appears that in a sudden fight without any premeditation and in the heat of passion the appellant Chhitar Lal inflicted Dharia blow on the left parietal region of the deceased. From the nature of injuries sustained by deceased on the back side of left ear, pinna of the left ear and left parietal region, this possibility cannot be ruled out that all the three injuries could be caused by one Dharia blow. Injuries on the left leg were also attributed to Chhitar Lal. From the nature of injuries inflicted appellant Chhitar Lal should be presumed to know that his act of inflicting injuries would likely to cause death of Radha Kishan. A look at Section 304 IPC goes to show that in Part I there is intention while in Part II there is only knowledge and intention is expressly excluded. Section 304 Part I covers cases which by reason of the exception under Section 300 IPC are taken out of the purview of Section 300 clauses 1, 2 and 3 but otherwise would fall within it and also cases which fall within second part of Section 299 but not within Section 300 clauses 2 and 3. Part II of Section 304 IPC covers cases falling within third part of Section 299 and not falling within 4th clause of Section 300 IPC. Part II of Section 304 will not apply if the Court comes to the conclusion that that the intention of the person causing death was either to cause death or to cause such bodily injury as will bring the case either under Part I of Section 304 or under Section 302. In case the Court comes to the conclusion that there was no intention of any of the kinds mentioned above, but there was knowledge that the act was likely to cause death, the offence will fall under Part II of Section 304 only if the Court finds that the offender did not know that the act was imminently dangerous that it must, in all probability cause death or such bodily injury as was likely to cause death and the offender had not committed the act without any excuse for incurring the risk of causing death or the bodily injury. But if the Court is unable to come to such finding, the offence would still be be murder unless an exception to Section 300 be applicable. ;