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PETITIONER: STATE OF RAJASTHAN

       Vs.

RESPONDENT: SATYANARAYAN

DATE OF JUDGMENT:       21/01/1998

BENCH: G.T. NANAVATI, V.N. KHARE

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T Nanavati, J.      Aggrieved by the judgment and order of acquittal passed by the  High court  of  rajasthan  in  Criminal  appeal  No. 368/81, the  State has filed this appeal. The respondent was convicted by  the trial  court for  the  offence  punishable under Section  302 IPC  and sentenced to suffer imprisonment for life.      The  prosecution   case  was   that  relations  between Satyanarayan - the accused and Bhima - his neighbor were not good they  had a  dispute with  respect to  construction  of boundary wall  and previously there was some litigation also between the  parties. On the day of the incident that is, on 26.11.80 at  about 7.00  a.m. Bhoridevi,  wife of Bhima. Was sweeping in  front of  her  house.  At  that  time.  accused Satyanarayan was standing near the window on the first floor of his  house and  spate out water on Bhoridevi. That led to an  exchange   of  words  between  her  and  the  accused  - Satyanarayan. Th  accused came down and continued quarreling with her.  By that time, other inmates of Bhima’s house also came out.  The accused  then attacked  PW 2 - Satyanarayan @ Kaliya, a  relation of Bhoridevi, with an iron pipe. He also injured Ram  Gopal ( PW 9) and Bhoridevi(PW 5) and then went back to  his house.  Kesar Lal - brother of Bhima, then went near the  house of  the accused  and started questioning the accused as  to whey  he was  quarreling  like  that  in  the morning. Thereupon, the accused came out of his house with a knife and  inflicted a blow on the abdomen of Kesar Lal as a result of  which his  intestines came  out. the accused then ran away  from that  place. it was the prosecution case that as a  result of  that injury  Kesar Lal died and that during the investigation that knife was discovered by the accused.      In  order  to  prove  its  case,  the  prosecution  had examined nine  eye witnesses,  out of whom four were injured during the  incident out  of the remaining eye witnesses- PW 1- Sitaram,  PW 4-   Kaluram  and PW  12 -  Rajdevi were the neighbors  who  had  seen  the  incident.  The  trial  court accepted the  evidence of  the  injured  witnesses  as  they received corroboration  from PWS  1.4 and  12  against  whom nothing could  be alleged  by the defence. The houses of the

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accused  and   Bhima  were   adjacent  to  each  other  and, therefore. presence  of the injured witnesses was natural As it was  established that  the accused  had come  out with  a knife and  given  a  blow  to  kesar  Lal  the  trial  Court convicted him for the offence punishable under Section 302.      Aggrieved by the conviction and sentence. The appellant preferred an  appeal to  he Rajasthan High court, Strangely, without discussing  the prosecution evidence, the High Court held that  the defence version, that the complainant and his family members  had come to his house to attack him, that at that time  PW 2-  Satyanarayan had  a knife,  hat when  PW 2 tried to inflict a blow on him, he moved aside and it landed on kesar  Lal and  that kesar Lal was injured not by him but by his own son - pw 2 - Satyanarayan, was more probable.      The High  Court has  neither discussed  the prosecution evidence nor  has it  given reasons  for disbelieving it and holding that  the defence version was more probable. it was, therefore, submitted by the learned counsel or the appellant that the  judgment of  the High  Court deserves  to  be  set aside.      As observed  earlier,  the  houses  of  Bhima  and  the accused were  adjoining and  the incident took place infront of their houses. That PW 2 - Satyanarayan, PW 5-  Bhoridevi, PW -9  Ram Gopal  and PW  11- Phoolchand were injured during the incident,  is proved  by their evidence and the evidence of the  Doctor who  had examined  them on that very day. The fact that  they were  injured ensures that they had seen the incident. they  have stated  that after  causing injuries to them with  an iron  pipe, the  accused had entered his house and closed  the door. At that time, Kesar Lal had come there and started complaining as to why the accused was quarreling like that  in the morning. The accused came out with a knife and inflicted  a blow  on the abdomen of Kesar Lal, However, it appears  from the  FIR filed by PW 2 that the accused had really aimed  the blow  at PW  9- Ram Gopal but as Ram Gopal moved away. it hit kesar Lal on his stomach. This version in the FIR  is also  supported by  PW 9 - Ram Gopal Except this improvement. the  evidence of the injured witnesses does not suffer from  any infirmity. Moreover, their evidence is also supported by the evidence of three independent witnesses, PW 1- Sitaram,  PW 4-    Kaluram  and  PW  12-  Rajdevi.  Their evidence does  not suffer  from any  infirmity  and  nothing could be  urged as to why they were likely to depose falsely against the  accused.  We  find  no  reason  whatsoever  for discarding their  evidence. Once their evidence is believed, it will  have to be held that the respondent caused injuries to PW 2-  Satyanarayan, PW 5- Bhoridevi, PW 9- Ram Gopal and PW   11- Phoolchand  with an  iron pipe  and later on gave a fatal knife blow to kesar Lal.      Merely because no blood was found near the house of the respondent, it  cannot be  said that  no incident took place there. The  fact that  kesar Lal  had received  a knife blow near his  house was admitted by the accused though according to him  the knife  was with  PW 2- Satyanarayan and not with him As  the trial  court has  pointed out,  the place  was a public road and there was lot of traffic on that road.      That could have been the reason why no  blood was found when the  spot panchnama was made after few hours. Moreover, the evidence discloses that intestines of Kesar Lal had come out and that could have blocked the flow of much blood. Some blood  was   absorbed  by   the  clothes.   Therefore,   the circumstance that  not sufficient blood was noticed when the spot panchnama was made should not have been utilised by the High court  for holding that the prosecution version was not correct and that the defence version was more probable.

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    In our  opinion, the prosecution had established beyond doubt that  the respondent  had given  a knife blow to Kesar Lal and  that he  died as a result of the injuries caused by thatblow., through the injury was sufficient in the ordinary course of nature to cause death. the evidence discloses that the respondent  had not  aimed the blow on any vital part of Ram Gopal  or kesar Lal. The blow was aimed at Ram Gopal but as he  moved aside,  it landed  on the stomach of kesar Lal. The dispute  was not  such which  would have  preempted  the accused to  cause the  death of kesar Lal, Particularly when he had  no dispute  with Kesar  Lal. The  dispute  was  with Bhima, the  brother of  kesar la. This aspect was not at all considered by  the trial  court or by the High Court. In our opinion, in view of the facts and circumstances of the case, the appellant  should have  been convicted under section 304 Part I IPC and not under Section 302.      We  accordingly   allow  this  appeal,  set  aside  the judgement and  the order  of acquittal  passed by  the  High Court and  convict the respondent for the offence punishable under Section  304 Part  I IPC  and sentence  him to  suffer rigorous imprisonment for seven years.      The respondent was released on ball during the pendency of the  appeal, Therefore,  his bail  is  cancelled  and  is ordered to  surrender to  custody to serve out the remaining part of the sentence.