Babu Khan @ Alim Khan vs The State of Rajasthan

This appeal is before us to examine correctness of the

judgment dated 3.10.2008, passed by learned Additional Sessions

Judge (Fast Track), Nagaur, recording conviction of accused Babu

Khan @ Alim Khan for the offence punishable under Section 302

Indian Penal Code.

In brief, facts of the case are that on 28.7.2007 at

about 10:00 PM a written report addressed to Station House Officer, Police Station, Mundwa was submitted to Shri Girdhardan,

Assistant Sub Inspector, Police Station, Mundwa at Government

Hospital, Nagaur by Hakam Ali stating therein that on the same

day at about 06:30 PM his wife Smt. Bhanwari Bano, Akhtar,

Mainu were taking care of cattle grazing in their fields. At that

time his brother Babu Khan alias Alim Khan, Razia, Daud, Sabir,

Kamudi, Baudi, Dakha came there and tried to raise fencing. On

being objected, a lathi blow was given to Smt. Bhanwari Bano by

Babu Khan and Daud caused an injury by ''kawadia'' to Akhtar.

Sabir was armed with a kassi and he alongwith other persons

participated in the incident. As a consequence to the incident

aforesaid Smt. Bhanwari Bano died at the spot and an information

in this regard was given to him telephonically by his son.

On basis of the written report, a case was lodged for

the offences punishable under Sections 147, 148, 149, 447, 323

and 302 Indian Penal Code. After regular investigation accused

Babu Khan and Daud Khan were chargesheeted and were charged

for the offences punishable under Sections 302 / 34, 447 and 323

Indian Penal Code. On denial of the same trial commenced as

desired.

The prosecution supported its case with the aid of 16

witnesses , several documents and two articles. An opportunity

was given to the accused persons to explain the adverse

circumstances and evidence against them. The accused persons

availed opportunity as per provisions of Section 313 Code of Criminal Procedure to explain adverse and incriminating

circumstances available against them in prosecution evidence. A

document was also exhibited in defence.

The trial court, after examining the entire evidence

available on record, acquitted accused Daud Khan, however,

recorded conviction of the appellant for the offence punishable

under Section 302 Indian Penal Code. Accordingly, he has been

sentenced to undergo life term imprisonment with a fine

stipulation.

In appeal, the only argument advanced by learned

counsel appearing on behalf of the appellant is that even by

accepting the prosecution case, the offence said to be committed

by the appellant does not travel beyond an offence described

under Section 304 Part-II Indian Penal Code. As per learned

counsel for the appellant deceased Smt. Bhanwari Bano though

suffered seven injuries but out of those one was a fatal injury and

remaining are simple abrasions. It is further submitted that the

entire incident is an out come of spontaneous heated

circumstances and no evidence is available on record to establish

any intention on part of the accused to kill Smt. Bhanwari Bano.

Learned Public Prosecutor, while opposing the appeal,

submits that the appellant caused a serious head injury to

deceased Smt. Bhanwari Bano and that itself is sufficient to

establish his intention to cause murder of Smt. Bhanwari Bano. It is asserted that the accused forcefully entered into the fields of

deceased and then caused a fatal injury.

Heard learned counsels and scanned the entire record.

At the threshold, we would like to state that there is no

doubt about homicidal death of Smt. Bhanwari Bano. As per

medical evidence available on record the cause of death of Smt.

Bhanwari Bano was shock due to the injury to spinal cord and

brainstorm.

Learned trial court recorded conviction of the accused

appellant mainly by relying upon the evidence adduced by Shri

Akhtar Khan (PW-1) son of deceased Smt. Bhanwari Bano. Shri

Akhtar Khan (PW-1) is an injured eye witness and according to

him on the fateful day at about 06:00 - 06:30 PM, he alongwith

his mother Smt. Bhanwari Bano and brother Moinuddin were

taking care of cattle grazing at their fields and at that time Babu

Khan with Daud and Sabir came there. Smt. Razia, Kamudi, Baudi

and Dakha were also accompanying them. Shri Babu Khan

happens to be real uncle of this witness being elder brother of Shri

Hakam Ali, husband of Smt. Bhanwari Bano. According to Akhtar

Khan (PW-1), he made a request to Babu Khan for not raising any

kind of fence at the land disputed. Accused Babu Khan did not

give any heed and continued with fencing at the disputed land.

Smt. Bhanwari Bano also objected raising of fence at the disputed

land, therefore, accused Babu Khan caused a head injury to her.

The other persons accompanying Shri Babu Khan too participated

in the quarrel and caused injuries to this witness as well as to

Moinuddin. As per this witness, he informed Shri Hakam Ali

(PW-2) about the incident and then Smt. Bhanwari Bano was

taken to Government Hospital, Nagaur where she was declared

dead.

Shri Hakam Ali(PW-2) stated before the court that after

receiving the information he rushed to the hospital and on availing

necessary details he submitted a report in writing to the Station

House Officer, Police Station, Mundwa.

From perusal of the evidence discussed above, it is

apparent that the entire incident occurred as there was some

dispute pertaining to land whereon the accused made an effort to

raise fence. This act was objected by the deceased and during this

course accused caused a fatal injury to deceased. Suffice to

mention that the weapon offence is nothing but a lathi and further

that the appellant was not carrying any other lethal weapon with

him. There is no evidence available on record to establish that the

accused came to the disputed land with an intention to cause

death of Smt. Bhanwari Bano. As a matter of fact the parties had

some dispute pertaining to their ancestral land and while making

an effort to mark the land or to say have possession over the land

the crime in question occurred. In entirety, we are of considered

opinion that by no stretch of imagination the crime committed by

the appellant could have been treated as a murder as defined under Section 300 Indian Penal Code and punishable under

Section 302 Indian Penal Code. On appreciation of the evidence

available on record, we are of the opinion that the crime

committed is nothing but an offence punishable under Section 304

Part-II Indian Penal Code.

In view of the finding arrived, this appeal is allowed in

part. The conviction of accused Babu Khan alias Alim Khan son of

Salim Khan for the offence punishable under Section 302 Indian

Penal Code is set aside. The accused appellant is convicted for an

offence punishable under Section 304 Part-II Indian Penal Code

and is sentenced to undergo rigorous imprisonment for a period of

eight years with a fine of Rs.15,000/-, out of that a sum of

Rs.10,000/- is required to be paid to complainant Shri Hakam Ali

as per provisions of Section 357 Code of Criminal Procedure.