Ankeri Vs. State of Rajasthan [1993] INSC 342 (8 September 1993)

Reddy, K. Jayachandra (J) Reddy, K. Jayachandra (J) Ray, G.N. (J)

CITATION: 1994 AIR 842 1994 SCC Supl. (2) 697

ACT:

HEAD NOTE:

ORDER

1. This is an unfortunate case where the husband, wife and their minor daughter were tried for offences punishable under Section 302 read with Section 34 and Sections 323 and 324 read with Section 34 IPC. The Sessions Court convicted all the three accused under Section 302 read with Section 34 IPC and sentenced each of them to undergo life imprisonment and to pay a fine of Rs 50 each, in default of payment of which to undergo one month's RI. The husband 698 Harphool and the daughter Saroj were further convicted under Section 324 read with Section 34 IPC and sentenced to undergo four months' RI. The wife Ankeri was convicted under Section 324 IPC and sentenced to undergo four months' RI. All the three of them were further convicted under Section 323 read with Section 34 IPC and sentenced to undergo two months' RI. All the three of them preferred an appeal to the High Court. The Division Bench of the High Court having noticed that Saroj (daughter) was aged only 14 years, set aside her conviction and sentence and remitted the case to the Magistrate for disposal according to law.

So far as Harphool and Ankeri, namely, the husband and wife, are concerned, the High Court confirmed their convictions and sentences passed by the learned Sessions Judge. Both of them preferred a special leave petition to this Court against the judgment of the High Court but leave was granted in respect of Ankeri and dismissed as against the husband Harphool. Therefore, we are concerned only with Ankeri, the wife. The prosecution case is that there was some quarrel between the accused and the deceased Raju regarding the picking up of firewood in the field. Thereupon, Harphool inflicted a jaili-blow over the head of Raju and also on the eyes. Raju fell down. PW 9, the wife of the deceased, who was also working in the field ran towards the field where her husband fell down and it is alleged that the accused Ankeri gave a kulhari (axe) blow over her head and Saroj, the daughter, also inflicted jaili-blow over her. The further case of the prosecution is that all the three accused lifted the deceased, took him and threw him near the telephone pole and started beating him. In the meantime, PW 1, the Sarpanch and others came and they questioned the accused as to wily they were beating him. After inflicting some more blows, the accused went away. The injured persons were taken to the hospital. Raju died and PW 9 was treated for her injuries. The prosecution mainly relied on the evidence of PWs 1 and 9 and the accused pleaded not guilty.

The learned Sessions Judge as well as the High Court have examined the evidence of PWs 1 and 9 in detail. The doctor who examined the deceased found 17 injuries, out of them except injuries 6 and 7, rest were found to be incised but simple. On internal examination, the doctor found fracture on the skull but there was no corresponding external injury.

The doctor opined that the injuries collectively with their internal effect were sufficient in the ordinary course of nature to cause the death. He also opined that depressed fracture on the temporal region was also sufficient in the ordinary course of nature to cause the death by itself. The doctor also found some injuries on PW 9 including an incised wound, a contusion and an abrasion.

2. The presence of PW 9 at the scene of occurrence cannot be doubted and her evidence is corroborated by the evidence of PW 1. Therefore, the prosecution has established the participation of Harphool and his wife Ankeri, the appellant before us.

3. So far as the appellant is concerned, Mr S.M. Jain, learned Senior Counsel, submits that it is not a case where she could be convicted by application of Section 34 for the reason that it is only Harphool who started the attack and the head injury which resulted in the fracture could have been caused only by him. The further submission is that there was no intention whatsoever on the part of the appellant to cause the death of Raju; nor it can be said that she shared the common intention with her husband Harphool, inasmuch as no injury 699 alleged to have been caused by her was at least grievous and doctor's opinion being that injuries were simple and in those circumstances, the offence at the most committed by her would be culpable homicide not amounting to murder.

4. We find considerable force in this submission. The intention is state of mind which has to be inferred from the facts and circumstances particularly the nature of the weapon and how it was used and the injuries inflicted.

Clause 3rdly of Section 300 IPC is not attracted in this case, so far as the appellant is concerned, for the reason that when she was armed with an axe and when her intention was to cause the death, one would expect her to cause at least one grievous injury. Every incised injury was simple and some of them were superficial and they did not cause any damage to the internal organs of the body of the deceased.

Further, the appellant did not join her husband in the attack when it started. Even according to the prosecution case, at a later stage, she inflicted some injuries, as mentioned above. The evidence of PW 5 would also show that head injury should have been caused by Harphool, who opened the attack at which stage the appellant was not in the picture.

5. Having regard to all the circumstances, we accept the prosecution case that the appellant inflicted some injuries on the deceased. We are, however, unable to come to the conclusion that she committed an offence of murder punishable under Section 302 read with Section 34 IPC. In the result, the appellant's conviction and sentence of life imprisonment awarded under Section 302 read with Section 34 IPC and sentence of fine with default clause is set aside.

Instead she is convicted under Section 304 Part 11 IPC and sentenced to six years' RI. However, the other convictions and sentences awarded for the minor offences against the appellant are confirmed. The sentences are directed to run concurrently. If the appellant has already served out the sentence and is in jail, she may be released.

6. Subject to the above modification of sentence, the appeal is dismissed.

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