Mohanbhai Ranchhodbhai v. STATE — 1991 DIGILAW 156 (GUJ)

B. S. KAPADIA, J. ( 1 ) ADMIT. Mr. S. T. Mehta, Addl. PP. waives service of notice. ( 2 ) PRESENT appeal is directed against the order of conviction of the present appellant for the offence u/sec. 307 IPC and sentence of four years RI and fine of Rs. 500/- i. d. RI for one month passed by the learned Addl. Sessions Judge, sabarkantha at Himatnagar on 27-12-1990 in Sessions Case No. 86 of 1989. ( 3 ) THE short facts of the case can be stated as under : the complainant Ishabehn Veljibhai is residing in the locality in which the present appellant is residing. There is a public water tap. On 24-4-1989 at about 2. 00 p. m. there was some altercation between the wife of the accused-appellant bai Nanda and said Ishabehn and on account of push Nanda had fallen down. On account of that incident Nanda told that her husband was not present, let him come and, thereafter, he would see. 3. 1 On the date of the incident, i. e. 25-4-1989 husband of the complainant, veljibhai was sleeping on the cot outside the home and the complainant and one punjabhai were sitting by the side of the cot. At that time Haribhai was passing from near the house of the complainant. In the meantime appellant came running near the cot and inflicted two knife blows to the complainants husband. One of the blow was on the abdomen and the other one was on the side of the stomach. Attempt was made by Haribhai Motibhai to catch the accused but he ran away by the canal. Therefore the injured was taken to the hospital. 3. 2 The complainant gave complaint and the Investingating Officer registered the offence in the crime register. Thereafter yadi was given for medical certificate and also for recording the dying declaration of the victim, but he was not in a position to give statement. Thereafter statements of the wirnesses were recorded. The clothes of the injured were also attached by making a panchanama. Panchanama of the scene of offence was also made. Thereafter it appears that there was also information given by the accused leading to discovery of the knief. After the charge-sheet was filed in the Court of the Chief Judicial Magistrate by the police the case was committed to the Sessions court for the offence under Section 307 ipc. Panchanama of the scene of offence was also made. Thereafter it appears that there was also information given by the accused leading to discovery of the knief. After the charge-sheet was filed in the Court of the Chief Judicial Magistrate by the police the case was committed to the Sessions court for the offence under Section 307 ipc. ( 4 ) THE accused was charged for the said offence as also offence under Section 135 (1) of the Bombay Police Act on account of the aforesaid allegations. The accused pleaded not guilty. After recording the evidence as also further statements of the accused and after hearing the arguments the learned Judge has passed the aforesaid order of conviction and sentence. ( 5 ) MR. M. C. Kapadia, learned Advocate for the appellant has very frankly stated at the outset that he does not challenge the evidence of the witnesses on the point of inflicting injuries by the accused, but he submits that conviction for the offence under Section 307 is not legal and proper. He further submits that it would be an offence under Section 324 and at the most section 326 IPC. He further points out that before the matter came to be admitted today notice was issued to the injured and that said notice is served on him. At the time of issuing the said notice the Court directed the appellant to deposit an amount of Rs. 2,000/- towards the cost of the injured and accordingly he has deposited that amount. Pursuant to the said notice injured Veljibhai remained present and has asked for time for engaging an advocate. Accordingly time was granted and now Mr. I. M. Pandya, learned Advocate appears for him. When the injured remained personally present he pointed out that both the parties are residing in the same loality and that he has to look after the maintenance of the family of the accused-appellant. He has further stated that for maintaining peace between the parties and also in the locality there is already a settlement between the parties. ( 6 ) THERE might be some settlement as stated by the witness. Still however, with a view to verify the same we inquired from the Advocate so that there may not be any difficulty with regard to indentification of the person as also the correctness of his version. Mr. ( 6 ) THERE might be some settlement as stated by the witness. Still however, with a view to verify the same we inquired from the Advocate so that there may not be any difficulty with regard to indentification of the person as also the correctness of his version. Mr. I. M. Pandya, learned Advocate appearing for the appellant has stated before us that what is stated by the injured before the court is correct. ( 7 ) THE fact remains that there is already a compromise between the parties. But the offence under Section 307 as well as Section 326 is not compoundable. But. the offence under Section 324 IPC would be compoundable. Therefore it will be necessary to see as to what is the offence committed by the appellant. ( 8 ) IT may be noted that in view of the statement made by the learned Advocate for the appellant it would not be necessary to appreciate the evidence of the prosecution witnesses in detail. However, it may be stated that the injured Velji (Ex. 10) has clearly supported the version of the prosecution on the point of inflicting two injuries by the appellant, one on the abdomen and the other on the side of the stomach. According to the injured the first injury was caused on his abdomen and when he saw and when he was trying to get up he received the second blow of knife which was on the left side of the stomach. According to him on account of the injury on the stomach intestine came out. He also identified the colour of the handle of the knife as blue and he also identified the muddamal Article No. 1 (knife) as the article with which he was injured. His evidence has been corroborated by the evidence of other witnesses. Medical officer Bharatkumar K. Solanki has supported his version. He has spoken about the following injuries : (1) Incised wound on the right side near abdomen of the size of 1" x 0. 5" cavity deep and fat over the intestine had come out. Injury was an egg shape injury and it was going towards the ambilicus. The edge of the wound was sharp. (2) Incised wound on the left side of the stomach. Size : 1. 5" x 1" cavity deep. Said wound was going upwards towards the ambilicus. 5" cavity deep and fat over the intestine had come out. Injury was an egg shape injury and it was going towards the ambilicus. The edge of the wound was sharp. (2) Incised wound on the left side of the stomach. Size : 1. 5" x 1" cavity deep. Said wound was going upwards towards the ambilicus. According to him both the injuries were fresh. Full time surgeon has operated the injured. In the operation seven holes took place on the ilium part of small intenstine and liquid was coming out. According to said doctor both the injuries were possible by the sharp edged weapon as also sharp edged hard substance. Article no. 1 (knife) was pointed out to him and according to him said injuries are possible by the said knife and that if there would not have been any complication wound would have been healed within 2 to 3 weeks after the operation. On the point of nature of injuries he has stated that said injuries are likely to cause death and it was likely to put human life in danger. Both were grievious injuries and accordingly he had given the certificate (Ex. 7 ). In the cross-examination he has stated that the injured gave him history that Mohan Ranchhod had given him knife blows. ( 9 ) THUS the evidence of the injured is fully supported by the medical evidence on the point of receiving injuries and nature of injuries. ( 10 ) THERE is also evidence of Punjabhai (Ex. 18 ). He has fully supported the prosecution case. According to him there is a common pali (parapet) wall between his house and the house of Velji. According to him he was sitting on the said pali and Ishabehn was sitting nearby and they were talking. He had given the account of the injuries inflicted on Velji by the accused. According to him two injuries were caused. One of them on the stomach and the other on the side of the stomach. Nothing material is brought out in his cross-examination to disbelieve his version. ( 11 ) THE complainant Ishabehn (Ex. 8) has fully supported the prosecution case. Witness Haribhai who has turned hostile has also partly supported the prosecution case. So that part of his evidence can be relied as it is corroborated by the evidence of other witnesses. Nothing material is brought out in his cross-examination to disbelieve his version. ( 11 ) THE complainant Ishabehn (Ex. 8) has fully supported the prosecution case. Witness Haribhai who has turned hostile has also partly supported the prosecution case. So that part of his evidence can be relied as it is corroborated by the evidence of other witnesses. ( 12 ) APART from other evidence the aforesaid evidence is sufficient to bring home the charge against the appellant on the point of his inflicting injuries on the injured Velji. ( 13 ) IN the view of the aforesaid medical evidence it is necessary to consider as to what offence the appellant has committed. It is true that he has used the knife (Article No. 1) which has length of 3" and width of 1". Therefore, it appears that it was an ordinary knife which can be used for mending vegetables. Accused has abruptly came and given the blows when the victim was sleeping on the cot. When the injuries are inflicted on the stomach with force naturally it would have deeper injury than the length of the knife. Next question to be considered is as to what was his intention. It is true that he has used the ordinary knife and has selected vital part of the body, namely, stomach and abdomen. According to the doctor the said injury was likely to cause death. Question is if by the very injury if the person had died can it be said that the accused would be guilty of offence of murder? For this purpose intention as also nature of the injury are to be taken into consideration and one of the considerations would be objective nature of the injury, whether it is sufficient in the ordinary Course of nature to cause death. There is difference between the words "likely to cause death" and the words "sufficient in the ordinary course of nature to cause death". Injury which sufficient in the ordinary course of nature to cause death has more probability of death. Under the circumstances in the present case if at all death would have occasioned because of the aforesaid injuries the accused could not have been held guilty tor the offence of murder. Therefore, finding of the Trial court on the point of conviction for the offence under Section 307 IPC requires to be modified. Under the circumstances in the present case if at all death would have occasioned because of the aforesaid injuries the accused could not have been held guilty tor the offence of murder. Therefore, finding of the Trial court on the point of conviction for the offence under Section 307 IPC requires to be modified. ( 14 ) ACCORDING to the medical evidence there was grievous hurt and was likely to endanger human life. When grievous hurt is caused by the instrument like knife it would be an offence under Section 326 ipc. When there is grievous hurt there is no question of considering the point as to whether it would be an offence under Section 324 IPC. Therefore, it is clear that the appellant has committed offence under Section 326 IPC. Accordingly we modify the conviction of the appellant. ( 15 ) THE next question to be considered would be what would be the sentence to be imposed on the appellants. It is true that offences under Sections 307 and 326 provide for life imprisonment. While exercising the direction we have to take into consideration the aspects like relationship between the parties as also the compromise arrived at between the parties. On this point our attention is drawn by Mr. M. C. Kapadia, learned advocate for the appellant to the judgment of the Supreme Court in the case of Ram Pujan and Others v. State of Uttar Pradesh, (1973) 2 Supreme court Cases 456. In the said case an application was filed before the High court stating that the appellants and the injured persons belong to one family and that they had amicably settled the disputes and wanted to live in peace. The High court thereafter referred the matter to the Trial Court for verification of the compromise and after the compromise was got verified the High Court passed an order stating that as the offence under section 326 IPC was non-compoundable permission to compound the offence could not be granted. The High Court all the same reduced the sentence for the offence under Section 326 read with Section 34 ipc from four years to two years. On the same facts the Supreme Court observed as under :"as the parties who belong to one family have settled their dispute, it is, in our opinion, not necessary to keep the appellant in jail for a longer period. On the same facts the Supreme Court observed as under :"as the parties who belong to one family have settled their dispute, it is, in our opinion, not necessary to keep the appellant in jail for a longer period. The major offence for which the appellants have been convicted is no doubt non-compoundable but the fact of compromise can be taken into account in determining the quantum of sentence. It would in our opinion, meet the ends of justice if the sentence of imprisonment awarded to the appellants is reduced to the period already undergone provided each of the appellants pays a fine of Rs. 1,500/- in addition to the period of imprisonment already undergone for the offence under Section 326 read with section 34 IPC. In default of payment of fine, each of the appellant shall undergo rigorous imprisonment for a total period of one year for the offence under Section 326 read with Section 34, Indian Penal code. Out of the fine, if realised, Rs. 2,000/- should be paid to Ram Sewak and Rs. 2,000/- to Ram Samujh as compensation. " ( 16 ) MR. M. C. Kapadia, learned Advocate for the appellant states that there is already a settlement between the parties. Mr. I. M. Pandya, learned Advocate appearing for the injured has verified the same. Both the parties are residing in the same locality. On the contrary the injured Velji has to maintain the family of the accused. Under the circumstances it is no longer necessary to keep the appellant in the jail. He has already undergone the sentence of more than four months. The sentence of imprisonment awarded to the appellant is reduced to the period already undergone. However, in spite of the fine of Rs. 500/- he should be fined an amount of Rs. 2,000/- in default to undergo imprisonment for a. period of two years. ( 17 ) ACCORDINGLY, the order of the Trial court is modified. Instead of conviction of the appellant for the offence under section 307 IPC he is convicted for the offence under Section 307 IPC. Instead of sentence of four years RI and fine of Rs. 500/- he is awarded sentence of imprisonment for the period already undergone and a fine of Rs. 2,000/ -. ( 18 ) MR. M. C. Kapadia submits that an amount of Rs. Instead of sentence of four years RI and fine of Rs. 500/- he is awarded sentence of imprisonment for the period already undergone and a fine of Rs. 2,000/ -. ( 18 ) MR. M. C. Kapadia submits that an amount of Rs. 2,000/- has already been deposited in this Court vide receipt No. 1563 dated 10-4-1991 and that amount be treated as the amount of fine imposed on the appellant. When the amount is recovered out of the same amount of Rs. 1,500/- be paid to the injured Veljibhai gamjibhai Vaghri by way of compensation for the injuries received by him. Accordingly the Registrar of this Court is directed to transfer the amount deposited in this Court to the Sessions court, Sabarkantha with a direction to appropriate the said amount towards payment of fine and to pay an amount of Rs. 1,500/- out of the said amount of fine to Veljibhai Gamjibhai Vaghri, the injured by way of compensation. The appeal is accordingly allowed, to the aforesaid extent. Appeal partly allowed. .