Ekos Joseph Vargis v. State of Maharashtra — 1998 DIGILAW 640 (BOM)

Judgement VISHNU SAHAI, J. :- Through this appeal the appellant challenges the judgment and order dated 16-8-1988 passed by the IIIrd Additional Sessions Judge, Nashik, in Sessions Case No. 22/1988, convicting and sentencing him to undergo 10 years R.I. for an offence punishable under Section 307, I.P.C. 2. Is short the prosecution case runs as under: The informant - victim Narpatsingh Rathod PW-1 at the time of the incident was serving as Havaldar in Artillery centre in 9/3 ADM. at Nashik. He was attached to M.T. section. The appellant was in charge of the said section. On 18-12-1998 at about 8.30 p.m. the victim and the appellant were in Wing No. 1 of building No. P/124 of M.T. Line No. 9, of Artillery Centre at Nasik Road. At that time the appellant was talking with Ved Prakash and Brij Kishor. Havaldar Hukumsingh, Naik Ramchandra and some others were also present there. The appellant started inflicting abuses on the victim and questioned him as to why he was standing there. An altercation, which lasted for 10 to 15 minutes, took place between them. The appellant asked the victim to sit in his cot and thereafter took him outside. After some time the appellant and the victim came back. The appellant ordered the other persons present to put off the light and asked the victim to come out of the building. Accordingly the victim came out with the appellant in the verandah where the appellant inflicted a solitary blow with a pen knife on his abdomen near umbilicus. The victim immediately started shouting that Havaldar Vargis (name of the appellant) had stabbed him with a knife. Thereafter the appellant throw the knife on the floor and ran away Naik Ramchandra put on the light. According to the victim when the appellant assaulted him in the verandah no one else was present. 3. The informant victim was immediately removed to M.I. Room where he was given first aid. His evidence shows that he had told the doctor in the M.T. Room that Havaldar Vargis (the appellant) had stabbed him with a knife in abdomen. From M.I. room the victim was removed to Military Camp hospital Devlali where he was medically examined by Dr. Himdari Bal PW-5, the same night at 9.40 p.m. Dr. Bal found that he had sustained a perforating injury on abdomen located about 5 cms. From M.I. room the victim was removed to Military Camp hospital Devlali where he was medically examined by Dr. Himdari Bal PW-5, the same night at 9.40 p.m. Dr. Bal found that he had sustained a perforating injury on abdomen located about 5 cms. from umbilicus at 11 O'clock position. This injury was 1/2 cm. in length and was bandaged. After opening the bandage Dr. Bal suspected that there might be perforation inside and consequently did not put any probe inside and instead sent for the Surgical Officer Dr. R.K. Gaur, who immediately came and advised for exploratory laparotomy in order to find out whether there was any serious internal injury. It is pertinent to point out that both in the injury report and in his statement Dr. Bal has stated that the victim gave the case history that he had an altercation with the appellant who stabbed him in his abdomen with a sharp object. 4. The investigation was conducted in the usual manner and thereafter the appellant was charge-sheeted for the offence under Section 307, I.P.C. In the trial Court he was charged for the said offence and pleaded not guilty. His defence was that of denial. During trial in all the prosecution examined a witnesses. The informant, who according to the prosecution was the only eye witness of the assault, gave ocular account. The learned trial Judge believed the evidence adduced by the prosecution and convicted and sentenced the appellant in the manner stated above. 5. We have heard learned counsel for the parties and perused the evidence on record. Mr. Prafulla Shah, learned counsel for the appellant first tried to assail the involvement of the appellant in the incident but finding that his submissions were not making any impression switched on to his alternative submission that in asmuch as no offence beyond that contemplated under Section 324, I.P.C. is made out, the substantive sentence of the appellant be reduced to the period already undergone and some fine be imposed on him which may be directed to be paid as compensation to the victim. 6. We have no reservations in observing that so far as the involvement of the appellant in the incident is concerned the same has been proved beyond any shadow of doubt, by the prosecution, through the evidence of the informant victim Narpatsingh Rathod PW-1. 6. We have no reservations in observing that so far as the involvement of the appellant in the incident is concerned the same has been proved beyond any shadow of doubt, by the prosecution, through the evidence of the informant victim Narpatsingh Rathod PW-1. In Para 2 we have set out the prosecution case on the basis of the recitals contained in his evidence and consequently we do not intend to graphically reiterate it. In short the victim stated that on 18-12-1987 at about 8.30 p.m. he and the appellant along with some others were present in Wing No. 1 of building No. P/124 of M.T. Line No. 9 of Artillery Centre at Nasik Road. At that time the appellant was talking with Ved Prakash and Brij Kishor. Havaldar Hukumsingh, Naik Ramchandra and some others were also present there. The appellant started abusing him and asked him as to why he was standing there. On that there was an exchange of hot words, lasting for 10 to 15 minutes, between him and the appellant and more or less immediately thereafter the appellant asked those present in the building to put off the light and thereafter took him to the verandah and inflicted a solitary blow with a pen knife on his abdomen. The aforesaid manner of assault furnished by the victim is corroborated by the evidence of Dr. Himdari Bal PW-5, who found on his person a perforating injury in the abdomen. It is common knowledge that the perforating injury can be caused by a pen knife. It is pertinent to point out that in the case history furnished by the victim to the doctor in M.I. room as well as to Dr.. Bal PW-5, the victim stated that Havaldar Vargis (the appellant) had assaulted him in the abdomen with a sharp object. Assurance is also lent to the statement of the victim by the circumstance that, the FIR of the incident was recorded by H.C. Punjaram Maula Aher PW-6, on the account given by him, the same day (18-12-1987). In the said FIR the informant has mentioned the manner of assault launched on him by the appellant and has nominated him. 7. Assurance is also lent to the statement of the victim by the circumstance that, the FIR of the incident was recorded by H.C. Punjaram Maula Aher PW-6, on the account given by him, the same day (18-12-1987). In the said FIR the informant has mentioned the manner of assault launched on him by the appellant and has nominated him. 7. For the reasons mentioned above, in the absence of any plausible reason for the victim to falsely implicate the appellant, in our view, the learned trial judge acted correctly in finding the involvement of the appellant established in the incident. 8. The question which survives is whether the learned trial Judge acted correctly in convicting the appellant for the offence under Section 307, IPC. To that our answer is in the negative. According to the prosecution itself there was no pre-existing enmity between the appellant and the victim. The evidence shows that prior to the incident both the appellant and the victim had (taken) some rum and were drunk. Immediately before the incident the appellant was talking with Ved Prakash and Brij Kishor and the victim was standing there. On this the appellant reprimanded the victim and an altercation which lasted for 10 to 15 minutes took place between them culminating in the appellant inflicting a single blow with a pen knife on the abdomen of the victim. On these facts it would be difficult to conclude that the appellant had the requisite intention to commit the murder of the victim within the terms of Section 307, IPC. In this connection it would be pertinent to refer to the medical evidence. The same does not show that the injury sustained by the victim was either grievous in nature or dangerous to life. It is true that Dr. Bal P.W. 5, who medically examined the victim stated in his examination in Chief that laparotomy was advised by Dr. R. K. Gaur in order to find out whether there was any serious internal injury but in his cross-examination he admitted that he was not present at the time of laparotomy operation. In such a situation, when the prosecution has failed to examine Dr. R. K. Gaur, it cannot be said that the internal injury sustained by the victim was either serious or dangerous to life. Mr. Mhaispurkar, Additional Public Prosecutor, strenuously urged that inasmuch Dr. In such a situation, when the prosecution has failed to examine Dr. R. K. Gaur, it cannot be said that the internal injury sustained by the victim was either serious or dangerous to life. Mr. Mhaispurkar, Additional Public Prosecutor, strenuously urged that inasmuch Dr. Bal stated that the victim could have succumbed to his injury had he not been rushed immediately for medical treatment, it would be appropriate to conclude that the injury was dangerous to life. We regret that we cannot accede to this submission. In our view in the absence of any internal damage and categorical statement by Dr. Bal to the effect that the injury was dangerous to life no such presumption can be drawn. For the aforesaid reasons in our view only an offence under Section 324, IPC and not one under Section 307, IPC would be made out against the appellant. We are fortified in our view by the decision of the Supreme Court reported in AIR 1963 SC 843 : (1995 (1) Cri LJ 766) (Sarju Prasad v. State of Bihar). In the said case an injury with a chura (big knife) was inflicted on the abdomen of the victim, but no vital organ of the body was injured. A perusal of paragraph 9 of the said decision would show that this was also one of the circumstances, on the basis of which the Supreme Court converted the conviction from Section 307, IPC to one under Section 324, IPC. 9. The only question which remains is the quantum of sentence to be awarded to the appellant. Mr. Prafulla Shah, learned counsel for the appellant, strenuously urged that since the appellant has been in jail for more than 3 months, is aged about 55 years, has retired from service, there is nothing to indicate that he is a previous convict and bearing in mind the factual matrix in which the incident took place, and the circumstances that he only inflicted a solitary blow with a pen knife it would be expedient in the interest of justice to reduce his sentence reduced to the period already undergone and impose some fine on him which should be directed to be paid as compensation to the victim. In view of the peculiar facts of this case we are inclined to accede to his contention. In view of the peculiar facts of this case we are inclined to accede to his contention. In our view the ends of justice would be squarely satisfied if the substantive sentence of the appellant for the offence under Section 324, IPC is reduced to the period already undergone by him and a fine of Rs. 25000/- and 2 years R.I. in default is imposed on him. 10. In the result this appeal is partly allowed. Although we acquit the appellant for the offence punishable under Section 307, IPC and set aside his sentence of 10 years RI thereunder but we find him guilty for an offence punishable under Section 324, IPC. On which count we reduce his substantive sentence to the period already undergone and direct that he should deposit a fine of Rs. 25,000/-, with 6 months from today, in the trial Court, failing which he would undergo 2 years R.I. In case the appellant deposits the fine in the stipulated period Rs. 15,000/-, would be paid as compensation by the trial Court to the informant - victim, Narpatsingh Rathod P.W. 1, and in case he is not alive to his legal heirs. The remaining amount of Rs. 10,000/- shall go to the State. In case the appellant does not pay the fine in the stipulated period, he shall undergo the sentence in default of payment of fine imposed by us. It shall be open to the trial Court to accept the fine on production of a certified copy of our judgment, which in case an application is made by the counsel for the appellant, shall be issued within 8 weeks from today. Appeal partly allowed.