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2001 DIGILAW 1231 (RAJ)

KAILASH v. STATE OF RAJASTHAN

2001-08-09

SUNIL KUMAR GARG

body2001
Judgment SUNIL KUMAR GARG, J. ( 1 ) THIS appeal has been filed by the accused appellants against the judgment and order dated 6-4-1987 passed by the learned Sessions Judge, Pratapgarh in Sessions Case No. 123/83 by which he convicted the accused appellant No. 3 Iqbal Mohammed for the offence under S. 307, IPC and accused appellants Nos. 1 and 2 Kailash and Babu Rao for the offence under Ss. 307/34, IPC and sentenced each of them in the following manner :-NAME of accused appellants convicted under section sentence awarded 1. Iqbal Mohammed 307,ipc five years RI and to pay fine of Rs. 500. 00, in default of payment of fine, to further undergo SI for three months. 1. Kailash 307/34, IPC three years RI and to pay fine of Rs. 300. 00, in default of payment of fine, to further undergo SI for 11/2 months. 2. Babu Rao by the same judgment, the learned Sessions Judge acquitted present accused appellants of the charges for the offence under Ss. 147, 148 read with S. 149, IPC and also acquitted accused Dilip Rao, Ramesh and Shyamlal of all the charges framed against them. ( 2 ) THE facts giving rise to this appeal, in short, are as follows :- on 30-6-1983 at about 3. 00 p. m. , PW. 4 Vimal Chand lodged a written report Ex. P/4 before PW. 16 Mangilal Jain, SHO, Police Station Chouti Sadri stating inter-alia that his brother PW 1 Ratnesh Kumar had two shops, namely, Mamta Musical Palace and English Vine Store and both were given by him on rent. It was further stated in the report that on that day at about 2. 00 p. m. , when his brother PW. 1 Ratnesh Kumar was sitting in his shop "mamta Musical Palace", Babu Rao (accused appellant No. 2), Dilip Rao, Iqbal Mohammed (accused appellant No. 3), Ramesh, Shyamlal and Kailash (accused appellant No. 1) arrived there and attacked on his brother PW. 1 Ratnesh Kumar. It was further stated in the report that accused appellant No. 2 Babu Rao caught hold the hands of PW. 1 Ratnesh Kumar. It was further stated in the report that accused appellant No. 2 Babu Rao caught hold the hands of PW. 1 Ratnesh Kumar and dragged him from the shop and, thereafter, accused appellant No. 3 Iqbal Mohammed gave a knife blow on the right rib, as a result of which, blood came out and at the same time, the accused appellant No. 1 Kailash, who was having a farsa in his hand, also caused injury to PW. 1 Ratnesh on his finger and, thereafter, they all ran away. It was further stated in the report that on the spot, witnesses Ajij Bakshi (PW 2), Chotu Khan (PW. 6), Vardi Chand (PW. 7), Tejram Rawat (PW 5) and others were present and thereafter, PW. 1 Ratnesh Kumar was taken to the hospital by PW. 2 Ajij Bakshi and Prem Chand. The cause of dispute as narrated in the report is that driver of the accused appellant No. 1 Kailash dashed the vehicle of PW. 1 Ratnesh Kumar and upon this, some altercations took place between them and over this, this incident took place. On this report, a regular FIR Ex. P/5 was chalked out and investigation was started and during investigation, PW. 1 Ratnesh Kumar was got medically examined by PW. 9 Dr. S. S. Mehta and his injury report is Ex. P/9, which shows that he received one incised wound on right chest and two bruises, one on left side of chest and the other on right indext finger. The report given by PW. 14 Dr. Kailash Chandra Vyas about the injuries received by PW. 1 Ratnesh Kumar, is Ex. P/13 and Indoor Patient Bed Ticket is Ex. P/14 and Ex. P/6 is the report, which was given by PW. 13 Dr. N. S. Kothari to SHO, Police Station Choti Sadri, in which, injury No. 1, which was on the chest of PW. 1 Ratnesh Kumar, was assessed as dangerous to life. The accused appellant No. 3 Iqbal Mohammed was arrested on 30-6-1983 through arrest memo Ex. P/11. After usual investigation, police submitted challan against six accused persons in the Court of Magistrate, from where the case was committed to the Court of Session. On 19-10-1983, the learned Sessions Judge, Pratapgarh framed charges for the offence under Ss. 148, 307, 326 and 323/149, IPC against the accused appellants and three other accused. P/11. After usual investigation, police submitted challan against six accused persons in the Court of Magistrate, from where the case was committed to the Court of Session. On 19-10-1983, the learned Sessions Judge, Pratapgarh framed charges for the offence under Ss. 148, 307, 326 and 323/149, IPC against the accused appellants and three other accused. The charges were read over and explained to the accused persons. They denied the charges and claimed trial. During trial, the prosecution in support of its case examined as many as 16 witnesses and got exhibited some documents. Thereafter, statements of the accused persons under S. 313, Cr. P. C. were recorded. In defence, four witnesses were produced by the accused persons. After conclusion of trial, the learned Sessions Judge, Pratapgarh through his judgment and order dated 6-4-1987 convicted and sentenced the present accused appellants in the manner as indicated above holding inter-alia :-1. That since involvement of accused Shyamlal, Ramesh and Dilip Rao is not found and only involvement of present three accused appellants is found, therefore, learned Sessions Judge acquitted all the accused persons for the offence under Ss. 147, 148 and also further held that none would be convicted with the aid of Section 149, IPC. 2. That learned Sessions Judge acquitted the accused Shyamlal, Dilip and Ramesh of all the charges framed against them and also acquitted the present accused appellants for the offence under Ss. 147, 148 IPC. 3. That prosecution witnesses, namely, PW. 4 Vimal Chand and PW. 3 Ramesh Chandra are not eye-witnesses and the learned Sessions Judge relied on the statements of PW. 1 Ratnesh Kumar, PW 2 Ajij Bakshi, PW. 6 Chotu Khan and PW. 7 Vardi Chand. 4. That learned Special Judge came to the conclusion that accused appellant No. 2 Babu Rao caughthold the hands of PW. 1 Ratnesh Kumar and, thereafter, accused appellant No. 3 Iqbal Mohammed gave one knife blow on the chest of PW. 1 Ratnesh Kumar and the accused appellant Kailash gave a farsa blow and caused injury on the finger of PW. 1 Ratnesh Kumar. 5. That the learned Sessions Judge came to the conclusion that the injury No. 1 of PW. 1 Ratnesh Kumar, which was incised wound on his chest, was not grievous in nature. But, he held that by causing this injury, the accused appellant No. 3 Iqbal Mohammed had intention to commit murder of PW. 1 Ratnesh Kumar. 5. That the learned Sessions Judge came to the conclusion that the injury No. 1 of PW. 1 Ratnesh Kumar, which was incised wound on his chest, was not grievous in nature. But, he held that by causing this injury, the accused appellant No. 3 Iqbal Mohammed had intention to commit murder of PW. 1 Ratnesh and thus, he convicted the accused appellant No. 3 Iqbal for the offence under S. 307, IPC and convicted other two accused appellants Nos. 1 and 2 Kailash and Babu Rao for the offence under S. 307/34, IPC. 6. That since accused appellants were going to be convicted for the offence under Ss. 307 and 307 read with 34, IPC, therefore, the learned Sessions Judge did not consider it proper to convict the accused appellants for the offence under Ss. 326 and 323, IPC as they were alternative charges. Aggrieved from the said judgment and order dated 6-4-1987 passed by the learned Sessions Judge, Pratapgarh, this appeal has been filed by the accused appellants. ( 4 ) IN this appeal, the learned counsel appearing for the accused appellants has limited his arguments on few points :- (1) That for the sake of argument if it is admitted that injury No. 1 of injury report Ex. P/9 of PW. 1 Ratnesh Kumar, which is incised wound on his chest, was caused by accused appellant No. 3 Iqbal and the same has been found simple by the learned Sessions Judge, therefore, from this injury alone, case for the offence under S. 307, IPC cannot be held to be proved and the findings of the learned Sessions Judge on this count are erroneous one and the case of the prosecution for this injury cannot travel beyond the scope of S. 324, IPC. (2) That if the Court comes to the conclusion that offence under S. 324, IPC is proved in place of 307, IPC, then the accused appellant No. 3 Iqbal Mohammed may be sentenced to the period already undergone by him as he has remained in PC and JC for the period from 30-6-1983 to 27-10-1983 and 6-4-1987 to 1-6-1987 meaning thereby he remained in jail for more than five months. (3) That for other two accused appellants, namely, Kailash and Baburao, it was submitted by the learned counsel for the accused appellants that since they have not caused any serious injury to PW. 1 Ratnesh Kumar and since the injury, which is alleged to have been caused by accused appellant No. 1 Kailash to PW. 1 Ratnesh Kumar on his little index finger, is simple one and, therefore, these two accused appellants, if at all to be convicted, they be given the benefit of probation and they cannot be convicted under S. 307/34, IPC. ( 5 ) ON the other hand, the learned Public Prosecutor supported the impugned judgment and order passed by the learned Sessions Judge, Pratapgarh. ( 6 ) I have heard the learned counsel for the accused appellants and the learned Public Prosecutor and perused the record of the case. ( 7 ) TO appreciate the above contention, first the statement of PW. 1 Ratnesh Kumar and medical evidence have to be seen. ( 8 ) PW. 1 Ratnesh Kumar in his statement states that first accused appellant No. 2 Babu Rao dragged him from the shop and, thereafter, accused appellant No. 3 Iqbal Mohammed gave him a knife blow on his chest and then, one blow was given by accused appellant No. 1 Kailash and thereafter, they ran away. ( 9 ) THUS, from the statement of PW. 1 Ratnesh Kumar, it is very much clear that accused appellant No. 3 Iqbal Mohammed gave only one knife blow on the chest of PW. 1 Ratnesh Kumar and, thereafter, he did not try to give a second blow by knife on the person of PW. 1 Ratnesh Kumar. ( 10 ) SO far as the medical evidence is concerned, the same is found in the statements of three doctors, namely, PW. 9 Dr. S. S. Mehta, PW. 13 Dr. N. S. Kothari and PW. 14 Dr. Kailash Chandra Vyas. ( 11 ) PW. 9 Dr. S. S. Mehta states in his statement on 30-6-1983 he examined PW. 1 Ratnesh Kumar and found three injuries, out of which, two were simple abrasions/caused by blunt object and the main injury i. e. injury No. 1 of injury report Ex. P/9 of PW. 1 Ratnesh Kumar is as follows:-"an incised wound 1" x 1/2" deep to ribs lower part of Rt. chest. "he has proved the injury report Ex. P/9. 1 Ratnesh Kumar and found three injuries, out of which, two were simple abrasions/caused by blunt object and the main injury i. e. injury No. 1 of injury report Ex. P/9 of PW. 1 Ratnesh Kumar is as follows:-"an incised wound 1" x 1/2" deep to ribs lower part of Rt. chest. "he has proved the injury report Ex. P/9. He has further stated that to stop the flow of blood, stitches were given and he advised x-ray. In cross-examination, he has admitted that wounds of the chest wall were not dangerous unless the cavity is penetrated and vital organ is injured. ( 12 ) THE another doctor is PW. 13 Dr. N. S. Kothari, who has proved the report Ex. P/6. He states in his statement that at the relevant time, he was Medical Jurist in the General Hospital, Udaipur and on police requisition, he examined PW. 1 Ratnesh Kumar and looking to the operation notes, he opined that his injury No. 1 appeared to be dangerous to life. In cross-examination, he admits that X-rays were taken of that injury No. 1, but no fracture was found. ( 13 ) ANOTHER doctor is PW. 14 Dr. Kailash Chandra Vyas, who had proved the certificate Ex. P/13. In his statement, he has admitted that after seeing the x-rays of chest and stomach, they were found normal and after seeing the wound, it was found that in the membrane of peritoniam, there was a tear, but surface of liver was intact and he was admitted in hospital on 30-6-1983 and was discharged on 6-7-1983. ( 14 ) SO far as the fact that injury No. 1 of injury report Ex. P/9 of PW. 1 Ratesh Kumar was found simple in nature is concerned, the same is well proved from the statements of PW. 13 Dr. N. S. Kothari and PW. 14 Dr. Kailash Chandra Vyas and further the learned Sessions Judge has given the finding that the said injury No. 1 was simple in nature. ( 15 ) THE next question that arises for consideration is whether the findings of the learned Sessions Judge, by which on the above medical evidence, he came to the conclusion that by causing injury No. 1 to PW. ( 15 ) THE next question that arises for consideration is whether the findings of the learned Sessions Judge, by which on the above medical evidence, he came to the conclusion that by causing injury No. 1 to PW. 1 Ratnesh Kumar, which is incised wound on his chest, the accused appellant No. 3 Iqbal Mohammed committed the offence under S. 307, IPC are liable to be confirmed or not. ( 16 ) TO justify a conviction under S. 307, IPC, it is not essential that bodily injury capable of causing death should have been inflicted. Although the nature of injury actually caused may often give considerable assistance in coming to a finding as to the intention of the accused, such intention may also be deduced from other circumstances, and may even, in some cases, be ascertained without any reference at all to actual wound. The section makes a distinction between an act of the accused and its result, if any. Such an act may not be attended by any result so far as the person assaulted is concerned, but still there may be cases in which the culprit would be liable under this section. It is not necessary that the injury actually caused to the victim of the assault should be sufficient under ordinary circumstances to cause the death of the person assaulted. What the Court has to see is whether the act, irrespective of its result, was done with the intention or knowledge and under circumstances mentioned in this section. An attempt in order to be criminal need not be the penultimate act. It is sufficient in law, if there is present an intent coupled with some overt act in execution thereof, as held by the Honble Supreme Court in State of Maharashtra v. Balram Bama Patil, AIR 1983 SC 305 . ( 17 ) KEEPING in mind the above legal principles as laid down by the Honble Supreme Court, the facts of the present case are being examined. ( 18 ) IN this case, there is evidence that accused appellant No. 3 Iqbal gave only one knife blow on the chest of PW. 1 Ratnesh Kumar and that injury is found simple in nature and there is no evidence that he tried to make a second attempt by the same knife on any part of the body of PW. 1 Ratnesh Kumar. 1 Ratnesh Kumar and that injury is found simple in nature and there is no evidence that he tried to make a second attempt by the same knife on any part of the body of PW. 1 Ratnesh Kumar. By this Act of the accused appellant No. 3 Iqbal Mohammed, it cannot be held that accused appellant No. 3 Iqbal Mohammed had intention to murder PW. 1 Ratnesh Kumar and all the three doctors, namely, PW. 9 Dr. S. S. Mehta, PW. 13 Dr. N. S. Kothari and PW. 14 K. C. Vyas nowhere have stated that the injury No. 1 mentioned in injury report Ex. P/9 of PW. 1 Ratnesh Kumar was sufficient in the ordinary course of nature to cause death and, therefore, in these circumstances, it cannot be held that by inflicting this injury on the chest of PW. 1 Ratnesh Kumar, the accused appellant No. 3 Iqbal had an intention to commit murder of PW. 1 Ratnesh Kumar and, therefore, the findings of the learned Sessions Judge convicting the accused appellant No. 3 Iqbal for the offence under S. 307, IPC are liable to be set aside. ( 19 ) SINCE the injury No. 1 mentioned in the report Ex. P/9 of PW. 1 Ratnesh Kumar has been found simple in nature and, therefore, the act of the accused appellant No. 3 Iqbal Mohammed would be covered for the offence under S. 324, IPC and thus, he is to be convicted for the offence under S. 324, IPC in place 307, IPC and rest accused appellants Nos. 1 and 2 Kailash and Babu Rao are to be convicted for the offence under S. 324 read with 34, IPC in place of 307/34, IPC and the findings of the learned Sessions Judge are liable to be altered accordingly. On point of sentence the case of accused appellant No. 3 Iqbal Mohd. ( 20 ) THIS accused appellant has remained in PC and JC for the period from 30-6-1983 to 27-10-1983 and from 6-4-1987 to 1-6-1987 meaning thereby he has remained in jail for more than five months. On point of sentence the case of accused appellant No. 3 Iqbal Mohd. ( 20 ) THIS accused appellant has remained in PC and JC for the period from 30-6-1983 to 27-10-1983 and from 6-4-1987 to 1-6-1987 meaning thereby he has remained in jail for more than five months. ( 21 ) LOOKING to the entire facts and circumstances of the case and the fact that incident took place on 30-6-1983 and now about 18 years have elapsed and that he has remained in jail for more than five months, if the accused appellant No. 3 Iqbal Mohammed is sentenced to the period already undergone by him for the offence under S. 324, IPC, it would meet the ends of justice. ( 22 ) HOWEVER, since PW. 1 Ratnesh Kumar had undergone operation for the injury No. 1, therefore, some compensation should also be awarded to him and in my opinion, if Rs. 5000. 00 are awarded to him, that would further meet the ends of justice. The cases of accused appellants Nos. 1 and 2 Kailash and Babu Rao ( 23 ) LOOKING to the entire facts and circumstances of the case and looking to the fact that this is a very old matter, it would be just and proper to grant benefit of probation under S. 4 of the Probation of Offenders Act, 1958 to these two accused appellants Kailash and Babu Rao for the offence under S. 324/34, IPC. In the result, the appeal filed by the accused appellants is partly allowed in the following manner :- 1. That the accused appellant No. 3 Iqbal Mohammed is convicted for the offence under S. 324, IPC instead of 307, IPC and the judgment and order dated 6-4-1987 passed by the learned Sessions Judge, Pratapgarh convicting and sentencing him for the offence under S. 307, IPC stand modified accordingly. However, for the offence under S. 324, IPC, the accused appellant No. 3 Iqbal Mohammed is sentenced to the period already undergone by him. Since he is on bail, he need not surrender and his bail bonds are hereby cancelled. It is further directed that accused appellant No. 3 Iqbal Mohammed would pay Rs. 5000. 00 (Rs. five thousand only) to the injured PW. Since he is on bail, he need not surrender and his bail bonds are hereby cancelled. It is further directed that accused appellant No. 3 Iqbal Mohammed would pay Rs. 5000. 00 (Rs. five thousand only) to the injured PW. 1 Ratnesh Kumar as compensation and for depositing the said amount in the trial Court, the accused appellant No. 3 Iqbal Mohammed is granted three months time from today and on depositing the said amount, the same be paid to PW. 1 Ratnesh Kumar. 2. That similarly, the accused appellants No. 1 Kailash and No. 2 Babu Rao are convicted for the offence under S. 324 read with 34, IPC in place of 307 read with 34, IPC and the judgment and order dated 6-4-1987 passed by the learned Sessions Judge, Pratapgrah convicting and sentencing them for the offence under S. 307 read with 34, IPC stand modified accordingly. However, instead of sentencing them for the offence under S. 324/34, IPC, I would direct that the accused appellants No. 1 Kailash and No. 2 Babu Rao be released on probation under S. 4 of the Probation of Offenders Act, 1958 provided each of them executes a personal bond in the sum of Rs. 1,000. 00 (Rs. one thousand only) with one surety each in the like amount to the satisfaction of the learned trial Court within a period of two months from today to keep peace and be of good behaviour for a period of one year. Order accordingly. .