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2004 DIGILAW 956 (RAJ)

Mahesh Chandra v. State of Rajasthan

2004-07-09

O.P.BISHNOI

body2004
Judgment O.P. Bishnoi, J.-This appeal has been filed by the accused Mahesh Chandra against a Judgment dated 8-9-1987 by the learned Additional Sessions Judge, Rajsamand whereby the appellant has been found guilty for the offences punishable under Sections 324 and 326 of the IPC. For the offence under Section 324 of the IPC he has been awarded R.I. for 6 months. For the offence under Section 326 of the IPC, two years’ R.I. and a fine of Rs. 500/-has been awarded. On non-payment of fine, S.I. tor three months’ has been ordered. The principal sentences have been ordered to run concurrently. 2. According to the prosecution story, the injured P.W. 1 Narain reached the police station, Nathdwara on 2-8-85 at 6.45 p.m. and lodged a written FIR Ex. P/i. According to the FIR, the incident occurred at 6.30 p.m. on 2-8-85 at Bus-stand, Nathdwara on the shop belonging to P.W. 9 Kishan Lal. It was stated that the injured was returning from ‘Bijnol’ and at the bus-stand of Nathdwara, he went to the shop of Kishan Lal to purchase ‘Bidi’ when the appellant attacked him either with a ‘knife’ or a ‘razor’ and inflicted two injuries. The first injury was inflicted on the right hand and the second was inflicted on the left hand, as a result of view which the shirt and underwear received cuts and ultimately, the third injury an abrasion was received on. the chest and stomach. The injured was further cross-examined by the S.H.O. and he stated that the motive for the incident was old enmity. A case under Sections 307 and 324 of the IPC was registered and challan for the said offences was filed in the Court of the learned Judicial Magistrate, Nathdwara, from where, the appellant was committed to the said trial Court at Rajsamand. He was charged for the offence punishable under Sections 307 and 324 of the IPC. D.W. 1 Rajendra Kumar and D.W. 2 Dau Lal were examined in defence. According to these witnesses, the injured was not attacked at the Bus-stand, Nathdwara but he actually received the injuries at Bijnol at about 5 6 p.m. The learned trial Court then heard the arguments and delivered the Judgment on 8-9-1987. The accused was acquitted of the charge punishable under Section 307 of the IPC but was found guilty and was sentenced as stated supra. 3. The accused was acquitted of the charge punishable under Section 307 of the IPC but was found guilty and was sentenced as stated supra. 3. I have heard the learned Counsel for the appellant as well as the learned Public Prosecutor for the State and have perused the record of the learned trial Court. I find that the conclusions drawn by the learned trial Court against the appellant are unsustainable and the appeal deserves to be allowed. 4. So far as the offence punishable under Section 326 of the IPC is concerned, I find that there is no acceptable evidence to believe that any injury on the person of P.W. 1 Narain has been proved to be of grievous nature. In this connection, P.W. 6 Dr. Megh Kumar Sirohlya has been examined, who has stated that one incised wound on the left arm and another incised wound on the right wrist were found and third injury was an abrasion on the left side of the chest. The witness has stated that injuries Nos. 1 and 3 were simple but injury No. 2, which was on the right wrist was dangerous to life. During cross-examination, he was put to question, as to why in his opinion, the injury No. 2 was dangerous to life. The sole reply was that there was proflised bleeding and hence, he surmised that it could be dangerous. He made It clear that if only the capillaries were cut. the injury could not become dangerous to life. According to the witness, the injury could be dangerous to life, in case, there was a cut in the major artery. However, from his deposition, it is clear that he did not make it sure as to whether the bleeding was on account of injury to any artery or to the capillaries. Needless to say that unless the Doctor was able to ascertain positively that there was a cut in the artery, it cannot be said that the injury could prove fatal. Regarding the proflised bleeding, the deposition of the Investigating Officer P.W. 10 Amrit Lal is significant. He does not say that the bleeding was proflised. According to him the blood was coming out not profusely but in droplets. It is, thus, more than clear that since there was no evidence of damage to any artery, the conclusion of Dr. Regarding the proflised bleeding, the deposition of the Investigating Officer P.W. 10 Amrit Lal is significant. He does not say that the bleeding was proflised. According to him the blood was coming out not profusely but in droplets. It is, thus, more than clear that since there was no evidence of damage to any artery, the conclusion of Dr. Megh Kumar Slrohiya to the effect that injury No. 2 could endanger the life of the injured, was unfounded. The result is that in the eventuality of the finding of guilt, there was no justification to arrive at a conclusion that the appellant was guilty under Section 326 of the IPC. In the light of the injuries, a finding of guilt beyond Section 324 of the IPC was not permissible. 5. Regarding the incident, the injured P.W. 1 Narain has stated that while he was purchasing Bidi’ at the shop of Kishan Lal, he was attacked from behind and the injury was caused to his left hand by some sharp-edged weapon. Thereafter when he saw, he found the appellant with a ‘barber’s razor’ and by the said weapon, another injury was inflicted, on account of which, he was injured on the left shoulder, stomach and right hand. Further he has stated that P.W. 2 Navneet transported him on his motor-cycle; first to the police station and then to the hospital. He has further stated that in the hospital, his statement Ex. P/i was recorded by the police. 6. To provide independent corroboration, P.W. 2 Navneet, P.W. 5 Bhim Singh and P.W. 9 Kishan Lal were examined. P.W. 2 Navneet, according to the prosecution story, was present when the Incident took place. P.W. 5 Bhim Singh, according to the prosecution story, was sitting on the shop of Kishan Lal at the time of incident, P.W. 9 Kishan Lal is a shopkeeper, from whom, the injured was allegedly purchasing ‘Bldi’ when he was attacked by the appellant. However, none of the three, has corroborated the prosecution story to the effect that the injured was attacked in their presence or he received any injury at the hands of the appellant. All the three have been declared hostile. However, none of the three, has corroborated the prosecution story to the effect that the injured was attacked in their presence or he received any injury at the hands of the appellant. All the three have been declared hostile. According to P.W. 9 Kishan Lai, the injured was not attacked at his shop but he saw him coming to his shop in an injured condition and was able to see the injuries when he was some 30-40 steps away from his shop. The witness has stated that he did make enquiry regarding the assailants but the Injured did not disclose the name of the assailants and simply stated that he has received the injuries by a ‘knife’ or by a ‘razor’. In this connection, the deposition of the defence witnesses becomes relevant. Both the defence witnesses have stated that no incident took place at the place alleged by the prosecution. D.W. 1 Rajendra Kumar has stated that the injured Narain had an altercation with 2-3 persons in ‘Bijnor where the injury was inflicted to him at about 5 p.m. and the three assailants ran away. Further, he has stated that the injured was taken on bicycle towards Nathdwara. D.W. 2 Dau Lal has stated that they noticed Narain in an injured condition in the evening at about 6.15 p.m. and when he enquired from the injured, the injured replied that the injury was received in an altercation at ‘Bijnol’. 7. Even if , no importance is attached to the deposition of the said two defence witnesses, I find that the prosecution evidence is far from satisfactory. 8. According to the S.H.O. P.W. 10 Amrit Lal, the injured came to the police station with a written FIR Ex. P/i at 6.45 p.m. However, the injured Narain is positive in this respect and has stated that the FIR was not lodged by him at the police station. According to him, he was hospitalized and there, his statement was recorded by the police. In this respect, the learned Counsel for the appellant has argued that the formal FIR has not been tendered in evidence and got exhibited. According to the learned Counsel for the appellant, the formal FIR was not tendered in evidence, because it was despatched on 5-8-85 to the concerned Magistrate and the circumstance goes to show that Ex. In this respect, the learned Counsel for the appellant has argued that the formal FIR has not been tendered in evidence and got exhibited. According to the learned Counsel for the appellant, the formal FIR was not tendered in evidence, because it was despatched on 5-8-85 to the concerned Magistrate and the circumstance goes to show that Ex. P1l actually was not registered on 2-8-85 but actually it was registered on 5-8-85 and was ante-dated. I find that the formal FIR is present on record but was not tendered in evidence. However, the fact remains that according to the injured Narain, his ‘Parchabyan’ was recorded while he was hospitalized whereas Ex. P1l has arc endorsement to the effect that the written report was brought by Narain and was produced at the police station before he was admitted in the hospital. 9. Theincident occurred allegedly at 6.30 p.m. and according to the prosecution case, the FIR was registered at 6.45 p.m. Strangely enough, the S.H.O. did not proceed to the alleged place of incident and for the reasons best known to him. postponed to visit the place of occurrence til1 11-00 a.m. on 3-8-85. He has admitted that no blood was found at the place of occurrence. The reason given by him, is to the effect that it was rainy season and hence, no trace of blood could be detected. Needless to say, that it was the bounden duty of the S.H.O. to rush to the place of occurrence forthwith on 2-8-85 Itself to ascertain for himself regarding the place of occurrence and to find out and record the statements of the eye-witnesses. According to P.W. 10 Amrit Lal he did not go from the police station on 2-8-85 on account of it being night time. This conduct of the SHO is unexplainable. Moreover, even if it was rainy season, it was imperative on the part of the SHO to take the soil from the alleged place of occurrence and send it for chemical examination because in spite of rainy season, there were chances that on account of chemical examination, the presence of blood could still be detected. 10. The deposition of P.W. 1 Narain cannot be termed to be of sterling worth. In the FIR Ex. P/1, it is mentioned that the weapon of offence could not be ascertained. 10. The deposition of P.W. 1 Narain cannot be termed to be of sterling worth. In the FIR Ex. P/1, it is mentioned that the weapon of offence could not be ascertained. However, during his deposition, he was positive that the injury was caused by a ‘razor’ and not by a ‘knife’. During cross-examination, the witness was not normal and he started to abuse the learned Counsel for the appellant, who was conducting the cross-examination. Needless to say, that in the circumstances narrated above and looking to the fact that there being no slightest independent corroboration by P.W. 2 Navneet, P.W. 5 Bhim Singh and P.W. 9 Kishan Lal the sole deposition of P.W. 1 Narain cannot be made the basis of conviction taking into consideration the demeanour of the witness. 11. In the result, the appeal is allowed. The Judgment under appeal is set aside. The appellant is acquitted of the charges.