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2005 DIGILAW 337 (MP)

Gokul Singh v. State of M. P.

2005-03-03

S.L.KOCHAR

body2005
JUDGMENT This appeal has been filed by the appel1ant against the judgment dated 10.3.2003 passed by learned Sessions Judge, Dewas in S.T. No. 13512002 thereby convicting the appellant under section 307 of Indian Penal Code and sentencing him to undergo RI for five years with fine of Rupees two thousand, in default of payment of fine, further RI for one year. The learned counsel for appellant does not wish to press this appeal on merits so far as the involvement of the appellant for causing injury to injured Sunil (PW 1) is concerned. The contention of the learned counsel for appellant is that even if the complete prosecution case is accepted, offence would not travel beyond under section 326 of Indian Penal Code. The learned counsel has invited the attention of this Court towards the statement of the complainant Sunil (PW 1), eye witness Bherulal (PW 3), the medical evidence of Dr. Sushil Kumar Khare (PW 6) and Dr. Alok Shrivastava (PW 7) as well as the FIR (Ex. P-31) recorded by Yeshwant Singh Sachan (PW 10). The contention of the learned counsel for appellant is that appellant and the complainant injured Sunil (PW 1) were not having any previous enmity. On the contrary, they were having reasonable relation and from the appellant, Sunil (PW 1) had purchased the bicycle in Rs. 550/- out of which he had paid Rs. 530/- rupees and he was to pay only Rs. 20/- to the appellant Gokulsingh. On the date of incident, in the night at 9:30 p.m., the appellant met him near village Naka and demanded remaining Rs. 20/- on which Sunil (PW 1) sought sometime to pay this amount because at that time he was not having the same. On refusal by Sunil (PW 1), appellant started beating him by slaps. The dispute was pacified by Bharatsingh and Bherusingh but immediately after separation, the appellant caused two injuries to Sunil by knife. Injury NO.1 was simple in nature and injury No.2 at the stomach was opined as dangerous to life in absence of immediate and effective treatment. The learned counsel has also pointed admission of victim Sunil (PW 1) in para six that during scuffle he had also given two to four fist blows to the appellant. Bharatsingh (PW 2) has also stated that appellant and complainant Sunil (PW 1) were having verbal quarrel and both had grappled. The learned counsel has also pointed admission of victim Sunil (PW 1) in para six that during scuffle he had also given two to four fist blows to the appellant. Bharatsingh (PW 2) has also stated that appellant and complainant Sunil (PW 1) were having verbal quarrel and both had grappled. On his intervention, they were separated. Thereafter the appellant caused knife injury to Sunil. This witness has also admitted in paragraph five that during the course of incident, complainant Sunil has also assaulted appellant by fists. Same is the statement of Bherulal (PW 3). The injured was examined first in time by Dr. Sushil Kumar Khare ,(PW 6) who found two incised injuries, one on the left side of the chest. This injury was simple in nature and second injury was on outer left side of the chest and he referred the patient to expert for second injury. Dr. Alok Shrivastava (PW 7) performed operation of the injured Sunil (PW 1) and he found damage to the liver. By operation the damage was repaired. Sunil (PW 1) remained hospitalised for 18 days and according to opinion of this Doctor, injury was sufficient to cause death in absence of treatment. The learned counsel has submitted that the incident had occurred on a very trival issue all of a sudden and the appellant was not having intention to commit or cause such bodily injury because of which if the victim would have died, the appellant would have been guilty of commission of culpable homicide amounting to murder punishable under section 302 of Indian Penal Code. The learned counsel has also submitted that for determination of intention of the appellant, there is no evidence of motive. The incident ensued on demand of Rs. 20/- by the appellant which he owe from the complainant and thereafter both started abusing each other and also assaulted each other. Thereafter appellant caused injuries by knife. The learned counsel has submitted that the appellant is in jail after conviction from 10.3.2003 and also remained in jail during the trial from 19.5.2002 to 24.7.2002. In total, he has completed two years and two months. Therefore, he may be sentenced to the period already undergone with reasonable enhancement in fine amount. The learned counsel for State has supported the judgment of conviction passed by the Court below. In total, he has completed two years and two months. Therefore, he may be sentenced to the period already undergone with reasonable enhancement in fine amount. The learned counsel for State has supported the judgment of conviction passed by the Court below. Having heard the learned counsel for parties and after going through the impugned judgment and entire record, this Court is of the view that there is substance in the submission of the learned counsel for appellant that the offence would not be made out under section 307 of Indian Penal Code in the facts and circumstances of the present case, but looking to the nature of injury and opinion of medical expert, it would be an injury grievous in nature punishable under section 326 of Indian Penal Code. This is the admitted position that appellant and the complainant/injured Sunil (PW 1) were not having any previous enmity and the incident was a chance encounter. On the alleged date and time of incident they met near village Naka and appellant demanded his Rs. 20/- from the complainant. They entered into verbal altercation, abused each other, grappled and also assaulted each other by fists. Upto that time, the appellant did not use the knife. It appears that the appellant when failed to over-power the complainant Sunil (PW 1), he took out the knife from his pocket and dealt two blows without aiming specifically at the chest of the injured Sunil (PW 1). All these events are clearly establishing that the incident had occurred all of a sudden. Supreme Court in the case of Sarju Prasad v. State of Bihar, AIR 1965 SC 843 has specifically held that for determination of the intention of the accused, nature of injury alone-is not sufficient and evidence of motive always plays an important role. In the present case, there was no motive and independently the nature of injury was grievous one. Therefore, the offence at the most would fall under section 326 of Indian Penal Code. In the result, the appeal of the appellant is allowed in part. His conviction under section 307 of Indian Penal Code is set aside, instead thereof he is convicted under section 326 of Indian Penal Code and sentenced to the period already undergone which fine amount of Rs. 5,000/-, in default of payment of fine he shall undergo further RI for one and a half years. His conviction under section 307 of Indian Penal Code is set aside, instead thereof he is convicted under section 326 of Indian Penal Code and sentenced to the period already undergone which fine amount of Rs. 5,000/-, in default of payment of fine he shall undergo further RI for one and a half years. The learned counsel for appellant has submitted that the fine amount of Rs. 2,000/- has already been deposited in the trial Court. If so, the learned trial Court is directed to release the appellant forthwith upon his depositing remaining fine amount of Rs. 3,000/- and out of total fine amount of Rs. 5,000/-, Rs. 4,000/- be paid as compensation to the injured Sunil (PW 1). Office is directed to send copy of this judgment along with the record immediately to the trial Court.