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2009 DIGILAW 1575 (RAJ)

Dhanraj @ Dhanna Gotiya v. State of Rajasthan

2009-07-09

S.P.PATHAK

body2009
Hon'ble PATHAK, J.—Appellant Dhanraj @ Dhanna Gotiya son of Bhanwar Lal has filed this criminal appeal under Section 374(2) Cr.P.C. against the judgment of conviction and order of sentence dated 17th January 2004 passed by the Additional Sessions Judge (Fast Track) No. 1, Baran in Sessions Case No. 125/2003 whereby the accused appellant has been convicted and sentenced for the offence under Section 307 IPC to undergo rigorous imprisonment for ten years and to pay a fine of Rs. 1,000/- in default of payment of fine to further undergo one month's rigorous imprisonment and for the offence under Section 323/34 IPC to undergo simple imprisonment for six months and to pay a fine of Rs. 50/-, in default of payment of fine to further undergo seven days' simple imprisonment. Both the sentences were ordered to run concurrently. 2. Briefly stated, the facts for the disposal of the present appeal are that Babu Lal PW.1 submitted a written report Ex. P.1 on the basis of which a formal FIR Ex. P.2 was registered at police station Anta District Baran under Secs. 307 and 323/34 IPC. It was alleged that on the day of incident PW.1 Babu Lal along with Ram Kumar and Mohan Lal Vijayvargiva after taking break-fast from the house of Ramhet were returning to their houses situated in the Railway Colony. Anta. On the way accused Dhanna @ Dhanraj Gotiya and Ram Kishan met them. At that time they were under the influence of liquor. On seeing them, they started abusing and when it was objected the accused gave beating to him by fists and legs and when Ram Kumar tried to intervene, PW.1 Babu Lal was left and accused appellant Dhanna @ Dhanraj Gotiya took out a knife from his pocket and repeatedly gave knife blows on the abdomen of Ram Kumar Meena as a result of which he fell down and accused ran away from there. The injured was taken to Anta Hospital by his family members. The injured was referred from Anta Hospital to Kota Hospital. It was also stated that the incident took place at 5.00 p.m. On the above report, FIR No. 80/2003 was registered for the offence under Sections 307, 323/34 IPC and investigation commenced. After completion of investigation, charge-sheet was submitted against accused-appellant Dhanraj and Prithviraj. The injured was referred from Anta Hospital to Kota Hospital. It was also stated that the incident took place at 5.00 p.m. On the above report, FIR No. 80/2003 was registered for the offence under Sections 307, 323/34 IPC and investigation commenced. After completion of investigation, charge-sheet was submitted against accused-appellant Dhanraj and Prithviraj. Ultimately, the matter came up for trial before the Additional Sessions Judge (Fast Track) Baran who framed charge against the accused appellant for the offence under Sec. 307, 307/34 and 323/34 IPC. Accused appellant and co-accused denied the charges and claimed trial. In support of its case, the prosecution examined as many as 13 witnesses and tendered 15 documents in evidence. After close of the prosecution evidence in the statement recorded u/Sec. 313 Cr.P.C. the accused appellant and co-accused denied the prosecution case and claimed that they were innocent. In defence Ram Lal DW.1, Baksuram DW.2, Ram Prasad DW.3 were produced. The learned trial Court after hearing final submi-ssions convicted and sentenced the accused appellant as indicated here-in-above and co-accused Prithviraj was convicted for the offence u/Sec. 323/34 IPC and was acquitted of the charge u/Sec. 307, 307/34 IPC giving benefit of doubt to him and instead of sentencing gave him benefit of the provisions of Probation of Offenders Act vide judgment and order dated 17.1.2004. No appeal has been preferred by the co-accused and the appellant has challen-ged his conviction and sentence recorded against him by the trial Court. 3. I have heard learned counsel for the accused appellant as well as learned public prosecutor for the State and carefully perused the material available on record. 4. It has been contended by the learned counsel for the appellant that in the instant case as far as conviction of the accused appellant recorded by the trial Court under Section 307 and 323/34 IPC is concerned, it is not being challenged on merits and looking to the nature of injury and also the evidence of the doctor wherein he has not stated that injury was sufficient in the ordinary course of nature to cause death, it cannot be said that the injury inflicted on the person of injured was sufficient to cause death. It is also contended that there is no repeated blow on the person of injured, therefore, it cannot be said that the accused appellant had any intention to cause such bodily injury which could be termed sufficient in the ordinary course of nature to cause death and in the above circumstances the accused was only liable to be convicted under Section 326 IPC and not under Section 307 IPC. Learned counsel in support of his submission has placed relience on Babu Lal vs. State of Rajasthan - Cr.L.R. (Raj.) 1988 page 648 = 1988(1) RLW 492, Jodh Singh vs. State of Rajasthan- Cr.L.R. (Raj.) 1984 page 730 and Munna vs. State of Rajasthan - Cr.L.R. (Raj.) 1984 page 529. 5. On the other hand, learned public prosecutor has contended that it has been amply proved that without any rhyme and reason the accused took out knife from his pocket and thereafter inflicted knife blow on the abdomen of injured Ram Kumar. According to the learned public prosecutor the injury was on the vital part and in view of the operation-note Ex. P.10, it can be presumed that the injury found on the abdomen of PW.13 Ram Kumar was sufficient in the ordinary course of nature to cause death, therefore, it cannot be said that the prosecution was not able to prove the case against the accused appellant under Section 307 IPC. It is also contended that the sentence awarded by the trial court to the accused appellant in the facts and circumstances requires to be maintained. 6. I have carefully considered the submissions. 7. In the case of Babu Lal (supra), the Division Bench of this Court finding that the deceased was only an intervenor and at that time accused inflicted only one blow by an axe and also finding that there was no pre-meditation or motive or enmity against the deceased at the time of incident the offence found proved against the accused was under Section 304 Part II IPC and not under section 302 IPC, the appellant was sentenced for five years rigorous imprisonment and fine. 8. 8. In the case of Jodh Singh (supra), the accused was tried for committing offence under Section 302 IPC and Division Bench of this Court finding that the doctor has not stated that the injury was sufficient in the ordinary course of nature to cause death then in the above circumstances looking to the nature of injury, it was held that offence committed by the accused was one under Section 326 IPC. In the above case, the accused had remained in jail for three years and appeal came up for hearing after nine years. In such circumstances, the sentence awarded to the accused was reduced to the period already undergone by him. 9. In the case of Munna (supra), this Court finding that as the doctor did not state that the injury was sufficient in the ordinary course of nature to cause death and injury inflicted by knife on the chest was considered dangerous and conviction recorded against the accused under Section 307 IPC was altered into one under Section 308 IPC and conviction under Section 307 IPC was set aside and accused appellant was convicted under Section 308 IPC and sentenced to the period already undergone by him. 10. It is to be seen that PW.1 Babu Lal in his statement has given narration of the incident took place on 18.3.2003. He has also stated that it was the accused appellant who took out the knife from his pocket and inflicted knife blow on the abdomen of PW.13 Ram Kumar. PW.13 Ram Kumar is the injured witness and he has stated that the accused was responsible for causing injury on his abdomen. He has stated that when accused appellant and other accused were beating PW.1 Babu Lal on the day of incident, he intervened and at that time accused appellant inflicted knife blow at the left side of his abdomen. He has also stated that he was referred from Anta Hospital to Kota Hospital. He has also stated that he was operated upon. It also appears that after arrest of the accused appellant vide arrest memo Ex. P. 13 on 16.4.2003, he made a disclosure statement Ex. P.14 to the effect that he was prepared to get the recovery of the knife effected which he had kept in his house. On the basis of above information, recovery of the knife was made vide memo Ex. P. 13 on 16.4.2003, he made a disclosure statement Ex. P.14 to the effect that he was prepared to get the recovery of the knife effected which he had kept in his house. On the basis of above information, recovery of the knife was made vide memo Ex. P. 6 on the very same day in presence of witnesses Bansilal and Ram Ratan. It also appears that two injured persons namely Babu Lal PW-1 and Ram Kumar PW.13 were examined by PW.7 Dr. Surya Prakash Garg and PW.8 Dr. Govind Gupta respectively. PW.7 Dr. Surya Prakash Garg had stated that he found three simple injuries on the person of Babu Lal which was on right cheek and right thigh. PW.8 Dr. Govind Gupta found one injury on the abdomen and a contusion of the size of 4x3 cm. on the left knee. He has also stated that in view of operation-note Ex. P.10 injury No. 1 was grievous and caused by sharp object. 11. PW.11 Hardayal had investigated the case and made recoveries and arrested the accused. Thus, in view of above evidence, there remains no doubt that on 18.3.2003 accused appellant inflicted knife blow on the abdomen of PW-13 Ram Kumar. The injury was dangerous as per the statement of PW.8 Dr. Govind Gupta. He has not in the specific terms stated that the injury was in the ordinary course of nature sufficient to cause death. Other witnesses are of formal nature. Some of them, namely; PW.2 Brij Mohan, PW.5 Panna Lal and PW.6 Bansi Lal have been declared hostile as they have not supported the prosecution case but in the absence of their testimony and in view of the testimony of PW.1 Babulal and PW.13 Ram Kumar injured and statement of doctors PW.7 Dr. Surya Prakash Garg and PW. 8 Dr. Govind Gupta, it has been amply proved that it was the accused appellant and the co-accused who gave bearing to Babu Lal and when PW.13 tried to intervene, at that time accused appellant inflicted knife blow in the abdomen of PW.13 Ram Kumar. 12. Now, the question which comes up for consideration is as to whether the accused appellant committed an offence under Section 307 IPC or 326 IPC? 13. 12. Now, the question which comes up for consideration is as to whether the accused appellant committed an offence under Section 307 IPC or 326 IPC? 13. It is correct that there is only one injury on the abdomen and in the statement of the doctor it has been stated that the injury was dangerous to life and the doctor has not stated that in the ordinary course of nature it was sufficient to cause death, therefore, I am of the opinion that it cannot be said that if PW.13 Ram Kumar had died, the appellant would have been guilty for the offence under Section 302 IPC. In the facts and circumstances of the case, the offence that would have been made out against the accused appellant in case Ram Kumar PW.13 had died, would have been culpable homicide not amounting to murder punishable under Section 304 IPC in as much as the appellant could only be attributed with the intention to cause an injury which was likely to cause death Therefore, conviction of the accused appellant for the offence under Section 307 IPC cannot be sustained and he could only be held guilty for the offence punishable under Section 326 IPC. 14. On the question of sentence, it has been submitted that the appellant was arrested on 16.4.2003 and has been in custody during the course of investigation as well as trial. The appellant has, thus, undergone imprisonment for nearly 6-1/4 years. In the facts and circumstances of the case, I am of the opinion that ends of justice would be served if the sentence of imprisonment already undergone by him is awarded to the appellant for the offence under Section 326 IPC. 15. In the result, the appeal is allowed. The conviction and sentence of the appellant for the appellant for the offence under Section 307 IPC is set aside and instead he is convicted for the offence under Section 326 IPC and sentenced to the period of imprisonment already undergone by him. The sentence awarded under Section 323/34 IPC is maintained. The appellant is in jail. He be released forthwith if not required in any other case.