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2009 DIGILAW 2040 (RAJ)

Suman v. State of Rajasthan

2009-09-17

MAHESH CHANDRA SHARMA

body2009
JUDGMENT (1) BY filing this criminal appeal under Section 374, Cr. P. C. the accused appellant has challenged the impugned judgment of conviction and sentence dated 4-10-1991 passed by learned Addl. District and Sessions Judge, Beawar (Rajasthan) (for short 'the learned trial Court') in Sessions case No. 59/88, by which he convicted and sentenced the accused appellant as under : U/S. 307. IPC : Five years RI and Rs. 500/- fine. In default of payment of fine, he shall further undergo six months' RI. U/S. 326, IPC: Four years RI and Rs. 500/- fine. In default of payment of fine, he shall further undergo six months' RI. U/S. 324, IPC : One year RI and Rs. 200/- fine. In default of payment of fine, he shall further undergo two months RI. Sentences were ordered to run concurrently. (2) BRIEF facts of the case as set up by the prosecution are that on 2-9-1988 one Kanchan lodged a report at P. S. Beawar City alleging therein that she resides in Debgali and on the same day at about 7.00 p. m. when her husband was present at the house she saw that accused Suman, Babu Lai, Chittar, Jagdish, Chhotu, Ashok etc., came to her house and started beating who were armed with lathies. Suman with intention to cause death of her husband inflicted one knife blow on the head of her husband. When her daughter came to intervene, accused Suman inflicted one knife blow on the left in wrist. Her husband fell down on the earth and the accused were calling to kill him. The police on the aforesaid report registered an FIR for the offence under Sections 147, 148, 149, 307, 326, 324 and 323, IPC and started investigation in the matter. (3) THE police after investigation submitted charge-sheet against the accused appellant including other co-accused persons for the aforesaid offences in the Court concerned. (4) THE trial Court after hearing framed charge against the accused appellant including the co-accused persons for the aforesaid offences, who denied the charges, pleaded not guilty and claimed to be tried in the matter. During trial one of the co-accused Laxminarain expired and thereafter, the proceedings were dropped against him. (5) THE prosecution in support of its case produced as many as 14 witnesses and certain documents were got exhibited. (6) THEREAFTER, the statement of the accused appellant under Section 313, Cr. PC. During trial one of the co-accused Laxminarain expired and thereafter, the proceedings were dropped against him. (5) THE prosecution in support of its case produced as many as 14 witnesses and certain documents were got exhibited. (6) THEREAFTER, the statement of the accused appellant under Section 313, Cr. PC. was recorded. In defence the accused appellant produced one witness namely; DW 1 Satya Narain. The learned trial Court after hearing acquitted the other co-accused persons from all the offences but convicted and sentenced the accused appellant for the aforesaid offences vide impugned judgment of conviction and sentence dated 4-10-1991. Hence, this criminal appeal before this Court. (7) I have heard learned counsel for both the parties and carefully gone through the entire material made available to me. (8) LEARNED counsel for the accused appellant submits that the prosecution has miserably failed to spell out the genesis of the occurrence. The trial Court has failed to consider the statements of the prosecution witnesses and erred in convicting and sentencing the accused appellant for the aforesaid offences. The prosecution witnesses have made great improvements, contradictions and omissions in their testimony. As per the statements of PW 11 Dr. S. C. Jain the case of the accused appellant comes under Section 308, IPC instead of Section 307, IPC. The doctor in his opinion has not opined that the injury was sufficient to cause death in the ordinary course of nature. All the witnesses produced by the prosecution are relatives and interested witnesses. The accused appellant has remained in judicial lock up near about 31 days. On the same set of evidence the learned trial Court acquitted the co-accused persons but erred in convicting and sentencing the accused appellant for the aforesaid offences. The alleged incident has taken place on 2-9- 1988 which is near about 21 years ago from today, since then the accused appellant is facing trial, which tantamounts to punishment and mental agony. Court attention has been drawn by the learned counsel to the provisions of Sections 307 and 308, IPC, which runs as under: "307. Attempt to murder. The alleged incident has taken place on 2-9- 1988 which is near about 21 years ago from today, since then the accused appellant is facing trial, which tantamounts to punishment and mental agony. Court attention has been drawn by the learned counsel to the provisions of Sections 307 and 308, IPC, which runs as under: "307. Attempt to murder. - Whoever does any act with such intention or knowledge, and under such circumstances that, if he by that act caused death, he would be guilty of murder, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; and, if hurt is caused to any person by such act, the offender shall be liable either to (imprisonment for life), or to such punishment as is herein before mentioned. Attempts by life convicts (when any person offending tinder this Section is under sentence of 1 (imprisonment for life), he may, if hurt is caused, be punished with death). 308. Attempt to commit culpable homicide. - Whoever does any act with such intention or knowledge and under such circumstances that, if he by that act caused death, he would be guilty of culpable homicide not amounting to murder, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both; and, if hurt is caused to any person by such act, shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both." (9) THUS, the impugned judgment of conviction and sentence dated 4-10-1991 passed by learned trial Court be quashed and set- aside and the accused appellant be acquitted from the aforesaid offences. (10) LEARNED PP opposed the aforesaid contentions of counsel appearing for the accused appellant and Submits that the learned trial Court has passed the impugned judgment of conviction and sentence after properly considering the statements of the prosecution witnesses as also other material made available to him. Thus, no interference is required to be made in the impugned judgment of conviction and sentence dated 4-10-1991 passed by learned trial Court. In my considered view as also looking to the statements of the prosecution witnesses particularly the statement of PW 11 Dr. Thus, no interference is required to be made in the impugned judgment of conviction and sentence dated 4-10-1991 passed by learned trial Court. In my considered view as also looking to the statements of the prosecution witnesses particularly the statement of PW 11 Dr. S. C. Jain, the case of the accused appellant comes under Section 308, IPC instead of Section 307, IPC. (11) IN the result, this criminal appeal is partly allowed and the accused appellant Suman is convicted and sentenced for the offence under Sections 308, 326, and 324, IPC instead of Section 307 IPC and the accused appellant be released for the period already undergone by him in confinement. The accused appellant is on bail, his bail bonds stand cancelled. (12) THE judgment of conviction and sentence dated 4-10-1991 passed by learned Addl. District and Sessions Judge, Beawar in Sessions case No. 59/88 is modified as indicated hereinabove. Order accordingly.