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2009 DIGILAW 833 (PNJ)

Sarida v. State of Haryana

2009-04-29

SHAM SUNDER

body2009
JUDGMENT Sham Sunder, J. - This appeal is directed, against the Judgement of conviction dated 01.10.96, and the order of sentence dated 03.10.96 rendered by the Court of Additional Sessions Judge (V), Faridabad, vide which, it convicted the accused (now appellant), for the offence, punishable under Section 307 of the Indian Penal Code, and sentenced her, to undergo rigorous imprisonment, for a period of four years, and to pay a fine of Rs. 500/-, in default thereof, to further undergo simple imprisonment, for a period of three months. 2. The facts, in brief, are that, complainant-injured Akbar, was married to accused Sarida, as per Muslim rites about six years, prior to the occurrence. Three years after the marriage, the accused came to her matrimonial home for the first time. Thereafter, during the subsequent three years, she came to her husbands house only thrice. The relations between the parties were strained, right from the very begining. The father of the accused wanted to send her with some other person for consideration. 3. On the night intervening 26/27.11.93, the complainant and the accused were were asleep, in a room, on a single cot. The mother of the complainant namely Mariyam, his sisters, and brother, were sleeping, in the adjacent room. At about 2.30 AM, on 27.11.93, the complainant woke up, per chance, and found that the accused was still awake. The accused told the complainant to take a turn, and sleep properly. She then got up and went out of the room. She returned there after sometime. In the meantime, the complainant enjoyed a nap. The accused then assaulted the complainant with an axe (kulhari), which hit him, on the left side of his neck. When the complainant tried to run away, the accused over-came him and grappled with him. With a great difficulty, he opened the door, and raised an alarm, on hearing which, his mother Mariyam, fathers elder brother (Tau) Isa, and Isas wife Batuli, got up, and came there. They separated the complainant and the accused. After sometime, complainants father Deenu, also are there. He shifted the complainant immediately to Civil Hospital, Palwal, where he was medico-legally examined by Dr. Jagmohan Mittal, Medical Officer, who issued medico-legal report PA, in this egard. 4. They separated the complainant and the accused. After sometime, complainants father Deenu, also are there. He shifted the complainant immediately to Civil Hospital, Palwal, where he was medico-legally examined by Dr. Jagmohan Mittal, Medical Officer, who issued medico-legal report PA, in this egard. 4. On receipt of ruqa PB, from the Medical Office, the Police party headed by Assistant Sub Inspector Ram Niwas, reached the hospital, and thereafter seeking opinion PC/1, on the request PC, from the Medical Officer, the statement of the complainant PD was recorded. The complainant, besides unfolding the facts, narrated hereinbefore, also stated that at, the time of marriage, his father had presented the silver ornaments weighing about 2 kgs and one gold Hansli, weighing about 1 tola, to the accused. Besides that, he had also lent a sum of Rs. 15,000/-, to his father-in-law Nooru (father of the accused). The above ornaments were with the father of the accused. He (complainant) further stated that the accused had assaulted him, as her father did not want to return the above ornaments, and cash, and he further wanted to send the accused with someone else for consideration. On the basis of the statement PD, the first information report PD/1, was registered, in the Police Station, and the investigation was taken in hand. 5. During the course of investigation, the medico-legal report of the injured PA, was taken into possession. The place of occurrence was inspected, and the rough site plan PN thereof, was prepared. Scaled site plan PD of the place of occurrence was also got prepapred. From the place of occurrence, vide recovery memos PE and PF, one blood smeared gudri (quilted cushion made of rags), and blood stained earth, were taken into possession. The accused was apprehended. Her clothes stained with blood were taken into possession, vide memo PG. In pursuance of her disclosure statement PH, weapon of offence i.e. axe (kulhari) was recovered, vide recovery memo PJ. 6. Gudri, clothes and earth stained with blood, having been recovered, as above, were sent to the Forensic Science aboratory, Madhuban, Karnal. From the Laboratory report PM, was received, to the effect, that the sample of earth was stained with human blood, and the gudri was also smeared with human blood. On receipt of the above report, and after the completion of investigation, the accused was challaned. 7. From the Laboratory report PM, was received, to the effect, that the sample of earth was stained with human blood, and the gudri was also smeared with human blood. On receipt of the above report, and after the completion of investigation, the accused was challaned. 7. On her appearance, in the Court of the Committing Magistrate, the accused was supplied the copies of documents, relied upon by the prosecution. After the case was received by commitment, in the Court of Sessions, charge under Section 307 of the Indian Penal Code, was framed against the accused, which was read-over and explained to her, to which she pleaded not guilty, and claimed judicial trial. 8. The prosecution, in support of its case, examined Dr. Jagmohan Mittal, Medical Officer (PW1), who conducted the medico-legal examination of Akbar, injured, Subhash Chand, Draftsman (PW2), who prepared the scaled site plan, Akbar, complainant-cum-injured (PW3), Balbir Singh, Head Constable (PW4), Gulshan Rai, Sub Inspector (PW5), Deenu father of the injured (PW6), an eyewitness, and Ram Niwas, Assistant Sub Inspector (PW7), the Investigating Officer. The Public Prosecutor for the State tendered into evidence PK, PL, the affidavits of formal witnesses, and PM, the report of the Forensic Science Laboratory. Thereafter, he closed the prosecution evidence. 9. The statement of the accused under Section 313 of the Code of Criminal Procedure, was recorded. She was put all the incriminating circumstances, appearing against her, in the prosecution evidence. She pleaded false implication, due to strained relations, with complainant. She further stated that some unknown persons had caused injuries, on the person of the complainant. She, however, did not lead any evidence in her defence. 10. After hearing the Counsel for the parties, and, on going through the evidence, on record, the trial Court, convicted and sentenced the accused, as stated above. 11. Feeling aggrieved, the instant appeal, was filed by the appellant. 12. I have heard the Counsel for the parties, and have gone through the evidence and record of the case, carefully. 13. The Counsel for the appellant, submitted that no offence, punishable under Section 307 of the Indian Penal code, was constituted, from the evidence, produced by the prosecution, but the trial Court, was wrong, in recording conviction, and awarding sentence for the said offence. The submission of the Counsel for the appellant, in this regard, appears to be correct. Dr. 13. The Counsel for the appellant, submitted that no offence, punishable under Section 307 of the Indian Penal code, was constituted, from the evidence, produced by the prosecution, but the trial Court, was wrong, in recording conviction, and awarding sentence for the said offence. The submission of the Counsel for the appellant, in this regard, appears to be correct. Dr. Jagmohan Mittal, Medical Officer, PW 1, medico-legally examined Akbar son of Deenu, and found the following injuries, on his person: "Incised wound of 21/2 cm x 1/2 cm x. muscle deep on left side of neck, transversally on middle 1/3rd of neck. The margins were clear cut. The direction of wound was from back to forward and interiorly. Fresh bleeding was present (profused)." During the course of cross-examination, it was stated by him, that on the application DA moved by the Police, he gave the opini n DA/1 to the effect that injury on the person of Akbar, was simple in nature. There is nothing, on the record, that the injury which was found on the person of Akbar, was subjected to x-ray examination. There is also nothing, on the record, that the depth of the injury was probed. No doubt, the injury aforesaid was on the neck of Akbar, yet it shaving been declared simple, in nature, by the doctor, it could not be said that the same was caused by the accused, with such intention, or knowledge that if she by that act had caused death, she would have been guilty of murder. Even the dimensions of the injury, on the person of the injured, clearly showed that there was no intention of the accused do cause such injury, as would have caused death. Had the doctor given the opinion, to the effect, that the injury on the person of Akbar, would have endangered his life, but for timely medical aid, it would have been said that the offence, punishable under Section 307 of the Indian Penal Code, was constituted. Since the injury was simple, in nature, it fell within the purview of the offence, punishable under Section 324 of the Indian Penal Code. The trial Court, was, thus, wrong in holding, that the offence, punishable under Section 307 of the Indian Penal Code, was constituted. The finding of the trial Court, to this extent, being not based, on the correct appreciation of evidence, is reversed. 14. The trial Court, was, thus, wrong in holding, that the offence, punishable under Section 307 of the Indian Penal Code, was constituted. The finding of the trial Court, to this extent, being not based, on the correct appreciation of evidence, is reversed. 14. It was next submitted by the Counsel for the appellant, that the appellant is a lady and the occurrence took place, on account of strained relations, between her, and her husband/injured. He further submitted that the appellant has been undergoing the mental agony and physical pain, on account of the protracted criminal proceedings, since 27.11.93, when the first information report, was registered against her. He further submitted that after her conviction, the appellant did not commit any offence. He further submitted that the appellant may be released on probation of good conduct. The submission of the Counsel for the appellant, in this regard, appears to be correct. Since the appellant has been facing the protracted criminal trial since 27.11.93, i.e. for the last more than 15 years, and, there is nothing, on record, that she is a previous convict, or has committed any offence, after her conviction by the trial Court, it is a fit case, in which, the benefit of the provisions of Section 4 of the Probation of Offenders Act, 1958, should be extended, to her. The submission of the Counsel for this regard, being correct, is accepted. 15. In view of the above discussion, the judgement of conviction, for the offence, punishable under Section 324 of the Indian Penal Code, as stated above, instead of for the offence, punishable under Section 307 of the Indian Penal Code, deserves to be maintaied, whereas the sentence, awarded to the appellant, is liable to be set-aside, and instead, she is entitled to be released on probationof goo conduct. 16. For the reasons, recorded above, the appeal is partly accepted. The judgement of conviction, rendered by the trial Court, for the offence, punishable under Section 307 of the Indian Penal Code, is set-aside, and instead, for the offence, punishable under Section 324 of the Indian Penal Code, as converted, is maintained. 17. The order of sentence is set aside. 16. For the reasons, recorded above, the appeal is partly accepted. The judgement of conviction, rendered by the trial Court, for the offence, punishable under Section 307 of the Indian Penal Code, is set-aside, and instead, for the offence, punishable under Section 324 of the Indian Penal Code, as converted, is maintained. 17. The order of sentence is set aside. Keeping in view the nature of offence, the antecedents of the appellant, the factum that she has been facing the protracted criminal proceedings; for the last more than 15 years, and that she has not committed any offence, after her conviction, in this case, she is ordered to be released on probation of good conduct, for a period of 02 years, on her furnishing a personal bond, in the sum of Rs. 5000/-, with one surety in the like amount, to the satisfaction of the Chief Judicial Magistrate, to appear and receive sentence, as and when, called upon, during this period and, in the meantime, to keep the peace and be of good behaviour. She shall also furnish an undertaking, that she shall not commit any offence of the like nature, during, the aforesaid period. The appellant shall also pay costs of the proceedings, to the tune of Rs. 10,000/-. In case, she has already deposited the amount of fine, to the tune of Rs. 500/-, that shall the amount of costs, referred to above. The probation bonds, alongwith the undertaking, shall be furnished and the costs, referred to above, less than the fine, if already paid, shall be deposited, in the Court of Chief Judicial Magistrate, within a period of 2 months, fail the Court concerned, shall proceed, in accordance with the provisions of law, for compliance of the judgment. Order accordingly.