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2011 DIGILAW 346 (RAJ)

Chandraee v. State of Rajasthan

2011-02-15

KAILASH CHANDRA JOSHI

body2011
JUDGMENT 1. - This revision petition is directed against the judgment dated 07.10.1994 passed by the learned Addl.District and Sessions Judge, Pai in criminal appeal No.05/1994 whereby the learned appellate Judge dismissed the appeal filed by the petitioner and affirmed the judgment and order dated 25.06.1994 as passed by the learned Addl. Chief Judicial Magistrate, Sojat in Criminal Case No.392/1986 convicting the accused petitioner for offence under section 326 and 452 Indian Penal Code2 and sentencing her for offence under section 326 Indian Penal Code to a period of of one year's simple imprisonment and a fine of Rs. 1,000/- and in default of payment of fine, to further undergo one month's simple imprisonment and for offence under section 452 Indian Penal Code to three months' simple imprisonment and a fine of Rs. 200/- and in default of payment of fine, to further undergo seven days' simple imprisonment. 2. The accusation against the present petitioner had essentially been that on 04.09.1986 at about 07.00 AM the petitioner entered the house of complainant Gheesi and caused grievous injuries with incised teeth so as to separate some portion of the lower lip of the injured and caused other simple injuries also. 3. The investigation was conducted by the Incharge , police Station ,Bagri. Upon submission of the charge sheet after investigation, the petitioner was charged for the offence under section 452, 326 and 323 Indian Penal Code. 4. The learned Magistrate, after taking the evidence of 11 witnesses adduced by the prosecution and after examining the accused under section 313 Criminal Procedure Code, found proved the essential facts for the commission of the offence under section 326 and 452 Indian Penal Code, by making trespass in the residential house of the complainant after making preparation for committing the offence and for causing grievous injuries with sharp edged weapon to Gheesi. The learned trial court came to this conclusion while relying upon the evidence of PW/4 Gheesi and also the statement of PW/3 Lakshmi, the eye witness. The learned Magistrate found no reason to disbelieve the testimony of PW/3 Lakshmi and PW/4 Gheesi, who were the alleged eye witnesses to the incident and in the facts and circumstances of the case , declined to extend the benefit of probation of offenders Act and sentenced the petitioner as indicated above. 5. The learned Magistrate found no reason to disbelieve the testimony of PW/3 Lakshmi and PW/4 Gheesi, who were the alleged eye witnesses to the incident and in the facts and circumstances of the case , declined to extend the benefit of probation of offenders Act and sentenced the petitioner as indicated above. 5. The learned Addl.Sessions Judge, Pali, while deciding the criminal appeal No.05/1994 endorsed the finding of the learned Magistrate and dismissed the appeal filed by the petitioner and affirmed the sentence on the ground that the accused petitioner caused grievous injuries on the lower lip and thereby disfiguration of the face was caused. 6. Assailing the judgment and order aforesaid, the learned counsel for the accused petitioner has strenuously contended that the findings as recorded by the learned trial court, as well as endorsed by the learned appellate court, cannot be sustained because the Hon'ble Supreme Court in Shakeel Ahmed vs. State, Delhi (2004) 10 SCC 103 , held that the teeth of the human being cannot be considered as a deadly weapon as per the description of 'deadly weapon' enumerated under section 326 Indian Penal Code. Thus, the offence committed by the present accused petitioner cannot be escalated to section 326 Indian Penal Code. The counsel for the petitioner contended that the learned trial court, while relying upon the judgment of this Court reported in 1990 WLC (UC) 59, held that the injuries by the teeth comes under the provisions of section 326 Indian Penal Code, whereas in the light of the law laid down by the Hon'ble Supreme Court in the above referred case , the judgment relied on by the learned trial court cannot be said to be a good law. 7. The learned counsel for the petitioner also contended that there is no evidence of preparation on the part of the accused petitioner because as per the first information report and the statement recorded during the course of trial , it has not been alleged that the accused petitioner was armed with any weapon and without there being any preparation, the offence under section 452 Indian Penal Code cannot be said to be made out and further the counsel for the accused petitioner also contended that as per the evidence of PW/7 Ganpat, the incident took place near the Public Tap. Therefore, the offence under section 452 and 451 Indian Penal Code is also not made out against the accused petitioner. 8. The learned Public Prosecutor has duly supported the judgment of the learned trial court which has been endorsed by the learned appellate court. 9. The submissions of the learned counsel have been given a thoughtful consideration and I have examined the record. 10. Though the learned counsel for the petitioner has strenuously argued on the question of the place of the incident but in view of the statement of PW/3 Lakshmi and PW/4 Gheesi, it cannot be said that the incident took place at the Public Tap because both these witnesses have clearly deposed that the incident took place inside the house of Gheesi and PW/3 Lakshmi saw the incident. There is no contradiction in the statement of these two witnesses and they have not deposed any thing in their cross-examination so as to make their statement unreliable regarding the place of the incident and the way in which the offence was committed. Although there is no evidence on record that the present accused petitioner Chandraee entered the house of the complainant with any preparation , therefore, the essential fact of preparation is missing in the evidence of PW/3 Lakshmi and PW/4 Gheesi and in the absence of any preparation, the offence under section 452 Indian Penal Code cannot be said to be made out and thus the offence of the accused petitioner comes within the purview of section 451 Indian Penal Code. 11. The other submission of the learned counsel for the petitioner is regarding the weapon of offence and the nature of injury which was caused by the accused petitioner. The learned trial court , while relying upon the judgment reported in 1990 WLC (UC) 59,(supra),came to the conclusion that the injuries caused by the accused petitioner to the injured, comes under the provisions of section 326 Indian Penal Code but in view of the judgment of the Hon'ble Supreme Court in the case of Shakeel (supra), it can be said that the offence cannot escalate to section 326 Indian Penal Code. In the above judgment of the Hon'ble Supreme Court, the phalanx of the index finger was snipped off by the teeth and the Hon'ble apex court held that the teeth of the human being cannot be considered as a deadly weapon, as per the description of the deadly weapon enumerated under section 326 Indian Penal Code and the Hon'ble Supreme Court altered the conviction from section 326 Indian Penal Code to section 325 Indian Penal Code. 12. Accordingly, the conviction of the accused petitioner cannot escalate to section 326 Indian Penal Code. Therefore, the conviction is altered from section 326 to section 325 Indian Penal Code and from section 452 to section 451 Indian Penal Code. 13. The counsel for the petitioner further contended that the incident took place on 05.09.1986 and the trial court convicted the accused petitioner vide order dated 25.06.1994 and the appellate court affirmed the order of conviction vide order dated 07.10.1994, therefore he has prayed for punishing the accused petitioner to the imprisonment already undergone, which is about two weeks period. 14. Even if the plea of probation had not acceded , looking to the over all circumstances, this court is of opinion that no useful purpose could be served with further imprisonment of the petitioner at this length of time and the interest of justice shall be served if the total sentence for imprisonment for the offence aforesaid be reduced to that of the period of imprisonment already undergone, with imposing of fine as imposed by the learned trial court and further affirmed by the learned appellate court as the quarrel took place on a very trifle matter of the procurement of water. 15. Accordingly, this revision petition is partly allowed to the extend indicated above. While the conviction of the petitioner for the offence under section 326 and 452 Indian Penal Code is altered to that of section 325 and 451 Indian Penal Code and the sentence awarded to her is modified in the manner that she is awarded the sentence of imprisonment in total of the sentence already served but the sentence of fine as imposed by the learned trial court is maintained. The petitioner shall undergo 7 days ' simple imprisonment in default of payment of fine of Rs. The petitioner shall undergo 7 days ' simple imprisonment in default of payment of fine of Rs. 200/- for offence under section 451 Indian Penal Code and shall undergo sentence for one month's simple imprisonment in default of payment of fine of Rs. 1,000/- for offence under section 325 Indian Penal Code. The petitioner shall make payment of the amount of fine within three months from the date of the judgment, failing which the trial court shall take appropriate steps in accordance with law.Revision allowed partly. *******