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2012 DIGILAW 165 (CHH)

SHATRUGHAN v. STATE OF M. P.

2012-07-06

PRITINKER DIWAKER

body2012
JUDGMENT 1. This appeal arises out of the judgment and order dated 30.8.1996 passed by Additional Sessions Judge, Bilaspur in Sessions Trial No. 236/1992 convicting the accused/appellant under Section 307 IPC and sentencing him to undergo rigorous imprisonment for four years and pay fine of Rs. 1000/-, in default of payment of fine to further undergo imprisonment for one month. 2. Facts of the case in brief are that on 22.2.1992 at about 1.45 p.m. Dehati Nalisi Ex. P-1 was recorded at the instance of injured Gendaram alleging that on that day at about 9.45 a.m. on seeing the fractuxed leg of his he-goat when he started hurling abuses at the person responsible for this act, accused/appellant asked him as to whom he was abusing and that he would take out his eye. On this, he told the accused/appellant that he was not abusing him and how he would take out his eye. At that very time, mother of the accused/appellant namely Savitri Bai also appeared on the scene and then both of them threatening to finish him took him to the courtyard of one Gulab Singh who happened to be the uncle of the accused/appellant, by dragging. Thereafter, accused/appellant with an intention to cause his death assaulted him on his neck with razor (Astura) which resulted in bleeding. It is alleged that when he tried to evade the second blow, the razor fell on his head causing bleeding. Even thereafter, the accused/appellant dealt several razor blows on various parts of his body such as waist, back and stomach. Based on this Dehati Nalisi Ex.P-l, FIR Ex. P-10 was registered against the accused/appellant herein, Savitri Bai, Ashok Yadav, Santosh Thakur and Bimla Bai Thakur for the offences punishable under Sections 307, 147, 148 and 149 IPC and after completion of investigation, charge sheet was filed by the police on 7.5.1992 for the said offences. However, Court below framed the charge against accused/appellant herein u/s 307 and against other accused persons namely Savitri Bai, Ashok Yadav, Santosh Thakur and Bimla Sai Thakur u/s 307/34 IPC, only. 3. In support of its case, prosecution has examined 09 witnesses. Statements of the accused persons were also recorded under Section 313 of the Code of Criminal Procedure in which they denied the charges levelled against them and pleaded their innocence and false implication in the case. 4. 3. In support of its case, prosecution has examined 09 witnesses. Statements of the accused persons were also recorded under Section 313 of the Code of Criminal Procedure in which they denied the charges levelled against them and pleaded their innocence and false implication in the case. 4. After hearing the parties, the Court below has acquitted the other accused persons of the charge levelled against them but convicted and sentenced the accused/appellant herein as mentioned in paragraph No.1 of this judgment. 5. Counsel for the accused/appellant submits that even if the entire case of the prosecution is taken as it is, offence under Section 307 IPC is not made out against the accused/appellant. He further submits that as per the medical report Ex. P-3, all the injuries sustained by the victim were simple in nature and even in the x-ray no fracture was found. According to the counsel for the appellant, even the doctor examining the victim has not opined that the injuries sustained by the victim were sufficient to cause death in the ordinary course of nature. 6. On the other hand, counsel for the respondent/State supports the• judgment impugned. 7. Heard counsel for the parties and perused the material available on record. 8. Victim namely Gendaram (PW-1) has stated in his evidence that on the date of incident while returning from the house of his friend, he saw that the leg of his he-goat was fractured and on this without naming anyone he started abusing the person responsible for this act which was heard by the present appellant. Thereupon, accused/appellant asked him as to whom he was abusing to which he replied that he was not abusing him and on hearing this, the accused threatened him to take out his eye. This witness has further stated that while he was returning from the house of his friend, mother of the accused/ appellant who was already standing on the way called him up and asked as to whom he was abusing on which he informed her that he was not abusing anyone. Thereafter, accused/appellant also came there, took out the razor (Astura) and first of all inflicted a blow on his neck from its edge-side and then on other parts of the body such as head and back. Thereafter, accused/appellant also came there, took out the razor (Astura) and first of all inflicted a blow on his neck from its edge-side and then on other parts of the body such as head and back. According to him, the incident was witnessed by Durga (PW-2) and Laxmi (PW-5) and that after receiving a razor blow on his back, he had fallen down and then accused/appellant ran away from the spot. Thereafter, he rushed to his house from where he was taken to police station by pump operator namely Thakur Prasad. In respect of other accused persons, this witness has stated that when he was being assaulted by the accused/appellant, acquitted accused Savitri Bai was holding him and that other two persons were not indulging in the assault. In cross examination, this witness remained firm to what he has stated in the examination-in-chief. Durga Bai (PW-2) has stated that the accused/appellant had assaulted the victim in her presence but as she could not see the blood, she went inside her house. She has further stated that at the time of incident except accused/appellant herein and acquitted accused Savitri Bai, nobody else was there on the spot. At this stage, this witness has been declared hostile. Tulsiram (PW-4) - the father of the injured has stated that on the date of incident he was informed by his wife that accused/appellant had assaulted his son and when he came out of his house he saw him drenched with blood. According to this witness, injured had informed him that while being assaulted by accused/appellant, his mother Savitri Bai was holding him. Laxmi Bai (PW-5) - another eyewitness to the incident has supported the case of the prosecution stating that accused/appellant had assaulted the victim causing injuries on various parts of his body and then he fled away. Manharanlal (PW-6) has stated in his evidence that he came to know about the incident after it was already over and that in his presence shirt, vest and plain as well as blood stained soil were seized vide Ex. P-8 and P-2 respectively. Dr. K.K. Sao (PW-3) is the witness who had medically examined the victim and given his report Ex. P-3. According to him, following eight injuries were noticed by him on the body of the victim : (i) Incised wound on base of neck in the size of 5 x ½" skin deep. P-8 and P-2 respectively. Dr. K.K. Sao (PW-3) is the witness who had medically examined the victim and given his report Ex. P-3. According to him, following eight injuries were noticed by him on the body of the victim : (i) Incised wound on base of neck in the size of 5 x ½" skin deep. (ii) Incised wound below left scapula in the size of 4 x 1" skin deep. (iii) Incised wound on left lumber region in the size of 2 x ½". (iv) Incised wound above left ileum in the size of 1 x ¼". (v) Incised wound on right scapula in the size of 3 x ½" skin deep. (vi) Incised wound on tip of nose in the size of ½ x ¼". (vii) Incised wound on left occipital region in the size of 3 x ¼". (viii) Incised wound on right occipital region in the size of 2 x ½". This witness has stated that injuries sustained by the victim could have been caused with the weapon seized by the police and that he had referred the patient for the opinion of surgical specialist and also advised for x-ray. According to this witness, he had not mentioned anything about the nature of injury in the medical report Ex. P-3 because it was not sought from him and that as he had not opened the wound, no description of injuries was given. Dr. C.S. Sharma (PW-7) is the radiologist who had taken x-ray of injured vide Ex. P-9 and opined that no fracture was there. Vijay Shankar (PW-8) is the witness who recorded Dehati Nalisi in the hospital and assisted in investigation. Nirgun Das (PW -9) is the Patwari who prepared spot map Ex. P-17. 9. Minute examination of the material available on record including the evidence of the witnesses particularly the doctor (PW-3), it is apparent that though as many as eight injuries were caused to the victim, it is nowhere mentioned in the medical report that anyone of them was dangerous to life in the ordinary course of nature. This apart, the incident is said to have taken place just because of the abuses being hurled by the victim though without naming anyone and on being interfered by the accused/appellant the same has taken the shape of assault. Radiological report also does not show any fracture on the body of the victim. This apart, the incident is said to have taken place just because of the abuses being hurled by the victim though without naming anyone and on being interfered by the accused/appellant the same has taken the shape of assault. Radiological report also does not show any fracture on the body of the victim. Had the appellant been predetermined to cause the bodily injury which could have proved fatal to his life, he would have used the weapon held by him with such a force that survival of the victim would have become a next to nothing possibility but in this case the record reveals that all the injuries sustained by him were simple in nature. Thus looking to the force with which the weapon was used by the accused/appellant, injuries sustained by the victim which are not stated to be dangerous to life, that the radiologist (PW -7) has categorically stated that no fracture was there on any body part of the victim and further that there was no previous enmity between the two and that the incident had taken place on spur of moment, it is difficult to say that accused/appellant was having any prior intention to kill the victim. In this view of the matter it is difficult to say that there was any intention on the part of the accused/appellant to cause such bodily injury which might result in the death of the victim. However, as the injuries, eight in number though simple in nature, were caused by the accused/appellant to the victim he can not escape the rigor of Section 324 IPC. Thus the conviction of the accused/appellant under Section 307 IPC is set aside but he is convicted under Section 324 IPC. As regards sentence, considering the fact that the accused/appellant has already remained in jail for about six months, that the incident had taken place about twenty years back and that by now the accused/appellant must have been leading a settled life, it will not be in the interest of justice to again send him to jail and thereby unsettle his already settled life. Accordingly, the appellant is sentenced to the period already undergone by him. He is reported to be on bail. His bail bonds stand discharged. 10. Thus the appeal is partly allowed. Appeal Partly Allowed.