Research › Search › Judgment

Rajasthan High Court · body

2013 DIGILAW 1225 (RAJ)

Dhabu Bai v. State of Rajasthan

2013-07-09

MAHESH CHANDRA SHARMA

body2013
JUDGMENT 1. - This appeal has been filed against the judgment dated 12.11.1986 passed by Additional Sessions Judge, Jhalawar in Sessions Case No. 67/1985, whereby the accused appellant has been convicted for the offences under Sections 307 and 323 I.P.C. and sentenced as under: For the offence under Section 307 I.P.C. : Four years' SI with a fine of Rs. 3000/-; and in default of payment of fine, to further undergo 6 months' SI For the offence under Section 323 I.P.C. : Six months' SI with a fine of Rs. 500/-; in default of payment of fine, to further undergo three months' SI 2. Brief facts of the case are that on 31.10.1984 occurrence took place and F.I.R. to this effect was lodged with delay of 4 days i.e. on 4.11.1984. Thereafter investigation was started and on completion of investigation, the police filed challan against the accused appellant and her husband Banshi Lal before the Magistrate concerned. Thereafter the Magistrate committed the case for trial to the Sessions Court. The trial Court framed charges against the accused persons, who denied for the same and claimed for trial. Thereafter the prosecution has produced the witnesses and exhibited some documents. The statement of the accused persons were recorded under Section 313 Cr.P.C. After hearing both the sides, the learned trial Court has acquitted the co-accused Banshi Lal, while convicted the accused appellant vide his judgment dated 12.11.1986 for the offences under Sections 307 and 323 I.P.C., as indicated here-in-above. 3. Against the said judgment dated 12.11.1986, the appellant has filed the instant appeal. 4. Learned counsel for the accused appellants has contended that complainant and the accused appellant are the relative of each other. Due to some enmity, the complainant lodged the F.I.R. on 4.11.1984 regarding occurrence took place on 31.10.1984 and the complainant party has not given any satisfactory explanation as to why the F.I.R. was lodged after four days. 5. Learned counsel for the appellant has also contended that looking to, the statement of Dr. P.C. Jain (PW-7), who has not stated anywhere in his statement that injury, that was found on the person of the injured, was sufficient to cause death in the ordinary course of nature, the conviction of the appellant should be altered from Section 307 I.P.C. to 308 I.P.C. 6. P.C. Jain (PW-7), who has not stated anywhere in his statement that injury, that was found on the person of the injured, was sufficient to cause death in the ordinary course of nature, the conviction of the appellant should be altered from Section 307 I.P.C. to 308 I.P.C. 6. In support of his contentions, he has relied upon the judgment rendered by the Coordinate Bench of this Court in the case of Munna v. State of Rajasthan, reported in 1984 Cr.L.R. (Raj.) Page 529 . Relevant paras are reproduced as under "5. The question that next arises is with regard to the offence that can be said to have been committed by the accused-appellant. The submission of Shri Bhartiya was that in the facts and circumstances of the case, the only offence which can be said to have been committed was falling under Section 308 I.P.C. and that the Addl. Sessions Judge has erred in convicting the accused-appellant for the offence under Section 307 I.P.C. In this connection Shri Bhartiya has invited my attention to the statement of Dr. Y.K. Sharma PW-6 and has pointed out that Dr. Y.K. Sharma stated that the injury sustained by Jafar Mohd was sufficient to cause death, but it has not been, stated by Dr. Sharma that the said injury was sufficient in the ordinary course of nature to cause death. 6. I have perused the statement of Dr. Y.K. Sharma and I find that during the course of examination-in-chief he has stated that the injury found after operation could result in death. Dr. Sharma has not stated that injury that was found on the person of Jafar Mohd was sufficient in the ordinary course of nature to cause death. In the circumstances it cannot be said that if Jafar Mohd had died, the appellant would have been guilty of the offence under Section 302 I.P.C. In the facts and circumstances of the case offence that would have been made out against the appellant in case Jafar Mohd has died, would have been culpable homicide not amounting to murder punishable under Section 304 I.P.C. in as much as the appellant could only be attributed with the intention to cause an injury which was likely to cause death. The conviction of the appellant for the offence under Section 307 I.P.C. cannot, therefore, be sustained and he can only be held guilty for the offence punishable under Section 308 I.P.C. 7. It was held in the aforesaid paras that Doctor not stating that the injury was sufficient to cause death in the ordinary course of nature, the conviction of the appellant for the offence under Section 307 I.P.C. cannot, therefore, be sustained and he can only be held guilty for the offence punishable under Section 308 I.P.C. 8. Learned counsel for the appellant has also placed reliance on the judgment rendered by the Division Bench of this Court in the case of Jodh Singh v. State of Rajasthan, reported in 1984 Cr.L.R. (Raj.) 730 . 9. He has further requested that looking to the fact that occurrence took place on 31.10.1984, which is about 29 years ago; the accused appellant has remained in confinement for about 13 days; she is a lady and not the habitual offender, the appellant should be released on probation and if not, then for the period already undergone by her in confinement, as indicated here-in-above. 10. On the other hand, learned Public Prosecutor appearing for the State has opposed the same. 11. I have heard learned counsel for the parties and carefully perused the relevant material on record including the impugned judgment. I have also perused the statement of Dr. P.C. Jain (PW-7), which evinces that he has not stated that injury was sufficient to cause death in the ordinary course of nature. Thus, the only offence, which can be said to have been committed by the accused appellant is falling under Section 308 I.P.C. and not under Section 307 I.P.C. The trial Court has erred in convicting the accused appellant for the offence under Section 307 I.P.C. Looking to the facts and circumstances of the case, I do not think it proper to release the accused appellant on probation, E contra, the ends of justice would be met if the sentence of the appellant is reduced for the period already undergone by her in confinement, as indicated above. 12. For these reasons, this appeal is disposed of with the following directions: (i) The appeal filed on behalf of accused appellant is partly allowed. 12. For these reasons, this appeal is disposed of with the following directions: (i) The appeal filed on behalf of accused appellant is partly allowed. (ii) The conviction of the accused appellant is altered from Section 307 I.P.C. to Section 308 I.P.C. (iii) The sentence of accused appellant is reduced to the period already undergone by her in confinement, as indicated above. (iv) The accused appellant is on bail. She need not surrender and her bail bonds stand cancelled. Impugned judgment stands modified, as indicated above.Appeal patly allowed. *******