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2013 DIGILAW 2858 (ALL)

HARISH CHANDRA v. STATE OF U. P.

2013-11-22

SUNITA AGARWAL

body2013
JUDGMENT Hon’ble Mrs. Sunita Agarwal, J.—The two appellants namely, Harish Chandra and Girish Chandra both sons of Ram Prasad were committed to the Court of Sessions for facing trial under Section 307/34 IPC. Both the appellants were held guilty of the charges and were convicted and sentenced to undergo R.I. for three years for the offence under Section 307 IPC read with Section 34 IPC for making an attempt on the life of Ravindra Kumar Pande and another term of three years R.I. for the offence under Section 307 IPC read with Section 34 IPC for making an attempt on the life of Ganesh Shanker Singh. Both the sentences were to run concurrently. 2. Heard Sri P.N. Misra, learned Senior Advocate assisted by Sri Apul Misra, learned counsel for the appellants and the learned AGA. The prosecution case is that a written report was lodged by Ram Pyare Pande at the police Station Rajghat on 3.11.1978 at 8:00 p.m. In the written report, the complainant alleged that he was a tenant of Smt Premda in her house situated at Alahdadpur within the jurisdiction of police station Rajghat. Ten to fifteen days prior to the date of incident, Smt. Premda, threatened the complainant to vacate the house through Harish, Girish and Jagdish. When the complainant refused to vacate the house, Harish and Girish alongwith their brother Jagdish threatened the complainant and his son with dire consequences. On 3.11.1978, when Ravindra Kumar son of complainant was standing near the Betel shop of Hari Prasad, the appellants started abusing him. One Bhola Singh exhorted the appellants to kill his son Ravindra Kumar Pande and then they assaulted Ravindra Kumar with knives and caused injuries to him. Bajrangi Prasad, Kripa Shanker and Hira Lal Rai who were residents of same locality were eye witnesses of the incident. In the meantime one Ganesh Shanker Singh who was passing by, came to rescue Ravindra Kumar Pande, the accused Girish stabbed Ganesh Shanker Singh with knife. 3. A perusal of the record shows that both the injured Ravindra Kumar and Ganesh Shanker Singh were taken to the District Hospital and were admitted in the emergency ward. In the hospital one Dr. V.P. Singh who was examined as PW 3, prepared the injury reports of Ravindra Kumar Pande and Ganesh Shanker Singh. 3. A perusal of the record shows that both the injured Ravindra Kumar and Ganesh Shanker Singh were taken to the District Hospital and were admitted in the emergency ward. In the hospital one Dr. V.P. Singh who was examined as PW 3, prepared the injury reports of Ravindra Kumar Pande and Ganesh Shanker Singh. As per injury reports dated 3.11.1978, incised wounds and abrasion were found on various parts of the body of both the injured. The doctor had described the nature of injuries “kept under observation” when they were admitted in the hospital. Injuries as described in the report given by Dr. V.P. Singh at the time of admission of Ravindra Kumar Pande in the hospital are as follows : 1. Incised wound 8 cm x ¼ cm x scalp on the right side of the head, 8 cm above from left ear. 2. Incised wound 4 cm x ¼ cm x scalp on the top of head. 3. Incised wound 3 cm x 1/8 cm. x muscle deep on the left side neck middle part. 4. Incised wound 6 cm x 1/8 cm x muscle deep on the middle of neck extending from left side of neck to the middle of neck upto chin. 5. Abrasion 1 cm x ¼ cm on the dorsum of the right hand over the thumb root. Injuries as described by Dr. V.P. Singh at the time of admission of Ganesh Shanker Singh in the hospital are as follows : 1. Incised wound 3 cm x ¼ cm x muscle deep on the left temporal region of head 6 cm. above the ear. 2. Incised wound 10 cm. x ¼ cm x muscle deep on the left side face extending from angle of eye to the angle of mouth on left side. Ganesh Shanker Singh was examined as PW-1. In his examination-in-chief he had submitted that he got two blows of knife given by Girish and thereafter he fell down. He had also stated that Ravindra Pande also fell down after he was stabbed by the appellants. He had submitted that when he was passing through the place of incident, some altercation was going on between the appellants and Ravindra. During altercation Bhola Singh had exhorted the appellants to kill Ravindra. The appellaants started stabbing Ravindra with knife, nobody came out to his rescue though several persons were standing there. He had submitted that when he was passing through the place of incident, some altercation was going on between the appellants and Ravindra. During altercation Bhola Singh had exhorted the appellants to kill Ravindra. The appellaants started stabbing Ravindra with knife, nobody came out to his rescue though several persons were standing there. As Ganesh rushed to rescue Ravindra, he was also stabbed with knife by Girish. Jagdish exhorted Girish to kill him. After the knife blow he became unconscious. 4. In the cross-examination he reiterated his version that he saw Ravindra who also fell down after injuries were inflicted upon him with knife, and then he became unconscious after few minutes. 5. Informant Ram Pyare Pandey was also examined as PW 2. He had supported the version of FIR in his examination-in-chief as also in the cross-examination. He had stated that he reached at the place of incident after he heard noise and found both Ganesh Shanker Singh and Ravindra Pandey injured and lying on the floor. He soon admitted Ravindra to the hospital. 6. Dr. V.P. Singh was examined as PW 3 and he had submitted that Ravindra pande and Ganesh Shanker Singh were admitted in the hospital by their fathers; respectively. He had described the injuries inflicted upon both Ravindra Kumar Pande and Ganesh Shanker Singh. Ravindra Kumar Pande, the injured was examined as PW-4. In his examination-in-chief though he had stated that the accused threatened and quarrelled with him for vacating the house of Smt. Premda, however, in his cross-examination he had denied that there was any quarrel between them before the incident. He had no enmity with the accused appellants. One Kripa Shanker, resident of the locality was examined as PW 5 and one Bajrangi was examined as PW6. Both the witnesses had supported the prosecution case. PW 7 Doodh Nath Rai was the Investigating Officer. 7. Sri P.N. Misra, learned Senior Advocate appearing for the appellants made his submissions and also filed written submissions. His submission is that the offence will not go beyond the purview of Section 324 IPC. He had invited attention of the Court to the paragraph 16 of the statement of PW 4 Ravindra Kumar Pande which is at page 41 of the paper book. His submission is that the offence will not go beyond the purview of Section 324 IPC. He had invited attention of the Court to the paragraph 16 of the statement of PW 4 Ravindra Kumar Pande which is at page 41 of the paper book. The statement of Ravindra Kumar Pande at page 41 in his cross-examination is that Ganesh Shanker Singh ran to rescue him before he fell on the ground but Girish stabbed Ganesh Shanker Singh with knife and both fell down. After they fell down, the appellants caused no injury to him. In the background of the statement given by the injured Ravindra Kumar Pande, learned Senior Advocate submits that in the instant case it is clear that the intention of the appellants was not to cause death. The injuries were simple in nature. None of the injuries have been proved either grievous or dangerous. Dr. V.P. Singh kept the injuries under observation and had advised for an x-ray when both were admitted to the hospital. However, x-ray report and no other supplementary report was prepared or brought on record, from which it could be inferred that injuries were dangerous to life or grievous and therefore, no inference can be drawn that there was common intention of the appellants to murder the injured. Hence the appellants will not be guilty of “an attempt to murder” under Section 307 read with Section 34 of the IPC. His further submission is that even if the prosecution version is believed, the offence may not go beyond the purview of Section 324 IPC which is punishable either with fine or with maximum sentence of three years’ imprisonment, or with both. 7. Lastly, he submits that as per the ocular evidences, there was nobody to help the victim and if the appellants had an intention to kill him, they could have caused death to the injured Ravindra Kumar Pande and run away. Infact both the injured as per their own version fell down after they were stabbed with knife and thereafter the appellants did not cause any injury to them. In this view of the matter, the offence, cannot travel beyond Section 324 IPC. In any case, no element of Section 307 read with Section 34 IPC can be found from the ocular as well as medical evidences on record. 8. In this view of the matter, the offence, cannot travel beyond Section 324 IPC. In any case, no element of Section 307 read with Section 34 IPC can be found from the ocular as well as medical evidences on record. 8. Learned AGA submits that it is a case of an attempt to murder at a public place and three persons including the two appellants encircled (gherao) Ravindra Kumar Pande and stabbed him with knife with an intention to kill. There are four incised wounds on the scalp and neck of the injured Ravindra Kumar Pande. The appellants stabbed Ravindra Kumar Pande with an intention to kill him but as Ganesh Shankar Singh intervened and came to rescue, their mind was diverted and one of them stabbed Ganesh Shankar Singh with knife. 9. It has come up on record that there was enmity between Jagdish, elder brother of appellants and two injured Ravindra Kumar Pande and Ganesh Shankar Singh over some dispute with regard to electric fitting which they had taken away from the house of Jagdish. Jagdish raised alarm which attracted residents of the locality and they also resisted the complainant. In respect of the said incident, a report was given to the City Magistrate by Jagdish and the defence case is that three brothers had been falsely implicated on account of aforesaid incident. 10. Learned Senior Advocate relied upon judgment of this Court in the case of Mobin v. State of U.P., 2001(1) A Cr R 345; Nepal Singh and others v. State of U.P., 1987 (24) ACC 513 and judgment of the Apex Court in Ved Pal v. State of U.P., 1988 SCC (Cri) 131, to support his submission that the offence may at best be of Section 324 IPC and the conviction may be altered from Section 307 IPC to Section 324 IPC. 11. Having heard learned counsel for the parties and perused the record, it is evident from the submissions/statements of both the injured witnesses namely Ravindra Kumar Pande and Ganesh Shankar Singh that as they were stabbed with knife and both of them fell on the ground. They were unconscious and were taken to the hospital by their fathers; respectively. Ravindra Kumar Pande also admitted in his cross-examination that no knife blow was inflicted upon him by the accused when he fell on the ground. They were unconscious and were taken to the hospital by their fathers; respectively. Ravindra Kumar Pande also admitted in his cross-examination that no knife blow was inflicted upon him by the accused when he fell on the ground. The injuries found on the bodies of two injured relate with the weapons used in the offence committed by the appellants but show that they were not of grievous nature. 12. Now, the question remains as to whether it will be a case to be covered under Section 307 IPC. There is no second opinion about the fact that accused appellants caused injuries to Ravindra Kumar Pande after some altercation took place between them at the place near betel shop of Hari Prasad. The injuries were also inflicted upon Ganesh Shankar Singh when he came to rescue Ravindra Kumar Pande. The statement of Ganesh Shankar Singh is that two knife blows were inflicted upon Ravindra Kumar Pande and he fell down. However, no injuries were caused to them when they fell on the ground and became unconscious. This fact only, shows that the intention of the appellants was not to kill Ravinda Kumar Pande. There is no supplementary medical report on the record. Even the doctor who had entered in the witness box did not suggest that the injuries were grievous or dangerous to life though they were kept under observation in the hospital. 13. The ocular evidences of the injured and the injury reports of the doctor who attended them give weightage to the submission of learned Senior Advocate that injuries were not so grievous so as to kill the victims. 14. The appellants had an opportunity to kill them when they fell down, if they had an intention to do so. In order to bring the instant case within the ambit of Section 307 IPC, it must be shown that the appellants acted with such an intention or knowledge and under such circumstances that if they by that act caused death, they would be guilty of murder. Thus, this Court comes to an inescapable conclusion that in the instant case the elements of Section 307/34 IPC were not found and therefore the offences under these sections will not be attracted. It will be a case of an offence under Section 324 IPC. 15. Thus, this Court comes to an inescapable conclusion that in the instant case the elements of Section 307/34 IPC were not found and therefore the offences under these sections will not be attracted. It will be a case of an offence under Section 324 IPC. 15. In the case of Sanjay Kumar and another v. State of U.P., 1994 Supp(1) SCC 502, the Apex Court observed that to justify a conviction under Section 307 IPC an intention or knowledge to constitute murder must exist. The facts of Sanjay Kumar (supra) were that the complainant and appellants were neighbours and the incident occurred on some quarrel which took place instantly and there was no motive whatsoever. The Apex Court came to the conclusion that there could be no intention to kill and therefore, taking that view of the matter, the Apex Court was of the opinion that at best, even if the evidence of prosecution witnesses are accepted, the same would fall within the scope of Section 324 IPC. 16. In the instant case also, the incident started with some altercation between the parties and accepting the evidence of prosecution witnesses, especially the injured one, this case would fall within the ambit of Section 324 IPC. So far as sentence part is concerned, this Court is of the considered view that in order to meet the ends of justice, the accused appellants shall be punished with the sentence of imprisonment already undergone with fine of Rs. 20,000/- each which they have to deposit within a period of six weeks from the date of judgment. In case of default in deposit of fine within the time provided by this Court, the appellants have to serve the sentence of simple imprisonment for a period of one year. As both the appellants were on bail during trial and were also released on bail by an order dated 3.11.1982 passed by this Court at the time of admission of the appeal, their personal bonds are cancelled and sureties are discharged. The appeal is partly allowed. Certify the judgment to the Court below within a week from the date of judgment. The original record of the case be also transmitted to the Court below immediately. The compliance shall be reported by the Chief Judicial Magistrate, Gorakhpur within four weeks from the date of receiving the copy of this order.