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2013 DIGILAW 92 (CHH)

DEVCHAND v. STATE OF M. P.

2013-03-07

Pritinker Diwaker

body2013
JUDGMENT 1. This appeal has been preferred against the judgment and order dated 5.3.1997 passed by Additional Sessions Judge Raipur in Sessions Trial No. 415/ 1996 convicting the accused/appellant for the offence punishable under Section 307 IPC and sentencing him to undergo RI for five years and pay fine of Rs. 1000, in default of payment of fine to further undergo SI for three months. 2. Case of the prosecution in brief is that on 22.6.1996 FIR Ex. P-1 was lodged by injured Surendra Bairagi (PW-1) mentioning that he and Jitendra Bairagi (PW-2) are the real brothers and that there existed some dispute regarding a house between his family and that of the accused/appellant for which the matter was pending before the Rent Controlling Authority. It is alleged that on the date of incident when the accused/appellant was arranging tiles on the rooftop of his house, he and Jitendra Bairagi asked him not to do so and on account of that there was some altercation between the parties. Thereafter, it is alleged that the accused/appellant caused stab injury first to Jitendra Bairagi (PW-2) and then to him. Based on this report, offence under Section 307 IPC was registered against the accused/appellant. Surendra Bairagi (PW-l) was medically examined vide Ex. P-6 whereas Jitendra Bairagi (PW-2) vide Ex.P-7 on that day itself. After investigation, charge sheet was filed on 1.10.1996 for the said offence and then the Court below also framed the charge accordingly. 3. In support of its case the prosecution has examined 14 witnesses. Statement of the accused/appellant was also recorded under Section 313 of the Code of Criminal Procedure in which he denied the charge levelled against him pleaded his innocence and false implication in the case. 4. After hearing the parties, the Court below has convicted and sentenced the accused/appellant as mentioned in paragraph No.1 of the judgment. 5. Heard counsel for the parties and perused the material available on record. 6. Counsel for the 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 and at the most the act of the accused/appellant would fall under Section 326 IPC. 5. Heard counsel for the parties and perused the material available on record. 6. Counsel for the 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 and at the most the act of the accused/appellant would fall under Section 326 IPC. He submits that in the medical report the doctor examining the victims has not stated that the injury suffered by them was grievous and sufficient to cause death in the ordinary course of nature and that being so the conviction under Section 307 IPC is bad. He submits that the appellant has already remained in jail for about six months, that the incident took place about 16 years back and therefore the sentence imposed on him may be reduced to the period already undergone if at all the conviction part of the judgment impugned is going to be left undisturbed. In support of his submission, counsel for the appellant placed reliance on the decision of the Supreme Court in the matter of Neelam Bahal and another Vs. State of Uttrakhand (2010) 2 SCC 229 . 7. On the other hand, counsel for the respondent/State supports the judgment impugned and submits that the findings recorded by the Court below are based on due appreciation of the evidence of the witnesses and therefore no interference with the same is called for. He however does not dispute that there is no documentary evidence on record to show that the injuries sustained by the victims were grievous or sufficient to cause death in the ordinary course of nature. 8. Surendra Bairagi (PW-1) has stated that he was living in the house in question with his younger brother Jitendra Bairagi (PW-2) whereas the accused/appellant was his tenant. He has stated that on the date of incident when the appellant was arranging tiles on the rooftop of his house, his brother Jitendra Bairagi objected to the same saying that as the matter was pending before the Rent Controlling Authority, no such repair work could be made. Then according to this witness, the accused/appellant got down, abused his brother, brought a knife from his house and caused injury on his (Jitendra's) stomach and when he intervened in the matter, he (accused) abused him also and caused two stab injuries on his stomach also. Then according to this witness, the accused/appellant got down, abused his brother, brought a knife from his house and caused injury on his (Jitendra's) stomach and when he intervened in the matter, he (accused) abused him also and caused two stab injuries on his stomach also. According to this witness, while making an attempt to save himself, he sustained injury on his left thumb also as a result of which it was not working even till the date on which his evidence was recorded. He has further stated that on account of the injury on stomach, his intestines had come out. In cross-examination also this witness has stated the same thing as in the examination-in-chief. Jitendra Bairagi (PW-2) has also stated that the accused/appellant was his tenant and on the date of incident when he (accused) was arranging tiles on his rooftop, he (this witness) objected to the same and on account of that there was some altercation between them in furtherance of which he (accused) caused stab injury to him and then on the intervention of his brother, to him also. Krishna Kumar Bairagi (PW-3) is the witness to seizure of clothes of the victims made under Ex. P-2 and P4. Kalika Prasad Bairagi (PW-4) - the eye witness to the incident has supported the case of the prosecution. He is also the witness to seizure made under Ex.P-2 and P-3. Rajesh (PW-5) who was residing near the house of the victims has also supported the case of the prosecution. Dr. (Smt.) H. Sakhia (PW7) is the witness who medically examined the victim (PW-I) and gave her report Ex. P-6 stating that she noticed two injuries - one on stomach and the other lacerated wound on left thumb and that to determine the nature of injury she had referred him to surgical specialist as also to radiologist. She also medically examined the victim (PW -2) and gave her report Ex. P-7 stating that she noticed injury on stomach and that to determine the nature of injury she had referred him to surgical specialist as also to radiologist. This witness has however stated nothing about the nature of injuries. Dr. A.K. Sharma (PW8) has stated that victim (PW-2) was operated upon by Dr. D.K. Sao. Shankar Das Vaishya (PW-9) - another eyewitness to the incident has also supported the case of the prosecution. This witness has however stated nothing about the nature of injuries. Dr. A.K. Sharma (PW8) has stated that victim (PW-2) was operated upon by Dr. D.K. Sao. Shankar Das Vaishya (PW-9) - another eyewitness to the incident has also supported the case of the prosecution. U.K. Verma (PW -12) is the investigating officer who has duly supported the case of the prosecution. Dr. D.K. Sao (PW-14) is the witness who operated upon victim (PW-2) has stated that during operation he found stomach injury which was 3 cm. deep and membrane and torn. According to him, the nature of injury operated upon was grievous. This witness had also examined another victim (PW-1) and stated that when he opened his stomach he did not find any injury and then after cleaning the stomach it was closed after putting a drain pipe in it. 9. Minute examination of the evidence available on record goes to show that general condition of the victim was bad but still there is no categorical statement in the medical certificate issued by the doctors that the injuries sustained by him were dangerous to life. Whether it was a deliberate omission or an oversight, nothing can be said about that. Whatever it may be, the benefit of this material omission, has to go to the accused/appellant. Further, there is no evidence on record to show that the injuries caused by the accused/appellant' were with an intention to cause death of the victim and thus considering this aspect of the matter and in view of the judgment of the Supreme Court cited above, this Court is of the considered opinion that the act of the accused/appellant would fall under Section 326 and not under Section 307 IPC. That being so, conviction of the accused/appellant under Section 307 is set aside and he is convicted under Section 326 IPC. 10. As regards sentence, keeping in view the fact that the incident had taken place about 16 years back and that the accused/appellant has already remained in jail for more than 6 months, it is reduced to RI for one year from that of five years. As the accused/appellant is on bail, his bail bonds stand cancelled. Let he be sent to jail forthwith for serving out the remaining sentence imposed on him. 11. Appeal thus allowed in part. Appeal Partly Allowed.