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2015 DIGILAW 1050 (RAJ)

Dharmendra v. State of Rajasthan

2015-05-12

MAHESH CHANDRA SHARMA

body2015
JUDGMENT : Hon'ble SHARMA, J.—This appeal has been filed by the appellants against the judgment and order dated 30.8.1993 passed by Addl. Sessions Judge, Gangapur City, in Sessions Case No. 8/1982, whereby accused appellants have been convicted and sentenced as under: Accused appellant Dharmendra @ Chippu: Convicted for the offence under Section 307 IPC and sentenced to undergo 5 years' RI with a fine of Rs. 250/-; in default of payment of fine, to further undergo 1 month' SI Accused appellant Nahne @ Ghanshyam: Convicted for the offence under Section 307/34 IPC and sentenced to undergo 5 years' RI with a fine of Rs. 250/-; in default of payment of fine, to further undergo 1 months' SI. 2. Brief facts of the case are as under: "On 6.9.1991 Bal Kishan (informant) gave a statement before the police that when he was coming from his house and reached near the shop of Rameshwar Panwala, the accused appellants emerged from the nearby street and Chippu said that he (informant) had an altercation on the previous day, for which he must be punished and after making this statement, accused appellant Nanhe Mali caught hold of him while accused appellant Chippu @ Dharmendra inflicted a knife blow on his stomach, as a result of which he fell down. On the basis of said statement, FIR No. 334/1991 came to be registered against the accused appellants for the offence under Sections 307, 341 IPC. Thereafter investigation was started and on completion of investigation, the police filed challan against the accused appellants before the Magistrate concerned. Thereafter the Magistrate committed the case to the Court of Sessions, who transferred the case to Addl. Sessions Judge, Gangapur City for trial. The trial Court framed charges against the accused appellants, who denied for the same and claimed for trial. Thereafter the prosecution produced 15 witnesses and got exhibited some documents. The statement of the accused appellants were recorded under Section 313 CrPC. After hearing both the sides, the learned trial court has passed the judgment and order dated 30.8.1993 convicting and sentencing the accused appellants, as indicated here-in-above." 3. Against the said judgment and order passed by the trial court, the appellants have filed the instant appeal. 4. The statement of the accused appellants were recorded under Section 313 CrPC. After hearing both the sides, the learned trial court has passed the judgment and order dated 30.8.1993 convicting and sentencing the accused appellants, as indicated here-in-above." 3. Against the said judgment and order passed by the trial court, the appellants have filed the instant appeal. 4. At the very out-set, learned counsel for the appellants has contended that this case jumps under Section 308 IPC instead of Section 307 IPC because there was no intention or knowledge of the accused appellants to cause death of the injured. He has further contended that the statements which have been recorded during the course of investigation by the police under Section 161 CrPC and the statements, which have been recorded by the Court, are contradictory in nature. He has drawn the attention of this court on the statement of PW-1 Pashupati Nath, who is simply the witness of seizure memo; on the statement of PW-2 Dr. P.C. Vyas, who initially stated in his statement that injury No. 1 was sufficient to cause, death in the ordinary course of nature, but later-on stated in his own statement that if injured would not have been provided medical aid in time, then the injury could be sufficient to cause death in the ordinary course of nature. He has further contended that in this case, the injured was given proper medical aid in time and the alleged injury was not sufficient to cause death in the ordinary course of nature. He has drawn the attention of this Court on cross-examination part of this Court on cross-examination part of the statement of Dr. P.C. Vyas, PW.2. He has further contended that Girraj, PW.3, who is the star witness of the prosecution, has been declared hostile. He was further drawn the attention of this Court on the statement of PW.4 Dr. A.K. Mathur and contended that he has given the contradictory statement in his chief and cross-examination. Further he has drawn the attention of this Court on the statement of PW.5 Bal Kishan and contended that there are contradictions in his statement. He has further contended that there was previous enmity in between prosecution witness Bal Kishan and accused persons. He has further drawn the attention of this Court on the statement of PW.6 Amar Singh, who was declared hostile. He has further contended that there was previous enmity in between prosecution witness Bal Kishan and accused persons. He has further drawn the attention of this Court on the statement of PW.6 Amar Singh, who was declared hostile. He has further drawn the attention of this Court on the statement of PW.7 Ramawtar, who has also been declared hostile. He has further drawn the attention of this Court on the statement of PW.8, who is the formal witness of the prosecution. He has further drawn the attention of this Court on the statement of PW.9 Ram Singh, who is the Head Constable in Police. Neither he is eye-witness nor he is important witness and he is a formal witness of the prosecution. He has further drawn the attention of this court on the statement of PW.10 Kartar Singh, who is also a formal witness. He has further drawn the attention of this Court on the statement of PW.11 Bal Krishan Singh, who is a recovery witness. He has further drawn the attention of this Court on the statement of PW.12 Ram Shree Mali, who was the Malkhana Incharge. He has further drawn the attention on the statement of PW.13 Bhanwar Singh, who is also a police witness. Further the attention of this Court was drawn on the statement of Mangi Lal PW.14, who is a formal witness and on the statement of Om Prakash Tahlan PW. 15, who was the SDO of Police Station, Gangapur City. Further he has drawn the attention of this Court on the statement of the accused persons recorded u/Sec. 313 Cr.P.C., in which the accused persons denied to have committed the alleged offence. The relevant part of the statement of accused persons recorded under Section Cr.P.C. is reproduced as under: Dharmendra: ^^?kVuk ds fnu ckyfd'ku us eq>s jkLrs tkrs gq, dks jksddj esjs lkFk Fkki eqDdks ls ekjihV dh Fkh] esjs vaMdks'k nck fn;s Fks] esjs /kDdk nsus ij ikl iMh VwVh dkap dh 'kh'kh ls ckyfd'ku ds isV ij pksV vk;haA eSus mls pkdw ls ugha ekjkA** /ku’;ke % ^^eSa ?kVuk okys fnu /kesZUnz ds lkFk ugha FkkA esjk uke drbZ >waBk fy[kk;k x;k gSA eSaus ckyfd'ku dks ekjk ugha Fkk** 5. Learned counsel for the appellants has further contended that star witness of the prosecution has been declared hostile and no witness has corroborated the prosecution evidence. Learned counsel for the appellants has further contended that star witness of the prosecution has been declared hostile and no witness has corroborated the prosecution evidence. He has further contended that Medical Officer PW.2 Dr. P.C. Vyas, stated in his statement that injury No. 1 was sufficient to cause death in the ordinary course of nature, but later-on stated in his own statement that if injured would not have been provided medical aid in time, then the injury could be sufficient to cause death in the ordinary course of nature. In such circumstances, it cannot be said that injuries were sufficient to cause death in the ordinary course of nature as there are material contradictions in the statement of prosecution witnesses. Learned counsel has requested to this Court that no case is made out under Section 307 IPC, as such accused appellants are entitled for acquittal. 6. In the alternative, he has requested that looking to the fact that occurrence took place on 6.9.1991 i.e. 24 years ago from today, at the time of committing offence, the accused appellants were young but day-by-day they are becoming older; they are facing the trial from the last 24 years; they are married and have marriageable children; they belong to respectable family; they are not previously convicted persons; they have remained in custody for about 90 days and at the most, the matter jumps under Section 308 IPC, their conviction should be altered from Section 307 IPC to 308 IPC and they should be released on probation, if not, then they should be released for the period already undergone by them in custody, as indicated here-in-above. 7. In support of his contentions, he has relied upon the judgment rendered by the Coordinate Bench of this Court in the case of Munna vs. State of Rajasthan reported in Cr.L.R. (Raj.) 1984 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 IPC and that the Additional Sessions Judge has erred in convicting the accused appellant for the offence under Section 307 IPC. 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 IPC and that the Additional Sessions Judge has erred in convicting the accused appellant for the offence under Section 307 IPC. 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 IPC. In the facts and circumstances of the case the offence that would have been made out against the appellant in case Jafar Mohd. had died, would have been culpable homicide not amounting to murder punishable under Section 304 IPC inasmuch 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 IPC cannot, therefore, be sustained and he can only be held guilty for the offence punishable under Section 308 IPC." 8. 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 IPC cannot, therefore, be sustained and he can only be held guilty for the offence punishable under Section 308 IPC. 9. On the other hand, learned PP appearing for the State has opposed the same. He has contended that the trial Court after due appreciation of evidence submitted by both the parties, the trial court has rightly convicted the accused appellants, hence no interference is required by this Court. 10. 9. On the other hand, learned PP appearing for the State has opposed the same. He has contended that the trial Court after due appreciation of evidence submitted by both the parties, the trial court has rightly convicted the accused appellants, hence no interference is required by this Court. 10. I have heard learned counsel for the parties and carefully perused the material made available to me. 11. In the instant case, the offence under Section 307 IPC is not made out because there are material contradictions in the statement of prosecution witnesses and the star witness of the prosecution has been declared hostile. Further, PW.2 Dr. P.C. Vyas, stated in his statement that injury No. 1 was sufficient to cause death in the ordinary course of nature, but later-on he stated in his own statement that if injured would not have been provided medical aid in time, then the injury could be sufficient to cause death in the ordinary course of nature. There was no act of the accused persons with such intention or knowledge and under such circumstances that, if they by that act caused death, would be guilty of murder. 12. For ready reference, Section 307 and 308 IPC are reproduced as under: 307. Attempt to murder.-Whoever does any act with such intention or knowledge, and under such circumstances that, if he by that act caused death, he would be guilty of murder, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; and if hurt is caused to any person by such act, the offender shall be liable either to [imprisonment for life], or to such punishment as is hereinbefore mentioned. Attempts by life convicts.- [When any person offending under this section is under sentence of [imprisonment for life], he may, if hurt is caused, be punished with death.] 308. Attempts by life convicts.- [When any person offending under this section is under sentence of [imprisonment for life], he may, if hurt is caused, be punished with death.] 308. Attempt to commit culpable homicide.- Whoever does any act with such intention or knowledge and under such circumstances that, if he by that act caused death, he would be guilty of culpable homicide not amounting to murder, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both; and, if hurt is caused to any person by such Act, shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both. 13. Looking to the facts and circumstances of the case as well as the statement of prosecution witnesses, I do not find any case to have been made out against the accused appellant(s) under Section 307 IPC, rather the case under Section 308 IPC is made out in this matter. The trial court has erred in convicting the accused appellant(s) for the offence under Section 307 IPC. Further, instead of releasing the appellants on probation, in my view, it is a fit case to release the appellants for the period already undergone by them in custody, as indicated here-in-above, after altering their conviction from Section 307 IPC to 308 IPC because the incident took place 24 years ago; the appellants are old age persons; they are married; having the children of marriageable age and they are not previously convicted persons and they have already remained in custody for about 90 days. 14. For these reasons, this appeal is disposed of with the following directions: (i) The appeal filed on behalf of accused appellants is partly allowed and their conviction is altered from Section 307 IPC to Section 308 IPC. (ii) Their sentence is reduced to the period already undergone by them in confinement, as indicated above. (iii) The sentence of the accused appellants was suspended and they are on bail. They need not to surrender and their bail bonds stand cancelled. Impugned judgment stands modified, as indicated hereinabove.