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2016 DIGILAW 881 (RAJ)

Ashok Kumar v. State of Rajasthan

2016-06-17

PRASHANT KUMAR AGARWAL

body2016
Hon'ble AGARWAL, J.—Heard learned counsel for the parties. 2. The accused-appellant has preferred this Criminal Appeal under Section 374 Cr.P.C. against the judgment of conviction and order of sentence dated 2.5.1992 passed by the Additional Sessions Judge No.1, Kota in Sessions Case No.60/1987 whereby the learned trial Court has convicted the appellant for offence under Section 307 IPC and sentenced him for rigorous imprisonment for four years and a fine of Rs.500/- and in default thereof to further undergo rigorous imprisonment for two months and also for offence under Section 4/25 of the Arms Act and sentenced him for rigorous imprisonment for six months and a fine of Rs.100/- and in default thereof to further suffer rigorous imprisonment for one month. It was further ordered that both the substantive sentences would run concurrently. It is to be noted that one Shri Brij Mohan was also tried for offence under Section 307/34 IPC alongwith the appellant but he has been acquitted by the trial Court. 3. Brief relevant facts for the disposal of this appeal are that on 12.11.1985 at 9.55 p.m., injured-Shri Kanhaiya Lal alongwith one Shri Kalu Lal appeared at Police Station Dadabari (Kota) and lodged an oral report to the effect that acquitted accused-Shri Brijmohan abused him whereas appellant inflicted injury to him at left side of his abdomen from behind by a knife and as a result thereof blood oozed out from the wound caused by the injury. On the basis of oral report lodged by the injured an entry was made at Rappat No.544 in the "Rojnamcha-Aam" maintained by the police station but at that time no formal FIR was registered. The injured was referred to MBS Hospital, Kota for medical examination where he was examined by the Medical Jurist on 13.11.1985 at 11.53 in the morning and his injury report was prepared. As per prosecution case lateron the injured was operated upon also on 15.11.1985 while undergoing treatment in the hospital and in this regard operation-note dated 15.11.1985 was also prepared and his injury was opined to be dangerous to life. As per prosecution case lateron the injured was operated upon also on 15.11.1985 while undergoing treatment in the hospital and in this regard operation-note dated 15.11.1985 was also prepared and his injury was opined to be dangerous to life. It is to be noted that after obtaining injury report of the injured, FIR No.19/1986 was registered on 19.2.1986 for the offence under Section 324 IPC and after usual investigation charge-sheet for the offences under Sections 307, 326, 307/34, 326/34 IPC and for offence under Section 4/25 of the Arms Act was filed against the appellant and acquitted accused-Shri Brijmohan. Charge for offence under Section 307 IPC and for offence under Section 4/25 of the Arms Act was framed against the appellant and to prove the same prosecution produced oral as well as documentary evidence whereas appellant in his examination under Section 313 Cr.P.C. denied the prosecution evidence but in defence produced no evidence. The learned trial Court after considering the submissions made by both the parties and appreciating and evaluating the evidence made available on record found the appellant guilty for the offence under Section 307 IPC and Section 4/25 of the Arms Act and accordingly he was convicted and sentenced as already stated. Feeling aggrieved, the appellant is before this Court by way of this appeal. 4. In support of the appeal, learned counsel for the appellant has raised the following grounds:- (1) As per prosecution case, incident is of 12.11.1985 at 8.00 p.m. for which oral report was lodged on the same day at Police Station Dadabari (Kota) and an entry was also made as Rappat No.544 in the Rojnamcha-Aam maintained by the police station and injured was medically examined on 13.11.1985 at 11.53 in the morning at MBS Hospital, Kota and operated upon on 15.11.1985 while undergoing treatment but even then formal FIR was registered as late as on 19.2.1986 and that too only for offence under Section 324 IPC and all these facts cast doubt on the prosecution story more particularly in view of the fact that no explanation has been furnished by the prosecution for the delay caused to register the FIR and in absence of the same manipulation of the injury of the injured cannot be ruled out. (2) According to injured-Shri Kanhaiya Lal the assailant inflicted injury to him from behind and as per the statement of PW3-Shri Kalu Lal, for which prosecution claims that he is an eye-witness of the incident, there was no source of light at the place of incident and, therefore, it was not possible for the injured to see and identify the person who caused injury to him. It is an admitted fact that appellant filed a case against the injured prior to the present incident, possibility of false implication of the appellant in the incident cannot be ruled out. (3) The alleged eye-witness of the incident PW3-Shri Kalu Lal in his cross-examination has stated that persons who gathered at the place of the incident were saying that appellant has inflicted injury to injured-Shri Kanhaiya Lal and on that basis he has said that it is appellant who inflicted injury to the injured whereas the order eye-witness PW8-Shri Laxman Lal has not supported the prosecution case so far as incident is concerned and, therefore, it was not safe on the part of the trial Court to convict the appellant on the basis of sole statement of the injured more particularly in view of the fact that he was having enmity with the appellant due to case filed against him by the appellant. (4) PW3-Shri Kalu Lal in his statement has said that sister of injured also came at the place of incident before the incident occurred and injured alongwith his sister was going back to his house and in the way the alleged incident took place whereas presence of sister of injured has not been mentioned in FIR as well as by PW1 injured-Shri Kanhaiya Lal in any of his statement and this ambiguity in the evidence produced by the prosecution casts doubt on the prosecution case. (5) One of the Investigating Officer of the case PW7-Shri Rajendra Kumar Ojha in his cross-examination has stated that when injured was examined at the time when oral report was lodged by him at Police Station on 12.11.1985, an injury in the arm pit of the right hand of the injured was found whereas as per Injury Report Ex.P1 when injured was medically examined injury in the left side of the abdomen was noted. No explanation has been furnished by the prosecution about contradiction in respect of the part of the body where injury was caused by the appellant. (6) Looking to the size of the injury which is 3/4" x 1/4", offence under Section 307 IPC cannot be said to be made out. Otherwise also, for an offence to be made out under Section 307 IPC, a definite opinion has to be made to the effect that the injury was sufficient in the ordinary course of nature to cause death and an injury mere dangerous to life does not take the case beyond an offence under Section 326 IPC. According to clause (viii) of Section 320 IPC, an injury endangering life of a person comes within the purview of a grievous injury and if such injury has been caused by a sharp weapon at the most offence under Section 326 IPC can made out but the learned trial Court without considering this aspect of the matter in a proper manner has convicted the appellant under Section 307 IPC. 5. On the basis of aforesaid grounds it was submitted by the learned counsel for the appellant that appellant is entitled to get benefit of doubt. In the alternative, it was prayed that the appellant may be granted benefit of probation more particularly in view of the fact that the incident is of 1985 and it is not the case of prosecution itself that appellant has criminal antecedents. 6. On the other hand, learned Public Prosecutor submitted that from the evidence available on record the case against the appellant is well proved and learned trial Court after properly appreciating and evaluating the evidence available on record has found the appellant guilty for the aforesaid offences requiring no interference by this Court. It was further submitted that for an offence to be made out under Section 307 IPC, it is not required that the injury must be sufficient in the ordinary course of nature to cause death. According to learned Public Prosecutor for this offence intention/knowledge on the part of the accused is to be mainly seen and in some cases offence can be made out even if no injury is actually caused. 7. According to learned Public Prosecutor for this offence intention/knowledge on the part of the accused is to be mainly seen and in some cases offence can be made out even if no injury is actually caused. 7. On consideration of submissions made on behalf of the respective parties and the evidence available on record and more particularly looking to the reasons recorded by the trial Court in support of the judgment of conviction, I do not find any of the grounds raised on behalf of the appellant in support of the appeal legally tenable requiring acceptance by this Court. Although, for the incident of 12.11.1985, formal FIR was registered on 19.2.1986 despite the fact that injury report was prepared on 13.11.1985 but only by that reason it cannot be said that it was deliberately done so as to manipulate the injury allegedly caused by the appellant. As already said, incident occurred on 12.11.1985 at about 8.00 p.m. and the injured PW1-Shri Kanhaiya Lal alongwith PW3-Shri Kalu Lal appeared at Police Station Dadabari (Kota) and on the basis of oral report lodged by him, Rappat No.544 was recorded in the "Rojnamcha-Aam" maintained by the police about the incident in which not only the name of the accused was mentioned but part of the body, weapon used and the manner and the circumstances in which the incident took place were also recorded. In the report it was also mentioned that Shri Kalu Lal and Laxmanram are eye-witness of the incident. It is thus clear that report was lodged without any undue delay with sufficient details. In the facts and circumstances of the case at the most it can be said that it was lapse on the part of the concerned SHO to register the FIR as late as on 19.2.1986 despite the fact that injured was medically examined on 13.11.1985 and injury report was also prepared. No adverse inference can be drawn against the prosecution and it does not cast doubt on the truthfulness of the prosecution case more particularly in view of the fact that no explanation was sought by the appellant from SHO who appeared during trial as PW7 for the delay caused in registering the FIR. No adverse inference can be drawn against the prosecution and it does not cast doubt on the truthfulness of the prosecution case more particularly in view of the fact that no explanation was sought by the appellant from SHO who appeared during trial as PW7 for the delay caused in registering the FIR. Similarly, although injured-PW1-Shri Kanhaiya Lal has said that injury was caused to him from behind but merely by that reason it cannot be said that he was not in a position to see and identify the person who inflicted injury to him more particularly in view of the fact that appellant and injured were known to each other much prior to the incident. No suggestion was made to the injured in cross-examination that he got no opportunity to see and identify the assailant. So far as absence of sufficient source of light at the place of incident is concerned, as per prosecution case it was a day of Diwali Festival and, therefore, it cannot be accepted that at the time and place of incident it was so dark that it was not possible for the injured to see the face of the person who inflicted injury to him more particularly in view of the fact that the incident is of the city of Kota and not of a remote village. In his cross-examination injured has said that lights were present at the electric poles and due to festival sufficient light was all around. During the course of cross-examination of the injured PW1-Shri Kanhaiya Lal and other witnesses this fact has not been disputed that injured on the date of incident was present at the house of PW3-Shri Kalu Lal to celebrate Diwali Festival and at that time many other persons were also present. Merely by the reason that PW3-Shri Kalu Lal in his cross-examination has admitted that at the place of incident although electric poles were standing but no lights were on them, it cannot be said that there was no other source of light on the day of festival of Diwali for injured to identify the assailant. Merely by the reason that PW3-Shri Kalu Lal in his cross-examination has admitted that at the place of incident although electric poles were standing but no lights were on them, it cannot be said that there was no other source of light on the day of festival of Diwali for injured to identify the assailant. Although, due to admissions made by PW3-Shri Kalu Lal in his cross-examination, it can be said that he was not actual eye-witness of the incident and other eye-witness PW8-Shri Laxman Lal has not supported the prosecution case so far as infliction of injury by appellant is concerned and to that extent he has been declared hostile but there is no reason to disbelieve the statement of injured PW1-Shri Kanhaiya Lal who has in clear terms has stated that it was appellant who inflicted injury to him by a knife. PW3-Shri Kalu Lal has supported the so much part of the prosecution case that injured came to his house on that day, he found him in injured condition, appellant was also present at the place of incident and he and Shri Lachmanram took the injured to police station in an injured condition, report about the incident lodged in his presence which bears his signatures also and injured was taken to hospital for examination. Although, Shri Kanhaiya Lal in his cross-examination has admitted that appellant filed a case against him for infliction of injury by a knife to appellant by him but at the same time he has said that prior to the present incident there was no dispute between him and the appellant. Merely because appellant also filed a case against the injured, it cannot be accepted that in the present case the appellant has falsely been implicated more particularly in view of the fact that it is not made clear by the appellant that case against the injured was filed by him prior to the present incident. In his cross-examination, injured has specifically denied the suggestion that due to previous enmity, appellant has been falsely implicated. In his cross-examination, injured has specifically denied the suggestion that due to previous enmity, appellant has been falsely implicated. So far as presence of sister of injured at the time and place of the incident is concerned, although her presence has not been made in the FIR or in any of the statement of the injured whereas PW3-Shri Kalu Lal in his examination-in-chief itself has mentioned about her presence but it is not such a material fact so as to adversely effect the main prosecutory story which is to the effect that at the time and place of the incident appellant caused injury to the injured by a knife. 8. No importance can be given to the statement of PW7-Shri Rajendra Kumar to the effect that on examination being made of the injured at police station, injury was found in the arm pit of the right hand as this statement is against the documentary evidence available on record. As per Rappat recorded in the "Rojnamcha-Aam", it was stated by the injured that injury has been caused to him in the left side of the abdomen. As per report recorded by the police also on examination, an injury was found on the left side by the abdomen. As per injury report Ex.P1 prepared on 13.11.1985 which has been proved by PW2-Dr.P.D.Vijay, stab wound was found on the left side of the abdomen. It is also to be noted when oral report was lodged at police station, PW7-Shri Rajendra Kumar did not personally examine the injured. 9. So far as offence under Section 307 IPC can be said to be made out or not is concerned, there is sufficient evidence available on record showing that appellant was having intention to cause death of the injured or atleast was having knowledge that by inflicting injury to the injured by a sharp-edged weapon like knife to his abdomen he is likely to cause his death. Merely on the basis of size of the injury it cannot be said that offence under Section 307 IPC is not made out. Merely on the basis of size of the injury it cannot be said that offence under Section 307 IPC is not made out. In his examination-in-chief injured-Shri Kanhaiya Lal has said that on the day of the incident it was festival of Diwali and he was present at the house of Shri Kalu Lal to celebrate the festival and one fire cracker lighted by them suddenly fell infront of the house of acquitted accused-Shri Brijmohan and upon this Shri Brijmohan, Shri Ramdeva and appellant-Shri Ashok by abusing him and taking stick came at the house of Shri Kalu Lal but the matter was got settled at the intervention of his father, Shri Kalu Lal and Laxmanji. He has further stated that after five minutes when he was returning to his house on foot in the way Shri Brijmohan, Shri Ramdev caught hold him and when he tried to run away, appellant came from behind and inflicted injury on the left side of his abdomen by a knife and blood oozed out from the wound so caused. He has further stated that he alongwith Shri Kalu Lal and Shri Laxmanji appeared before Police Station Dadabari (Kota) and lodged report about the incident and he was medically examined and operated upon and remained in hospital for 15 days for his treatment. It is to be noted that no cross-examination has been made about the manner in which the injury was caused to the injured. PW2-Dr.P.D.Vijay in his examination-in-chief has stated that while working as Medical Jurist in MBS Hospital, Kota he medically examined injured-Shri Kanhaiya Lal on 13.11.1985 and he found a stab wound of the size of 3/4" x 1/4" on the left side of his abdomen. He has further stated that injury was by a sharp-edged weapon caused within a period of 24 hours. He has also stated that on the basis of operation-notes Ex.P2, he found the injury to be dangerous to life which can be caused by a knife. In his cross-examination he has denied the suggestion that the injury found may result if a person fall upon a sharp edged stone. It is to be noted that no suggestion was made to the witness that looking to the size of the injury it could not be dangerous to life. 10. Section 320 IPC enumerates various kinds of hurt disignated as grievous. It is to be noted that no suggestion was made to the witness that looking to the size of the injury it could not be dangerous to life. 10. Section 320 IPC enumerates various kinds of hurt disignated as grievous. According to clause (viii) of this section hurt which endangers life of a person or which causes the sufferer to be during the space of twenty days in severe bodily pain, or unable to follow his ordinary pursuits also tantamounts to grievous hurt. A reading of this provision clearly reveals that it is in two parts and the first part provides that any hurt which endangers life of a person is also grievous hurt and it is not necessary that a hurt to be grievous in nature it should not only endangering life of the sufferer but also it must cause the sufferer to be during the space of twenty days in severe bodily pain, or unable to follow his ordinary pursuits. Therefore, even if a victim does not suffer severe bodily pain or is unable to follow his ordinary pursuits for 20 days, even then the hurt caused to him can be grievous if it endangers his life. 11. According to Section 326 IPC, an offence to be covered under this provision the person must cause grievous hurt. According to Section 307 IPC, if any person 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. 12. A comparison of Section 326 and 307 IPC clearly reveals that while Section 307 IPC uses the words “under such circumstances”, these words are conspicuously missing from Section 326 IPC. Therefore, while deciding whether the case falls under Section 307 IPC or under Section 326 IPC, the Court must necessarily examine the circumstances in which the assault was made. 12. A comparison of Section 326 and 307 IPC clearly reveals that while Section 307 IPC uses the words “under such circumstances”, these words are conspicuously missing from Section 326 IPC. Therefore, while deciding whether the case falls under Section 307 IPC or under Section 326 IPC, the Court must necessarily examine the circumstances in which the assault was made. The intention to cause death can be gathered generally from a combination of a few or several of the following, among other, circumstances: (1) nature of the weapon used, (2) whether the weapon was carried by the accused or was picked up from the spot, (3) whether the blow is aimed at a vital part of the body, (4) the amount of force employed in causing injury, (5) whether the incident occured by chance or whether there was any pre-meditation, (6) whether there was any prior enmity or whether the injured was a stranger, (7) whether the person inflicting the injury has taken undue advantage or has acted in a cruel and unusual manner, (8) whether the accused dealt a single blow or several blows. A combination of aforesaid circumstances or some of them and many other relevant circumstances is determinative factor to gather the intention or knowledge of the accused. To justify the conviction under Section 307, it is not essential that bodily injury capable of causing death should have been inflicted. Although, the nature of injury actually caused may often give considerable assistance in coming to a finding as to the intention of the accused, such intention may also be deduced from other circumstances and may even in some cases, be ascertained without any reference at all to actual wounds. This section makes a distinction between an act of the accused and its result, if any. Such act may not be attended by any result so far as the person assaulted is concerned, but still there may be cases in which the culprit would be liable under this Section. It is not necessary that the injury actually caused to the victim or the assault should be sufficient under ordinary circumstances to cause the death of the person assaulted. What the Court has to see is whether the the act, irrespective of its result, was done with the intention or knowledge and under circumstances mentioned in the Section. 13. It is not necessary that the injury actually caused to the victim or the assault should be sufficient under ordinary circumstances to cause the death of the person assaulted. What the Court has to see is whether the the act, irrespective of its result, was done with the intention or knowledge and under circumstances mentioned in the Section. 13. Considering various circumstances and facts available on record in the present case as referred above clearly show that the appellant was having intention or atleast knowledge that his act of inflicting knife blow in the abdomen of the injured may cause his death. The appellant used a sharp edged weapon like knife which he was already carrying with him, the blow was aimed at a vital part of the body with sufficient force so as to injured was operated upon and he remained in hospital for his treatment for 15 days. It is further clear that injury was caused by the appellant when dispute which arose between them was already settled and thereafter injured was returning to his house without any arm and taking undue advantage of the position of the injured appellant caused injury to him from behind. Mere fact that only single blow was dealt by the appellant cannot bring the case out of purview of Section 307 IPC. All these circumstances lead this Court to affirm the view of the learned trial Court that the present case falls under the ambit of Section 307 IPC and not under Section 326 or any other offence and the trial Court was justified in convicting the appellant for offence under Section 307 IPC. No legal authority could be produced by the learned counsel for the appellant supporting his contention that for an offence to be made out under Section 307 IPC, the injury has to be opined to be sufficient in the ordinary course of nature to cause death and if opinion is only that the injury was dangerous to life, at the most offence under Section 326 IPC can be said to be made out. 14. 14. So far as grant of benefit of probation to the appellant is concerned, looking to the facts and circumstances of the cause including the manner in which the incident took place and the natury of injury caused, I do not find it a fit case in which it would be in the interest of justice to grant such benefit to the appellant. So far as period of sentence awarded by the trial Court is concerned, in the facts and circumstances of the case, sentence of four years cannot be said too severe and disproportionate to the offence committed by the appellant. Since the crime is offence against the society, the society has a right to demand that the culprit be punished in accordance with law. The society also expects that its fragile existence would be protected from the anti-social activities of the culprit. Therefore, the society's sense of justice demands and dictates that the culprit be required to undergo his entire sentence. A brutal attack perpetuated by the appellant, calls for both a deterrent and a retributive punishment. In case any sympathy were to be shown by this Court by reducing the sentence awarded by the trial Court, it would not only shock the conscience of the society, but most importantly it will motivate others to carry out a similar dastardly act. Those who take the law in their own hands and those who ruthlessly assault a person do not deserve the mercy of Court. 15. For the reasons stated above, this appeal is devoid of any merit and is, hereby, dismissed. The appellant is on bail. His bail bonds are cancelled. He is directed to appear before the trial Court on or before 06.07.2016, so as to undergo sentence awarded to him. If he fails to do so, the trial Court shall take necessary steps including issuance of warrant of arrest for his production before the Court so as to undergo the sentence awarded to him.