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2023 DIGILAW 899 (RAJ)

Pritvi Singh v. State of Rajasthan

2023-04-21

ASHOK KUMAR JAIN

body2023
ORDER : Mr. Ashok Kumar Jain, J. - Present appeal is preferred aggrieved from judgment dated 27.01.1995 passed by learned Sessions Judge, Jaipur District, Jaipur in Sessions Case No. 18/1993 whereby accused-appellant has been found guilty for offence under Section 308 IPC and he has been sentenced to rigorous imprisonment for two years with fine of Rs.1,500/-, in default of payment of fine to further undergo rigorous imprisonment for three months. 2. Learned counsel for appellant submitted that during trial, except injured all other eight witnesses had turned hostile and they had not supported the story of prosecution. He further submitted that injured Nathu Ram deposed as PW-2 had not corroborated the involvement of present appellant-accused in cross-examination. He further submitted that from contradictions and infirmities, it is much clear that there was improvement as regard to use of weapon is concerned. He further submitted that in the report registered, it is indicated that the 'knife' was used whereas in the statement, use of 'Gupti' was alleged. He further submitted that it was not proved that the incident as alleged by complainant had really taken place. He further submitted that except sole injured, no other supportive witness was produced by prosecution to prove the case of prosecution. He further submitted that testimony of single witness can only be relied upon provided his testimony is of sterling worth. He further submitted that medical evidence is not sufficient to prove that injury Nos. 1 and 2 inflicted upon injured were sufficient to cause death in ordinary course of nature as no surgical record or operation record was produced to justify that the injuries were sufficient to cause death of injured. He further submitted that no evidence was led by prosecution to prove that with intention to cause culpable homicide blows were caused by accused-appellant. He further submitted that conclusion of learned trial Court to convert conviction under Section 308 IPC is erroneous. At the end, he submitted that incident is of year 1993 and appellant is facing the proceedings for last 30 years. 3. Aforesaid contentions were opposed by learned Public Prosecutor. 4. Heard learned counsel for appellant and learned Public Prosecutor and perused the record. 5. The only contradiction which is pointed out by learned counsel for appellant is the nature of weapon used to inflict injuries upon complainant-injured. 3. Aforesaid contentions were opposed by learned Public Prosecutor. 4. Heard learned counsel for appellant and learned Public Prosecutor and perused the record. 5. The only contradiction which is pointed out by learned counsel for appellant is the nature of weapon used to inflict injuries upon complainant-injured. In report Ex.P-2, it was mentioned that knife was used whereas in the statement of witnesses recorded under Section 161 Cr.P.C., use of 'Gupti' is disclosed. PW-2 is injured and in his examination-in-chief straightaway use of 'Gupti' was alleged. On this point, during cross-examination, a clarification is offered, wherein when asked defence, PW-2 clarified that he was not aware whether the weapon used was called as knife or 'Gupti', hence this point is well answered in cross-examination of PW-2, so this is not a ground to discard evidence of injured. 6. Herein, the name of present appellant accused was figured in FIR (Ex.P-2) and also in statement of PW-2 Nathu Ram. When we look at statements of other witnesses who turned hostile, one thing is quite clear that PW-3 Ram Gopal accompanied injured to police station though he denied the fact of injury caused by accused-appellant. Herein one more witness i.e. PW-6 (Rupnarayan) also supported the fact that blood was running out of chest of injured. Similar was the statement of PW-7 (Satyanarayan) though all other witnesses have not supported the case of prosecution but here in this case, except PW-2 no other witness had supported the story of prosecution, therefore, we have to verify the testimony of PW-2. 7. Firstly, when we look at medical evidence i.e. statement of PW-11 and then injury report Ex.P-13 as proved by medical jurist but in cross-examination, he denied that injury No.1 can be caused when injured fell on any steel blade. The fact that these two injuries were caused by sharp weapon and injury No.2, cannot be caused by nail, therefore we cannot conclude that these two injuries are self inflicted injuries or caused in any accident. The report (Ex.-P2) was submitted to police and on the basis of this Ex.P-2, FIR was lodged, therefore the injuries of victim were verified by medical jurist which is sufficient to rely upon testimony of sole injured witness. 8. The report (Ex.-P2) was submitted to police and on the basis of this Ex.P-2, FIR was lodged, therefore the injuries of victim were verified by medical jurist which is sufficient to rely upon testimony of sole injured witness. 8. Here in this case, there were many eye-witnesses and this is not fault of the injured that since the other witnesses have turned hostile, the testimony of sole injured cannot be relied upon. We do not concur with this proposition, therefore conviction can be based on sole injured witness, wherein injuries are proved by medical evidence. 9. Now the question is seriousness of injury. Here in this case, accused appellant was charged under Section 307 IPC whereas learned trial Court has altered the charge of Section 307 to Section 308 IPC on the ground that operation or surgical notes were not produced for final opinion. Herein, when we look at Ex.P- 4 i.e. injury report, both the injuries were inflicted from sharp object and X-ray report was admitted by appellant-accused during trial and same is exhibited as Ex.P-12 which clearly indicated that no bone injury is seen but plural effusion is seen on right side of chest and it is not proved that plural effusion is caused due to injury No.1, it may be due to other reasons, but in any case, when injuries were not opined as dangerous to life or sufficient to cause death, in the ordinary course of nature, as defined under Section 308 IPC, we cannot conclude that the injuries Nos. 1 and 2 caused to injured is sufficient to bring present matter within the ambit of Section 308 IPC. When we look at deposition of PW-2, it is clear that nowhere it is stated that appellant with requisite intent or knowledge had caused these injuries which were sufficient in ordinary course of nature to cause death. To prove charge under Section 307 or 308 IPC, neither a positive evidence was led by prosecution nor medical evidence was produced. In case, wherein no opinion was given on nature of injuries, those injuries can be treated only as simple, thus injury Nos. 1 and 2 which were caused by using sharp weapon have to be treated as simple injuries and they are well covered within Section 324 IPC and not under Section 308 IPC thus the conclusion arrived at by learned trial Court is liable to be interfered. 1 and 2 which were caused by using sharp weapon have to be treated as simple injuries and they are well covered within Section 324 IPC and not under Section 308 IPC thus the conclusion arrived at by learned trial Court is liable to be interfered. 10. In view of aforesaid discussion made hereinabove, the order of conviction and sentence under Section 308 IPC is liable to be set aside and appellant is liable to be convicted under Section 324 IPC. As a result, present appeal preferred by appellant accused- Pritvi Singh @ Pappu S/o Shri Bhanwar Singh against order of conviction and sentence dated 27.01.1995 under Section 308 IPC is allowed and set aside. Appellant accused is acquitted under Section 308 IPC but is convicted under Section 324 IPC. 11. Considered question of sentence, looking to the fact that incident is of January, 1993 and after 30 years, the matter has come up before this Court, therefore instead of sentencing for imprisonment, it would be appropriate to grant benefit of probation as provided under Section 4 of the Probation of Offenders Act provided that appellant accused submits a probation bond of Rs.50,000/- along with surety of Rs.50,000/- within a period of one month to the satisfaction of learned trial court with condition to maintain peaceful behavior and not to repeat the offence for a period of one year. A compensation of Rs.10,000/- is imposed upon appellant, of which is to be paid to complainant-injured within 30 days. 12. Accordingly, the appeal stands disposed of.