IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 166 of 2009. Decided on: November 28, 2011. ___________________________________________________________ Rajesh Kumar …. Appellant. Versus State of Himachal Pradesh. ….. Respondent. Coram Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting1? Yes. For the appellant : Mr. Vinay Thakur, Advocate. For the respondent : Mr. P.M. Negi, Deputy Advocate General. _______________________________________________________ SURINDER SINGH,J (oral) : The appellant hereinafter to be referred as “the accused” was convicted by the learned trial Court in Sessions trial No.13 of 2006 on 30.5.2009, under Section 307 of the Indian Penal Code and sentenced to under rigorous imprisonment for a period of five years and to pay a fine of `1,000/-. In default of payment of fine, the accused has been ordered to undergo simple imprisonment for a period of six months. Whether reporters of the Local papers are allowed to see the judgment? - 2 - 2. The accused is a co-villager of the injured PW6 Ranjit Singh. The prosecution story unfolded by PW6 aforesaid can be stated thus. On 23rd November, 2005, Ranjit Singh aforesaid was a Tractor driver with Surinder @ Bablu at village Kafnu. He alongwith Neema Lama, Moti Ram and Maghav worked on that day together till 5 p.m., thereafter, they assembled in the house of Sant Ram and consumed one bottle of liquor. Around 7 p.m., Maghav and Ranjit dispersed to go to their respective houses. When Ranjit Singh reached near a Nallah, someone hit him from his back. When he saw backward, he noticed the accused with a dagger Ext.P5 in his hand. Accused dealt another blow on his head with it but he tried to overt it by raising his hands despite that the dagger landed on his head and also cut wrist of the right hand. Thereafter, he put his both hands on his heads and one blow also caused chopping off his middle finger of the right hand. He also received injuries on the left side of his face below the eyes. The injured fell down on the ground and raised hue & cry. He testified the above version when he appeared as a - 3 - witness in the Court. He further testified that on hearing his cries, some persons, who were ahead of him, came to save him including Maghav. On seeing them, accused fled away from the spot. He also stated that Maghav ran after the accused, but he did not know whether the accused was caught by him or not. Later, PW2 Moti Ram also came to the spot whom he revealed about the incident. Moti Ram and others lifted him and took him to Police Post Kafnu and then to Police Station Bhawa- Nagar. (ii) PW6 Ranjit Singh was also taken to the hospital Nichar from where he was referred to Civil Hospital Rampur. Since his condition was bad, therefore, he was further referred to IGMC, Shimla for further management of the injury and treatment, where he remained hospitalized for about a week. (iii) As per the injured, the accused had picked up a quarrel about a week ago from the date of the alleged incident and had given him blows, that could probably be the reason for attacking him by the accused. - 4 - (iv) The blood stained wearing apparels Exts.P1 to P4 alongwith Cap Ext.P6 were taken into possession by the Medical Officer, M.G.M.S.C. Khaneri. During the trial, he also identified the dagger Ext.P5, which was used by the accused to inflict injuries on him. (v) PW2 Moti Ram also substantiated the above story. He stated that he alongwith Neema Lama reached the spot, where PW6 Ranjit Singh was lying injured. According to him, he was in serious condition and blood was oozing from his wounds. He had asked him as to what had happened, on this injured told that he was attacked by the accused with a dagger (Chhuri), thereafter he became unconscious. He took him to the Police Post Kafnu assisted by his relatives in a vehicle. He was taken to Bhawanagar Hospital and then referred to Civil Hospital, Rampur and then to IGMC, Shimla. He further testified that the blood was lying on the spot alongwith Cap Ext.P6 of the injured. Police also took the blood stained earth alongwith - 5 - Cap into possession. The recovery of the Cap Ext.P6 from the spot is also corroborated by PW3 Raj Kumar, which was sealed on the spot. (vi) PW7 ASI Chita Ram stated that after lodging the FIR, he took up the investigation and visited the spot. He also took into possession the blood stained clothes and Cap Ext.P6 from the spot. He further testified that the photographs Exts.PW7/A-1 to A-6 of the spot of the alleged occurrence were taken. He also prepared site plan Ext.PW7/B. (vii) The accused was arrested on 24.11.2005. He produced the dagger Ext.P5 to the police, which was taken into possession vide memo Ext.PW3/B. Its sketch Ext.PW7/C was also prepared. The dagger was sealed with seal impression ‘A’ and taken into possession vide memo Ext.PW3/A. (viii) The wearing apparels, dagger and the Cap of the injured were sent for the forensic examination. As per report Ext.PX, the wearing apparels of the injured contained - 6 - human blood of Group-A. The Cap which was having a cut alongwith dagger was further examined by the forensic experts. As per report Ext.PY, the cut on the Cap Ext.P6 of the injued could be due to the dagger Ext.P5. (ix) PW5 Dr. Guman Singh Negi had examined the injured and noticed the following injuries:- “I. Incised looking wound over the scalp on right occipital region, bone deep, nearly vertical 8x2 cm in size, blood oozing out, margins clear, regular, everted. II. Incised wound on left side of face, cheek region bone deep, horizontal approximately 9x1 cm in size. Margins clear cut, regular everted extending from left zygoma region to middle of roof of nose. Blood oozing out. Clotted blood over the face and surrounding wound gapping present. III. Incised wound over dorsum of lower and of right forearm 5x2.5 cm approximately bone deep wound gapping present, margins everted clear cut extending from 3 cm above the styloid process of radius nearly horizontly medially to one cm above the styloid process of ulna - 7 - dorsally. Blood was oozing out. Hands stained with clotted blood. IV. Amputation of right middle ring finger tip, soft tissue, sharply cutted, cut bone visualized blood oozing out, skin margins clear cut. V. Incised looking laceration 7x.5cm on top of head near the horizontal bone deep between two parietal bone eminence.” Injury No. V aforesaid was noticed on 2.12.2005 when the injured was brought for taking sample of blood. Since there was a cut injury on the scalp (occipital region), he was referred for the X-ray of forehead (AP / lateral view). Initially Doctor gave intravenous fluid, Titoxide injection and also some medicines then referred him to MGMSC Rampur for further management of injuries. He issued MLC Ext.PW5/B. The probable duration of injury was opined to be within six hours caused with sharp edged weapon. X-ray showed fracture of right ulna digital one third with lateral extensor digitorm fondues with traumatic amputation of - 8 - middle and ring fingers at distal falnyx right side also the fracture of skull. Thus, injuries were grievous in nature having caused with dagger Ext.P5, on the vital part of the body, hence dangerous to life. 3. The stand taken by the accused in cross- examination is that the injured had given beatings to him. In his statement under Section 313 of the Code of Criminal Procedure, his case is denial simplicitor. According to him, the witnesses have made a false deposition again him. 4. When called upon to enter into his defence, he examined DW-1 Neema Lama, who was cited as a prosecution witness, but not examined. He also stated that all of them consumed liquor in the house of Sant Ram from where they left to their respective residences. He further stated that he was the last to leave the room where they consumed liquor. Thereafter Moti Ram informed him that Ranjit Singh was found unconscious on a village path. Then he alongwith Moti Ram had picked him up and took to the Police Post Kafnu. Even this statement hardly helped the accused; rather it - 9 - goes consistent to the prosecution story to a larger extent. 5. Learned trial Court after examining the aforesaid evidence convicted and sentenced the accused as stated above. 6. Shri Vinay Thakur, learned counsel for the accused vehemently argued that the opinion of the doctor that the injuries were dangerous to life is not enough to bring the case within the mischief of Section 307 of the Indian Penal Code. He further argued that the prosecution story is not trustworthy and the recovery of the knife, identification of the accused and the dagger in complete darkness was not possible. However, in the alternative, he argued for leniency as the accused belongs to a poor labour class of District Kinnaur and was aged about 26 years at the time of alleged occurrence, having a large family to support, being the sole bread earner of the family. He also ventilated that the accused is serving the sentence w.e.f. 30.5.2009 i.e. the date of his conviction and during investigation, he also remained in custody from 24.11.2005 till 1.1.2006 (for about more than a month). - 10 - 7. Contra, Shri P.M. Negi, learned Deputy Advocate General supported the judgment of conviction and sentence passed by the learned trial Court. He further argued that there were repeated attacks by the accused on the injured which shows the intention of the accused to cause murder of the injured, but he saved himself by raising his hands which were also cut. He further submitted that the injuries caused to the injured were grievous in nature and the case is proved to be an attempted murder. It is also submitted that the learned trial Court had already taken a lenient view, therefore, further reduction in his sentence is uncalled for 8. I have given my thoughtful consideration to the rival contentions of the parties and have carefully re-examined the evidence on record. 9. The identification of the accused stands fully established. Though there is a reference in the statement of the injured that there was no light in and around when he was attacked, but accused is nobody else than his co-villager, who was already known to him. He categorically stated that when - 11 - he was attacked from behind and received first injury on his head, he turned back, he saw the accused with a dagger in his hand but when he dealt another blow with a dagger he raised his hands to overt it, it landed to his wrist which caused incised wound. He further tried to overt the blow on his head, but despite that the second injury was on the skull which according to doctor caused fracture. 10. The location of injuries stated by him fully matches with the statement of the doctor. There was a cut on the wrist of PW6 Ranjit Singh and also amputation of the middle and ring finger as aforesaid. The contention of the learned counsel that the injuries in question are not eminently dangerous to the life, therefore the case would not fall within the ambit of Section 307 of the Indian Penal Code is worth rejecting, because there is an intervening circumstance as the injured had tried to save himself by raising and putting hands around his head. 11. It is sufficient to justify the conviction under Section 307 of the Indian Penal Code, if there is - 12 - present an intent coupled with some overt act in execution thereof. It is also not essential that the bodily injury capable of causing death should have been inflicted. In State of Madhya Pradesh vs. Kedar Yadav [(2009) 17 SCC 280], the apex Court held that the section makes a distinction between an act of the accused and its result, if any. In fact the Court has to see whether the act, irrespective of his result, was done with the intention or knowledge and under circumstances mentioned in this section. Thus an accused charged under Section 307 of the Indian Penal Code cannot be acquitted merely because the injury inflicted on the victim is simple in nature. This preposition of law was highlighted in the earlier decision by the Supreme Court in State of Maharashtra vs. Balram B. Patil, [(1983) 2 SCC 28], Girija Shanker v. State of H.P.[ (2004) 3 SCC 793] and R.Parkash v. State of Karnataka [(2004) 9 SCC 27] and Sagayam vs. State of Karnataka [AIR 2000 SC 2161]. Further in Sarju Prasad vs. State of Bihar [AIR 1965 SC 843, the apex Court observed in para-6 that mere fact that the injury actually inflicted by the accused did not cut - 13 - any vital organ of the victim, is not by itself sufficient to take the act out of the purview of Section 307. 12. In the instant case, the repeated blows with dagger Ext.P5 which has 12” blade and the location of the injuries are enough to hold that the accused has an intention to cause the murder of the complainant. 13. On culling the evidence in the background of the above stated law, it is manifestly clear that the offence under Section 307 of the Indian Penal Code against the accused stands established, which cannot be faulted. 14. Insofar as the sentence is concerned, the principles of sentencing have been reiterated by the Supreme Court in State of Madhya Pradesh Vs. Kedar Yadav’s case supra that in the following paragraph:- “10. The Court will be failing in its duty if appropriate punishment is not awarded for a crime which has been committed not only against the individual victim but also against the society to which the criminal and victim belong. The punishment to be awarded for a crime must not be irrelevant but it should conform to and be consistent with the atrocity and brutality with which the crime has been perpetrated, the - 14 - enormity of the crime warranting public abhorrence and it should "respond to the society’s cry for justice against the criminal". 11. It is to be noted that the offence charged is of very serious nature. Section 307 relates to attempt to murder." 15. Thus, considering the principles indicated above, the interest of justice would be met in case the substantive sentence of five years awarded by the learned trial Court is reduced to three years. In addition, the fine is enhanced from ` 1,000/- to `20,000/-, out of which `15,000/- shall be released to PW6 Ranjit Singh, injured as compensation to him, if realized, but however, failing to deposit the fine amount, the accused shall undergo further simple imprisonment for a further period of nine months. The accused shall be given the benefit of Section 428 of the Code of Criminal Procedure. The sentence shall stand modified to the above extent. 16. Let a modified warrant be sent to the jail concerned by the learned trial Court in conformity with this judgment. The appeal is dismissed with a modification in sentence as aforesaid. Matter stands disposed of. Send down the records. November 28, 2011. (Surinder Singh), (Pds) Judge.