Criminal Appeal No. 301-SB of 1994 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Appeal No. 301-SB of 1994 Date of Decision: 05.05.2009 Rishi son of Gopi, aged 18/19 years, farmer, resident of village Mandhana. District Bhiwani. ... Appellant Versus State of Haryana. ... Respondent CORAM: HON'BLE MR. JUSTICE SHAM SUNDER Present: Mr. Jagjeet Singh Beniwal, Advocate, for the appellant. Mr. P.S. Sullar, Deputy Advocate General, Haryana, for the respondent – State. SHAM SUNDER, J. * * * * This appeal is directed against the judgement of conviction dated 02.06.94, and the order of sentence, dated 03.06.94, rendered by the Court of Additional Sessions Judge, Bhiwani, vide which, it convicted the accused, (now appellant), for the offence, punishable under Section 307 of the Indian Penal Code, and sentenced him, to undergo rigorous imprisonment for a period of three years, and to pay a Criminal Appeal No. 301-SB of 1994 2 fine of Rs. 1000/-, and in default thereof, to further undergo rigorous imprisonment, for a period of one year. 2. The facts, in brief, are that on 08.11.92, at about 11.00 AM, Rajmal left his house with bullock-cart for his fields, with a view to provide food to his son and daughter-in-law. His son Balbir and his wife Sunita had left for the fields in the morning for plucking cotton. When he reached near the fields of Ram Bilas, he found the cart (rehru) of Gopi, standing on the path, leading to his fields, thereby obstructing the passage. Rajmal removed the cart of Gopi, from the passage, parked it, by the side of katcha portion of the path and took his bullock-cart to his fields. Rajmal started stacking the bajra sticks in his fields, when all the four accused Gopi, Rishi, Ram Niwas and Krishan Kumar, came there armed with deadly weapons. Gopi and Rishi were armed with a jelly each, while Krishan and Ram Niwas, accused, were armed with a lathi each. Gopi accused proclaimed that they would teach Rajmal a lesson, for setting aside their cart (rehru) from the path. Upon this, Krishan, accused, grappled with Rajmal and caught hold of him, from behind. Rishi, accused, inflicted injury, on the person of Rajmal with jelly which landed on right side of his chest. Gopi, accused, dealt a jelly blow, which hit Rajmal, on his left arm. Ram Niwas, accused, belaboured Rajmal with fists and slaps. On receipt of the injuries, Rajmal fell down, raising alarm “killed killed”. On hearing his noise, his son Balbir and his wife Sunita, came there, and witnessed the occurrence. The accused left the spot saying that on that day Rajmal Criminal Appeal No. 301-SB of 1994 3 had been spared and would be finished later on. Balbir, arranged a cart (rehru) and brought his father to the village and then to General Hospital, Bhiwani, in a car, belonging to the Sarpanch of the village. 3. Head Constable Phul Kumar, received a message, from Police Station, City Bhiwani, at about 6.10 PM regarding the admission of Rajmal in the hospital. He came to the General Hospital, Bhiwani, collected the medico-legal reports, and made a request to the Medical Officer, if Rajmal was fit to make statement. The doctor declared Rajmal fit to make statement at about 8.15 PM, vide his report PE/4. Head Constable Phul Kumar, then recorded the statement of Rajmal PD, which was read-over and explained to him, and after admitting it to be correct, he signed the same. Head Constable Phul Kumar, went to the spot, and prepared the rough site plan PJ. He also made a request to the Medical Officer PB, to obtain the opinion, about the nature of injuries sustained by Rajmal. Dr. S.K. Bansal, stated that the opinion would be given after receiving the x-ray report and surgeon's opinion. He then arrested Krishan, Ram Niwas, and Rishi, accused on 23.04.92. He recovered lathis P2, and P3, from Kishan and Ram Niwas. Rishi, accused, produced jelly P1, which was taken into possession, vide seizure memo PK/2. Head Constable Phul Kumar, also arrested accused Gopi, on 04.12.92, and took into possession jelly P4 vide seizure memo PK/3 from him. Head Constable Phul Kumar, again went to the hospital and obtained the opinion of the doctor, who declared injury No. 2 on the person of Rajmal, as dangerous to life and the Criminal Appeal No. 301-SB of 1994 4 offence was converted into one under Section 307 Indian Penal Code. After the completion of investigation, the accused were challaned. 4. On their appearance, in the Court of the Committing Magistrate, the accused were supplied the copies of documents, relied upon by the prosecution. After the case was received by commitment in the Court of Sessions, charge under Section 307, against Rishi, accused, and under Section 323 read with Section 34 of the Indian Penal Code, against Gopi, Ram Niwas, and Krishan, accused, was framed, which was read-over and explained to them, to which they pleaded not guilty, and claimed judicial trial. 5. The prosecution, in support of its case, examined Dr. K.L. Bawa (PW1), Sadhu Ram (PW2), Dr. D.S. Dangi (PW3), Rajmal (PW4), Dr. S.K. Bansal (PW5), Balbir Singh (PW6), Ram Chander (PW7), and Head Constable Phul Kumar (PW8). Thereafter, the Public Prosecutor for the State, closed the prosecution evidence. 6. The statements of the accused under Section 313 of the Code of Criminal Procedure, were recorded. They were put all the incriminating circumstances, appearing against them, in the prosecution evidence. They pleaded false implication. Rishi, accused, in his statement, under Section 313 of the Code of Criminal Procedure, stated that cart (rehru) of Rajmal was standing in the watercourse. He further stated that Gopi Ram pulled that bullock-cart, for a passage, for his bullock-cart. It was further stated by him that Rajmal, Lilu, and Balbir came there armed with jellies, and started abusing Gopi Ram. Criminal Appeal No. 301-SB of 1994 5 Thereafter, Balbir inflicted injury on the head of Ram Niwas. He further stated that on hearing commotion, he came there. Balbir prosecution witness caused injuries with his lathi, on the right hand and also gave a blow with the same on the back of Ram Niwas. Lila caused injury to Ram Niwas, on his feet, while injury was given to Gopi Ram on the back. Rajmal gave injury on the right hand finger of Gopi Ram. He further stated that Lila also gave jelly blow on the chest of Gopi Ram. He further stated that he also caused injuries to Rajmal in self defence to save his life and life of his co-accused. 7. After hearing the Counsel for the parties, and, on going through the evidence, on record, the trial Court, convicted and awarded substantive sentence to Rishi, accused, and released Gopi, accused, on probation. However, it acquitted Krishan, and Ram Niwas, accused. 8. Feeling aggrieved, the instant appeal, was filed by Rishi, accused (now appellant). 9. I have heard the Counsel for the parties, and have gone through the evidence, and record of the case, carefully. 10. The Counsel for the appellant, at the very outset, submitted that no offence punishable under Section 307 of the Indian Penal Code, was made out, but the trial Court, was wrong, in recording conviction, and awarding sentence, for the said offence. The submission of the Counsel for the appellant, in this regard, does not appear to be correct. Dr. S.K. Bansal, Medical Officer, PW5, medico-legally examined Rajmal and found the following injuries on his person:- Criminal Appeal No. 301-SB of 1994 6 (i) Lacerated wound over left forearm of size 1 cm x .1 cm skin deep. Margins were ragged and reddish in colour. x ray was advised. (ii) There were two circular lacerated wounds on right side of chest one in posterior exillery line, second 3' posterior to first wound. Size of both was 1 cm diameter. Margins were ragged, reddish in colour. Probing not done because of vital organs underneath. Blood was coming out of wounds present opposite ninth rib. x ray was advised and also surgeon's opinion was sought. The opinion with regard to the nature of both the injuries was deferred for want of x ray report and surgeon's opinion. The duration of the injuries was 24 hours. Injuries No. 1 and 2, were caused, on the person of Rajmal, by blunt pointed weapons. On receipt of x ray report, surgical emphycema and fluids were shown in the right side of chest of Rajmal. Keeping in view the x ray report, as also the surgeon's opinion, injury No. 2, was declared dangerous to life. Dr. K.L. Bawa, Medical Officer, Government Hospital, Bhiwani, PW1, who conducted radiological examination of Rajmal, also found surgical emphycema and fluid in the right side chest of Rajmal and submitted report PA. Dr. D.S. Dangi, Medical Officer, Government Hospital, Bhiwani, PW3, gave opinion that the patient had surgical emphycema and x ray showed fluid level on the right side of chest. He proved his report PC/1. It was also stated by him, during the course of his cross- examination, that injury No. 2 could be dangerous to life, and could prove fatal to Rajmal, but for timely medical aid. From the evidence of the doctors, referred to above, it could be concluded that injury No. 2, on the person of Rajmal, was dangerous to life. In State of Criminal Appeal No. 301-SB of 1994 7 Maharashtra Vs. Balram Vama Patil (AIR 1983 S.C. 305), it was held that to convict under Section 307 of the Indian Penal Code, it is not necessary, to show that the bodily injury capable of causing death was inflicted, but what the Court has to see, is as to whether, the act irrespective of its result, was done with the intention or knowledge and, under such circumstances, mentioned in this Section. Attempt need not be an ultimate act. It is sufficient, if there is an intent, coupled with some over-tact in execution thereof. To prove that the act was done, by the accused, with the intention or knowledge, and, under such circumstances, mentioned in this Section, the Court is to look to the part of the body, on which, the injury was caused; the nature of injury caused; and the weapon being wielded by the accused for causing such injury. In the instant case, injury No. 2, which was declared dangerous to life was on the chest of Rajmal. This injury was caused with jelly. Chest, being a vital part of the body, the injury on the same could prove fatal. The intention or knowledge of the accused, in causing such an injury stood duly proved from the evidence on record. The trial Court was, thus, right in holding that the accused committed the offence under Section 307 of the Indian Penal Code. The submission of the Counsel for the appellant, being without merit, is rejected. 11. It was next submitted by the Counsel for the appellant, that the members of the complainant party were the aggressors, and the members of the accused party were the aggressive, but the trial Court, did not take into consideration, this aspect of the matter, as a result Criminal Appeal No. 301-SB of 1994 8 whereof, it fell into a grave error, in recording conviction, and awarding sentence. The submission of the Counsel for the appellant, in this regard, does not appear to be correct. The occurrence, in the instant case, was almost admitted, but only the mode and manner, in which, the same took place was disputed. For determining, as to which party was the aggressor, and which party was the aggressive, the Court was required to decide the motive for the occurrence; the place where the occurrence took place; the nature of injuries inflicted; the parts of the body chosen to inflict injuries and which party went to the Police Station for lodging the report, in the first instance. It is proved from the evidence of Rajmal, PW4, that when he reached with his bullock-cart near the fields of Ram Bilas, he found the cart (rehru) of Gopi, standing on the path leading to his fields, thereby obstructing the passage. He got aside the cart of Gopi, from the passage, and parked it by the side of katcha path. It was further stated by him, that he took his bullock- cart to his fields, and parked the same there, at about 12 noon. It was at this stage that Rishi, accused, armed with a jelly, Gopi, accused, armed with a jelly, Krishan, accused, armed with a lathi, and Ram Niwas, accused, armed with a lathi, came to the fields of Rajmal. The occurrence, thus, took place in the fields of Rajmal. It means that the accused alongwith his companions who have been acquitted went to the fields of Rajmal and opened attack on him, as he had got aside the cart of Gopi and parked the same by the side of the katcha passage. Rajmal was empty handed at that time. The motive of the accused, in Criminal Appeal No. 301-SB of 1994 9 causing injuries on the person of Rajmal, having been proved, the next question that arises is, with regard to the nature of injuries. Injury No. 2, on the person of Rajmal was declared dangerous to life. No doubt, as many as four lacerated wounds, were found, on the person of Ram Niwas, accused (since acquitted). All the injuries were simple in nature. As many as two injuries were found, on the person of Rishi, accused, and both the injuries were found to be simple in nature. Four injuries were found on the person of Gopi. Injury No. 1 was grievous in nature, on the left hand of Gopi and the remaining injuries were simple in nature. When the nature of injuries caused on the person of Rajmal is compared with the nature of injuries caused on the person of the aforesaid three accused, only one and one conclusion that can be arrived at, is that the accused were the aggressors. Had the members of the complainant party been aggressors, they would have made a mince- meat of the members of the accused party, by causing a number of dangerous to life and grievous injuries, on vital parts of their (members of the accused party) bodies. Since, the accused were the aggressors, they did not have any right of private defence of body. In this view of the matter, the submission of the Counsel for the appellant, being without merit, must fail, and the same stands rejected. 12. No other point, was urged, by the Counsel for the parties. 13. In view of the above discussion, it is held that the judgement of conviction and the order of the sentence, rendered by the trial Court, are based on the correct appreciation of evidence and law, Criminal Appeal No. 301-SB of 1994 10 on the point. The same do not suffer from any illegality or infirmity and deserve to be upheld. 14. For the reasons recorded above, the appeal, being devoid of merit, is dismissed. The judgment of conviction, and the order of sentence, rendered by the trial Court, are upheld. If the appellant is on bail, his bail bonds, shall stand cancelled. 15. The Chief Judicial Magistrate, shall take necessary steps to comply with the judgment with due promptitude, keeping in view the applicability of the provisions of Section 428 of the Code of Criminal Procedure, and submit compliance report, within 02 months. 16. The District & Sessions Judge, is also directed to ensure that the directions, referred to above, are complied with, and the compliance report is sent within the time frame, to this Court. 17. The Registry is directed to keep track that the directions are complied with, within the stipulated time. The papers be put up within 10 days, of the expiry of the time frame, whether the report is received or not, for further action. 05.05.2009 (SHAM SUNDER) AMODH JUDGE