CRA No.717-SB of 2000 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Appeal No.717-SB of 2000 Date of Decision : 10.12.2010 Mohan Lal .......Appellant Versus U.T. Administration, Chandigarh .......Respondent CORAM:- HON'BLE MR. JUSTICE JITENDRA CHAUHAN Present: Mr. Karamjit Verma, Advocate, for the appellant. Mr. Rajiv Sharma, Advocate, for U.T. Chandigarh. **** JITENDRA CHAUHAN, J. 1. The present appeal is directed against the judgment and order dated 28.07.2000 (hereinafter referred to as ‘impugned judgment’) whereby the appellant-Mohan Lal, has been convicted for the commission of offence punishable under Section 307 IPC and has been awarded sentence to undergo rigorous imprisonment for a period of five years and to pay a fine of Rs.1,000/- and in default of payment of fine, to further undergo rigorous imprisonment for a period of two months for making an attempt to murder Bihari Lal. He has been further sentenced to undergo rigorous imprisonment for a period of five years and to pay a fine of Rs.1,000/- and in default of payment of fine, to further undergo rigorous imprisonment for a period of two 1 CRA No.717-SB of 2000 months for making an attempt to murder Sushma Devi. Both the substantive sentences were ordered to run concurrently. 2. Briefly stated facts of the present case are that on 25.08.1996, ASI Pargat Singh, Police Post, Sector 22, Chandigarh, received information from an unknown person to the effect that one Mohan Lal has inflicted injuries to Bihari Lal and his wife Sushma Devi, with a knife in House No.3516, Sector 23-D, Chandigarh. On the basis of this information, ASI Pargat Singh, along with other police officials went at the spot and came to know that the injured had already been removed to the hospital. Thereafter, he went to PGI, Chandigarh where the doctor declared Sushma Devi unfit to make a statement whereas injured-Bihari Lal was declared fit and he suffered a statement to the effect that he was working as Senior Accountant in the office of Accountant General, Haryana, and had tenanted one room on the top floor of House No.3516, Sector 23-D, Chandigarh, since 1989. The accused was also living in a separate room as a tenant on the same floor. On 25.8.1996 at about 7.30 a.m., when complainant and his wife-Sushma Devi, were sitting in the courtyard in front of Barsati, the accused came out of his room and asked them as to why they were causing hurdle by sitting in the courtyard. At that time, the complainant was cutting vegetables by sitting on the cot and his wife, Sushma Devi, was sitting beside him. The accused remarked that he would teach the complainant a lesson for sitting at that place and turned the cot, on which both the injured were sitting, upside down due to which, both of them fell down on the floor. The accused started grappling with complainant, Bihari Lal, picked up the knife 2 CRA No.717-SB of 2000 which had fallen on the floor and gave a knife blow on the backside of Bihari Lal. The complainant and his wife raised hue and cry and when Sushma Devi tried to intervene in order to save her husband, the accused gave knife blow on her upper left side near her breast. Thereafter, the accused fled away from the spot. 3. On the basis of aforesaid statement made by the complainant, investigations were conducted and final report under Section 173 Cr.P.C. was submitted. 4. The accused was charge-sheeted for the commission of offence punishable under Section 307 IPC to which he pleaded not guilty and claimed trial. 5. In order to substantiate its case against the accused, the prosecution examined as many as following 16 witnesses:- PW1-Dr. R K Banta, SMO, PGI, Chandigarh, medically examined Sushma Devi on 25.08.1996 and found the following injuries:- “1. Incised wound 4.5 cm with tapering edges sharp border in 7th intercostal space in mid- axilary, left side with fresh ooze was present. Local exploration of the wound revealed finger going into pleural space. Left intercostal tube drainage done. Medico-legal X-ray was advised which was done by Dr. Ashu Seth and reported to be no bone injury vide MLC X-ray No.43497 dated 25.8.1996.” 3 CRA No.717-SB of 2000 He further deposed that the injury on the person of Sushma Devi was dangerous to life and was sustained with sharp-edged weapon. On 25.8.1996, he also medically examined Bihari Lal and found the following injury on his person:- “Incised wound 4 cm on back on left para vertical side with sharp edged weapon tapering at both ends and fresh ooze was present.” He further deposed that he had declared the injury on the person of Bihari Lal as dangerous to life and caused with a sharp-edged weapon. PW2-Dr. Ashu Seth conducted the X-ray examination of the injuries on the persons of Sushma Devi and Bihari Lal, injured. PW3-H.C. Rajbir Singh, deposed that he received information in the control room about some quarrel in House No.3516, Sector 23-D, Chandigarh whereupon he went to the spot and found Bihari Lal and his wife, Sushma Devi, in injured condition. He removed both the injured to the PGI in police vehicle. PW4-Dr. Arvind Jindal, medically examined the accused on 25.8.1996 and found the following injuries on his person:- “1. He was having reddish swelling 3X3 cm with central 1.5 X 0.5 cm Reddish abrasion in the central of swelling with 0.5 X 0.25 cm Abraded 4 CRA No.717-SB of 2000 bruise around the center above abrasion in 3 cm diametar area with another reddish bruise 6 cm X 0.5 cm in a manner about 6 cm above central abrasion”. 2. He was having reddish abrasion 2X0.5 cm on the base of left index and with finger with complaint of pain.” He further deposed that the injuries were simple in nature and caused with blunt weapon. PW5-Constable Manjit Singh took the photographs of the place of occurrence. PW6-MHC Dalip Singh is a formal witness. PW7-Bihari Lal, injured, reiterated his version as has been given in Ex.PH. PW8-Sushma Devi, injured, made almost similar statement as that of PW7. PW9-Ram Singh, Assistant, CRD Branch, PGI, PW10-Constable Yash Pal, PW11-ASI Gurmeet Singh, PW12-Balbir Singh and PW13-Dr. R K Sharma, Deputy Medical Superintendent, PGI, are the formal witnesses. PW14-ASI Pargat Singh is the Investigating Officer in this case deposed about the investigations carried out by him. PW15-Dr. Bharat Dubey, examined Sushma Devi, injured, on 25.8.1996 in the Casualty Ward and 5 CRA No.717-SB of 2000 found a stab on the left infranammary region in the 7th inter costal space. He deposed that because of the danger of blood or air getting trapped in the pleural space which could compromise the respiration of the injured, they had to put a chest tube. This witness declared injury on the person of Sushma Devi as grievous. He also examined Bihari Lal on 25.08.1996 and found stab wound 4 cm. long and around 2 cm. deep with exposed muscle tissue in the inter-scapular area on his person. Nature of the injury on the person of Bihari Lal was also declared grievous. PW-16 Dr. I. Haque, Sr. Scientific Officer, Central Forensic Science Laboratory proved his report, Ex.PU. 6. When examined under Section 313 Cr.P.C., the accused denied the allegations appearing against him in the prosecution case and pleaded his false implication. However, no evidence was led in his defence. 7. After hearing learned counsel for the parties and appreciating the material evidence on record, the learned trial Court convicted and sentenced the accused-appellant for the offence and term as indicated at the outset of this judgment. 8. Learned counsel for the appellant has argued that there was no previous enmity between the parties. Both the parties were tenants in the same house and there was no intention or motive behind the incident. There was no premeditation and the quarrel arose at the spur of the moment. Therefore, there was no intention to cause any 6 CRA No.717-SB of 2000 injury. The appellant was empty-handed, it was a sudden fight and the alleged weapon used in the crime was the same which was being used by the complainant for chopping vegetables. 9. Learned counsel has further submitted that there is no eyewitness to the incident although the place of occurrence is a thickly populated area. Some unknown person informed the Police. The landlord was also joined in the investigation and he made a statement that there was no enmity between the injured and the accused. 10. Learned counsel has stated that initially, the case was registered under Section 324 IPC, however, the Investigating Officer moved an application, Ex.PA/1, on 24.04.1997, for seeking opinion regarding the nature of the injuries sustained by the injured and whether the same could cause death in the ordinary circumstances. In pursuance of the application, Ex.PA/1, Dr. Mugdha Kulkarni, SMO, recorded her opinion wherein the injuries were described as dangerous to life and could be suffered with the weapon (knife) shown to the doctor. Learned counsel submits that on the basis of opinion rendered by the doctor, the appellant was challaned under Section 307 IPC. 11. Learned counsel has submitted that the entire case of the prosecution is based on the opinion rendered by Dr. Mugdha Kulkarni with regard to the nature of injuries. He has argued that the same cannot be relied upon as Dr. Mugdha Kulkarni, who opined the injuries on the person of the injured-witnesses as dangerous to life, was not examined. Instead, Deputy Superintendent of the Hospital was examined as PW13, who proved the signatures of Dr. Mugdha Kulkarni. Learned counsel submits that non-examination of the 7 CRA No.717-SB of 2000 doctor on whose opinion, challan under Section 307 IPC was filed, is not sustainable. 12. Learned counsel has further arged that the prosecution has failed to explain the injuries on the person of the appellant. He has submitted that the appellant suffered the trauma of litigation for more than 14 years during the trial and the pendency of the present appeal. The appellant remained in jail from 28.7.2002 to 12.10.2002. 13. On the other hand, learned counsel appearing for the U.T. Administration submitted that from the perusal of the report, Ex.PA/1, dated 24.4.1997, prepared by Dr. Mugdha Kulkarni, the injuries were found to be dangerous to life. The doctor has specifically opined that the injuries could be caused with the weapon (knife) recovered. Therefore, the case of the prosecution is proved beyond reasonable doubt. 14. I have heard learned counsel for the parties and perused the record. 15. As per the case of the prosecution, the occurrence took place on the second floor of the house which was tenanted by both the parties. Admittedly, there is no history of previous enmity between the parties. The occurrence in the present case took place on account of sudden and grave provocation due to exchange of hot words between them. The appellant was empty-handed. The complainant was cutting vegetables and his wife was sitting nearby. The alleged injuries were given with the kitchen knife with which the complainant, Bihari Lal, was cutting the vegetables. It is also the case of the 8 CRA No.717-SB of 2000 prosecution that the appellant ran away from the spot after inflicting the injuries. 16. Initially, the case was registered under Section 324 IPC, however, on information sought by the Investigating Officer, Dr. Mugdha Kulkarni, SMO, opined the injuries to be dangerous to life and that the same could have been inflicted with the weapon (knife) shown to her. However, this doctor, who gave the opinion regarding the nature of injuries suffered by the complainant and his wife, has not been examined by the prosecution. In my opinion, the non- examination of material witness, i.e., Dr. Mugdha Kulkarni, who opined the injuries on the person of the injured as dangerous to life and in pursuance thereto, the case was converted from Section 324 IPC to Section 307 IPC, is fatal to the prosecution case. 17. Dr. R K Banta, PW1, has specifically stated that he never gave any opinion in the present case to the effect that the nature of injuries on the person of the injured were dangerous to life. As per the statement of Dr. Ashu Seth, PW2, no bone injury was detected. 18. From the testimony of Dr. Arvinder Jindal, PW3, the accused-appellant, Mohan Lal, suffered two injuries. The prosecution has not been able to explain the injuries on the person of the appellant. Non-explanation of the injuries suffered by the appellant makes the case of the prosecution doubtful. 19. The case of the prosecution is not that the appellant, after inflicting the injuries, ran away from the spot with the knife as there is no allegation that the appellant carried away the same with him. Therefore, the recovery of the knife used in the crime, that too from an 9 CRA No.717-SB of 2000 open place, which was accessible to the public is itself doubtful. Moreover, the occurrence has taken place within the premises inhabited by neighbours and other residents at the ground and first floor thereof, however, no independent witness was joined at the time of recovery of the alleged weapon. 20. In view of the above discussion and the fact that Dr. Mugdha Kulkarni, who opined the injuries on the person of the injured as dangerous to life, has not been examined by the prosecution, I am of the considered opinion that the appellant cannot be held guilty under Section 307 IPC. Consequently, the offence, committed by the appellant falls within the purview of Section 324 IPC. As regards the question of quantum of sentence, the accused has been facing agony of litigation for more than 14 years during the trial and during the pendency of the present appeal and the fact that he has already undergone sentence of about 2 months, impel me to take a lenient view. 21. Resultantly, the present appeal is partly allowed. The judgment and order of the learned trial Court is modified. The accused-appellant is acquitted from the charge under Section 307 IPC. However, the appellant is convicted under Section 324 IPC and the sentence of imprisonment is modified to the period already suffered by him. Except for modification of conviction and sentence, this appeal fails on merits and is dismissed accordingly. 22. Ordered accordingly. 10.12.2010 ( JITENDRA CHAUHAN ) 10 CRA No.717-SB of 2000 atulsethi JUDGE Note : Whether to be referred to reporter ? Yes / No 11