1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR. O R D E R S.B. CRIMINAL APPEAL No.250/1986. : : Babbu @ Pratap Singh Vs. State of Rajasthan. : : Date of Order 7.8.2008 HON'BLE MR.JUSTICE MOHAMMAD RAFIQ Mr.Suresh Dhenwal for Mr.Praveen Balwada for the appellant. Mr.D.D.Sharma, P.P. for the State. Reportable This appeal has been preferred by the accused- appellant against the judgment dated 30.4.1986 passed by the learned Sessions Judge, Bharatpur convicting him for offence under Section 307 IPC and sentencing him to undergo rigorous imprisonment of three years with a fine of Rs.500/- with further direction that in case the appellant defaulted in making payment of fine, he shall have to further undergo rigorous imprisonment of six months. Shri Suresh Dhenwal, learned counsel for the appellant has argued that though the incident took place on 12.7.1984 but the first information report was registered on 19.7.1984 whereas the assertion of the complainant is that 2 for all these seven days, the injured was undergoing treatment. It was contended that in fact the injury suffered by the injured was result of his fall on the tonga. The accused-appellant has been falsely implicated in this case due to personal enmity and business rivalry between injured and his family on the one hand and the accused-appellant on the other hand. The learned counsel for the appellant submitted that there was absolutely no basis for conviction of appellant for offence under Section 307 IPC. The appellant was not armed with any weapon whatsoever. Injuries sustained by the injured are alleged to have been caused by the accused- appellant by slaps and fists. It is alleged that the fist blows given by the appellant into stomach of the injured led to enlargement of his spleen. As per the evidence that has come on record, the incident took place due to sudden flare up between the accused-appellant and the injured on the question as to who should first take the passenger for being carried in tonga, since both used to run tonga for hire. The evidence suggested that while the accused-appellant was charging Rs.1.25 paisa, the injured was charging only Rs.1 which led to diversion of the passengers. It was argued that the statements of the eye-witnesses namely; PW.3 Suraj Bhan and PW.4 Virendra do not inspire confidence. PW.5 3 Dr.Bhupal Singh, the medical jurist, who for first time examined the injured, has admitted that in the first instance while preparing injury report, he merely described injury No.1 as grievous but he added his opinion that injury was dangerous to life only after the injured was subjected to operation by Dr.I.S.Saluja and Dr. Govind Gupta. At the same time he has also admitted in the cross-examination that this injury could have resulted, if any blunt portion of tonga was struck very hard on the stomach of the injured. Learned counsel further argued that the in fact even if the offence on given facts is taken to be proved it cannot travel beyond offence under Section 308 IPC as the appellant on the basis of evidence on record, both medical and ocular, cannot be said to have had the intention of committing murder of the injured and that this this can at the maximum could be held to be an attempt to culpable homicide. Learned counsel further argued that the accused- appellant was only 24 years of age at the time of incident and according to Section 4 of the Probation of Offender Act and Section 360 of the Code of Criminal Procedure, the learned trial Court was under an obligation to consider his case for grant of probation and if it decided not to do so, it was required to give reasons. In the present case, now when 4 the accused-appellant is not shown to have misused the liberty granted by this Court while suspending sentence vide order dated 21.4.1986, the Hon'ble Court may consider to grant him the benefit of probation. Shri D.D.Sharma, learned Public Prosecutor opposed the appeal and submitted that delay in lodging the FIR was satisfactorily explained by the complainant inasmuch as the complainant, who is father of the injured, was also a tongawale. He was an illiterate person and he at the relevant time gave more urgency to the treatment of his only son rather than going to the police station. It was argued that when the independent eye-witnesses namely; PW.3 Surajbhan and PW.4 Vajendra have supported the prosecution story, which has been corroborated by the injury report and other medical evidence, delay would be rendered inconsequential. It was also submitted that there was ample evidence to prove that it was a case of attempt to murder and the appellant was rightly convicted under Section 307 IPC. It was submitted that the appellant was rightly not granted the benefit of probation. I have given my anxious consideration to the rival submissions and perused the impugned judgment and also the material on record. 5 The evidence which has come on record clearly suggest that though there was no external injury suffered by injured PW.2 Mohd. Rafiq but at the same time, it is proved that he had to be immediately hospitalized and was subjected to operation in which the blood in the quantity of 500-600 cc was sucked from his stomach and on further examination, his spleen was found to be enlarged. The medical evidence available on record in the shape of injury report Ex.P/2 and operation note Ex.P/2 have been proved by PW.5 Dr.Bhopal Singh, PW.6 Dr.I.S. Saluja and PW.7 Dr.Govind Gupta. All these three medical witnesses have proved that abdomen of the injured contained large amount of blood about 500 to 600 cc which was sucked and thereafter spleen was found enlarged with large tear on medial and lateral surface. Thereafter spleenectomy was done and abdomen was closed. This injury was opined to be dangerous to life. In fact, Dr.Bhopal Singh in his cross- examination stated that his opinion about injury was dangerous to life was given after Dr.I.S.Salooja and Dr.Govind Gupta had performed operation and had given their findings. PW.6 Dr.Salooja and PW.7 Dr. Govind Gupta have also supported the same version. This version when read along with eye-witnesses account of not only injured 6 Mohd. Rafiq but also PW.3 Surajbhan and PW.4 Vajendra, it is evident that the version of eye-witnesses is corroborated also from the medical evidence. All the three eye-witnesses have consistently stated that dispute was about the question as to who should first take passengers on the tonga. Initially, the accused-appellant slapped the injured 3-4 times and when the injured fell from the tonga on the ground, he caused 3-4 fists into his stomach. Since the evidence, both of the eye-witnesses and the medical witnesses, has proved the offence beyond reasonable doubt and also the role of the accused-appellant, the delay of 7 days in lodgment of FIR although a factor but by itself cannot assume so significance as to throw the prosecution case. Evidence on record also prove that incident had taken place on a sudden flare up and at the spur of the moment with no pre-planning. The accused-appellant was not armed inasmuch as it was a dispute on a small issue as to who should first take passengers. The injuries were caused on non-vital organ. All these facts would show that the accused-appellant certainly had no intention to cause death of the injured or cause any such bodily injury to him for which he knew that it was likely to cause his death or cause 7 any such bodily injury to him which would have been sufficient in the ordinary course of nature to cause his death. None of the three Medical Officers, who have been examined in support of the prosecution evidence, have stated that the injury sustained by the injured was sufficient in ordinary course of nature to cause his death. To say that injury was dangerous to life was not the same as saying that it was sufficient in ordinary course of nature to cause death. In the facts and circumstances of the case and as per evidence, the offence that is made out and proved against the accused-appellant beyond reasonable doubt would be one under Section 308 IPC and not under Section 307 IPC, though this offence would fall in the second category of the offence under Section 308 IPC since the hurt was caused to the injured but at the same time, there was no external injury and it was only enlargement of the spleen caused by fists blows. These factors and also the fact that the accused- appellant was only 24 years of age when the incident took place and that his sentence was suspended by this Court vide order dated 21.4.2006 and he is not shown to have misused the liberty and there is no adverse report, entitles him for consideration of his case for grant of benefit of probation. 8 Moreover, the incident took place at the sudden flare up and the fact that the incident relates back to the year 1984 and more than 24 years have gone since then also are circumstances which go in favour of extending benefit of probation to the appellant. In the result, the appeal succeeds in part the conviction of the accused-appellant though is maintained but altered from Section 307 to Section 308 IPC. The sentence awarded to the accused-appellant is set aside and and the appellant Babbu @ Pratap Singh S/o Moja Singh is directed to be released on probation under Section 4 of the Probation of Offenders Act, 1958 on his furnishing a personal bond in the sum of Rs.10,000/- on the condition of maintaining good conduct with the surety in the like amount to the satisfaction of the trial court with the stipulation that he shall maintain peace and be of good behavior for a period of two years and shall appear before the court during the aforesaid period to receive and undergo sentence as and when called and shall not indulge again in any such offence in future. (MOHAMMAD RAFIQ)J. A.Arora/- 9