1 S.B. Criminal Appeal No.457/88 (Surja Ram & Another v. State) IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR. JUDGMENT SURJA RAM & ANOTHER. V. THE STATE OF RAJASTHAN. S. B. CRIMINAL APPEAL NO. NO.457/88 against the Judgment dated 5.12.1988 passed by the Additional Sessions Judge, Bikaner in Sessions Case No.20/86. DATE OF JUDGMENT MAY 20, 2009 PRESENT HON'BLE MR. JUSTICE C. M. TOTLA Mr. Gaurav Singh & Sandeep Mehta, for Appellant(s). Mr. O.P.Singhaniya, PP, for the State. BY THE COURT: Challenged is appellants' conviction for the offences of Section 326 read with Section 34 IPC and and Section 324 read with Section 34 IPC and respective sentences awarded of three years with fine Rs.2000 as per judgment dated 5.12.88. Heard. Events and brief facts leading to appellants' prosecution are that on 9.7.84, ASI PW 5 of Police Station, Kotgate on instruction of SHO 2 S.B. Criminal Appeal No.457/88 (Surja Ram & Another v. State) PW 6, arriving at hospital Bikaner, recorded statement Ex.P-1 of Hari Ram PW 1 who was admitted in injured state. Hari Ram averred that on that day at about 8.45 am, he going to his work on cycle reached near shop of Radha Kishan in market – where from behind came Surja Ram, Tiliya @ Triloki and Motilal on motor-cycle and struck him, and as he fell down, appellant Surja Ram inflicted a blow of Barchhi on his buttock and on his getting up, Tiliya inflicted blow of sword on his right hand – then both inflicted blows with barchhi and sword on his right, left palm, both legs, thighs and on other parts of the body. On his cries and shouting, Sevaram and Atta Hussain came who intervening, protected and many people gathered. Also averred that all three in relation are his nephews and he beaten because of old animosity and cases - mentioning that because of injuries, he cannot sign or make thumb impression of any hand. So ASI PW 5 taking impression of thumb of right leg on this recorded statement, making his own endorsement presented same to SHO PW 6 who on basis of this statement Ex.P-1 registered FIR Ex.P-9 No.154/84 for offences of Sections 324 and 334 IPC. ASI PW 5 inspecting place of occurrence on 9.7.84 itself prepared memo and site plan Ex.P-2 and Ex.P2-A. Then on 10.7.84 at hospital worn clothes and Dhoti and having cut marks of injured Harim were seized and sealed vide memo Ex.P-3. SHO PW 6 arresting appellant Trilok on 12.7.84 on and as per his 3 S.B. Criminal Appeal No.457/88 (Surja Ram & Another v. State) information Ex.P-10 from his house recovered a sword which was taken out by accused himself taking from old jute bag lying in kitchen respective memos are Exs. P-6, 10 and 4. Arresting appellant Surja Ram vide memo Ex.P-7 and as per his information Ex.P-11 recovered making memo Ex.P-5 from his house a barchhi which was taken out by Surja Ram from old household goods lying in kitchen – copies of slip used in sealing sword and barchhi prepared and separately kept are Exs. P-13 and P-14. Injury report of Hari Ram is Ex.P-15 and x-ray report Ex.P-16. After recording statements of witnesses and usual investigation and as injuries grievous with fracture of right forearm and meta corporal - charge-sheet submitted against appellant and Motilal for the offences of Sections 307, 326, 324 and 323 IPC. Appellant and acquitted accused Motilal charged for the offences of Sections 307, 326, 323, 324 and also read with Section 34 IPC, claimed trial. Of the seven prosecution witnesses, Hariram PW 1 is the injured, Sevaram PW 2 eye-witness named in the FIR, PW 3 and PW 4 witnesses of recovery who are declared hostile. ASI PW 5 recorded the statement of Ex.P-1 that is FIR and inspected site, and Hukam Singh SHO IO made recoveries. Dr. Ravi Kumar PW 7 examining the injuries of PW 1, prepared injury report Ex.P-15. Stand of the appellant as explained by them is that complainant 4 S.B. Criminal Appeal No.457/88 (Surja Ram & Another v. State) and they are on inimical relations – cases in between them – prosecution witnesses relatives, so they are falsely implicated and witness telling lie. In defence are examined Ramanlal DW 1 and Omprakash DW 2. Raman Lal DW 1 states that his house is just adjacent shop of Radha Kishan Surajmal where he doing work of repairing sofa-set etc. and in last year never such incidence of injuring anyone on thoroughfare occurred. DW 1 also states that on a Monday in the month of July in evening came police and inquired and he said that no such incidence occurred. In cross- examination, he states that till the day of evidence, appellant did not say of any such case against him. Omprakash DW 2 deposing his shop to be nearby states that in last 4-5 years, never opposite the shop of Radha Kishan Suramjal or road any occurrence of injuring to anyone by sword etc. occurred. Learned trial Judge, arriving at conclusions that both appellants voluntarily and with common intention of causing grievous and simple injuries by sharp weapon to Hari Ram, convicted them for the offence of Sections 326 and 324 read with Section 34 IPC, acquitting appellant for offence of Sections 307 and 324 IPC. Accused Motilal acquitted. On behalf of appellants argued is that (1) incident is said to be of about 9 in the morning, but statement of injured recorded only at 4 pm thus, delay of seven hours in FIR with absolutely no explanation – thus false, manipulated and exaggerated is FIR, (2) PW 2 is the only witness 5 S.B. Criminal Appeal No.457/88 (Surja Ram & Another v. State) who is a relative and no reason of his being there, (3) no independent witness not even Atta Hussain named in the FIR among prosecution witnesses, (4) appellants sitting on motorcycle, said to have struck but no such vehicle seized. (5) One accused acquitted on same evidence. Extensively reading statements of witnesses argued that statements of PW 1 and PW 1 are inconsistent to each other with many contradictions – injuries superficial one with no evidence of any blood stains at alleged place of occurrence. Argued that injuries are not proved to be grievous one – person before whom x-ray taken, not examined – neither the Radiologist examined and no x-ray plates produced. For appellant drawing attention to the defence evidence also, is argued that commercial establishments of both witnesses are nearby and had any such incidence occurred that and others of the locality must have known about it. Also submitted that which can be caused by falling down from a cycle and/or with collision to any vehicle. Lastly submitted that if appellants are held guilty for any offence, the same was not with pre- intention, near relatives to each other and 25 years have elapsed since the incident. In support of contentions, learned counsel placed reliance on (1) Arjun Singh s/o. Jagman v. State, S. B. Criminal Revision Petition No.184/81 decided on 2.12.1986; (2) Ram Swaroop v. The State of Rajasthan, S. B. Criminal Revision Petition No.177/77, decided on 5.8.1981; (3) Lal Chand v. State of Rajasthan, S. B. Criminal Appeal 6 S.B. Criminal Appeal No.457/88 (Surja Ram & Another v. State) No.94/92, decided on 30.7.2002; & (4) Suresh v. State, S. B. Criminal Appeal No.77/79, decided on July 11, 1988. Learned Public prosecutor argued that evidence of PW 1 is corroborated by testimony of PW 2 and number of injuries caused so delay of few hours in FIR inconsequential. Considering the arguments, perused the record and impugned judgment. For properly appreciating evidence, it will be useful to describe injuries inflicted and found on the person of Hari Ram PW 1 as per his statement and proved by the evidence of Dr. Gehlot PW 7 read with injury report Ex.P-15 - “(1) Incised wound 8.0 x 3.5 cm. x bone deep on right forearm lower 1/rd near wrist – ulna bone cut. (2) Incised wound 2.5 x 0.5 cm x bone deep on right little finger proximal phalynx dorsal aspect. (3) Incised wound 2.3 x 0.5 cm x bone deep right index finger based on palm. (4) Incised wound 3.5 x 0.5 cm x bone deep right middle finger middle phalynx. (5) Incised wound 9.0 x 1.0 x bone deep left palm between area of fingers and thumb. (6) Incised wound 1.5 x 0.5 cm x bone deep – left index upper phalynx. (7) Incised wound 2.0 x 0.3 cm x bone deep on left palm near thumb and finger joint. (8) Incised wound 2.3 x 0.5 cm x bone deep between middle phalynx and palm. (9) Incised wound 4.5 x 0.2 cm x skin deep right knee. (10) Incised wound 1 x 5 x 0.2 cm skin deep right leg. (11) Incised wound 3.2 x 0.5 cm skin deep right leg inner side. 7 S.B. Criminal Appeal No.457/88 (Surja Ram & Another v. State) (12) Incised wound 1.0 x 0.3 cm skin deep left leg upper third. (13) Abrasion 9 .0 x 0.2 cm right right thigh on lower 1/3rd outer. (14) Incised wound 1.0 x 0.2 x skin deep right forearm and middle arm. (15) Abrasion 2.0 x 0.2 cm on abdomen. (16) Incised wound 0.8 x 0.3 cm x on left buttock muscle deep. (17) Linear cut abrasion 2.5 x 0.1 cm from left of chest to back upto scapula region.” Injured examined at 6 pm and fresh of about 6-7 hours duration and all except 13 and 15 by sharp weapon. Considering parts and organs where injuries caused and as is also stated by Dr. PW 7, significant injuries are on both palms and right forearm. Injuries No. 2, 3 and 4 are in right palm area, injuries No. 5, 6 and 7 are on around left palm area and on right arm. Also appears from the injuries described and as also is stated by PW 7 that injuries No. 9 to 15 and 17 were superficial. Medical Jurist PW 7 deposed that injury No.1 was grievous and for injuries No. 1 to 8, x-ray was advised. X-ray report received was Ex.P-16, according to which injury Nos. 1 and 7 grievous. According to this report Ex.P-16, there was fracture of left forearm lower 2/3rd right ulna and right 5th meta corporal and also fracture of left middle phalynx of ring finger. . Vehemently, it is submitted that Radiologist or technician is not examined and the specialist, who prepared report Ex.P-16 has also not 8 S.B. Criminal Appeal No.457/88 (Surja Ram & Another v. State) appeared in witness so – no injury can be taken to be grievous. With above argument, it also surfaces that from the evidence of PW 7 and also of PW 11 it stands proved that the appellant was admitted in hospital at around 10 am. Injury No.1 of right forearm is described in Ex.P15 and also narrated by PW 7 as “incised wound 8 x 3.5 cm x bone deep” “ under which the ulna bone is clear cut of its full thickness”. Thus, clinically, there definite was the finding that ulna was almost completely cut. Given the above facts and description of injuries, it cannot be stated and inferred that the nature of the same was not determinable without x- ray – when bone cut was clear cut, it cannot be said and held to be not grievous one – thus this argument cannot stand. X-ray report Ex.P-16 was examined by PW 7. However, injury No.7 of finger phalynx, for the above reason cannot be taken to be proved as grievous one. About the contention of injuries being caused by falling from a vehicle and of defence of non-occurrence of any such incidence, it may be observed that the defence evidence is entirely negative one. Regarding causing of injuries by falling down from a vehicle or accident etc., suffice to mention that medical officers are examined on the basis of different set of possibility and contingencies and that do not mean of injuries caused in such stated manner of contingency. Here it may also be mentioned that Doctor PW 7 does not say, at least definitely of causing these injuries in 9 S.B. Criminal Appeal No.457/88 (Surja Ram & Another v. State) above contingencies. Even if such is the possibilities, the same cannot help appellant. Hariram PW 1 states and so also is admitted by Sevaram PW 2 that Sevaram is brother-in-law of PW 1 – appellant's sister is married to one one brother-in-law of PW 1. Sevaram PW 2 admits that as and because appellant's sister married to his younger brother Kaniram, because of some quarrel, went to her parents so the accused taking it granted that Hariram has evicted their sister, bear enmity to Harimam and for that reason, Hariram beaten and injured by the appellants. PW 1 admits that on the report of appellant's mother Smt. Modi, a charge-sheet was submitted against him and five persons in the year, 1984 and on report of this witness, lodged a month earlier, also a charge-sheet is submitted. PW 2 also accepts of some enmity between him and appellant. Considering above relations between the parties, evidence is to be carefully appreciated. Relationship or/and some animosity by itself cannot be a ground for discarding testimony or doubting the veracity, but considering other factors and circumstances, as may be relevant evidence is to be examined minutely and with caution and in some appropriate cases some corroboration may be desirable but not necessary. Direct evidence of common intention is seldom available and for the occurrences and incidents, particularly those involving violence and causing injuries etc., the same is to be and can be gathered by the 10 S.B. Criminal Appeal No.457/88 (Surja Ram & Another v. State) happenings on the spot and also by nature of weapon used, injuries caused, number of injuries , organ where caused and the acts committed by the offender etc. Hari Ram PW 1 injured deposed that at about 9 a.m. when he was going on his job, then from behind came all three on a motor cycle and strike to him - as he fell down, Surja Ram inflicted blow of Barchhi at his buttock, then Tiliya by sword on right palm, cutting his palm and finger – then Surja Ram by barchhi at left palm severely cutting his palm – then Surja Ram by barchhi on left hand and then Tiliya by sword on left hand, so his hand almost severed. PW 1 also states of causing injuries at left knee and both legs and according to him, as he cried and shouted, Seva Ram and Atta Hussain came and on whose intervention, all three ran away. PW 1 states that sister of appellant Surja Ram is married to brother- in-law of this witness, who unhappily returned to maternals, so appellants, having impression of his involvement, have beaten him. PW 1 states that Sevaram hospitalized him and police recorded his statement. In cross-examination, states that soon after the incident, he went to the near house of Nand Kishore who is brother-in-law of his (P.W.4) brother and then Nand Kishore also accompanied to hospital, where police came in the evening when Sevaram was also present. PW 1 admits that as he was struck down by the motor cycle, some abrasions etc. caused on knee by falling on road and he sustained six injuries by barchhi and two of 11 S.B. Criminal Appeal No.457/88 (Surja Ram & Another v. State) sword. Number and nature of injuries are also described. Definitely injuries are good in number and grievous one. Such number and nature of injuries by itself corroborate testimony of the injured. Sevaram PW 2 though is brother-in-law of PW 1, but only this can hardly be a reason of questioning his testimony. Now a days, in such cases of violence and quarrel only near and dear, particularly relatives do and are supposed to intervene and take care. Caring in such an injured position shows some social relation consideration, affection, humanity or even sympathy, but certainly this cannot be termed to be a bias, particularly against any one. Sevaram PW 2 states that in morning, he was going for work, then opposite to shop of Radha Kishan, Hari Ram was being beaten by his uncle's sons – Surjaram by Barchhi and Trilok Chand by sword were causing injuries to Hariram who was injured on both hands etc and for avoiding blows falling on head, Hari Ram had to take blows on his hands. Sevaram PW 2 very clearly says that these persons beating Hariram ran away when he was at a distance of 6-7 ft. and before this witness, place of occurrence was inspected by the investigating officer and also clothes seized. PW 2 further says that some blood dropped, but police not collected sample because it was a tar-road. Arguments that Atta Hussain named in the FIR is not examined, neither sample collected from the place 12 S.B. Criminal Appeal No.457/88 (Surja Ram & Another v. State) of occurrence (meaning thereby as is argued that no such injury is caused at the place) and PW 2 being a chance witness, are of no significance. Non-examination of some witness does not necessarily affect veracity of other witness. Similarly, it was a road of market so intact presence of blood is expecting too much. Injuries being very clear, delay of few hours in non-recording statement by police or not lodging FIR too becomes in consequential. On occurrence of such an incident if such number of severe injuries are caused – concerned persons first do centralize and ought to centralize for medical treatment and delay of few hours in initiating proceedings for such reasons cannot be prejudicial to prosecution or injured. Contention also is that who caused the grievous injuries. Grievous injury caused on left hand is of dimension 8 x 3.5 cm x bone deep with ulna completely cut. Hari Ram PW 1 deposed that this injury on his right hand was caused by Tiliya and because of it, hand almost severed thus injury definitely is attributed to Tiliya @ Trilok Chand. Other appellant also inflicted many injuries of sharp weapon, so the intention of co-accused also is proved to cause grievous injury by sharp weapon. As above, as many as nine incised wounds are clearly caused (leaving aside superficial seven injuries). These injuries were caused by both appellants, who acted together at the same time, by sharp weapons of barchhi and sword. In such a situation, for the grievous injury caused by one the other also 13 S.B. Criminal Appeal No.457/88 (Surja Ram & Another v. State) becomes responsible. Out of both the appellants, one actually inflicted grievous injuries, then the other also becomes responsible. In other words, any one appellant certainly guilty of Section 326 the other is guilty of Section 326/34. However, as above, Tiliya @ Trilok Chand is attributed the grievous injury. Either of the appellants caused this grievous injury one other appellant becomes responsible as both adding together and concertedly by sharp weapon caused many injuries. For the reasons above, both appellants are convicted for the offence of Sections 326/34 and 324 IPC (as one of two appellants inflicted grievous injury by sharp). Now, pondering over the question of sentence, appellants are sons of uncle of injured, and they are living in the same locality – appellants were arrested on 12.7.84 and bailed out on 28.7.84, though to the incident 25 years and to conviction 20 years elapsed, but as above, injuries are also many and grievous one. Trying to strike balance and keeping in view that the parties are near relatives with possibilities that differences between them settled or buried in these long years, it may not be of use to award any corporeal punishment – appropriate god amount of fine with punishment of undergone may serve the ends of justice and may also be in the interest of relations between the parties. For the above reasons, as any one of both the appellants is guilty of Section 326 and other for Section 326/34 IPC, both appellants are convicted for the offence of Section 326/34 IPC and also Section 324 IPC. 14 S.B. Criminal Appeal No.457/88 (Surja Ram & Another v. State) For sentences on behalf of the appellants, submission is for undergone which was period from 12.7.84 to 28.7.84, mainly because of elapse of 25 years to incident. The injuries inflicted are as above. Such injuries cause severe painful plight, agony, inability temporary or permanent, loss of income coupled with expenses of treatment and possibilities of many adverse consequences to be faced by the victim can be well imagined. Considering this, appropriate sentence ought to be. But, it is also that a period of about 25 years has elapsed and by this time, the next generation is almost of the age the appellants were at the time of their arrest and incident. Here, particularly after 25 years, sending any appellant to imprisonment may also have an adverse impact on wife of brother of witness PW 2 who is sister of appellant. Trying to strike balance and keeping in view that the parties are near relatives being sons of uncle to each other with possibilities of differences and hatchet between them settled or buried in these long years, it may not be conducive to harmony to award any additional custodial sentence, but simultaneously care is to be taken that sentence not only to be only worth name so as not to enhance discouragement for such acts. So in the opinion of the Court, sentence of imprisonment already undergone with a total fine of Rs.40, 000/- that is Rs.20,000/- to each of the appellants shall be just and appropriate. As above the appeal stands disposed of. 15 S.B. Criminal Appeal No.457/88 (Surja Ram & Another v. State) Maintaining the conviction of both the appellants for the offence of Section 326 and 326/34 and also Section 324 IPC (S.C. No.20/86 dated 5.12.88), but altering the sentence for the offences each appellant is sentenced for the offence of Section 326/34 IPC for the period already undergone with fine of Rs.15,000/- and for the offence of Section 324 IPC for the period already undergone with fine of Rs.5,000/-, in default of payment of fine for the offence of Section 326 IPC to undergo three months' simple imprisonment and in default of payment of fine of Section 324 IPC to undergo one month's simple imprisonment. Out of the fine of Rs.40, 000/-, amount of Rs.25,000/- shall be payable to injured Hari Ram. Of the above fine, Rs.10,000/- shall be payable by June 22, 09 and remaining Rs.10,000/- by July 22, 09 to be deposited in trial Court. (C. M. TOTLA), J. 16 S.B. Criminal Appeal No.457/88 (Surja Ram & Another v. State)