S.B. Crl. Appeal No. 275/89 1 (Mohan lal Vs. State) IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR J U D G M E N T Mohan lal vs. State S.B. CRIMINAL APPEAL NO. 275/1989 Against the judgment & order dt. 31.07.1989 passed by Additional District and Sessions Judge No.1, Udaipur in Sessions Case No. 55/1985. Date of Order : 21st April, 2009 PRESENT HON'BLE MR. JUSTICE C.M. TOTLA Mr. Manoj Pareek for the accused respondent. Mr. Anees Bhurat, Public Prosecutor. BY THE COURT: Accused appellant and other accused Narayan lal facing trial for the offences of Ss 307, 326 and 452 IPC IPC before the Additional District and Sessions Judge No.1, Udaipur in Sessions Case No. 55/85 is convicted vide judgment dated 31.07.89 for the offence of Ss. 307 and 326 IPC sentenced as under :- S.No. Offence Punishment 1 Section 307 IPC 5 years rigorous imprisonment alongwith fine of Rs. 500/- in default of payment of fine, to undergo two months R.I. 2 Section 326 IPC 3 years rigorous imprisonment alongwith fine of Rs. 200/- in default of payment of fine, to undergo two months S.I. S.B. Crl. Appeal No. 275/89 2 (Mohan lal Vs. State) Other accused Narayan lal is acquitted of offence under Ss. 307, 326 and 452 IPC. Aggrieved of the above conviction and sentence, the apellant has preferred this appeal. Heard learned Advocate appearing for the appellant and also learned Public Prosecutor. According to prosecution one Basanti lal on 01.06.85 at 9:40 PM lodged written information Ex.P/5 at P.s. Dhanmandi, Udaipur to the effect that on 01.06.85 at about 8:35 PM, when he and his relative Gopal both, at the hotel of Nana lal, were taking tea, there came Mohan lal and his two brothers Narayan lal and Dallu and they at the gate of hotel attacked Gopal – Mohan lal taking knife like article from his pocket inflicted blow of it on left abdomen of Gopal. As Babu lal and others intervened, the accused ran away and he first taking the injured Gopal in tempo to hospital is lodging report. Also mentioned in this report is that between father of Gopal and Mohan lal is a dispute of vacating the shop and some times earlier also, Mohan lal and his brothers have threatened. On this, registering report Ex.P/6 FIR bearing No. 29/85 for the offence of Ss. 324, 430 IPC, the SHO (i) inspected site on on 02.06.85 (ii) arrested appellant on 03.06.85 and other accused on 04.06.85 (iii) seized knife which was found below the shirt of Mohan lal at the time of his arrest (iv) seized blood stained shirt of injured presented by his father on 19.6.85 preparing memos Ex.P/3, 7, 11 7 13. S.B. Crl. Appeal No. 275/89 3 (Mohan lal Vs. State) After usual investigation, the charge-sheet submitted against appellant and Narayan lal for offences of Ss. 442, 307 IPC read with 34 IPC. Appellant charged for the offences of Section 326, 307, 452 IPC that he on 01.06.85 at about 8:30 PM having made preparation for causing hurt entering into hotel of Nana lal voluntarily and with intention of causing death or such injury as was likely to cause death, inflicted grievous injury to Gopal, claimed trial. Among 14 prosecution witnesses, PW/1 Gopal is injured whereas, PW/2, 3, 4 all three alleged eye witnesses are declared hostile. PW/4 Basanti lal though declared hostile has supported prosecution. PW/6 Dr. Kailash Chandra who performed surgery and PW/8 Medical Jurist examined PW/1 and prepared report. PW/5 I.O. and other witnesses are of the recovery etc. Learned Judge arrived at the conclusions that appellant inflicted severe grievous injury by knife on abdomen area – and injury of the nature as in normal course of nature to cause death, so convicted and sentenced as above. Learned Advocate on behalf of appellant contended that (i) it is not clear as to who caused injury and every probability is that acquitted accused Narayan lal or other named in FIR Ballu did so (ii) material contradictions between evidence of PW/1 and PW/4 (iii) PW/4 declared hostile and only on cross-examination by prosecution implicated the appellant so no part of his testimony is to be believed (v) recovery of S.B. Crl. Appeal No. 275/89 4 (Mohan lal Vs. State) knife not made from near the water tank where it is said to have been thrown and (v) even if appellant if found to have caused injury the same definitely was not with intention to cause grievous hurt so, the act maximum falls under Section 324 IPC. Learned Public Prosecutor submitted that there is no reason to dis-believe the evidence of PW/1 and further is the corroboration by evidence of Basanti lal PW/4. Public Prosecutor submitted that tesitmony of injured PW/1 is of such a nature as to be not needing any corroboration and is supported by medical evidence. Regarding recovery of knife, submitted that even if any doubt arises, still it do not affect the prosecution. Thoughtfully considered the rival arguments, perused the record and the impugned judgment. Considering evidence of I.O. S.H.O PW/5 and that of Basanti lal PW/4, it is proved that FIR Ex.P/5 was lodged by PW/4 on 01.06.85 at 9:40 PM. The written report P/5 and registered FIR Ex.P/6 bears signature of PW/4 who according to injured PW/1 is his brother-in-law. Proved by the medical evidence is that at around 9:30 PM, when injured PW/1 was examined, the injury found was of within four hours. Thus, established is the fact that FIR lodged soon after incident and getting injured admitted in the hospital. At the outset, dealing with the recovery of knife and appears from evidence of I.O. PW/5 read with recovery memo Ex.P/13 is that S.B. Crl. Appeal No. 275/89 5 (Mohan lal Vs. State) appellant was arrested on 3rd June in the evening for possessing a knife of the length beyond prescribed and without a license. The knife was found in his clothes. I.O. states that this recovered knife related to this incident. However, no other fact disclosing use or relation of this recovered knife to this incident is. FIR lodger PW/4 also a eye witness submits that knife was at near by place of incident and near small water tank which taken by police. PW/2 Bheru lal and PW/3 Lalchand sons of owner of Hotel Nana lal though hostile but PW/3 speaks that knife after quarrel was lying out his hotel and who taken it he do not know, so as such this recovery neither helps prosecution nor adversely affect merits of the case. PW/4 Basanti lal states that he and Gopal went to hotel of Nana lal for taking tea where came Narayan and Mohan and either of them inflicted blow of knife to Gopal – as witness spoke about either of them inflicted knife, he was declared hostile and when confronted by FIR, straightly admitted that it was Mohan lal who taking the knife (out of his person) inflicted blow on abdominal area of Gopal. PW/4 further states that he intervened and ran after accused to get hold of them and then Gopal was taken to hospital by him. Basanti lal PW/4 states that both these accused in order to get the shop vacated used to threaten Gopal and his father and there came 3-4 persons but beating only by accused. As FIR is lodged by this witness PW/4 soon after the incident and also as no reason (in relation to accused) appears for this witness to tell lie and S.B. Crl. Appeal No. 275/89 6 (Mohan lal Vs. State) implicate appellant, there can hardly be any reason not to rely on his evidence. The injured PW/1 deposes that on June 1st at 8:30 in the evening he and Basanti lal were at the hotel of Nana lal and as he came out of hotel there came Mohan lal and two others (named) and Mohan lal inflicted blow of knife to him stabbing at his chest – in cross-examination stated that at that time Nana lal and his two workers were at hotel and as Mohan lal coming soon inflicted injury to him. Gopal PW/1 states that other two named person kept a little out and away of shop and ran away after incident. Evidence of injured PW/1 is supported by medical evidence. As is observed, Basanti lal PW/4 lodged FIR soon after the incident and PW/4 being relative of Gopal PW/1 had every reason to be with PW/1. Bheru lal PW/2 and Lalchand PW/3 both are sons of Nana lal the hotel owner. Both these witnesses are declared hostile and they have not supported the prosecution but Lal chand PW/3 accepted that around 8-9 PM just out of his shop, a quarrel occurred and so crowd gathered and lying there was a knife. Thus, PW/3 admits occurrence of some incident by knife. PW/8 Medical jurist deposes that on 01.06.85 he examined and prepared report of Gopal who was admitted in Ward No.10 and on his person was injury (i) stabbed wound on left side of chest at lower part costal region 3 ½ inch below left nipple of the dimension 3 x 1 cm cavity S.B. Crl. Appeal No. 275/89 7 (Mohan lal Vs. State) deep with bleeding. According to Medical jurist PW/8, the injury was x- rayed and repaired by surgery same night and as of sharp weapon, can be caused by sharp knife. Regarding nature PW/8 states that if not treated timely, death could have been. For other parameters PW/8 stated that normal pulse rate is 70-80 and Blood pressure 100/70 and int his case B.P was 92 slightly below normal. So as per these parameters, patient PW/1 was not in dangerous condition. PW/6 treating surgeon states that about 10 PM in the night he was called for surgery and after administering anesthesia on examination the wound was found deep enough upto paritorial and on opening in the stomach found a wound of 1.5 cm curvature below which was collected blood and because of injury in normal course, possibility can be of death. In cross-examination treating Surgeon PW/6 states that injury was not on fatal part like heart, liver, spleen but was on stomach and can be caused by sharp knife like article. PW/8 has opined that death was possible if not timely treated and PW/6 state that due to such injury, possibility of death can be. Considering evidence of PW/6 and PW/8 together, it appears that injury was dangerous but not of nature as to cause death in normal course of events. The intention and/or knowledge of injury likely or going to be caused is to be gathered on above facts and circumstances. The injury was caused by a sharp weapon a knife and without any reason. No scuffle or any exchanges of words preceded the incident. Thus, the S.B. Crl. Appeal No. 275/89 8 (Mohan lal Vs. State) appellant caused injury without any reason and almost suddenly. The nature of article used which was a knife itself discloses knowledge about the injury going to be caused and coupled is the fact that injury was inflicted in abdomen area, this clearly establishes that appellant had intention and knowledge as well that he shall be causing grievous injury. Accordingly, is proved that appellant voluntarily and with intention and knowledge of causing grievous injury caused grievous injury by knife, a sharp article used for cutting etc. This act of appellant is a offence under Section 326 IPC. Thus, appellant has rightly been convicted for the offence of Section 326 IPC. As for offence of Section 307 IPC is concerned, for the above mentioned reasons and nature of injury as discussed, the appellant is to be acquitted giving him benefit of doubt. The incident is of the year 1985. It appears that appellant remained in custody from 03.06.85 to 05.06.85 and then from 31.7.89 to 26.8.89 – and other acquitted brother of appellant also for some months. But injured too had received grievous abdomenal injury which had to be treated by surgery and according to injured, he remained hospitalised for 11 days. Learned trial court for the offence of Section 326 IPC has awarded 3 years R.I. and fine of Rs.250 and in default two months simple imprisonment. As incident about 23 years ago obviously he has suffered mental agony for long. In the totality of circumstances, three year R.I. S.B. Crl. Appeal No. 275/89 9 (Mohan lal Vs. State) seems to be on the higher side and a sentence of one year R.I with fine of Rs. 10,000/- seems to be appropriate. Accordingly, the appeal is decided. Thus, the appeal is decided. Allowing appeal partly, the conviction and sentence of appellant Mohan lal by learned Additional District and Sessions Judge No.1, Udaipur in Sessions case 55/85 as per judgment dated 31.7.89 - is partly set aside and sentence altered as under :- (i) Conviction for the offence of Section 326 IPC is maintained and reducing sentence, the appellant for this offence is sentenced to one year R.I. and fine of Rs. 10,000/-, in default of payment of fine to undergo six months rigorous imprisonment. (ii)conviction and sentence of offence under Section 307 IPC is set aside. Appellant is on bail. He be arrested and sent to prison to serve out the remaining sentence. (C.M. TOTLA), J.