1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR JUDGMENT RAJESH HARIJAN & ANR. VS. STATE OF RAJASTHAN. SB Criminal Appeal No. 292 of 2004 under section 374 Cr.P.C. against the judgment dated Feb. 13, 2004 of Additional Sessions Judge (Fast Track) No.1 Kota in Sessions case No. 168 of 2003 by the accused appellants were convicted under section 307 IPC and sentenced to 1o years rigorous imprisonemtn with fine of Rs. 5,000/- in default to payment of fine they were directed to suffer two months simple imprisonment. Date of Order : May 28, 2009 PRESENT HON’BLE MR. JUSTICE MAHESH CHANDRA SHARMA Mr. Ashwani Chobisa, for the appellants. Mr. Pradeep Srimal, Public Prosecutor. BY THE COURT : This appeal has been filed by the accused appellants Rajesh Harizan and Ramesh @ Chothmal against the judgment dated Feb. 13, 2004 of Additional Sessions Judge (Fast Track) No.1 Kota in Sessions case No. 168 of 2003 by which the accused appellants were convicted under section 307 IPC and sentenced to 10 years rigorous imprisonment with fine of Rs. 5,000/- in default of payment of fine they 2 were directed to further suffer two months simple imprisonment. 2. Brief facts of the case are that on June 30, 2003 Sultan submitted a Parcha Bayan during the treatment in emergency ward, MBS Hospital Kota to ASI, police station Dadabadi Kota alleging therein that the complainant was standing at Guru Nanak Kirana Store near Shastri Nagar, alongwith his colleagues then Rajesh and his maternal uncle of Shyopur and one other person came riding on Motor Cycle No. RJ 20 1777. It was alleged that the third person caught hold of the complainant and the accused appellants inflicted injuries upon the injured complainant with swords. It was alleged that when the complainant was trying to defend himself then at that time his palm of left hand and thumb of right hand were chopped. It was alleged that after committing beating the accused appellants ran away. On account of previous enmity the beating was done. Upon this parcha bayan FIR No. 300 of 2003 was registered and investigation was started. Charge for the offence under section 307 and 324 read with section 34 IPC were framed against the accused appellants. The appellants 3 denied the charges and claimed to be tried. The prosecution in support of its case examined as many as 19 witnesses. The statements of accused appellants under section 313 Cr.P.C. were recorded. After hearing both the sides the trial court vide judgment dated Feb. 13, 2004 convicted and sentenced the accused respondents. Hence this appeal. 3. The learned counsel for the appellants submits that the FIR was lodged by the police on the basis of Parchabayan of injured Sultan (PW.8). The learned counsel after reproducing the FIR submitted that in the FIR it was written that palm of left hand was chopped and thumb of right hand was chopped and the same is not corroborated with the injuries mentioned at the time of eye examination of the injured. The learned counsel submitted that following four injuries were found : नà बर 1: खून आलूदा ͧसर मɅ िजस पर सफेद प͠ी बंधी हुई। नà बर 2: खून आलूदा ͧसर के पीछे गद[न मɅ सफेद प͠ी बंधी हुई। नà बर 3: खून आलूदा बांये हाथ पर कोहनी के नीचे एक सफेद प͠ी बंधी हुई। नà बर 4: खून आलूदा दाǑहने हाथ के पंजे पर सफेद 4 प͠ी बंधी हुई। The learned counsel submitted that as per the report, Rewari Lal, Shyam Lal, Ram Prasad Harijan and Ram Prasad Nawaniya were the eye witnesses of the incident. Out of these four witnesses Shyam Lal (PW.11) and Rewari Lal (PW.16) were declared hostile. The injured was medically examined by medical report Ex. P.20. As per Ex. P.20 injured sustained following injuries : (i) 03 stiches of 7 cm. 6 cm. , 7 ½ cm. On the forehad. The margin of injury is regular. It has been caused with sharp edged weapon. (ii) Stitching normal, of regular margin of 6 cm. Length below left eye. (iii) Stitching normal, of regular margin of 5 cm. Length right elbow. (iv) Stitching normal, of regular margin of 8 cm. Length right thumb. (v) Stitching normal, of regular margin of 5 cm. Length left elbow. (vi) Stitching normal of regular margin below left elbow. The learned counsel submits that as per 5 medical report the pulse rate was 70, BP 90/60 and the patient was conscious. As per the radiologist report the injuries No. 3,4,5 and 6 were grievous and collectively all injuries were dangerous to life. In the medical report also it has not been mentioned that the palm of right hand and thumb of right hand was chopped. Even as per the statement of PW.8 Sultan the police reached to the spot and took him to the hospital. The police admittedly did not recover the chopped part of palm or thumb of right hand. As per the statement of injured following injuries were assigned to accused appellants Rajesh and Ramesh as under : राजू, रमेश के पास तलवारɅ थी, ये मोटरसाईͩकल से वहां आये थे। गाड़ी के नà बर पता नहȣं है। आते हȣ मुलिजम सुगल ने बाथ भर लȣ राजा ने मेरे तलवार कȧ मारȣ िजससे मेरा बांया हाथ कट गवाह ने अपना बांया हाथ कटा हुआ Ǒदखाया, पंजे के यहां से हाथ कटा हुआ है। रमेश ने तलवार कȧ मारȣ िजससे मेरे दाǑहने हाथ का अंगूठा कट गया। राजे ने मेरे तलवार कȧ मारȣ जो मेरे बांये कान के पास गद[न पर लगी। मेरे तीन तलवारɅ रमेश ने मेरे ͧसर पर मारȣ। दांये हाथ का 6 अंगूठा पूरा कटा हुआ है एवं बांया पंजा पूरा कटा हुआ है। रमेश ने मेरे दाǑहने हाथ कȧ कोहनी पर मारȣ तलवार से। मेरे हाथ बांये हाथ का पंजा एवं दांये हाथ का अंगूठा वहȣं मौके पर नीचे ͬगर पड़े थे। वहां पर मेरे काफȧ खून Ǔनकल मेरे सारे कपड़े खून मɅ हो गये। मुलिजमान मारपीट कर मोटरसाईͩकल से वहां से भाग गये। मेरे को इसके बाद अè पताल मɅ पुͧलस लेकर आयी थी, पुͧलस उस समय मौके पर आ गयी थी। Even though the chopping of the palm was not proved yet even if the case of the prosecution is established then also the offence does not travel beyond section 326 IPC. This Court in a judgment reported in 2000 Volume (1) RCC page 100 Jeet Singh vs. State of Rajasthan has found conviction under section 326 IPC as valid and had reduced the sentence to already undergone. In the present matter the petitioner Rajesh is behind the bars for 5 years and 8 months and as such it would be in the interest of justice that the conviction be modified to section 326 IPC and the sentence be reduced to the period already undergone by him. 7 As per the injury report there is no injury at neck. The injuries attributed to Ramesh are as under : (i) Ramesh inflicted sword blow on left hand and account of this his thumb cut. (ii) Ramesh inflicted three sword blow on his neck. As per the injury report injury No.1 was three stitching having size of 7,6, 7.5 cm. On forehead. The injury No.1 was opined to be simple sharp. Injury No.1 is simple sharp and as such even if the case of the prosecution is proved it is then also injury No.1 does not travel beyond under section 325 IPC. The other injury attributed to Ramesh is injury No.4 stitched injury of regular margin having length of 8 cm. On the base of right thumb. The injury attributed to Ramesh does not travel beyond section 326 IPC. The accused appellant Ramesh remained in custody for about 9 months and 7 days. The learned counsel submits that the appellant is on bail, he may also be released for the period already undergone by him, looking to the facts and circumstances of the case and he need not be again sent to jail for serving out the 8 sentence. He only associated accused appellant Rajesh in commission of offence. The leanred counsel submits that none of the injury has been opined to be sufficient in ordinary course of nature to cause death. It may be mentioned that it is an established principle of law that if an injury has not been opined to be sufficient in ordinary nature then no offence under section 307 IPC is made out. The learned cousnel also stated that none of injuries are on vital part of the bodies and as such no intention of causing death can be attributed. It may be mentioned that intention is an essential element so as to prove offence under section 307 IPC. The trial court has also not recorded any finding about the intention of the accused person so as to commit murder of the complainant. In absence of any motive or intention to cause death conviction under section 307 cannot be sustained. The learned counsel submits that the recovery of weapon was not proved by the 9 prosecution beyond reasonable doubt. Ex.P.2 is memo of recovery of sword from the accused Rajesh. PW.14 Kanhaiya Lal does not support the recovery by saying in cross examination that the sword was taken up by police official and from which part of the hut it was recovered was not known to him. PW.2 Narendra also does not support the recovery of sword. Even Narendra did not identify Rajesh in court. He only only attested his signatures A to B on Ex. P.2. He only attested his signatures A to B on Ex. P.3 Naksha Moka. The learned counsel placed reliance on Munna Lal vs. State of Rajasthan (2008 (4) RLW 3028. Head note reads as under : “Penal Code, Sec. 326- Reducing sentence- Inflicted grievous hurt on head and stomach with kulhari- Convicted u/s. 326 IPC- Remained in judicial lock up for 13 days- Facing trial for 26 years- Accused is 58 years old low paid employee and his children are of marriageable age- Held- in the interest of justice, he should not be sent back to jail now- Sentence reduced to period already undergone – Imposed fine of Rs. 3000 payable to complainant. 4. The learned Public Prosecutor opposed these submissions. The learned Public Prosecutor supported the judgment of the trial court and 10 stated that the appellants have been rightly convicted under section 307 IPC and they have been acquitted of the charge under section 324 and 34 IPC. The judgment of the trial court does not call for any interference in appeal. The Apex Court in Naib Singh Vs. State of Punjab, reported in 1986 Cr.L.J 2061, held as under : “Accordingly, the appeal fails and is dismissed. The judgment of the High Court after convicting the appellant under Section 326 of the Indian Penal code is upheld. As to the sentence, we are inclined to take a lenient view. We are informed that the appellant is a Teacher in a Government School. The circumstances brought out by the prosecution evidence show that he acted in the heat of the moment. Looking to the fact that the incident occurred on April 22, 1973, some 13 years back, we do not think it desirable to send the appellant back to jail. We accordingly reduce the sentence of rigorous imprisonment for one year awarded by the High Court to imprisonment till the rising of the Court and pay a fine of Rs.5,000/- or in default, to undergo rigorous imprisonment for a period of six months. The amount of fine shall be deposited in the Court of the Judicial Magistrate, First Class, Muktsar within a period of one month from today. The amount, if recovered, shall be paid to the complainant Darshan Singh by way of compensation. Appeal dismissed.” 5. I have heard the learned counsel for 11 the parties and gone through the entire record. PW.1 Ramprasad was declared hostile as he has not supported the Police Karyawahi and Naksa Moka. PW.2 Narendra Singh also not supported the prosecution case. He accepted his signatures on Ex. P.2 and Ex. P.3 but did not support the prosecution case. Ex.P.2 and Ex. P.3 related to recovery of swrod from the accused appellants. PW.3 Rakesh Kumar and PW.4 Ghasilal, constable proved Ex.P.4 by which motor cycle No. RJ 17 1 M 7775 was recovered from accused Rajesh. PW.5 Tejram constable proved the sword recovered from accused Ramesh Ex. P.4A. PW.6 Ram Prasad proved Naksa Moka Ex. P.1 prepared by the police. PW.7 Yayakhan police constable also proved Ex. P.4A and Ex. P.5. Ex.P.4 A is recovery memo of sword and Ex. P.5 is Naksa Moka of recovery of sword. PW.8 Sultan made improvement in his statement in examination in chief. In the Parcha Bayan he stated that when he was defending himself he received the injuries of chooping of his palm and thumb. But in his examination in chief he stated that on account of sword blow given by Ramesh his left thumb was 12 chopped of. On account of injury by sword by Rajesh his left plam chopped of. He accepted in his examination in chief that he has no previous enmity with the accused appellants. PW.9 Munirkhan, ASI proved Ex.P.9 and Ex. P.10 arrest memo of accused appellants. PW.10 Gopalchand proved the delivery of sealed packets to FSL.PW.11 Shyam Lal was declared hostile.PW.12 Devilal, Incharge Police Station Dadabadi proved the investigation done by him. PW.14 Kanhaiyalal, Constable proved the recovery of Sword from accused appellant Ramesh. Hanaumansingh, Head constable supported the prosecution case regarding entries made in the Rojnamcha and receiving of sealed packets in the Malkhana. PW.16 Rewarilal did not support the prosecution case and he was declared hostile. PW.17 Anand Yadav, Sub Inspector of Police supported the prosecution case and the investigation made by him in the case. PW.18 Dr. Rakesh Sharma proved the injury report of the injured. He stated that the injuries 3,4,5 and 6 were grievous but not on the vital part of the body.PW.19 Samiullakhan, SI Kethunipole proved Ex. P.13 which is FIR where he has 13 made his signatures C to D. In the FIR itself it has been submitted that when the complainant tried to defend himself his left palm's chopped of and his right hand's thumb was also chopped. There are omissions and embellishment in the statements of the witnesses. Two eye witnesses of the incident have been declared hostile. In these circumstances, so far as accused Rajesh is concerned, his conviction under section 307 is maintained but his sentence can be reduced to the period already undergone by him, as he has already remained in judicial custody for more than 5 years and 9 months. The appellant Rajesh shall pay fine of Rs. 5,000/- as ordered by the trial court. It is true that accused Ramesh associated accused Rajesh in inflicting injuries to the injured. Looking to the evidence against Ramesh and his part in inflicting injuries to complainant, he can be held guilty for the offence under section 326 IPC instead of section 307 IPC. Since he remained in judicial custody for more than 9 months, ends of justice would be met in case he is sentenced to the period already undergone by him in judicial custody. The appellant 14 Ramesh shall pay fine of Rs. 5,000/- as ordered by the trial court. 7. In the result the appeal of the accused appellants is partly allowed as indicated below: (i) The conviction of appellant Rajesh under section 307 IPC is maintained but his sentence is reduced to the period already undergone by him in judicial custody, which is 5 years and 9 months. (ii) The appellant Rajesh is in Jail, he shall be released forthwith if not required to be detained in any other case. (iii) The appellant Ramesh is convicted under section 326 IPC instead of section 307 IPC, but he is sentenced to the period already undergone by him in judicial custody, which is more than 9 months as per the decisions of this Court mentioned above. (iv) The appellant Ramesh is on bail, his bail bonds stand cancelled and he need not to surrender. (v) Both the appellants shall pay fine of Rs. 5,000/- each. On depositing the fine, the same shall be paid to the injured. The fine shall be deposited within a period of 3 months 15 from the date of receipt of certified copy of the order of this courts. In default to payment of fine the appellants shall suffer two months simple imprisonment, as ordered by the trial court. (vi) The judgment of the trial court is modified as indicated above. (Mahesh Chandra Sharma) J. OPPareek/