HIGH COURT OF CHHATTISGARH AT BILASPUR Sinqle Bench: Hon’ble Shri Justice Radhe Shyam Sharma Criminal Appeal No.846 of 1996 u Vishnu Maheshwer, S/o Iate Shri Shyamlal Maheshwer, aged 36 years, Occupation Teacher, R/o Village Chourha Padav — Daudi, at present Balaud, District Durg (M.P.) (now Chhattisgarh) Appellant versus. f Respondent State of Madhya Pradesh (now Criminal Appeal under Section 374(2) of the Code of Criminal Procedure JUDGMENT (Delivered on Jl‘ November, 2011) This appeal is directed against judgment dated 9—5-1996 passed by 5th Additional Sessions Judge, Durg in Sessions Trial No.82/1994. By the impugned judgment, accused/appellant Vishnu Maheshwer has been convicted under Section 307 of the lndian Penal Code and sentenced to undergo rigoroustlhmrisonment for seven years and to pay fine of Rs.500/-, in default thereof, to undergo simple imprisonment for two months. 2. Case of,the prosecution, in brief, is as under: On the fateful day, i.e., 7-2-1993, at about 11 P.M., complainant Tarun Dev (PW-10) was sitting in front of his sister’s Mt\~\\\house at Village Chourha Padav. The appellant came there along J\\, tax ' ll, ’ ‘ ‘ e‘ , v ‘L~gy\\' i \ Ew“e: lu.‘ State of Chhattisgarh) ‘ Present: Smt. Indira Tripathi, counsel for the appellant. Shri ‘Ajay Dwivedi, Deputy Government Adv'6cate for the State/respondent: @D 2 with two other persons. The appellant gave a knife blow on lower part of abdomen of the complainant Tarun Dev (PW-10). Thereafter, thp complainant Tarun Dev (PW—10) went to the house of his brtother—in-taw (Jijaji) Vikram (PW—2) and narrated him theqincident. Vikram (PW-2) taken him to the hospital on a motor cycle, where, on l 8-}2—1993, at about 4:05 A.M., the complainant Tarun Dev (PW—10) was examined medically by Dr. Dhananjay Jha (PW-7). Dehati Nalishi (Ex.P-5) was lodged in Police Station Rajhara and First information Report (Ex.P-6) was lodged in Police Station Rajhara. Thereafter, regular First Information Report (EXP-7) was lodged in Police Station D‘ondi. Dr. Dhananjay Jha (PW-7) found one incised wound towards right side of umbilicus of the complainant Tarun Dev (PW-10). The injury was caused by a hard, sharp and pointed object. The doctor opined that the injury was grievous in nature. In further investigation, memorandum statement (EXP-1) of the appellant was recorded under Section 27 of the Evidence Act and at his instance, one knife was seized vide Ex.P-2. One pant and one underwear were seized from the complainant Tarun Dev (PW-10) vide Ex.P-3. Patwari Dwarika Prasad QPW-4) prepared #s site-map vide Ex.P-4. Tahsildar/Executive Magistrate Syyed Akbar Ali (PW-8) recorded statement of the complainant as dying declaration vide Ex.P-10. Bed-Head Ticket of injured Tarun Dev (PW-10) was also seized vide Ex.P-11. The seized articles were " sent for chemical examination to,.the Regional Forensic Science Laboratory, Raipur. Report (Ex.P—14) was received from there. \ Xsolitary evidence of Tarun Dev (PW-1 O). 3 After completion of the investigation, charge sheet was filed against the appellant in the Court of Judiciai Magistrate First Ciass, Balod who in turn committed the case to the Court of SeSSIon Durg, from where the 5‘“ Additional Sessions Judge Durg i‘eceived the case on transfer and conducted the trial and conVIcted and l sentenced the appellant as mentioned above. 3.; Smt. Indira Tripathi, learned counsel appearing for the appellant argued that there is no independentwitness. Evidence of the complainant Tarun Dev (PW-10) is full of contradictions and same is not corroborated by any independent Witness. The First information Report was lodged at a belated stage. Solitary evidence of Tarun Dev (PW-10) is not cogent and reliable. She further argued that the statement recorded by the Tahsildar/Executive Magistrate is not admissible in evidence and according to Tarun Dev (PW—10), when the Tahsildar/Executive Magistrate was recording his statement, he was unconscious. Therefore, the conviction recorded by the learned Additional Sessions Judge is not sustainable in the eyes of law and the appellant deserves to be acquitted. ‘. A . u 4. On the contrary, Shri Ajay DWIvedi learned Deputy Government Advocate for the State/respondent, supporting the impugned judgment of conviction and sentence, submitted that the same does not warrant interference by this Court. 5. l have heard learned counsel appearing for the parties and perused the record The conVIction of the appellant is based on the \ 4 6. Tarun Dev (PW—10) deposed that he was sitting out of the house of his brother-in-law (Jijaji) after taking meals. The appeiiant came there all of a sudden in drunken state and gave him a knife biow on his abdomen. He had sustained a single knife blowgoniy. At that time, two other persons were standing there. When he was going to tell his brother-in-law (Jijaji) and sister, the two persons sténding there tried to catch hold of him. When he entered inside the house, the appeiiant and the said two persons fied from there. Hemarrated the incident to his brother—in-iaw (Jijaji) and sister and his brother—in-iaw (Jijaji) took him to BSP Hospital. A s: 7. Vikram (PW—2) deposed that Tarun Dev (PW-10) came to him and told that the appellant had given him knife blow on his abdomen. He had taken Tarun Dev (PW-10) on his motor-cycle to Rajhara Hospital and thereafter to BSP Hospital. 8. Dr. Dhananjay Jha (PW-7) deposed that on 8-2—1993 at about 4:05 A.M., he had examined Tarun Dev (PW-10). He found an incised wound one inch below the umbilicus region. A.S.I., K.B.Singh (PW-5) deposed that on 8-2-1993, he was posted in e Police Station Rajhara. On that date, at 4:30 A.M.,$he had received a telephonic information from BSP Hospital, Rajhara that Tarun Dev (PW-10) had sustained knife injury. Then, he rushed to the hospital. He obtained medical report of Tarun Dev (PW-10) from the hospital and thereaftershe recorded Dehati Nalishi (Ex.P-5) in the hospital itself. aim ' 9. The date and time of incident was 7-2-1993 at about 11 P.M. Thereafter, injured Tarun Dev (PW—10) was taken to Rajhara i 5 Hospital and then to BSP Hospital, Rajhara. Thereafter, Dehati Nalishi (Ex.P—5) was recorded a’r 4:30 A.M. It appears that recording of jDehati Nalishi (Ex.P-5) was within 5:30 Hours of the incident. ix: Therefore, it cannot be said that the First Information Repbrt was lodged belatedly. l l 10% Tahsildar/Executive Magistrate, Syyed Akbar Ali (PW—8) deposed that he recorded statement of Tarun Dev (PW-10) on 8-2- 19§3 vide Ex.P-10. He further deposed that the said statement was u . recorded in‘the hospital. He further deposed that before recording the said statement, he had obtained medical report from the hospital that Tarun Dev (PW-10) was -fit to make statement. Dr. Dhananjay Jha (PW—7) deposed that at the time of making statement, Tarun Dev (PW-1 0) was fully conscious. A . -4 11. Statement of Tarun Dev (PW-10) was recorded as a dying declaration, however, he survived thereafter. Therefore, his statement cannot be treated as a dying declaration, but has to be treated as a superior quality/high degree than that of a statement ' recorded under Section 161 Cr.P.C. $ 12. i have carefully perused the evidence of Tat’i'fln Dev (PW—10). He specifically deposed that on the fateful day, the appellant assaulted him with the knife. His evidence is corroborated by the evidence of Vikram (PW—2) as also by the medical evidence. From , the above, it is apparent‘that the testimony of Tarun Dev (PW-10) is clinching and cogent. \ s \ 6 13. Now, it is to be seen whether the offence of the appellant is punishable under Section 307 IPC. Smt. Indira Tripathi, learned counsel for the appellant argued that both the appellant and the complainant Tarun Dev (PW—10) were In drunken state lt Is obVIous frorn the statement of Tarun Dev (PW-10) Itself that the appellant had come to him all of a sudden and gave him the knife blow. The injdred was admitted in the hospital for 9—10 days. The prosecution has not been able to prove that the injury sustained by the complainant was fatal to his life. At the maximum, the offence is punishable under Section 324 IPC. The appellant has been in jail for about 21/2 months. The ends of justice would be served if the appellant is sentenced for the period already undergone by him. 14. Shri Ajay Dwivedi, learned Deputy Government Advocate for the State/respondent opposed the above argument. 15. Tarun Dev (PW-10) deposed that the appellant had come to him all of a sudden and gave him the knife blow. He further deposed that he had consumed liquor with the appellant earlier on 1- 2 occasions. Dr. Dhananjay Jha (PW-7) deposed that it is true that a he had not mentioned anything about measuremegt of the injury sustained by the complainant in the medical report. He deposed that if the complainant could not be treated immediately, his death I was possible. ‘16. To constitute an"‘offence under Section 307 IPC, two ingredients of the offence must be present— (a) an intention of or knowledge relating to commission of murder; and .\, @3 7 (b) the doing of an act towards it. Fojr the purpose of Section 307 IPC, what is material is the intention orithe knowiedge and not the consequence of the actual act done for the purpose of carrying out the intention. The section clearly co%ntemplates an act which is done with intention of causing death but which fails to bring about the intended consequence on account of; intervening circumstances. The intention or knowiedge of the accused must be such as is necessary to constitute murder. In the abSence of intention or knowledge, which is the necessary ingredient of Section 307 IPC, there can be no offence of attempt to i i ¢ A murder. 17. in the case on hand, the prosecution has not been able to prove that the appellant had intention or knowledge to commit murder. On the evidence on record where the prosecution has been able to prove that the appellant, under drunken state, gave single knife blow on the abdomen of the complainant Tarun Dev (PW-10). The injury sustained by complainant was grievous in nature. Therefore, the offence comes in the purview of Section 326 IPC and not in Section 307 IPC. Therefore, the appellant iSeguilty for offence under Section 326 IPC. 18. From perusal of the record, it appears that the appellant has already suffered jail sentence for about 2 months and 20 days. The l r offence was committedeiolf 7-2—1993. The appellant was convicted and sentenced on 9-5-1996. The’appeal remained pending since 11—5—1996. The case remained pending for about 17—18 years. \Looking to the circumstances, i am of the view that it would meet the l, \1 Gopal 0 8 ends of justice if the jail sentence awarded to the appellant is reduced to the period of imprisonment already undergone by him. 191 In the result, the appeal is partly allowed. The conViction and sentence awarded to the appellant under Section 307 IPC is set aside. Instead thereof, the appellant isrconvicted under Section 326 lP§C and he is sentenced to the period already undergone by him. The sentence of fine awarded to him by the impugned judgment is affirmed. Presently, he is on bail. His bail bonds are cancelled and u a surety stands discharged. g r y hx/ an Sdl- ‘ BS. Sharma Judge G i a