UTTARAKHAND, AT NAINITAL Criminal Jail Appeal No. 103 of 2007 Nagendra Lal S/o Shri Suganu Village Gram Khadara Patti Dashgi, Thana Dharasu District Uttarkashi ……Appellant Versus State of Uttarakhand …… Respondent Mr. M.K. Goyal, Amicus Curiae for the appellant. Mr. Prabhakar Joshi, Brief Holder for the State / respondent. JUDGMENT Hon’ble J.C.S. Rawat, J. This appeal has been preferred against the judgment and order dated 20/12/2006 passed by the Sessions Judge, Uttarkashi in Sessions Trial No. 8 of 2005, State Vs. Nagendra Lal whereby the appellant has been convicted & sentenced to undergo rigorous imprisonment for a period of four years and a fine of Rs. 5,000/- u/s 308 Indian Panel Code, 1860 (for brevity as I.P.C.) In default of payment of fine, the appellant shall further undergo six months S.I. The appellant was also convicted and sentenced to undergo R.I. for a period of two years and a fine of Rs. 2,000/- u/s 325 I.P.C. In default of payment of fine, the appellant shall further undergo S.I. for three months. The sentences shall run concurrently. 2. Brief facts for the disposal of this appeal are that the complainant Vishal Singh Rawat, Secretary, Cooperative Society Bargaon, District Uttarkashi lodged a report on 30.01.2004 at about 6:00 p.m. in the police station Kotwali, Uttarkashi alleging therein that he alongwith Ganpati Mishra and Rajaram went to village Khadara on 29.01.2004. Ganpati Mishra and he came back at about 4:00 p.m. from village Khadara to Uttarkashi. Rajaram was left there to make the recoveries of laon from the village. He was also given the relevant record of recovery of village Khadara. Rajaram went to the house of the appellant at about 6:00 p.m. and demanded the money which was due against him of the said Society. Upon demanding the loan due towards the appellant, the appellant instead of paying the loan caused injuries on the person of Rajaram who sustained fracture in his fingers and injuries on his head. Thereafer, the injured Rajaram went to the place of Vijay Pal Singh from where he was taken to the Secretary, Vishal Singh Rawat. The injured narrated the entire incident to him. Thereafter, he was taken to the Civil Hospital where his medical was conducted at about 3:30 a.m. in the intervening night of 29-30/01/2004. On the next day a report was lodged at the police station Uttarkashi from where the said report was sent to Police Station Dharasu. The investigation was handed over to S.I. Anil Manral who visited the place of occurrence and completed the necessary formalities of the investigation. After his transfer, S.I. Virendra Singh PW11 has investigated the matter and submitted the chargesheet Ex.Ka.9 against the appellant before the court concerned. 3. After submission of chargesheet, the accused/appellant was committed to the court of Sessions for trial and the trial court framed charges u/s 308, 324 and 325 I.P.C. against the accused/appellant. The accused/appellant denied the charge levelled against him and claimed his trial. 4. The prosecution in support of its case examined injured Rajaram PW1 and Vijay Singh PW4 who are said to be the eyewitness of the incident. Ganpati Mishra PW2 had stated in his evidence that Secretary, Vishal Singh Rawat, Rajaram injured and he went together in the said village to make recoveries of the loans from where Secretary, Vishal Singh and he came back at about 4:00 p.m. They left Rajaram injured in the village to make the recoveries of the loan. Vijay Pal Singh PW3 has also met appellant, injured Rajaram PW1, Ganapati Mishra PW2 and Vijay Singh PW4 at the residence of appellant. He has further stated that he has seen Rajaram in an injured condition in the market of Banchaura. Thereafter, Vishal Singh Rawat, Ganapati Mishra and he brought the injured to Uttarkashi Hospital. Dr. A.K. Chaudhary PW5 examined the injuries on the person of Rajaram injured. Dr. G.S. Joshi PW6 conducted the x-ray and opined that there were fractures on the head and fingers of the injured. Constable Chandan Lal PW8 is the formal witness who has recorded the report and made the necessary entries in the G.D. Dantiya Lal PW9 had testified the recovery of the sickle from the wife of the appellant by which the injuries were caused on the injured Rajaram by the appellant. Wife of the appellant has given the sickle to the police in presence of Dantiya Lal PW9. S.I. Anil Manral PW10 is the Investigating Officer of the case. After his transfer, S.I. Virendra Singh PW11 has investigated the matter and submitted the chargesheet Ex.Ka.9 against the appellant before the court concerned. 5. The accused-appellant was examined u/s 313 Cr.P.C. and he has pleaded not guilty to the offence. He has further stated that he has been falsely implicated in this case. 6. The learned Sessions Judge, after appreciation of the evidence and hearing the parties convicted the appellant and sentenced him as indicated above. 7. I have heard the learned counsel for the parties and perused the record. 8. At the outset, it needs to be mentioned here that it is not disputed that the injured Rajaram PW1 sustained the injuries on his person on the date of the incident. It was only disputed that the injuries were caused at about 11:00 p.m. in the night whereas the prosecution has stated that these injuries were caused at 6:00 p.m. on 29.01.2004. Dr. A.K. Chaudhary PW5 examined the injured Rajaram at 3:30 a.m. in the intervening night of 29/30-01-2004. The following injuries were found on the person of the injured:- 1. One lacerated wound present at the right side of scalp 11 cm. about the right ear and 4 cm. above the right eye. Size 11 cm. x 1.0 cm. x muscle deep. 2. Lacerated wound present the tip of ring and middle of the left hand (semi circular) size 2 cm. x 0.5 cm. x muscle deep. Clotted blood present. Reddish in colour. 3. One incised wound present at the right hand. Wounds through & through from the wrist right joint to the palm and upto the mid of right hand little finger. Base is also cut. Margin of injury is clear cut. As per the opinion of the doctor, he found the injuries to be fresh; injury no. 2 was simple in nature whereas injury nos. 3 and 1 was referred to the x-ray for further action. He has further opined that injury no. 1 and 2 could have been caused by blunt object whereas injury no. 3 could have been caused by a sharp edged weapon. He has also prepared the medical report Ex.Ka.2 at the time of the medical examination of injured Rajaram PW1. He has further testified that these injuries are possible if the injured would have kept his hand in his head to protect the assaults. He has further testified that these injuries could have been caused by sickle. Dr. G.S. Joshi PW6 has stated that he has conducted the x-ray. He has deposed that there was a fracture in the head and fingers of the injured. It is established from the evidence of injured Rajaram PW1 and Vijay Singh PW4 that some scuffle took place between the injured and the appellant due to which Rajaram sustained the injuries at about 6:00 p.m. on 29.01.2004. 9. Now, it is to be determined who is the author of the injuries on the person of the injured Rajaram. The case rests on the direct evidence of the eyewitnesses. Injured Rajaram appeared before the Court as PW1 and he has stated that the appellant has to pay a sum of Rs. 8,000/- which was due against him towards the loan of the Society. He went to the house of the appellant at about 6:00 p.m. for recovering the loan due against him. The appellant got annoyed on the demand of the said amount and stated that this amount did not belong to the father of the injured and it is a government recovery. The appellant started hurling abuses upon the injured and immediately thereupon he took out the sickle and tried to strike on his head. While escaping from the assaults of the appellant, the injured put his hand on his head due to which his fingers sustained the injuries. The injured also sustained injuries on hand and finger during the scuffle. It is also in the evidence that one of the fingers of the injured was separated from his body. Thereafter, he was taken to Banchora to his Secretary, Vishal Singh who took him to the hospital. Vijay Singh PW4 has also corroborated the evidence of injured Rajaram PW1 on all material particulars. 10. The learned Amicus Curiae did not dispute the propriety and the conviction as awarded by the trial court. However, he has only raised a plea that the offence u/s 308 I.P.C. is not made out against the appellant. It was further submitted that there was no intention to cause the injuries on the person of the injured Rajaram PW1. The learned Brief Holder refuted the contention and supported the findings recorded by the learned trial court. 11. The intention which is a state of mind cannot be proved by the direct evidence as a fact it can only be inferred from the facts and circumstances of each case. The court should proceed to decide the pivotal question of intention, with care and caution, as that will decide whether the case falls under section 325 or 308 I.P.C. The intention to cause death can be gathered generally from a combination of a few or several of the following, among other, circumstances: (i) nature of the weapon used; (ii) whether the weapon was carried by the accused or was picked up from the spot; (iii) whether the blow is aimed at a vital part of the body; (iv) the amount of force employed in causing injury; (v) whether the act was in the course of sudden quarrel or sudden fight or free for all fight; (vi) whether the incident occurs by chance or whether there was any premeditation; (vii) whether there was any prior enmity or whether the injured was a stranger; (viii) whether there was any grave and sudden provocation, and if so, the cause for such provocation; (ix) whether it was in the heat of passion; (x) whether the person inflicting the injury has taken undue advantage or has acted in a cruel and unusual manner; (xi) whether the accused dealt a single blow or several blows. In the present case, as notice above, the appellant had no weapon at the time of the incident. He has taken sickle from his house. There was no previous enmity in between the parties. The sickle is not a usual weapon for causing the injuries on a person. It is also in the evidence that the injured was all alone and rest of his companion left him there. The incident took place all of a sudden on making the demand of the money by the injured Rajaram PW1. There was no enmity between the appellant and the complainant. The appellant had sufficient time to cause further injury on the person of the injured. The nature of the injuries as indicated in the medical report does not reveal that these injuries were fatal to the injured to cause the death in the ordinary course of nature. Considering the evidence in the light of above, I am of the opinion that the case does not fall under Section 308 and 325 I.P.C. instead it falls u/s 326 I.P.C. I am of the opinion that the accused/appellant had committed the offence punishable u/s 326 I.P.C. Therefore, the trial court has erred in convicting the accused/appellant u/s 308 and 325 I.P.C. 12. In view of the above, the conviction awarded by the trial court u/s 308 and 325 I.P.C is modified to u/s 326 I.P.C. The appellant shall undergo R.I. for two years and a fine of Rs. 5,000/- u/s 326 I.P.C. instead of four years & two years R.I. and a fine of Rs. 5,000/- and 2,000/- u/s 308 & 325 I.P.C. respectively as awarded by the trial court. The appellant is further directed that in default of payment of fine, he shall further undergo one month’s simple imprisonment. 13. In view of the aforesaid reasons, the appeal is liable to be partly allowed. I, accordingly, modify the conviction and sentence of the appellant to the above extent. 14. The appeal is partly allowed to the aforesaid extent. 15. Let the lower court record be sent back to the court concerned for compliance. Compliance report be submitted within a period of four months. Dated 31st March, 2008 Shiv (J.C.S.Rawat, J.)