1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR J U D G M E N T Smt. Sharifan vs. State S.B. CRIMINAL APPEAL NO. 97/1989 Against the judgment & order dt. 01.04.1989 passed by Additional District and Sessions Judge, Chittorgarh in Sessions Case No. 66/1987. Date of Order : 28 th April, 2009 PRESENT HON'BLE MR. JUSTICE C.M. TOTLA Mr. N.K. Rastogi for the accused respondent. Mr. A.R. Nikub, Public Prosecutor. BY THE COURT: Appellant Smt. Sharifan having been convicted vide judgment dated 01.04.89 before the court of Additional Sessions Judge, Chittorgarh – for the offence of Section 307 IPC and sentenced to 4 years rigorous imprisonment with fine of Rs. 500/-, in default of payment of fine to undergo one year R.I., challenging his conviction and sentence has preferred this appeal. Heard learned counsel for the appellant and also learned Public Prosecutor. Prosecution averments are like that on 12.07.87 in morning a letter Ex.P/1 of Medical Superintendent, Rajasthan Atomic Power Station 2 Hospital Rawatbhata received at P.s. Rawatbhata informing that a patient Smt. Hasina Bano W/o Abdul Mazid is admitted in hospital at 7:45 AM with deep incised wound on neck. S.H.O. PW/3 making his endorsement on it, handed over the matter for inquiry to S.I PW/4 who submitted his report Ex.P/5 on 16.7.87 with statement of injured Smt. Hasina Ex.P/8. Also mentioned in the report Ex.P/5 is that on 12.7.87 when S.I reached hospital Smt. H was unconscious and he going back on 16.7.87 had recorded the statement. Smt.H averred that she is married to Abdul Majeed for 18 months and living at Rawatbhata with her husband, father- in-law, mother-in-law Smt. Sharifan and also daughter of sister-in-law. She went to own village on delivery but child born dead one and after her coming back, her mother-in-law, father-in-law, brother-in-law and daughter of sister-in-law all started and continued abusing and beating her. Mst. Hasina stated that her vision is hampered so for domestic work and like things, was subjected even to beating. Alleged that on Thursday morning, mother-in-law Sharifan asked her for domestic work but she in ill health having stomach pain told for doing some time later and after little time eating some 2-3 days earlier made bread, began household work and cleaning utensils, but Sharifan did not allow and beat her kept sitting out and then in evening husband came inciting him for beating but husband did not respond. On Friday, she was asked by Mst. Sharifan to clean wheat and told her husband for attending afterwards because of ey trouble, she was beaten by husband, mother-in-law and father-in-law and did not provide food. Even on Saturday, continuously abused by daughter 3 of sister-in-law and brother-in-law for whole day and provided nothing to eat. Smt. Hasina asserted that on Sunday morning at about 5 AM when she was sleeping and husband was away on duty, came father-in-law who kicking her and asking to wake up went away, then came mother-in-law S who abusing told as to why not waking up. Then as she stated of being hungry and severely indisposed, mother-in-law bringing a knife used for handling meat threatening her for making excuses and for killing her, inflicted blow of knife on neck so blood oozed out and she became unconscious, regained only in hospital. Registering FIR No. 93/87 Ex.P/6 for the offence under Section 307 IPC, the Investigating Officer S.I. Mohan lal inspected the place of occurrence, the residential house on 21.07.87 where injured Mst. Hasina finding a “Churri” (knife) in the house handed over the same to him seized making memos Ex.P/2 & 3. After usual investigation appellant arrested on 18.8.87 and charge-sheet submitted. Appellant charged for the offence of Section 307 IPC that she with intention of killing Hasina causing her grievous injury by a sharp weapon attempted murder, pleading not guilty, claimed trial. Among the prosecution witnesses, smt. Hasina PW/7 is injured, PW/w a motbir of recovery and Smt. Kallo PW/5 of having heard of Smt. Hasina being injured by in-laws. PW/3 PW/4 PW/6 are respectively are S.H.O,. S.I who recorded statement and Investigating officer, PW/1 Dr. Banerjee is Medical officer. Appellant when examined stated that she occasionally used 4 to tell Mst. Hasina to do domestic work but never was any dispute and she never inflicted any injury. Learned Judge arriving at conclusion that appellant voluntarily caused such injury by knife which sufficient in the ordinary course of nature to cause death and thus convicted and sentenced her. On behalf of appellant argued is that (i) evidence of Mst. Hasina not convincing enough so as to base conviction (ii) FIR delayed atleast by 4 days without any reason (iii) statements of Mst. Hasina recorded on which FIR is based is so elaborate and descriptive one as clearly appears to be tutored one (iv) injury though on neck but not grievous (v) appellant at that time about 65 years of age. Lastly submitted that by any parameters, the act not fall one punishable under Section 307 IPC and appellant if at all guilty is for the offence of section 324 IPC who should be given benefit of probation or let go on sentenced of period already undergone. Learned Public Prosecutor submitted that injury is severe enough and on a vital part neck, so conviction and sentence correct one. For the incident only evidence is that of injured Mst. Hasina PW/7 in addition is medical evidence. Dr. Banerjee PW/1 deposed that he was Medical Superintendent at RAPP Hospital, Rawatbhata and on 12.07.87, Smt. Hasina was admitted in injured state and making of the entries in indoor ticket, she was treated by administering anesthesia and he also informed police vide letter Ex.P/1 bearing his signature. PW/1 further states that on examination of Smt. Hasina and also on the basis of 5 descriptions made on indoor ticket, he prepared injury report Ex.P/2 on 13.7.87 and the injury on a bare look, grievous one was incised wound transversed over midline of neck and centre of the wound is over thyroid cartilage, 2 ½ “ below the chin. Length of injury was 2”, width ¾ “ and depth in the middle of the wound ½ “ with gapping in the middle grievous one as all the muscles cut and also cut a vein with bleeding. As per report, injury caused within last 3-4 hours from sharp weapon. Thus, proved on the person of Mst. H is above injury on 12.07.87 morning which was caused earlier that morning. S.I. PW/4 who was handed over the information of Medical Superintendent deposed that on 12.07.87 she was unconscious and he telling doctor to inform when gains consciousness returning went back only on 16th and to his information she was not in full consciousness upto 15th. PW/4 denied that a false or exaggerated case in connivance with brother of Mst. Hasina is made. Smt. Kallo PW/5, a neighbour stated that she heard Mst. Hasina being injured at neck did inform her brother. Smt. Hasina PW/7 narrating continuous abuses since two days prior to the incident deposed that on Friday and Saturday as she expressed unableness to clean wheat etc because of eye trouble, she was continuously beaten and abused and on Sunday morning at 5 AM, her father-in-law kicking asked her to get up and attend domestic work, then mother-in-law abused her. Smt. Hasina PW/7 stated that when she expressed of not taking any food for two days and of bad health, mother- in-law exhibiting Churri and telling to kill inflicted its blow on neck so she 6 fell down and became unconscious and regains consciousness in hospital. Nothing significant, except that her brother came in hospital after two days and that she regained consciousness on Tuesday evening appears in cross-examination. In such circumstances, if delay occurred in recording her statement so is exclusively due to apathy of others and certainly do not affect credibility of injured. PW/10 Thus, it stands proved and is rightly held that appellant inflicted this injury by knife. Considering the question of intention and /or knowledge of appellant in causing injury, it surfaces that solitary is the injury. According to treating doctor PW/1 who attended the injured first and also prepared injury report. Smt. H was in conscious state when brought to hospital and became unconscious only on administering anesthesia. PW/1 further admitted that depth of injury was maximum at the mid of wound and both the ends were fine one, meaning thereby towards ends depth and width of injury was gradually reducing. Thus, when admitted to hospital in 2-3 hours she was not complete un-conscious. No other injury of any type is. On thse facts, in the totality of circumstances, in the opinion of the Court, it was in the knowledge of the person committing the act that a grievous injury is going to be caused and this act of appellant amounts to an offence punishable under Section 326 IPC. For the reasons above, the appellant is to be convicted for the offence of Section 326 IPC instead of Section 307 IPC. Coming to sentence, the injury was grievous one, caused by sharp object and on very vital part. From record, it appears that the appellant was arrested on 7 18.9.87 and remained in custody upto 26.10.87. As per memo of arrest and as observed by the trial court, the appellant was 65-70 years in February, 89 . The bail order dated 26.0.87 finds mention of accused in adverse physical state with difficulties in carrying and transporting. Since then upto now about 20 years elapsing she now is about 89-90 years, a female and obvious, at a age of infirmities. In addition to above, she also remained in custody from 01.04.89 to 10.04.89. In the opinion of the court, in such circumstances, the appellant should be sentenced only to the extent of imprisonment already undergone. As above, the appeal is allowed partly. Finding the appellant Smt. Sharifan guilty of the offence of Section 326 IPC, her conviction is altered to that of Section 326 IPC instead of Section 307 IPC and she for this offence is sentenced to the period already undergone as above described. (C. M. TOTLA), J.