IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Appeal No. 489 of 2001 (Old no. 1820 of 1990) Dated of Decision: 29.04.2010 Pankaj Kumar Sharma and others …Appellants Versus State of Uttarakhand …Respondent Present: Mr. S.K. Agarwal, Senior Advocate assisted by Sri Andleeb Naqvi, learned counsel for the appellants. Mr. Nandan Arya, learned A.G.A. for the respondent. Hon’ble Nirmal Yadav, J. Accused appellants have challenged the judgment and order dated 05.09.1990 in Sessions Trial No.129 of 1988 passed by 4th Additional Sessions Judge, Nainital whereby the accused appellants have been convicted under sections 452 and 307 read with section 34 of Indian Panel Code, 1860 (hereinafter to be referred as ‘IPC’). They have been sentenced to undergo rigorous imprisonment for one year under section 452 IPC and they have also been sentenced to undergo rigorous imprisonment for three years under section 307 read with section 34 IPC. Both sentences have been ordered to run concurrently. The facts, in brief, are that on 26.05.1987 at about 10.1 p.m., complainant Anil Kumar Sharma was having dinner in his house while his wife Smt. Laxmi Devi was sitting near him. Meanwhile, the present appellants Neeraj Sharma, Pankaj Sharma and Smt. Kumud Sharma alongwith Laxmikant Sharma (since deceased) armed with sword, lathi and knife entered into 2 the house of Anil Kumar Sharma and started giving beating to him and his wife Smt. Laxmi Devi. On an alarm being raised by Smt. Laxmi Devi, Anil Kumar and Vinod Kumar Sharma came at the spot and saved them from the hands of the accused persons. On 26.05.1987 Anil Kumar Sharma submitted a written report (Ex.Ka-5) at Police Station, Kashipur which was got scribed by Shivendra Kumar Sharma, Police Station, Kashipur, on the basis of which, Chick F.I.R.(Ex.Ka-6) was recorded on the same day at 10.45 p.m. Dr. A.N. Saxena (PW1), on 26.05.1987 at 11.30 p.m., medically examined on the person of Anil Kumar Sharma and found following injuries:- (1) Incised wound 10cm x 0.5 cm x tissue deep on the right side head, 6cm above eye brow taking backward. (2) Incised wound 6cm x 0.5 cm x tissue deep, right side of the head, 6” above right ear taking backward. (3) Incised wound 9cm x 0.5 cm x tissue deep, 3 cm inside to injury no.1 right side head taking backward. (4) Lacerated wound 5cm x 3cm x tissue deep on the back side of the head. (5) Multiple abrasion in the area of 20cm x 16 cm of left knee. (6) Contusion 7cm x 4 cm back side of right hand, 6cm above wrist. (7) Contusion 5cm x 3 cm backside of the right wrist with swelling on hand. (8) Several abrasion in the area 17cm x 10cm in front side of the chest, 12 cm below nipple. 3 (9) Incised wound 5cm x 2cm x muscle deep on the middle finger of the right hand palmar side on Ist phalan. Injury nos. 1,2,3,4,6,7 & 9 were kept under observation and advised for X-ray and injury nos. 5 & 8 were declared to be simple. Injury nos.1,2,3 & 9 were caused by some sharp edged weapon and rest of the injuries were caused by blunt weapon. All the injuries were fresh. On X-ray, all the injuries were found to be simple in nature as no bony injury was found. On the same day at 11.40 p.m. Smt. Laxmi Devi was also medically examined and following injuries were found:- (1) Incised wound 10cm x 0.5 cm x tissue deep on the backside of the head. (2) Incised wound 7cm x 0.5 cm x tissue deep on back of head towards on the left side of back. (3) Contusion 3cm x 2cm on the backside of left hand. (4) Abrasion 4cm x 2 cm just above nose. Injury nos. 1 to 3 were kept under observation and were advised for X-ray. Injury nos. 1 & 2 were caused by sharp edged weapon and injury no.3 was caused by blunt weapon. On X-ray, all the injuries were found simple in nature as no bony injuries were found. As per the Doctor, injuries of both the persons could be caused by sword, lathi and knife. In his cross examination, this witness stated that injuries could be caused by some light cutting sharp edged weapon. Farsa, sword and Gandasa are not included in light cutting weapon. 4 On the same day, accused Laxmikant (deceased) had lodged the cross report (Ex-Kha-1) against Anil Kumar Sharma and his wife Smt. Laxmi Devi at about 11.00 p.m. in Police Station, Kashipur itself. In the said report, he admitted that occurrence had taken place on 26.05.1987 at 10.00 p.m. According to him, both Laxmikant and Anil Kumar Sharma are brothers. They were having dispute with regard to the residential house. Smt. Kumud Sharma w/o Laxmikant had altercation with Anil Kumar and his wife Smt. Laxmi on the date of occurrence during the day. Anil Kumar and his wife Smt. Laxmi gave injuries to Smt. Kumud Sharma with lathi and Danda. At that time, Laxmikant was watching T.V. who on hearing the noise came out and was also beaten by Anil Kumar and his wife. Hearing the noise, some persons from the neighbourhood also reached and on their intervention, they could be saved. Smt. Kumud Sharma was examined by Dr. A.N. Sexana on 26.05.1987 itself at 11.55 p.m. and following injuries were found:- (1) Contusion 10cm x 5cm on the front side of right shoulder to mid of left shoulder. (2) Lacerated wound 5cm x 1 cm x bone deep on the right side forehead just above eyebrow. (3) Abraded contusion 6cm x 1 cm right side face, 2cm. below right eye side. (4) Black eye right. Injury no.1 & 2 were kept under observation and X- ray of head, right shoulder and front clavicale was advised. Injury nos. 3 & 4 were declared to be simple in nature. On X- ray, no bony injury was found under injury no.2, however, fracture of calvicle bone was found under Injury no.1. 5 On completion of investigation, challan was presented. Accused Laxmikant expired during this period while accused appellants Neeraj Sharma, Pankaj Sharma and Smt. Kumud Sharma were charge sheeted under section 452 and 307 read with 34 IPC to which they pleaded not guilty and claimed trial. The prosecution in order to prove its case, produced (PW1) Dr. A.N. Sexana who medically examined all the injured, (PW2) complainant Anil Kumar Sharma, (PW3) Smt. Laxmi Devi and (PW4) S.I. Kalyan Singh the Investigating Officer. The accused appellants were examined under section 313 Cr.P.C. and they denied all the allegations of prosecution and pleaded innocence and false implication. According to the accused, a dispute was going on between the parties over the residential house. On 26.05.1987, Anil Kumar and his wife gave injuries to Smt. Kumud Sharma. When Laxmikant intervened, he was given beating. At that time, Neeraj Sharma and Pankaj Sharma were not at home. Laxmikant got injuries on his person in defence of Smt. Kumud Sharma while she was given injuries by complainant and his wife. After taking into consideration the entire evidence on record, the trial court came to the conclusion that the accused appellants were aggressor and they had entered into the house of complainant and caused injuries to complainant Anil Kumar and his wife Smt. Laxmi and thus they were convicted under section 452 and 307 read with 34 of I.P.C. 6 Heard Sri S.K. Agarwal, Senior Advocate assisted by Sri Andleeb Naqvi, learned counsel for the accused appellants, Sri Nandan Arya, learned A.G.A. for the State/respondent and perused the material available on record. Learned counsel for the appellants at the outset argued that it is a family dispute and complainant Anil Kumar Sharma and his wife Smt. Laxmi were living in the house which was owned by both the parties in equal shares. However, Laxmikant and his family who were earlier living in Jaspur, shifted to Kashipur and started living in one portion of the house. It is argued that even from the deposition of the Anil Kumar in the court, it is evident that there was no division of the house. As no proper partition had taken place between the parties. One room of the house was in the possession of complainant and other room was in the possession of the accused persons. However, courtyard and toilets were in joint possession of both the parties. According to the complainant, accused wanted to encroach the entire house, which of course is not proved from any cogent evidence. It is argued that prior to the shifting of the accused persons to Kashipur, entire house was in the possession of the complainant and after the family of accused person shifted from Jaspur to Kashipur and occupied the half portion of house, it was not liked by complainant party. In these circumstances, the complainant was aggressor and caused injuries to the accused. It is further argued that there is no explanation given by the prosecution with regard to injury on the person of accused Smt. Kumud Sharma. One of which is grievous in nature, while all the injuries of the complainant side are simple. Learned counsel for the appellants pointed out that several discrepancies and contradictions in the statements of PW2 Anil Kumar Sharma and PW3 Smt. Laxmi. He referred to 7 the statement of Anil Kumar Sharma, who stated that he was having meal inside the house. Similar statement was also given in Ex-Ka-5 First Information Report. However, in the cross examination, he has stated that he was having meal in the varandah of the house when accused came in his house armed with their respective weapons. PW 3 Laxmi Devi in her cross examination stated that her husband was having meal inside the room. He further referred to the statement of PW2 Anil Kumar, where he stated that he had mentioned in his complainant Ex-Ka-5 before the Police that Laxamikant was armed with lathi, Pankaj Kumar with sword, Neeraj with knife and Smt. Kumud Sharma was armed with danda, but a perusal of Ex-Ka-5 shows that nothing is specified as to which accused was armed with what weapon. Learned counsel for the appellants pointed that even police has not properly investigated the case. Investigating Officer has expressed his ignorance with regard to the cross report made by accused Laxmikant, whereas the report was lodged in the same police station on the same day within 15 minutes after lodging of report by complainant Anil Kumar Sharma. Investigating Officer has deliberately ignored the report made by the accused. Therefore, investigation is glaringly collusive and biased. Learned counsel for the appellants submitted that no case under section 452 is made out as there is no partition of the house between two brothers. Moreover, as per that statement of Anil Kumar, occurrence had taken place in courtyard. In his statement before the court, he has stated that he was having meals when he had seen the accused persons from a distance of 4-5 paces and he ran and came into the courtyard and opened the main gate of the house where all the accused caused injuries to him. Admittedly, courtyard is in the 8 joint possession of both the parties. Accused did not cause injuries to the complainant by trespassing in their house. Learned counsel for the appellants further argued that ingredients of section 307 IPC are not made out. All the injuries are simple in nature and they are not sufficient to cause the death of the injured persons. On the other hand, learned A.G.A. argued that prosecution has successfully proved that the accused caused nine injuries on the person of Anil Kumar. Most the injuries are on the vital part of the body i.e. head, chest etc. Four injures were caused to Laxmi Devi when she tried to save her husband. He further submitted that both witnesses received injuries and accused also admitted the time and place of occurrence. It is not in dispute that both the parties were having possession over the residential house which is owned by them in equal share. However, as per the complainant, accused wanted to encroach over the entire house. All the accused armed with weapons came together and caused injuries to Anil Kumar and his wife, thus offence under section 452 and section 307 I.P.C. is clearly made out. After taking into consideration the rival submissions raised by learned counsel for the parties and the documents available on record, it is admitted that both the parties i.e. complainant Anil Kumar and accused appellant Laxmikant (deceased) are real brothers. They were living in the same house which is their ancestral property. Accused appellants were earlier living in Jaspur and complainant was living and looking after the entire house where the occurrence took place. The dispute started between the parties when accused appellants shifted to Kashipur and started living in the half portion of the house. However, it has come in the evidence that both the 9 parties were having one room each and there is no evidence on record that accused persons would have encroached the entire house as Anil Kumar was already living in the house prior to Laxmikant having shifted to Kashipur. However, there must be dispute over the division or distribution of the joint portion of the house, such as, c0urtyard and toilets etc. We cannot lose sight of the fact that incident took place on 26.05.1987 at 10.00 p.m., which is admitted by both the parties. The matter was reported to the police by both parties within a time gap of 15 minutes. However, from the perusal of the statement of Anil Kumar, it is evident that accused did not enter the room of the complainant. According to him, he was having food in the varandah. After he had seen the accused coming towards him, he ran and went near the main gate which opened in courtyard. This main gate was used by both the parties for ingress and egress. Accordingly, ingredients of section 452 I.P.C. are not at all made out. To bring him the offence under section 452 I.P.C., the accused had to commit trespass of the house of the complainant after having made preparation for causing hurt to complainant or for assaulting them or putting them in fear of hurt or of assault. In the present case, both the parties were living in the same house and occurrence took place in the joint portion of the house. Thus, the trial court has erred in coming to the conclusion that commission of offence under section 452 I.P.C. is proved by the prosecution. As regards the offence under section 307 I.P.C., the prosecution had to prove that accused had such intention or knowledge, and under such circumstances caused the injuries that if accused by that act caused death, he would be guilty of murder. Meaning thereby the accused should have the intention or knowledge of committing murder, and the doing of an act 10 towards it. Though, it is not necessary that to constitute offence under section 307 I.P.C., injuries need be caused to the victim, but if in the course of attempt, bodily injury is caused the injury should be such which was dangerous to life. None of the injuries of injured persons Anil Kumar and his wife Laxmi have been declared dangerous to life. An offence under section 307 IPC is a very serious offence and it requires the same very factors to be proved as are needed to prove an offence under section 302 IPC except that in this case the act falls short of the death of person to whom injuries have been caused. As per the Medical jurisprudence by Taylor, the meaning of the words “dangerous to life” is left entirely to the professional knowledge of a witness. It is not sufficient that he should make a simple assertion that the wound was dangerous to life. He has to state before the court satisfactory reasons for his opinion. As a general principle, the court is likely to consider those injuries as ‘dangerous to life’ in a legal sense in which the danger is imminent. Even Modi in ‘Medical Jurisprudence and Toxicology’ has observed that ‘danger to life’ should be imminent before the injuries are designated ‘dangerous to life’. Such injuries are extensive and implicate the structures or organs so that they have prove fatal in the absence of surgical aid. None of the injuries inflicted on the person Anil Kumar and his wife Smt. Laxmi are imminently dangerous to life as all the injuries are simple in nature. In these circumstances, conviction under section 307 IPC is liable to be converted to under section 324 IPC with regard to injuries which are incised wounds and have been caused by sharp edged weapon, whereas under section 323 the injuries which are caused by some blunt weapon. In the present case, there are nine injuries on the person of Anil Kumar, out of which injuries nos. 1,2,3 & 9 have been caused by sharp edged weapon, while rest of the injuries are caused by blunt weapon. On the person of Smt. Laxmi, four 11 injuries were found, out of which injuries nos. 1 & 2 are incised wounds and injuries nos. 3 & 4 are contusion and abrasion. However, all the injuries are simple in nature. In these circumstances, I am of the view that no offence under section 307 IPC is made out and offences are liable to be converted under section 323 and 324 IPC. Thus, the accused are convicted under section 324 and 323 I.P.C. The judgment and order dated 05.09.1990 of the trial court is modified with regard to sentence. As per the record, accused appellants were arrested on 01.06.1987 and were released on 24.06.1987.They remained in custody for about 24 days. It has also come on record that the accused persons are first offenders and they have no criminal history. Both the parties are family members and it is a family dispute between the members of the same family. As to the sentence, they have already undergone. All the three accused are ordered to pay Rs.5,000/- each as fine. Thus, the total amount of Rs.15,000/- is realized, out of which Rs.12,000/- shall be paid to the injured persons complainant Anil Kumar and Smt. Laxmi Devi and rest of the amount shall be deposited as fine. Therefore, in my opinion, it will meet the ends of justice, if accused appellants are sentenced already undergone and are ordered to pay a fine of Rs.5000/- each. In default of fine, the accused appellants shall suffer further imprisonment of one year simple imprisonment. The total amount of fine of Rs.15,000/- is realized, out of which Rs.12,000/- shall be paid to Smt. Laxmi injured witness as it is stated that complainant Anil Kumar Sharma has already expired. 12 With the aforesaid modification with regard to the sentence, the appeal is partly allowed. (Nirmal Yadav, J.) JKJ 29.04.2010