Criminal Appeal (SJ) No.871 of 2006 Against the judgment of conviction dated 28.07.2006 and order of sentence dated 29.07.2006 passed by Additional Sessions Judge, Fast Track Court No.I, Nawada in Sessions Trial No.128 of 2004/298 of 2005 arising out of Hisua P.S.Case No.128 of 2004. SAROJ SINGH.... .... APPELLANT VERSUS STATE OF BIHAR .... RESPONDENT ---- For the Appellant : Sri Ranbir Singh, Amicus Curiae For the Respondent: Sri Ajay Mishra, A.P.P. P R E S E N T THE HON‟BLE SHRI JUSTICE DHARNIDHAR JHA Dharnidhar Jha,J The solitary appellant was convicted by the learned Additional Sessions Judge-cum-Presiding Officer, Fast Track Court No.I, No.I, Nawada in Sessions Trial No.128 of 2004 after being tried for committing offences under Sections 452, 387, 307 or in the alternative under Sections 326 and 323 IPC by judgment dated 28.07.2006. The appellant was directed to suffer rigorous imprisonment for three years, four years and seven years as also simple imprisonment for three months on account of being convicted for committing offences under Sections 452, 387, 307 or in the alternative 326 or 323 IPC respectively. The 2 appellant being aggrieved by the judgment of conviction and order of sentence passed against him has preferred the present appeal. 2. Informant P.W.5 who is also injured in the present case appears a resident of the State of Utter Pradesh. He had migrated to the district of Nawada where he was growing a particular water fruit which is known in the local parlance as Singhara and was carrying out the sale of that particular produce during the seasons favourable to the cultivation of the crop. During the off season, he used to carry on business in the hairs of boars by residing at a particular place described as Panchu Talab under police station Hisua in the district of Nawada in the tenanted house belonging to one Ramlakhan Singh his younger brother i.e., P.W.2 Suresh Kumar. 3. It is stated that on 09.11.2004 the appellant came to the tenanted house of the informant P.W.5 and asked him to pay up Rangdari of Rs.30,000/- by delivering it to him as his earlier demands for paying the Rangdari had not been fulfilled and stated 3 that due to that he had invited his death. The informant stated that he will pay up the Rangdari by and by but in spite of that the appellant is said to have dealt a Hansuli blow on the informant. In order to saving him, the informant clung to the body of the present appellant and attempted to catch hold of the weapon as a result of which his fingers of the left hand were cut and injured. The appellant went into great rage finding his attempts being resisted by the informant. He put the informant down on the ground and after pressing his face with his hand, put his Hansuli over his neck and pulled it so as to cutting it. A cut injury was caused on the neck of the informant and he started wreathing in pain and asked persons to take him to hospital and, accordingly, he was rushed to Nawada Sadar Hospital where the fardbeyan, Ext-1 was recorded, on the basis of which the FIR was drawn up and the police took up the investigation. 4. P.W.9 Dr. Iftekhar Ahmad had treated P.W.5 in Sadar Hospital, Nawada on 10.11.2004 when he 4 was posted there in the capacity of Civil Assistant Surgeon and on examining P.W.5, found the following injuries:- (a)Incised wound over the front of neck 10”x1”x1 ½”, trachea also incised; (b)Incised wound over the right side of upper lip ½”x1/4”x1/4”; (c)Incised wound over the left palm 1”x1/2”x1”; (d)Incised wound over the middle finger of left hand 1”x1/4”x1/4” 5. All the injuries were opined by P.W.9 caused by sharp cutting weapon and it was further opined that on account of cutting of the skin, fascia, subcutaneous tissues, there was profuse bleeding of the muscles and vessels. The other injuries were simple in nature. P.W.9 was further of the opinion that the injuries found by him on P.W.5 could be possible by „fasuli‟. 6. It appears that the police finding material sufficient sent up the appellant for trial 5 and accordingly he was convicted as indicated at the outset of the judgment. 7. The appellant appears taking a plea of being innocent and falsely been implicated for any other reason and further denied to have ever demanded Rangdari from P.W.5. 8. In support of the charges, the prosecution examined nine witnesses out of whom, P.Ws.6, 7 and 8 were declared hostile. As may appear from perusal of the discussion of evidence of witnesses in paragraph-15 of the judgment, the learned trial Judge was not accepting the evidence of P.W.4 as reliable because he was found having embellished his evidence during the course of trial and that was apparently available from the recorded deposition of P.W.4. Out of the remaining four eye witnesses, the learned lower court placed reliance upon the evidence of P.Ws.2, 3 and 5 and went on to hold that the charges which were framed against the appellant were duly established. 9. I have gone through the evidence of the 6 witnesses and I find that P.W.5 Mahesh Kumar Sonkar who is the injured and informant of the case had no reason to falsely implicate the present appellant as he was a person who had migrated from another State into the state of Bihar and was carrying out a particular activity of growing a vegetative plant in ponds at a particular place and was also carrying out some petty activities. He did not have any grudge or reason for falsely implicating the present appellant and his evidence appears inspiring confidence because he stood the test of cross-examination by the defence. P.W.5 has stated that he was carrying out his business in Hisua since last 15 years and his younger brother, i.e., P.W.2 was running a Kirana shop whereas another brother younger to P.W.2 was selling utensils by moving around in different villages. P.W.5 has further stated that the appellant was known to him since last 10-12 years and there was no ill-will or bad relationship and further that they were on friendly terms as the informant used to borrow and lend money to the appellant. Thus, what 7 appears from the evidence of P.W.5 is that the relationship between the appellant and the witness was quite cordial and as such the court does not see any reason for false implication of the appellant. The informant appears cross-examined in paragraph-9 of his evidence and he appears put questions on peripheral matters which were not touching upon the material parts of the prosecution case. The evidence of P.W.5 has been supported by P.Ws.2 and 3 as eye witnesses and on perusal of the evidence of P.Ws.2 and 3 I am also of the view that the learned Judge was perfectly justified in placing the reliance upon the evidence of these witnesses for holding that the charges framed against the appellant were duly framed. 10. The learned trial Judge while convicting the appellant appears not certain as to whether an offence under Section 307 IPC or that under Section 326 IPC was made out. The evidence of P.W.9 Dr. Iftekhar Ahmad, appears not considered with all seriousness with which it deserved to be considered. 8 P.W.9 Dr. Iftekhar Ahmad while rendering his opinion about the nature of the injuries, has noted that the injury was grievous in nature. He has simply stated that on account of the cutting of the skin, fascia, subcutaneous tissues and the profuse bleeding from the muscles and vessels, injury no.1 was dangerous to life. If the learned Judge had considered the provisions of Section 326 he could have found that whoever, except in the case provided for by Section 335, voluntarily causes grievous hurt by means of any instrument for shooting, stabbing or cutting, or any instrument which, if used as a weapon of offence, is likely to cause death, or by means of fire or any heated substance, or by means of any poison or any corrosive substance, or by means of any explosive substance, or by means of any substance which is deleterious to the human body to inhale, to swallow, or to receive into the blood, or by means of any animal, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be 9 liable to fine. 11. Thus, what the provision postulates is that the person must voluntarily causing some grievous injury by any of the means which are stated by Section 326 IPC. The term voluntarily has been defined by Section 39 IPC as doing an Act to cause an effect with intent to cause that particular effect. Thus, what is apparent from the definition of voluntarily is that before a person does an act he must intend it to be done with an effect which is pre-conceived by the person doing the act and the intent should be the only factor for fixing a particular mode for achieving a particular effect by doing the particular act. Thus, the effect which is desired to be caused by the voluntarily act of a person as per the provision of Section 326 IPC could be only one and that could be causing grievous hurt by means of any instrument, as are detailed in that particular provision. Grievous hurt has been defined by Section 320 and there are eight different conditions which have been put down by the 10 legislature for illustrating as to what could be a grievous hurt. The opinion of P.W.9 was, of course that there was an injury measuring 10”x1”x11/2” which had incised the tissues, but in spite of that dangerous injury being caused to the neck of the informant, P.W.9 the doctor was not of the opinion that the injury could be grievous rather he was expressing a very different and clear opinion that the injury, on account of certain circumstances which are indicated by deposition of P.W.9, was dangerous to life of P.W.5. A grievous injury may not be dangerous to life. To illustrate some one has wielded a blow with a sharp-cutting weapon and thereby had imputed one of the arms of another. By the very virtue of amputating the arm, the act could be causing grievous injury but it may not be dangerous to life. At the same time the act may also be dangerous to his life because it may cause bleeding from the person‟s body making that particular injury dangerous to the life of that particular man. The common element in an offence under Sections 326 and 11 307 is that the act is preceded by an intent but the intended impact of the act could be determinative of the application either of Section 326 of Section 307. If the act falls within any of the propositions of Section 320 it could be simply grievous, but in addition to being grievous if the act is being covered by any of the four propositions of Section 300 then it becomes an act which could be an attempt to cause the death of a person. This is the settle difference which the court below missed to identify between an offence under Section 307 or 326 IPC and that appears to me the reason that the learned Judge was not clearly recording a finding as to whether the offence could be one under Section 307 or 326 IPC. As such he was recording a very ambiguous finding that either the offence could be falling within the ambit of Section 307 IPC or in the alternative could be an act constituting an offence under Section 326 IPC. Because, the trial court has not given a clear finding and has left it for the decision of, may be, this court, I do not have any hesitation in recording 12 that it could never be an act which could be covered by the act as per the definition of Section 326 of causing voluntarily grievous heart, by using any instrument which could be a dangerous weapon or an instrument of cutting. Definitely a Hasuli is an instrument which is dangerous as also an instrument which could be used for cutting something, wielding it and causing injury as dangerous as indicated by the evidence of P.W.9 could be bringing the act of the appellant within the purview of Section 307 IPC. 12. The circumstances of the case presented by the evidence of witnesses also support the above view. The appellant was coming to realize Rangdari, had threatened of meeting his death on that day and started wielding fasuli blow to him. He defended, infuriating the appellant, who put him down on the ground and pressing his face started pulling his weapon on his throat. The injuries of defence were there in the palm and fingers of his left hand. The act was seriously intended and result was quite known. It was definitely Section 307 I.P.C. which was 13 attracted. 13. In that view I simply record that the appellant was guilty of an offence under Section 307 IPC and in that view the sentence which was inflicted upon him could not be said to be excessive rather it is a bit on the lower side of being proportionate. 14. The appellant has also been convicted under Section 387 IPC and has been directed to suffer rigorous imprisonment for four years. The offence of extortion has been defined by Section 383 IPC as follows:- “Extortion.—Whoever intentionally puts any person in fear of any injury to that person, or to any other, and thereby dishonestly induces the person so put in fear to deliver to any person any property or valuable security, or anything signed or sealed which may be converted into a valuable security, commits “extortion”.” 15. On consideration of the above definition what appears is that if some one puts the other intentionally in fear of any injury and thereby dishonestly induce that person who had been put into fear, to deliver to the person any property or valuable security liable to be punished for extortion. The words „induces the person so put in 14 fear to deliver‟ indicates the voluntariness of act of delivering a particular property on account of being put into fear etc. Thus, what is necessary for constituting an offence of extortion is that the prosecution must prove that on account of being put into fear of injury the victim was voluntarily delivering any particular property to the man putting him into fear of hurt any other man. The evidence in the present case is that the present appellant went to the shop of the informant and told him that in spite of being asked to pay up Rangdari he had not by then paid up any amount and as such his last day had come. There is no evidence on the whole of the record that on account of being put in fear or on account of being inflicted the injuries P.W.5 or his brother P.W.2 who was also sitting with him at the shop was delivering any particular property or paying up any money. If there was no delivery of any property, then the most important ingredient constituting an offence of extortion was not available and as such the conviction of the appellant under Section 387 IPC 15 could not be upheld. I, as such, find that the learned trial Judge was wrongly convicting appellant Saroj Singh of committing an offence under Section 387 IPC. The sentence of rigorous imprisonment for four years appears vitiated on account of passing an order of wrong conviction of the appellant under Section 387 IPC. 16. So far as the conviction of the appellant under Section 452 IPC is concerned, I do not see any particular reason to disturb that finding or order because the evidence which was adduced during the trial before the lower court constituted all ingredients of that particular offence. As regards the conviction of the appellant under Section 323 IPC, I do not see any particular reason to sustain that conviction inasmuch as the very basic prosecution case and the evidence in that behalf is that the appellant had come armed with Hasuli and had assaulted him with that weapon. In view of the evidence, the conviction of appellant under Section 323 IPC appears not sustainable and accordingly he is 16 acquitted of that charge also. 17. In the result, the appeal fails with modification to the extent that the conviction of the appellant for committing offences under Section 387 and 323 IPC is hereby set aside and he is acquitted of those charges. However, his appeal against his conviction under Sections 452 and 307 I.P.C. is sustained. The appeal is dismissed. 18. Sri Ranbir Singh, learned Amicus Curiae has assisted this Court and he deserves a fee of argument, which is directed to be paid by the Patna High Court Legal Services Committee for which, let a copy of the first and the last pages of the judgment be made over to him. Patna High Court, Dated the 14th day of July, 2011, Brajesh Kumar/AFR ( Dharnidhar Jha,J.)