IN THE HIGH COURT OF UTTARAKHAND, AT NAINITAL Criminal Jail Appeal No. 264 of 2006 Kalu @ Kalu Ram S/o Harkesh R/o Pratap Pur Thana Laksar, Distt. Haridwar ………… Appellant Versus State of U.P. ………… Respondent Mr. Sanjeev Kumar Sah, Amicus Curiae for the appellant. Mr. Amit Bhatt, Addl.G.A.for the respondent/State. Judgment Hon’ble J.C.S. Rawat, J. This Criminal Jail Appeal has been directed against the judgment and order dated 30.08.2006, passed by learned Additional Sessions Judge/2nd F.T.C., Haridwar in Sessions Trial No. 437 of 2004, whereby the accused/appellant has been convicted & sentenced to undergo simple imprisonment for five years u/s 307 Indian Panel Code, 1860 and a fine of Rs.5,000/-. It was further directed that in default of payment of fine, the accused/appellant would undergo six months simple imprisonment. 2. The prosecution story, in nutshell, is that in the intervening night of 19/20th July, 2004 at about 10:30 p.m. a report was lodged by Chandra Kiran alleging therein that the accused/appellant Kalu @ Kalu Ram has assaulted his son Kashmira Singh and his daughter-in-law Smt. Shiv Kumari @ Shibho by axe. It was alleged that they have received the grievous injuries on their persons. After hearing the cry of the injured, nearby people reached at the spot but the accused/appellant ran away from the spot. Both the injured were taken to Haridwar Civil Hospital where they were 2 medically examined and remained admitted in the hospital. The accused/appellant was apprehended on 20th July, 2004 and case was registered against him u/s 307, 323 and 324 I.P.C. The matter was investigated and chargesheet was submitted against the accused/appellant. 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 307, 323 and 324 I.P.C. against the accused-appellant. The appellant-accused denied the charges levelled against him and claimed his trial. 4. The prosecution in support of its case examined PW1 Chandra Kiran. She is the informant of the case. She is not an eyewitness of the incident. PW2 Smt. Shiv Kumari @ Shibbo is the daughter-in-law of the accused/appellant. She is an injured witness. PW3 Dr. S.C. Srivastava is the Medical officer who medically examined the injured. PW4 Kashmira Singh is the son of the accused/appellant. He is also an injured witness. PW5 Smt. Sangeeta is the resident of the village where the incident occurred. 5. The accused-appellant was examined u/s 313 Cr.P.C. and he has pleaded not guilty to the offence. He has stated that he has been falsely implicated in this case. 6. The learned Addl. Sessions Judge on appreciation of the evidence, held the accused-appellant guilty u/s 307 I.P.C. 7. I have heard Mr. Sanjeev Kumar Sah, Amicus Curiae, for the accused/appellant; Mr. Amit Bhatt, Addl. G.A. for the State and perused the record. 3 8. Learned Amicus Curiae appearing for the appellant did not dispute the conviction of the accused/appellant. However, it was disputed that the learned trial court should not have convicted the accused/appellant u/s 307 I.P.C. as the case falls only u/s 326 I.P.C. He further argued that the learned trial court should have convicted the accused/appellant u/s 326 I.P.C. instead of u/s 307 I.P.C. He also argued that the lesser sentence may be awarded to the accused/appellant. 9. At the outset, it needs to be mentioned here that there is no dispute that PW4 injured Kashmira Singh and his wife PW2 Smt. Shiv Kumari sustained the injuries on their persons on the date of the occurrence. Dr. S.C. Srivastava has medically examined both the injured on 20/07/2004 and found the following injuries on the person of Kashmira:- 1. Incised wound 8cm. x 2cm.x bone deep in lt. side head 10 cm. lt. ear. 2. Lacerated wound 4cm. x 1cm.x muscle deep in top of lt. shoulder. 3. Lacerated wound 4cm. x 1cm.x muscle deep outer side of lt. upper arm 10 cm. below. 4. Lacerated wound 4cm. x 1cm. x muscle deep. As per the opinion of the doctor all the injuries were simple in nature except injury No.1, the injuries have been caused by hard blow and the duration of the injuries was fresh. 10. PW3 Dr. S.C. Srivastava has also medically examined the injured PW2 Smt Shibho on 20/07/2004 and found the following injuries on the person of Shibho:- 4 1. Lacerated wound 8cm. x 2cm. x bone deep on Rt. side of head 6 xm. above rt. ear. 2. Lacerated wound 1.5cm. x 03cm. x muscle deep on rt. side back of chest scapular region. 3. Lacerated wound 1cm. x 0.5cm.x muscle deep on rt. side back of chest on infrange of rt. scapula. 4. Lacerated wound 2cm. x 1cm. x muscle deep on left shoulder.. As per the opinion of doctor all the injuries were simple in nature except injury No.1, the injuries have been caused by hard blow and the duration of the injuries was fresh. 11. The prosecution in support of its case has adduced the evidence of PW1 Chandra Kiran. He is the informant of the case. He has stated that the accused/appellant is resident of her village. He has further stated that he came to know that the accused/appellant has injured his son and daughter-in-law in the night. Thereafter, the injured were taken to G.D. Hospital, Haridwar. He got scribe the tehrir from Naresh Kumar and handed over to the police station. He has further stated that he has not seen the incident but got scribe in the tehrir what has been disclosed to him by the villagers. 12. PW2 Smt. Shiv Kumari @ Shibbo is the injured witness and daughter-in-law of the accused/appellant. She has stated that at about 10:00 p.m. on 19th July, 2004 when she was feeding milk to her children, her father-in-law/appellant came in the room and throttled her neck due to which she became unconscious. Thereafter, her father-in-law assaulted her with an axe. She sustained the injuries on both sides of her shoulder and near the ear. When her father-in-law was assaulting her, nearby people came there. Her husband PW4 Kashmira was not present at home at that time. When her 5 husband PW4 came to his house, the accused/appellant also assaulted him with an axe. She has further stated that when PW5 Smt. Sangeeta came there, her father-in-law ran away from the spot. Thereafter, they were taken to the hospital where they remained admitted for two months. She has further stated that her father-in-law wanted to maintain illicit relationship with her for which she was not at all ready. 13. PW4 Kashmira is injured witness and son of the accused/appellant. He has stated that at about 10:30 p.m. when he was sleeping in a separate cot beside her wife, he heard the cry of her wife. When he got up, he saw accused/appellant causing injuries upon his wife. When he intervened, the accused/appellant also caused him injuries. The accused/appellant caused the injuries on his head and shoulder. When he made hue and cry, Sherpal, Shishpal and Sukhram came over there. They took them in the G.D. Hospital, Haridwar in the night. He has further stated that the accused/appellant has ill eye on his wife and he was trying to force her to submit him but his wife was resisting for the same. This is the reason why the accused/appellant assaulted them. PW5 Smt. Sangeeta is the resident of the same village. She has stated at about 10:00 p.m. she heard the noise of PW5 Smt. Shiv Kumari. Hearing the noise, she came to the house of PW2 Smt. Shiv Kumari and PW4 Kashmira and saw that the accused/appellant was assaulting them. Seeing this, she became unconscious. It is also pertinent to mention here that according to the prosecution evidence, the accused-appellant assaulted the injured PW2 Smt. Shiv Kumari and PW4 Kashmira. Smt. Sangeeta PW5 who is said to have reached at the spot, witnesses the accused/appellant assaulting the injured at the spot. Thus, it is established from the medical as 6 well as from oral evidence that the injured PW4 Kashmira and his wife PW2 Smt. Shiv Kumari sustained the injuries on their persons on the date, time and place of the incident. 14. Now it is to be seen who is the author of the injuries sustained on the person of the injured. PW2 Smt. Shiv Kumari and PW4 Kashmira have corroborated the entire story as stated above. Both are injured witnesses. The witnesses had been cross examined at length but nothing could be elicited from their evidence. The evidence of PW2 Smt. Shiv Kumari and PW4 Kashmira is totally credible and cogent. There presence at the spot cannot be doubted. The evidence of injured eyewitness stands on a higher pedestal than any other witness. The injured witness is most competent witness and his presence at the place of occurrence cannot be ruled out {See Narendra Nath Khaware Vs. Parasnath Khaware and others 2003 SCC (Crl) 1144 and State of U.P. Vs. Kishan Chand and others 2004 SCC (Cri) 2013}. The said fact has been corroborated by the evidence of PW5 Smt. Sangeeta. Thus, the evidence of the witnesses clearly corroborates the incident and there is no enmity in between the parties. The injured are the son and daughter-in-law of the accused/appellant and there was no occasion to a son or daughter-in-law to falsely implicate the accused/appellant in false case. 15. It is also in the evidence that there was a motive for causing the injuries upon the injured. Both the injured witnesses have stated that the accused/appellant had ill eye upon his daughter-in-law PW2 Smt. Shiv Kumari and he used to force her to submit but she was not ready at all. This is the reason why the accused/appellant became annoyed and caused the injuries on their persons. The prosecution has also 7 established the motive of the incident. It is well settled principle of law that if the ocular evidence is reliable, satisfactory and convincing then the absence of motive becomes irrelevant for the decision of the case. It is also well settled that establishment of motive is not sine quo non for proving the prosecution case. (See Yunus Vs. State of M.P. SCC 2003 (1) p/429). In the case in hand, the prosecution has established the motive for the commission of the offence. 16. It is also pertinent to mention here that axe (Ex.Ka.-4) was recovered from the possession of the accused/appellant by the Investigating Officer. The medical evidence further supports the prosecution version about the incident. It is also in the evidence that axe was used in the commission of the offence. The axe was used on the blunt side, as such, the injuries were caused upon the injured. 17. The learned Amicus Curiae further contended that keeping in view the evidence of the prosecution, the offence could not be said to be one covered u/s 307 I.P.C. but one relatable to Section 324 or Section 326 I.P.C. Learned Addl. G.A. refuted the contention. To constitute an offence u/s 307 I.P.C two ingredients of the offence must be present – (i) an intention of or knowledge relating to commission of murder; and (ii) the doing of an act towards it. Section clearly contemplates 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 knowledge 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, there can be no offence ‘of attempt to murder’. Intent which is a state of mind cannot be proved 8 by precise direct evidence, as a fact it can only be detected or inferred from other factors. Some of the relevant considerations may be the nature of the weapon used, the place where injuries were inflicted, the nature of the injuries and the circumstances in which the incident took place. On the evidence on record, the prosecution has established that the accused-appellant caused injuries on the persons of the injured. As per the opinion of the Doctor, the injuries were not danger to life. Injury No.1 of both the injured were kept under observation. The prosecution failed to produce the supplementary report about the said injuries. The injuries were caused by an axe on the blunt side. If the accused/appellant would have intention to kill them, he could have used the axe on the sharp side which could have resulted the death of both the injured. The injuries and the manner of weapon used in the offence, clearly indicates that there was no intention to cause death of the injured. Both the injured have stated in the evidence they remained in the hospital for a period of two months. There is no suggestion on behalf of the accused/appellant that they did not remain admitted in the hospital. U/s 326 I.P.C., it is provided if the injured remained admitted in the hospital for 21 days, the injuries would be considered to be grievous. Keeping in view the nature of injuries; the manner of causing the injuries; the use of axe from the blunt side; non-production of supplementary report; the surrounding circumstances at the time of the incident; and the facts & circumstances of the case, this case falls within the ambit of section 326 I.P.C. 18. In view of the above, I am of the view that the accused/appellant is guilty u/s 326 I.P.C. instead of 307 I.P.C. 9 19. Accordingly, the accused-appellant is convicted and sentence u/s 326 I.P.C. for a period of 4 years simple imprisonment instead of 5 years u/s 307 I.P.C. as awarded by the trial Court. The fine awarded by the trial court is confirmed. However, in default of payment of fine, the appellant shall further undergo three months’ simple imprisonment instead of six months’ as awarded by the trial court. The judgment and order dated 30/08/2006 passed by the Addl. Sessions Judge/2nd F.T.C., Haridwar in S.T.No. 437 of 2004 is modified accordingly. 20. The appeal is partly allowed to the above extent. 21. Let the lower court record be sent back to the court concerned for compliance. Compliance report be submitted within three months from the date of receipt of order. (J.C.S.Rawat, J.) Dated 20th May, 2009 Shiv