1 S.B.Criminal Appeal No.36/89 (Ashfak Ali v. State of Rajasthan) IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR. JUDGMENT ASHFAK ALI. V. THE STATE OF RAJASTHAN. S. B. CRIMINAL APPEAL NO. NO.36/89, against the judgment of Shri G.D.Charan, Additional Sessions Judge No.2, Udaipur in Sessions Case No.5/86, DATE OF JUDGMENT MAY 19, 2009. PRESENT HON'BLE MR. JUSTICE C. M. TOTLA Mr. T.S.Champawat, for Appellant(s). Mr. O.P.Singhaniya, PP, for the State. BY THE COURT: Appellant charged for the offence of Sections 307 and 326 IPC is acquitted of the offence of Section 307 IPC, but stands convicted and sentence to five years' rigorous imprisonment with fine of Rs.500/- as per above judgment. Appellant challenges his conviction and sentence for the offence of Section 326 IPC. Heard contentions of the learned counsel for the appellant and learned Public Prosecutor. Solitary contention advance on behalf of the appelant is that the injury caused is not proved to be a grievous one and it was simple one, so conviction for the offence of Section 326 IPC is contrary to law. Argued is that act of the appellant falls under Section 324 IPC and since appellant 2 S.B.Criminal Appeal No.36/89 (Ashfak Ali v. State of Rajasthan) has remained in custody for some days and incident is of the year, 1983 so appellant deserves benefit of Probation of Offenders Act. Learned Public Prosecutor contended that considering evidence of Medical Officer, injury grievous one. Considering above arguments, perused record and impugned judgment. For appropriate convincing reasons, appellant is acquitted of the offence of Section 307 IPC and that has become final. Therefore, for the solitary argument, advanced as above, it does not seem necessary to mention the details of the incident which are dealt with in the impugned judgment. Injured is Mushtak Beg PW 2 – according to him injury inflicted was at his abdomen. Other eye-witness present or who attended complainant after the incident also states so. As per injury report Ex.P-6 and deposition of Dr. R.S.Nenavati PW 10, Mushtak Beg had following injuries :- (1) Incised wound - 3 1/2” x 1” bleeding and muscular deep on right side of abdomen extending to middle of elice spine. (2) Incised wound skin deep 1” x 1/4” near above injury. Injury report Ex.P-6 further mentions that for injury No.1 kept under observation- and both injuries of sharp object – pulse 100 per minute with BP 100/70 and patient was in agony of pain. Incident is of 26.3.83 at about 10 am and Dr. Nenawati PW 10 Medical Officer of the same town Sarda who medically attended injured very first state that by the time injured came to him, not much blood was lost and he stitching injuries closing wound referred to Jadol hospital because he was proceeding on leave on very same day. Dr. Nenawati PW 10 very clearly states that injury was within an hour and observation for 3 S.B.Criminal Appeal No.36/89 (Ashfak Ali v. State of Rajasthan) some time was needed because it was on vital part of the body. He further says that the blood pressure was little less, but pulse rate was normal and patient was kept under observation at Jadol. Thus, need of referring to Jadol appears to have occurred for the reason that PW 10 Dr. Nenwati was proceeding on leave. PW 1 father of the injuries states that by the time, he arrived at the hospital wound was stitched by the Doctor and at 11 O'clock the Doctor told that as he is going on leave so injured Mustak may be taken to Jadol hospital and Doctor proceeded on leave at around 11 am and though Mustak improved by after afternoon, but as he was weak, keeping him at home in the night next morning taken to Jadol hospital, where he was admitted for treatment on examination, if any, of injury as described by PW 10. No necessity of any specific treatment. Injured Mustak says that he remained admitted to Jadol hospital for 22 days – admits that the Doctor of Sarda who was going on leave, treated the wound. PW 2 also doesl not describe of any specific treatment after stitching of the wound. Dr. Suraj Mal PW 5 was Medical Officer at Jadol testifies that on reference by Sarda Medical Officer injured admitted in his hospital on 26.3.83 discharged on 15.4.83 – with advise of seven days' bed rest. According to PW 5, if injury No.1 not stitched timely, the same could have been dangerous. This witness PW 5 has, afterwards on 18.4.83, given opinion Ex.P-1 that the injured was admitted in ward and if not treated of if not appropriate nursing care, the same could have been dangerous because injury at abdomen and with hemorrhage. Though PW 5 has given this opinion, but in his testimony, he very clearly admits that Ex.P-7 is only his opinion and at the time the injured was brought to him in Jadol hospital, the wound 4 S.B.Criminal Appeal No.36/89 (Ashfak Ali v. State of Rajasthan) was stitched with bandage over it. From the testimony of PW 5, it clearly surfaces that no specific treatment, surgery or otherwise repairing of the wound was done by him. No bed-head ticket is. X-ray or any surgical intervention is not averred by the prosecution. The incident is of 26.3.83 and as per his father PW 1, his son, was taken to Jadol next morning, whereas Dr. PW 5 states that admitted on 26.3.83 itself. Any how, injured PW 2 very clearly says that at Jadol, one Mr. Nakvi used to do only the dressing of the wound for 22 days. Considering above evidence, it does not transpire that it was necessary to remain hospitalized for 20 or more days. In these days of hospitalization, only dressing of the wound was taken up. Under Section 320 IPC, the injury is grievous, only if the injury causes sufferer in a space of 20 days severe bodily pain or when unable to follow his ordinary pursuits. When injury was stitched on 26/3 itself, thereafter dressings done – definitely because of dressing, the injury cannot be held to be grievous. For the reasons above, the appellant is to be convicted for the offence of Section 324 IPC instead of Section 326 IPC. Pondering over sentence, it appears that the appellant remained in custody from 21.12.85 to 28.12.85 and then after 23.1.89 to 13.2.89 thus for about a month. Since 25 years have elapsed, it does not seem proper to award any such sentence as to now send him in custody. In the opinion of the Court, sentence of undergone with a fine of Rs.1000/- shall be appropriate. Accordingly, as above, the appeal is to be partly allowed. While partly allowing the appeal, the conviction of appellant Ashfak Ali for the offence of Section 326 ( dt.23.1.89, S.C. No.5/86) is altered to that of under Section 324 IPC and (he) appellant is acquitted of the offence of 5 S.B.Criminal Appeal No.36/89 (Ashfak Ali v. State of Rajasthan) Section 326 IPC and appellant is sentenced to the period already undergone by him with fine of Rs.1000/- to be deposited by 23.6.09 in trial Court and in default, the appellant shall undergo ten days rigorous imprisonment. Convicting and sentencing as above for the offence of Section 324 IPC, appellant is acquitted of the charge of S.326 IPC. (C.M.TOTLA),J. scd