1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR. JUDGMENT Mangi Lal Vs. State of Raj. S.B.Cr. Appeal No.224 of 1987 Under Section 374 of Cr.P.C. read with Section 11 of Probation of Offenders Act against the judgment of conviction dated 4.5.1987 passed by Shri Amar Singh Godara, Sessions Judge, Jhalawar in Sessions Case No.104/83. DATE OF JUDGMENT ::: December 15, 2008 P R E S E N T HON'BLE MR. JUSTICE MAHESH BHAGWATI Mr. JR Brijania on behalf of Mr. AK Gupta for the appellant. Mr. BK Sharma, Public Prosecutor for the State. BY THE COURT Challenge in this appeal is to the judgment dated 4th May 1987, rendered by the Sessions Judge, Jhalawar whereby the accused appellant Mangi Lal was convicted in the offence under Section 334 of IPC and released on probation of good conduct. 2. The factual matrix of the prosecution case is that in the evening of 22nd April, 1983, the complainant PW/1 Harlal, the appellant Mangi Lal and Kedar Lal ASI left for Gadhi (Madhya Pradesh) in connection with the investigation of case No.21/83 under Section 379 of IPC. They had to take along with them the complainant Bapu Lal also of that case. So, they first reached at village Semly Chauhan to collect him. It is alleged that at the instance of Bapu Lal they haulted at Semly Chauhan to have the dinner. It 2 is alleged that during conversation Har Lal and the appellant Mangi Lal entered into jokes. After some time the appellant Mangi Lal got angry and started threatening to kill him with knife. It is stated that when they were going to bed, the complainant Har Lal apologized for the jokes he had cut on him but the accused Mangi Lal got enraged and with an intention to kill stabbed with knife at his chest. Had Shri Kedar Lal ASI and other persons present not intervened, he would have killed him. On Parcha Bayan Ex.P/1 of PW/1 Har Lal, police lodged FIR Ex.P/1-A and commenced investigation. 3. The investigating Officer prepared the site plan Ex.P/5, recorded the statements of the witnesses under Section 161 of Cr.P.C., got the complainant Har Lal medically examined, obtained certificate with regard to the admission of Har Lal in M.B. Hospital, Kota and after usual investigation submitted the challan in the Court. 4. The accused Mangi Lal was indicted for the offence under Section 307 of IPC who pleaded not guilty and claimed trial. 5. The prosecution examined as many as 11 witnesses to prove its case. In his explanation under Section 313 of Cr.P.C. the accused Mangi Lal claimed innocence and submitted that he was falsely implicated in the case. On completion of trial, the learned trial Court did not find him guilty for the offence under Section 307 of IPC and thus acquitted him of this charge but found him guilty in the offence under Section 334 of IPC and convicted him thereunder as indicated hereinabove. 6. Heard the learned counsel for the appellant, learned Public Prosecutor appearing for the State and perused the relevant material on record. 3 7. The learned counsel for the appellant while reiterating the submissions made in the memo of appeal, has canvassed that the learned trial Court has not properly appreciated the evidence of prosecution witnesses nor has considered the provisions of Section 86 of IPC. The prosecution witnesses namely PW/2 Bheru Singh, PW/3 Ram Lal, PW/4 Jamna Lal, PW/6 Bapu Lal, PW/8 Ganga Ram have made improvement upon their earlier statements given to police which has rendered their evidence fragile but the learned trial Court has erroneously relied there upon. It was the complainant Har Lal who caused sudden provocation to the appellant. It was he who had cut filthy jokes and used abusive language for his wife. In view of this situation, if the accused had caused simple injury on the person of Har Lal, the appellant was entitled to the exception of grave and sudden provocation and deserved acquittal. 8. Per contra, the learned Public Prosecutor has submitted that if the offence under Section 307 of IPC was not proved the appellant could be convicted for an offence of lesser degree by the Court. He has further submitted that the offence under Section 334 of IPC is very well proved from the evidence of the prosecution witnesses and the learned trial Court, after properly appreciating the evidence, rightly relied upon their testimony and has committed no error in arriving at the finding of conviction of the appellant under Section 334 of IPC. The judgment of the lower Court is perfectly just and proper which does not call for any intervention. 9. Having reflected over the submissions made at the bar and weighed the material on record, it is noticed that PW/9 Dr. Rameshwar Vijay examined the complainant Har Lal on 23rd April, 1983 and found the following injuries on his person:- 4 stab wound c 1/2”x1/2”x9 left side of chest sharp edges just above nipple. eleptical, vertical Dr. Vijay deposed in the Court that the injury sustained by the complainant Har Lal was not sufficient to cause his death in the ordinary course of nature. As per PW/10 Dr. PP Kinkar injured Har Lal remained admitted in M.B.Hospital, Kota w.e.f. 23rd April, 1983 to 20th June, 1983 but on 20th June, 1983 he was found to have absconded from there. Dr. Kinkar had informed the police about this incident. 10. The most crucial question emerging for determination in this case is that whether the appellant voluntarily caused hurt to PW/1 Har Lal on grave and sudden provocation? A reading of Parcha Bayan Ex.P/1 of PW/1 Har Lal and statement given on oath by the prosecution witnesses, PW/2 Bheru Singh, PW/3 Ram Lal, PW/4, Jamna Lal, PW/5 Kanji, PW/6 Bapu Lal and PW/8 Ganga Ram reveal that the complainant, appellant and other persons had taken liquor there before taking their meals. During conversation, the complainant used filthy language about the wife of appellant Mangi Lal and cut abusive jokes which caused annoyance to the appellant. From the evidence of prosecution witnesses, it also emerges that the complainant had thrown Chappals on him but after taking dinner when everyone was going to bed, the complainant went to the appellant Mangi Lal and apologized for his acts he had done, whereupon, it is alleged that the appellant got enraged, brought out his knife and stabbed in his chest. This injury caused upon the chest of the complainant has not been found to be grievous. 11. The ingredients for the offence under Section 334 of IPC are that the accused must have voluntarily caused hurt; that such hurt must have 5 been caused on grave and sudden provocation and the accused must not intend to hurt or know it to be likely to hurt anyone other than the author of provocation. Therefore, intention must be to cause hurt to the author of grave and sudden provocation. For Section 334 of IPC to be invoked, provocation must be present at the time of assault. In the instant case, it is very well established from the statements of the prosecution witnesses that the complainant was again and again hurling the name of the appellant's wife and using abusive language with regard to her. The appellant though asked Shri Kedar Lal ASI to intervene and stop him not to cut such abuses jokes but the appellant did not stop. Undeniably, it was the complainant who caused grave and sudden provocation to the appellant as a result of which he stabbed knife in his chest. The learned trial Court, while discussing the prosecution evidence and relevant documents at length arrived at a conclusion that the offence under Section 307 of IPC was not proved beyond reasonable doubt. However, the offence under Section 334 of IPC was very well proved from their evidence. A use of knife by the appellant on the complainant is proved by the prosecution evidence and the injury sustained by Har Lal stands corroborated by the medical evidence. Both the complainant and the appellant are police Constables who were on duty in fact. Both had left for Gadhi in connection with the investigation of another case No.21/83 of their Police Station registered under Section 379 of IPC but since they had to take Bapu Lal from Semly Chauhan, they encamped there during their journey to Gadhi. 12. The learned counsel for the appellant has not drawn my attention to any such evidence which could render the testimony of prosecution witnesses fragile and unworthy of credence. The learned trial Court has critically analysed the 6 prosecution evidence at length and properly appreciated their statements in the light of all the relevant provisions of law. The impugned judgment is found to be cogent and well merited which suffers from no infirmity. The finding of conviction of the appellant in the offence under Section 334 of IPC is quite just and proper and cogent with which I fully concur. The prosecution has been able to establish the offence under Section 334 of IPC against the appellant beyond reasonable doubt. The learned trial Court, so far as the punishment is concerned, has already taken a very lenient view and ordered to release the appellant on probation of good conduct. Thus, in the ultimate analysis I find myself in unison with the finding of conviction arrived at by the learned trial Court and the impugned judgment, to my firm view, calls for no interference. 13. For these reasons criminal appeal filed by the accused appellant Mangi Lal stands dismissed. The conviction of the accused appellant in the offence under Section 334 of IPC and the order of releasing him on probation of good conduct under Section 4 of the Probation of Offenders Act, is maintained. (MAHESH BHAGWATI)J. PCG