HHHH llHlHHHHllllllllll ‘ 030 W Qww uaaalm BEFE THE HIGH OURT OF JUiDICTUEiE T JABALPUR: Ia CRIMINAL AEA r‘PI No.l$ %€ 196 KILU $/ (/ G31 o lla l 1" R ?rs., stu R/ haVlge Jamd (Ghasaa Toal, Shankarga, stt 2. MARA o ru as, aed 2 s , /o Vllage mamd g 2 yr R l l Garpatr ara}, . ¢Shanka r stt J. . . . . aA‘ V/s V4: T TTE OF M P“ hroug the Polce aton Skah Dlt Sarqmao RESPONSENT hanargr st .. i OR C A A ptr } P S rh Dl Sarqu1a. 2 ’< NIM S/ Kll ahm (ha P a r ah, D‘ w APPELLANTS " d HE SA '< tn i $tl We; HIGH COURT OF CHHATTISGARH AT BILASPUR Criminal Appeal No. 1863 of 1996 APPELILANTS: Kirlu and another Presenti: Sihri Sunil Sahu, counsel for the appellants. Sihri Arvind Shukla, Pane} Lawyer for the State/respondent. E‘x‘ ORAL JUDGMENT (27—9—201 1) Prashant Iéumar Mis‘hra, J. 1. The appellants have been convicted under Seations 307/34 and 323/34 of the IPC and sentenced to undergo R.I. for 4 years and fine of Rs.500/— each, in default of payment of fine to further undergo R.I. for 2 months and to undergo R.I. for 1 year respectively. . Case of the prosecution is that on ’the date of‘ the incident i.e. on 14.11.1993 appellant Kirlu had invited Dhur Sai (PW—1) for dinner. At about 8 pm, said Dhur Sai and his daughter Hiramani went to the house of Kirlu. After having their food, they were sitting and at this 3 time, Kirlu raised an issue regarding previous dispute and suddenly started accusing Dhur Sai that he is in the habit of creating nuisance/ Marpeet and that he shall not spare him today. When ' Dhur Sai tried to escape, he was caught hold by Kirlu and was 1 brought to ground. . Kirlu’s, son Jugeram and Maniram also came there and Jugeram pressed his legs whereas Maniram caught hold of his hands and appellant Kirlu sat over his chest and after pressing his neck, inflicted one knife blow on his abdomen. Hearing the alarm ‘(In Jail): ‘Q Versus \ RESPONDENT: The State of M.P. (now ‘ \ Chhattisgarh) raised by Dhur Sai and his daughter, Hiramani, witness Ramprasad came to the place and witness Shrinath also came later on. 3K After completing investigation, charge sheet was filed for offence 3 under Sections 307/34 and 323/34 of the IPC. The prosecution in order to establish the charges against the appellants examined 10 witnesses and the trial Court after hearing learned counsel for the respective parties and on the basis of evidence on record, convicted and sentenced the appellants as mentioned above. , z 1. u ‘ 4 Learned counsel for the appellants would submit that even‘if the entire prosecution case is believed, the offence, at the worst, would fall under Section 324/34 of the IPC and since the appellants have already remained in jail for 175 days i.e. about 6 months, the sentence deserves to be reduced suitably in View of long lapse of time after commission of offence. 5. PW—l Dhur Sai has stated in detail as to how the incident has taken place and has fully supported the’ contents of FIR and his case diary statement. He was medically examined by PW—7 Dr. F.R. Nirala, who has proved his medical report Ex.—P/4 wherein he had found 2 injuries on the person of Dhur Sai; the first injury was stab wound d measuring 1" X 1V2 cm x 11/2” just below‘iileft costal margin of abdomen caused by hard and sharp pointed object; the second injury was abrasion on the left knee joint. According to the doctor, both the I ‘LW injuries were simple in nature and when a query was raised from him i l as to whether. in the event immediate treatment would not have been i provided, there was danger to the life of the injured, he opined that ‘ the injury was simple because the injury was caused on fatty part ‘ and was not deep, therefore, it Was not dangerous to life. However, if I l L ‘ i any complication occurs, it may be dangerous. This query report has been proved as Ex.-P/7. 6* EX.-P/8 is the weapon seized from appellant Kirlu. ’GI‘he length of ‘ metal part of knife is 8" and its blade was 1/2 cm Wide at the terminal ‘ end and 2 cm Wide at the place where it is joined with wooden part i.e. handle. Thus, weapon appears to be vegetable cutting r instrument. When simple injury is caused by any instrument for shooting, : k " a stabbing or cutting or any instrument which, used as a weapon of offence, is likely to cause death, it falls under Section 324 IPC and is ‘ . ‘punishable with imprisonment with either description for a term which may extend to 3 years or with fine or both: 8. The prosecution alleged commission of offence under Section 307/34 with respect to injuries on the person of Dhur Sai and under Section 323/34 IPC with respect to injuries caused to PW—2 Ram Prasad and PW—3 Shrinath. Since the graver'offence is with respect to injuries caused to Dhur Sai, this Court is mainly concentrating on this aspect of the matter. 9. In the matter of Han Kishan and State of Haryana Vs. Sukhb1r x Smgh and others {AIR 1988 SUPREME COURT 2127}, the Hon’ble Supreme Court has held that under Section 307’ IPC, what the Court has to see is, whether the act irrespective of its result, was done with the intention or knowledge and under circumstances mentioned in that section. The intention orljknowledge of the accused must be such as is necessary to constitute murder Without this ingredient being established there can be no offence of “attempt to murder i Under Section 307 the intention precedes the act attributed to accused. Therefore, the intention is to be gathered from all circumstances, and not merely from the consequences that ensue. Q The nature of the weapon used, manner in which it is used, motive for the crime, severity of the blow, the part of the body where the injury is inflicted are some of the factors that may be taken into consideration to determine the intention. 10.When the allegation in the present case is examined on the anvil of K lalvv‘ raid down by the Hon’ble Supreme Court, it is to be seen that v relation between Dhur Sai and Kirlu was cordial as admitted by PW—l Dhur Sai in para—5 of his statement. They had their dinner together, however, an issue broke out regarding their previous dispute and thereafter sudden quarrel took place. As per the prosecution case, appellant Kirlu and his two sons namely, Jugeram and Maniram were present and had there been any intention to commit murder, injured Dhur Sai would have been caused serious blow, however, a simple injury on his abdomen was caused. Appellant Kirlu stopped after inflicting only one injury. The weapon is also vegetable cutting knife having 1/2 cm of sharp terminal end. From all these circumstances, it appears that there was no interftion on the part of the accused persons to commit murder of injured Dhur Sai and their conviction under Section 307/34 of the IPC thus needs to be interfered. However, since the injuries have been caused by means of instrument of cutting, which is dangerous weapon, offence would fall ; under Section 324 IPC. 3" l i 11.The appellants have also been convicted under Section 323/34 of the l IPC for causing injuries to PW—2 Ram Prasad and PW—3 Shrinath. I i l l l . From the statements of PW-2 Ram Prasad and PW-3 Shrinath, it appears that simple injuries were caused to these two injured persons and thus, the appellants’ conviction under Section 323/34 of la the IPC is fully supported by the evidence available on record. 12.In the result, the appeal is partly allowed. Conviction and sentence imposed on the appellants under Section 307/34 0f the IPC are set asifde. Instead, they are convicted under Section 324/34 of the IPC. Unider Section 324 IPC, maximum punishment is imprisonment for 3 K year‘s,‘or With fine or with both. As stated by learned counsel for the ‘ appellants, the appellants have suffered in jail for 175 days i.e. for about 5 months and on account of their failure to appear before the t Court, they have again been taken into custody in execution of Warrant of arrest. Taking into account the entire facts and circumstances of the case, this Court is of the considered opinion that since the appellants have already undergone 6 months of jail sentence, sentence under Sections 324/34 and 323/34 of the IPC is hereby reduced to the period already undergone by them, more so, when 18 years have elapsed after commission of offence and the parties have also entered into a compromise as reflected in paras—32 8r, 34 of the impugned judgment of conviction. él‘hey be released v‘ forthwith unless required to be detained in anyother case. ,/—/ Prasham’Judge Barve