IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR. J U D G M E N T. RAMESHWAR V. THE STATE OF RAJASHAN. S. B. CRIMINAL APPEAL NO.15/94, against the judgment dated 15.12.1993, passed by Shri S.R.Sharma, RHJS, Sessions Judge, Balotra in Sessions Case No.19/92. DATE OF JUDGMENT ::: 13/08/2009 HON'BLE MR. JUSTICE C. M. TOTLA Mr. D.K.Godara, for Appellant (s). Mrs.Chandra Lekha, PP, for the State. BY THE COURT : Appellant challenges his conviction and sentence of two years' rigorous imprisonment with fine of Rs.2,000/- for the offence of Section 326 recorded vide judgment dated 15.12.93 (in SC No.19/92). Events alleged leading to appellant's prosecution are that on 18.11.91 at 9 A. M., Ram Chandra PW 1 accompanied with his mother Smt. Ishwari PW 3 coming at Police Station, Balotra, lodged a written report Ex.P1 that in their neighbourhood resides Ramesh who in previous night, coming at their door in intoxicated state – uttering filthy words told them to go away vacating the house but as he was drunken, he (the complainant) closed door-then that morning around 8 – 8.30 when Ram Chandra came out of his house, Ramesh and his brother Madan, Kishan and Raju abused him and then Madan, Kishan and Raju brought lathis from their home – Kishan exhorting of getting hold and not let go-and as Ramesh - took out a scissors, came Vishan Das, Hari Ram, Purushottam and his mother Smt. Ishwari and tried to intervene, but Madan and Raju pushing mother away Ramesh stabbed four blows of scissors in his abdomen, causing injuries dangerous to life-blood oozing soaked cloth and also dropped there the persons intervened, otherwise he would have been killed. On this report, SHO PW 13 making his endorsement, registering FIR Ex.P15 No.265/91 for the offence of Sections 324 and 307 IPC in course of investigation, inspecting place of occurrence, prepared memo Ex.P3 - arrested appellant and other two Madan and Raju vide memos Exs. P 5, 6 and 7. Injuries examined by medical officer – injury report is Ex.P2. Per disclosure of appellant, reduced in writing by PW 13 as Ex.P17 at his instance head constable PW 10 recovered scissors, preparing memo Ex.P8. On information of other accused, lathi recovered memos are Exs. P11, 13 and 16. Blood stained clothes shirt, underwear, baniyan and jersy, handed over by injured Ram Chandra seized vide memo Ex.P10. Accused-appellant Rameshwar was medically examined report is Ex.P15. Recording statements of witnesses and other investigations, charge-sheet submitted for the offence of Sections 307, 326, 324 read with Section 34 IPC. Appellant Rameshwar, and other also, charged for the offence of Section 307 read with Section 34 IPC that they on 18.11.91 at about 8.30 a.m., with common intention of murdering Ram Chandra, abusing him and with Ramesh @ Rameshwar, inflicting injuries of scissors on abdomen of Ram Chandra, caused grievous injuries to him and had he died, the act would have been murder – denying claimed trial. Among the prosecution witnesses examined, Ramchandra PW 1 – is injured who lodged FIR – Ishwari PW 3 mother of injured and – Purushottam PW 2 are witnesses named in FIR who all state of occurrence as above. Leela Ram PW 4, Harikishan PW 6, Vishandas PW 11 named witnesses in the FIR and Leela Ram PW 4 alleged eye-witness are declared hostile. Gaina Ram PW 5, Mohan Singh PW 7, Nathumal PW 8, Chima Ram PW 9 are “motbirs” of recovery etc. of whom first three are declared hostile. Loon Singh SHO PW 13, registering FIR, conducted investigation and head constable PW 10 Prathvi Singh recovered scissors. Dr. Mohan Lal PW 12 examined injured and also appellant, proves injury reports Exs. P2 and 15. Appellant explained that as he was passing through there, these persons quarreled with him and than Ram Chandra (injured), Ishwari and father of injured Bhima Ram did beat him and as Bhima Ram inflicted blow of scissors on him, he (appellant), for self protection, came behind Ram Chandra so below of scissors penetrated Ram Chandra – so and shouting of appellant, came Madan and Raju and he, the appellant, immediately reached police station for lodging report but SHO did not register his immediately and soon Ram Chandra and Ishwari coming lodged the report and thus he was falsely implicated. In defence is examined Lal Chand DW 1 who deposes as per explanation offered by appellant. Learned Sessions Judge, by impugned judgment, acquitting other three, convicted and sentenced appellant for the offence of Section 326 IPC. Learned counsel arguing on behalf of the appellant submitted that (1) different versions between FIR lodged by injured Ram Chandra and his statement before Court, (2) strangely, injured first went to police station with mother instead of hospital though hospital comparatively nearer in distance, (3) mother accompanied injured - father or brother did not ? - name of treating doctor not known to injured ? (4) named eye witnesses do not support prosecution - how witnesses there is not clear – interested witnesses, (5) per oral evidence, many shops there, but not described in site memo – not clear as to where incident occurred – at house or shop ? - no blood stains found at alleged place of occurrence, (6) discrepancies regarding what injured was wearing – injured tells also of sweater, whereas others deny. (7) on the basis of same evidence, other are acquitted, so not safe to convict appellant alone, (8) injuries on the person of appellant stands proved and not explained by prosecut8ion, (9) appellant at police station to lodge FIR but not recorded instantly. Learned counsel argued that actually appellant was beaten by Ram Chandra and his parents while injury was being inflicted by scissors on person of appellant, he saved himself, the blow of scissors fell on injured and thus Ram Chandra injured. Lastly submitted that incident is of the year, 1991 and appellant remained in custody for some time - who is not a previous convict or of criminal antecedents so benefit of probation be extended or sentence of undergone may be sufficient. In support of contention, placed reliance on AIR 1990 SC 1709, State of U.P. v. Moti Ram & another. Learned Public Prosecutor argued that on vital part, by a sharp weapon scissors is inflicted injury by appellant – scissors recovered – injury very grievous one, so rightly convicted and sentence is not much and if any reduction in imprisonment appropriate may be to enhance fine. Considering rival arguments, perused impugned judgment, evidence and record. Ocular evidence that of injured PW 1, his mother PW 3 and also of witness Purushottam PW 2 proves that injury was caused by a scissors – a article of iron blades used for cutting cloths etc. Argument advanced that colour of the scissors could not be described and that injured PW 1 uttered of either being knife or scissors are meritless. Injured PW 1 and other witness also depose that wounds on abdomen area with blood oozing. Dr. Mangnani PW 12 posted as medical officer, Government hospital, Balotra, examining injured at 9.35 AM on 18.11.91, found following injuries :- “(1) Penetrating wound with sharp edges – omentum coming out – 1.1 cm x 0.6 cm x mesentry deep – piercing peritoneum – on abdomen just above umbitius. (2) Penetrating wound with sharp edges upto peritoneum – 0.5 x 0.2 x peritoneum deep – above abdomen left side. (3) Incised wound with sharp edges 0. 3 cm x 0.1 cm x 0.1 cm on abdomen near injury No.2.” Injury No.1 grievous and all caused by sharp weapon within six hours and injured treated by Dr.Bhandari. Injury report is Ex.P2. Per doctor PW 12, if not treated timely, possibility of death. Thus, stands proved that on 18.11.91, in morning within six hours prior to 9 O'clock, above injuries were caused. Dr. PW 12 also proves examination of injuries on the person of appellant Rameshwar at 6.45 PM on 19.11.91. Injury report is Ex.P14 and following were injuries :- “(1) Bruise bluish colour with slight sub- conjunctival haemorrhage left eye 0.4cm x 0.3cm just below left eye. (2) Abrasion bluish 0.1 cm x 0.1 cm left side nose. (3) Abrasion bluish 0.2 cm x 0.2 cm right cheek.” All injuries simple of blunt and duration 24 to 48 hours. Without reluctance, can be said that injuries No. 1 and 2 on the person of accused negligible and worth non consideration in relation to injuries caused to Ram Chandra. Considering depositions of Ram Chandra PW 1, his mother PW 3 and also of SHO PW 13 stands proved that at about 9 AM on 18.11.91, PW 1 reaching police station with mother PW 3 lodged report Ex.P1 and this report Ex.P1 bears signature of PW 1. Injured PW 1 accepts that from the place of occurrence hospital is nearer and police station at a little more distance. Considering injuries, injured first going to police station may sound a little strange, but in a given eventuality and/ situations different may be very first re-actions of different persons-so this fact cannot be given undue significance. Any how, as is mentioned in Ex.P15 and also site plan Ex.P3, place of occurrence from police station was at a distance of about 1 km – so definitely not at a considerable distance. Injured Ram Chandra PW 1 states that when he was just behind a shop, appellant Rameshwar assaulted from behind and neighbouring shop-keepers intervened and because of it as he arrived to his home at about 8 AM, from behind came four brothers (appellant with three) and gave him a beating – Rameshwar having a scissors – gave blow of it thrice at his abdomen – mother, Hariram and Vishan Das intervening, protected him – in cross-examination states that no particular animosity with any accused and injured inflicted from behind. PW 1 and his mother PW 3 admits that when they arrived at police station, sitting there was appellant. Per PW 1, on his worn pant and sweater blood poured – denies that they accompanied with his father attacked appellant and the blow which being directed by father to appellant struck on injured. Smt. Ishwari PW 3 states that last night appellant who was in intoxicated state, spoke abusing language and in morning – after her other son had left for shop when Ram Chandra went out, appellant with three brothers attacked Ram Chandra and appellant inflicted blow by scissors. Mother PW 3 states that she was pushed away by Kishan and as these persons ran away, Ramchandra who sustained three injuries taken first to police station, then to hospital. Mother PW 3 states that neighbour etc. accompanied just behind. In FIR is described that three persons, in addition to mother, Vishandas, Hariram and Purushottam came and intervened. One of these three, Purushottam PW 2 says that in morning he going to his shop, observed that on road appellant and his brothers were quarreling with Ram Chandra and appellant with a scissors inflicted blow at abdomen while other three by lathis – and he, Hari Kishan, Leela Ram, Vishan Das all neighbours intervened. According to PW 2, mother PW 3 accomapnied Ram Chandra to police station and quarrel occurred there just out of the house and on public way. Other witnesses Hari Kishan PW 6 and Vishandas PW 9 are declared hostile, but Hari Kishan PW 6 admits of quarrel and there being conversations of appellant having injured Ram Chandra by scissors. PW 6 also says that blood was oozing of person of Ram Chandra. According to Vishan Das PW 1, just opposite to his home and near shop were Ram Chandra and Rameshwar quarreling and he separating them went away, when came after an hour, found Ram Chandra having injury at abdomen. Considering all these established facts, argument that witnesses are neighbours and/or of same caste so interested are meritless. Defence version that Ram Chandra was injured by a blow of scissors intended on appellant (allegedly inflicted by injured's father) cannot, at all be, sustainable, because injured has as many as three injuries of sharp weapon at abdominal area - number of injuries totally rule out any such possibility and even otherwise, is not at all tenable. Area where injuries do also rule out such. Injuries on the person of appellant as is mentioned too trifling to require any explanation. For the above reasons, appellant is rightly convicted for the offence of Section 326 IPC. Coming to quantum of sentence, incident is of the year, 1991, but as above, injury on vital part and was grievous – depthness of injury was upto peritoneum and omentum ousted – appellant hospitalized for 18 days and obviously had to undergo major surgical treatment. Seems that appellant remained in custody for little morel than a month. It appears from memo of arrest Ex.P5 that appellant at that time was 21 years of age. Estimated age recorded by the learned trial Judge after two years is not much different. Since it is now 20 years and no criminal antecedents of appellant, it may be just and appropriate to award sentence of imprisonment upto the extent of period undergone but with good appropriate amount of fine which in totality of circumstances considering pain and plight caused and treatment, expenses worries, anxieties, inconveniences not only of injured but also to concerned others is determined at Rs.40,000/-, of which Rs.25,000/- shall be payable to injured. Accordingly, altering the sentence, the appeal is partly allowed. Conviction of appellant for the offence of Section 326 IPC recorded per judgment dated 15.12.93 (in SC No.19/92) is maintained. However, altering sentence awarded, appellant is sentenced to the imprisonment for the period already undergone and fine of Rs. forty thousand in default of payment to undergo four months' rigorous imprisonment. Out of this amount of fine, Rs. 25, 000/- shall be payable to injured. Appellant may deposit Rs.15,000/- by 15.9.09, and Rs.10,000/- by 15.10.09, Rs.15,000/- by 1.12.09, failing to deposit on or before above dates, appellant to appear in trial Court to undergo sentence and trial Court to secure by arrest warrant. Bail bonds shall stand discharged on deposit of amount or serving out sentence as above. (C.M. TOTLA),J.