IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR ... S.B. CR. APPEAL NO. 337/1988 (1)-Madan Singh S/o Shri Pooran Singh (2)-Sumer Singh @ Mod Singh S/o Shri Roop Singh V/s State of Rajasthan Under Section 374(2) Cr.P.C. against the judgment dated 6.8.1988 passed by Additional Sessions Judge, Bali in Sessions Case No.24/86(79/85). … DATE OF JUDGMENT ::: 13.4.2009 PRESENT HON’BLE MR. C.M. TOTLA, J. Mr. Suresh Kumbhat, for the appellant. Mr. A.R. Nikub, PP BY THE COURT : Appellant facing trial court the offences under Section 307 IPC before the court of learned Additional Sessions Judge, Bali in Sessions Case No.24/86 (79/85) is convicted for the offence of Section 326 IPC and sentenced to three years rigorous imprisonment and fine of Rs.1000/-; in default of payment three months' simple imprisonment vide judgment dated 6.8.1988. Challenged is above conviction and sentence. Appellant no.2 Sumer Singh @ Mod Singh convicted for offence of Section 325/34 IPC expired, so appeal for him stands abeted. Considered rival arguments and perused the record and also impugned judgment. AS per prosecution, on 25.1.1985, at 2 O'Clock in afternoon one Gajendra Giri lodged a written report at Police Station Sadri that at around 10.30 a.m. when he, Jagdish, Prakash Soni, Dilip Kumar and Shravan Kumar sitting in school ground were watching parade came Madan Singh, Sumer Singh, Surendra Singh and 10-15 other boys – Sumer Singh called Prakash, who when went near him abused by Sumer singh, so Gajendra Giri also did go there who threated by Sumer Singh so consoled by Gajendra but Sumer Singh inflicted a leg kick to him so did came Jagdish and told Sumer Singh not to quarrel, so Sumer Singh telling Jagdish as to why he intervening indicated Madan Singh telling him to take care of Jagdish and both began beating Jagdish - Madan Singh taking a knife out of his pocket stabbed at abdomen of Jagdish, who fell down and both of them and other boys ran away. Jagdish brought to hospital by Kamlesh, Prakash etc and being not in good condition is to Pali hospital. Also mentioned in FIR that about six months earlier, a quarrel occurred between Gajendra Giri and Veer Singh so this incident. Registering FIR No.5/85 for the offence under Sections 307, 324 and 323 IPC investigation commenced and at the information and instance of appellant Madan Singh, a knife recovered from earth near wall of a house. The injury report and also report regarding nature of injuries obtained and charge-sheet submitted for the offences of Ss 307, 326 and 34 IPC. Appellant charged for the offence under Section 307 IPC claimed trial. Of the prosecution witnesses, examined Jagdish PW-3 injured narrated the incident as above. PW/2 is motbir of seizure of the appellant's blood stained clothes whereas Narendra Prasad PW-1 is motbir of site inspection. PW-4 and PW-5 said motbirs of recovery are declared hostile and Dr. Champa Lal PW-6 medical officer, who examined injuries proves that on 25.1.1985 at 1.00 p.m. Jagdish had an incised wound 2.5 x0.5 cm. on left iliac fosca – of sharp object, question mark for nature as injury bleeding with BP and pulse not recordable. The patient was conscious referred to Pali. Learned counsel for appellant Madan Singh argued that – (1)- first informant Gajendra Singh, who also alleged injury to himself and I.O. too are not examined (2)- neither named nor any other eye- witnesses (3)-motbirs of knife recovery do not support prosecution(4)- a look at the FIR itself makes clear that several boys were there and it was a case of free quarrel (5) as per evidence of medical officer PW-6 and other material too, maximum simple injury of sharp edged weapon is proved. Argued that no such evidence or material so as to show that injury grievous and the act if at all committed, maximum falls under Section 324 IPC. Lastly submitted that incident is of January, 1985 when appellant was 20 years who remained in custody for about 15 days so sentence already undergone is sufficient. In support of contentions, relied on decisions Bhupendra Singh & anr. Vs. state of Rajasthan reported in 2009 Crl.L.J (NOC) 35 (Raj.) and S.B. Criminal Appeal No. 258/1986 decided on 13.05.2008 (Munna lal Vs. State of Rajasthan). Learned Public Prosecutor submitted that no reason to not to believe testimony of injured PW-3 and proved by evidence of medical officer PW-6 is that injured was profusely bleeding and injured not in a good condition so was referred to higher centre i.e. Pali Hospital. Argued that also proved is that injury was caused by sharp edged weapon. Considering injured PW/3 in his deposition has in very definite terms state that it was only the appellant who stabbed knife at his abdominal area. It clearly transpires as is narrated in FIR and also stated by PW/3 that several persons many of them of boy hood age were watching rehearsal of parade. PW/3 had no enmity or indifference with any accused and no reason to not to believe the testimony of injured. The evidence of PW/3 is trustworthy supported by medical evidence and soon was lodged the FIR narrating the incident, so non-examination or non- supporting of prosecution by any other independent witnesses is of no consequence. Medical officer PW/6 Dr. Champa lal deposes that through not is mention in Ex.P/6 but injured was referred to C.M.H.O Pali because of bleeding, non-recordable BP and pulse but he was conscious. PW/6 also states that Ex.6 do not mention nature of injury as PW/6 desired to have opinion of Expert and then opine accordingly – in cross- examination proving his opinion Ex.P/7, PW/6 state that injury grievous but simultaneously admits that probably he did sought opinion or operation report from Pali hospital. Whatever may be it, no opinion or notes of treatment are on record and neither in definite terms from the evidence of PW/6 appear that such reports were received and he opined on that basis. PW/6 also admits that depth of injury was not measured or explored by him. Considering all these, can't be said that injury is proved to be grievous one - may be grievous one in absence of other parameters possibilities can hardly take place of proof. In such circumstances, the injury is to be taken as simple one and proved is that same is caused by sharp object. This act of appellant is punishable under Section 324 IPC. Coming to the quantum of sentence, incident is of year 1985 i.e. 23 years ago and at that time, the appellant was 20 years and from the record, appears that appellant remained in custody for about fortnight. Considering these circumstances, the sentence of imprisonment for the period already undergone alongwith fine of Rs.1000/- shall meet the ends of justice. According appeal is partly allowed. Partly allowing the appeal, the conviction and sentence of appellant Madan Singh S/o Shri Pooran Singh for the offence of Section 326 IPC is (set-aside and) altered to that of Section 324 IPC and he is sentenced for the offence of Section 324 IPC for the period already undergone alongwith fine of Rs.1000/-, in default of payment of fine by 15th June, 2009 in trial court, the appellant shall further undergo ten days simple imprisonment. (C.M. TOTLA), J.