ABplicaats iBellaats ®&~bailT Non-appl.jLeaat » Kespoadeat LLED Gf^l^- ryS ^^ In the High Court of Judieature for ifedhya Bcadesh< At Jdaalpiar. Cr.Agpeal Ho. ^03 71997. Kristoa aad 2 ors, ?. Sfeate of M.P. ftppl.i.eatioa yader seetioa 389 of the er.P.e,. for saspeasioa of senteaee aad graat o£ bal.1 s Krishna and others. State of M< Shri N.5. Dhurondhar, counsei for the appeijants. Shri Praveen Das, Qy.G. A. for the State. S TttJ CRIMI t'UKE /sr; ns {9U.U3. The present appeal arises out of the impugned judgment and order dated 8.7.1997 passed by First Additional Sessions Judge, Durg in Sessions Triaj No. 320/92 convicting the aiccused/appejlcnts for- the offences punishable under Sections 307/34,450 and 323/34 of the Indian Pena! Code and sentencing eacb. of them to undergo rigorous imprisonment for three years and pay fine of Rs.1,000 u/S 307/34, riqorous imprisonment for three years with fine of Rs.1,000/- u/S 450, r'igorous imprisonn'.ent for one year and pay fine of Rs.500 D!us defcutt stJouia.tion.s. A!) th.e senterices were ordered to ru" concurrently. Case of the prosecution in brief is that on 19.3.1992 at about >.45 p.m. Dehati Nalshi (Ex.P-1) was recorded by complainant ©ajanan Kishore (PW-4) aiieging in 't that at obout 4.15 p.m. he was informed by someone that one person is !ying on the road in an Intoxicated condition, he wsnt to the spot and enquired from the said person about his identity. It is aiieaed that the injured person lying there has stated that someone had stojen his watch ond pursuant to this statement of the injured, th.e compio.inant &ajano.n Kishore (PW-4) .'< ./ /"^, enquired from the appellont No. 2 Ajit who was present on the spot and asked him as to whether he has taken his wo.tch or not. It is dieged that accused/appellcsnt No.2 Ajit had told him that as to why he is implieating him and there some scuffie took pjace between him and the compiainant <5ajano.r! Kishore (PW-4). It j.s dieged that after sometime the accused/appeliait No. 2 Ajit CGme aiong with his brothers Krish.no. (appeiiant No, 1) and Tumcmia! (appellant No.2) to the house of the compiainant ©ajananKishore (PW-4) duly armed with rod, wooden pian.k and knife wid start'ed assauiting the complainQnt Gajanan Kishore (PW-4) and upon intervention of Shyamlal (PW-2), <5anesh Ram Ratre (PW-5) and Kartikram (PW-7), they were also assaulted by the accused per-sons. Based on th.is Dehati Natishi, F.I.R, (Ex.P-2) was registered again-st the cccused persons on 19.3.1992 itseif at about 10.30 o.m. under Section-307/34 of the Indicm Pena! Code. After compietion of investigation. challan was fiied on 12.5.1992 under Sectior.s 307/34 and 452 of ths Indiom Penal Code. 3. So as to hold to accused/appeliants guilty, prosecution has examined as many as 8 witnesses in support of its case. Statements of the accused/appellcmts were atso recorded under Section 313 of the Code of Criminai Procedure in which they denied the charqes levejled against them and pleaded th.eir innocence and faise impiication in the case. 4. After hearing the parties the trial Couri' has convicted cmd sentenced the accused/appellorits for the offences as mentioned above. .i-1ence this appeal. Heard counsel for the parties and perused the moterial avQilableon record includjng th.ejudgment impugned. IT.i'i!B»-f)^SPWHBIfn ••? 6. Counsel for the appeilont submits that eyen if the entire co.se of the prosecution is taken as it is, offence under Section 307/34 of the Indian Pena! Code is not ma.de out against the appeilants. He submits that none of injuries sustained by the victims including compla.ino.nt <5ajanan Kishore (PW-4) have been described as grievous in nature by ths doctor. He submits that as the injuries have not been sustained. by any of the victims on their vitai parts, offence under Section 307/34 is not made out aqainst the accused/appei!imts. According to him, at best offence under Section 324 of the Indian Penai Code would be attro.cted in the present case. He furt'her submits that the appellcnts and the victims ncmely ^ajanon Kishore (PW-4), Ganesh Rcsm Ratre (PW-5) and Kartikram (PW-7) and the Isgal representative of the injured/deceased Shyamlo.l (PW-2) haye already entered Jnto compromise outside the Court and to this effect the .Applicofions I.A. No. 4, under Section 320 (1) Cr.P.C. for compromise, I.A. No.05, under Sections 320 (2) read with Section 320 (4)(b) of the Cr.P.C, for permission to compromise A I.A. No, 06, under Section 320 (5) for al.iowing to compromise have been filed and therefore they may be considered. 7. On the other hand, it has been argued on behaif of the respondent/State tha.t the mo-nner in which the accused/appellmts hdve first assautted comptainant iSajanan Kishore (PW-4) and, thereafter o.ssauited to the other yictims namely Shyamial (PW-2), 'anesh Ram Ra.tre (PW-5) and K.artikr<nn. (PW-7), shows the pre-meditated stat®of mind of the accused/appei'ants. He further submits that for convlcting the accused/appellants under Section 307/34 IPC, the. nature of injury is not importont and it is the intention which is to be seen bv the Court. He furi'her submits that o.s per the statement of &•"•. Vinod Mande (PW-6), injuries sustained by compiainant ©ojanan Kishore (PW-4), Shyamlai (PW-2), Gcmesh Ram Ratre (PW-5) & Kortikram (PW-7) were domgerous to life in absence of prompt msdicai treatment. He further submits that victims we.re. lucky where they could survive otherwise alt the efforts were made by the accused/persons to kili them. 8. Head constabie Dcp/a Shcuiker Pandey (PW-1) is the witness who had recorded the F.I.R. (Ex.P-2), Shyam.lal Lo! (PW-2) - one of the injured person has stated in his evidencs that hs knew the accused/appeliant and on the date of incident i.e. 19.3.199! between 4-5 D.m. when he was sittinq in the. Kishore (PW-4) o.long with Kortik Ram (PW-7) and Sanesh Ram Ratre (PW-5), a!l the accused persons co.me there and started assaultin< them. He has further stated that accused/appellant No. 2 Ajit gave a btow of ciub on his head whereas th& occused/appellant Tumman Lal qave. a b!ow of Khukhari on his riqht thiqh thereafter, he went inside the house of compiainant Gajcvian Kishore (PW-4). He has further stated that accused/appeilant No. 1 Krishna tried to enter the roo"i of Sajanand Kishore (PW-4) but his wife prevented him from doing so. He hos further stated th.at after the incident he was almo-st unconscious and was shifted to the Sector 9 hospitaj, Bhilai. Raghunath (Wi/-3) is awitness of memorandum (Ex.P- 3) and seizur® (Ex.P-4) by which a knife was seized from the possession of the accused/appeiian* No. 3 Tumcm Lal has supported the prosecution case. Victim iSajanan Kishore (PW-4) has stated in his evidence th.at on the date of incident one person was lying in. a drunksn condition in the Community hali and one Lekhram ho.d asked him to inform the )olice and when he and other persons have offered water to him, the sa.id Derson told him that his watch is missina and the accussd/appeijont No. 2 Ajit was sto-nding ne.ar him. When the enquiry was made by the complainant o.bout the said watch, he denied the same ond after about 10-15 minutes Gccused/o.ppe.!!an+ No. 2 .Ajit and 2-4 other persons started quarreiiing with him and upon interventior!, they left the said place. He has alieged that at o.bout 3-4 p.m. when he was sitting ajong with Shyam Lal (PW-2), Gan.esh. fto.m Ratre (PW- 5), Kartik Ram (PW-7) and Phooichand in his courtycrd, accused/appellants came there and the accused/appellcnt No. 1 was carring rod, accused/appellant No. 2 Ajit Singh was carrying wooden plank o-nd accused/appellant No. 3 Tuman Lal wos carrying knife. !-fe was first assaulted by appellant No. 1 Krishna whereas accused/appejlant No. 3 Tumman gaye a knife blow on the thigh of injured Shyam Lo! (PW-7) and, thereafter, he also gove blow of knife near his privats part'. He has further stated that thereafter, the accused/appeiicmt No. 3 Tuman Lal picked up a bottie which was lying there and after breaking it he struck the same on his heo.d. He has further stated that number* of persons had gathered there, they intervened and then h.e was shifted to hospital. In cross-examination, this witness is very firm but for minor contradictions in his statement from that of his diary statement. Ganesh Rom Ratre (PW-5) has stated in his evidence th.at on the date of incident when he was sitting in the courtyard of comptainant Sajanan Kishore (PW-4) along with Kartik Rwn (PW-7), accused persons came there and assaulted them by mefflis of knife, road and wooden plank. He has categorically deposed that accused/appel'ont No. 2 Ajit Sir.gh gave him blow with a wooden plank on his hedd whereas accused/appellant No. 3 Tumman gaye a knife btow to ffajanan Kishore (PW-4) and Shyam Lat (PW-2). In the cross- examination this witness also remains firm but for minor contradictions. .^:' ~;\ [."1M '^. ^ ^fc ;^*' iiV Dr. Vinod AAande (PW-6) is the witness examined the complainanf Gojanan Kishore (PVi/-4) and Kart'lk Ram (PW-7). In respect of ^ojano.n Kishore (PW-4) hls report is Ex.P-S and had found foiiowing two irsjuries :- "fil A ounctured wou!d ir' the slze of i- c.m. on th®riaht head in the size of (ii) A iacerated c.m.x2c.m.xlc.m.." In re-spect of Shyam Lo.l (PW-2) his report is Ex.P-4 found foiiowing three injuries:- "(i) Cut wound on the right hand back side in the siz®of lc.m.x 2 I- c.m.. (ii) One punctured wound in the size of i c.m. bleeding over Rt. inquinai reqion. (iii) One lacerated wouid on the head," In respect of Gonesh Ram Ratre (PW-5) his report is Ex.P-5 and foHowing ·njuri.es were found :- "(i) Lo.cerated wouid on the forehead." In respect of Ko.rtik Ram (FW-6) his report is Ex.P-6 and he found foliowing injuries:- "(i) Lacerated wound in the size of 3 c.m. x 2 c.m. x 1 c,m. on the ieft mdex finger. (ii) Lacerated would in the size of 1 c.m. x lc.m. on the left middlefinqer." In respect of all above four persons this witness has stoted that th®investigation reporl- and expert opiniQn is awaited. In the cross-examination, he has specificaiiy stated. th-Qt the grievousness of the in.juries sustained by th.e victims can only be ascert-ained by the expert doctor. Kar-tik Ram. (PW-7) has made almost simiiar statement as has been made by Sojan.an Kishore (PW-4) ond Shyam Lo.l (PW-2). He has stated that when h.e intervened . he a!so sustained in iuries on his ieft •Misiw.wiyigsaHiiU!!^" ^. inde.x finger and middle finger. Inspector P.K. AAi-shra (PW-8) is the Investigating Officer who has supported the case of the prosecution. 9. AAinute examination of the. evidence of the witnesses make-s it cieor tho.t on the date of incident o.!i th®th-ree accused persons after entering the house of comp'o.inant ffojanan Kishore (PW-4) assaulted him, Shyam La! (PVi/-2), <5o.ne.sh Rcnn Rotre (PW-5) and Ko.rtik Ram (PW-7). Thus their conviction under Section 450 IPC is fullyjustified and the same is mo.intained. As regards their sentence under Section 450 IPC is concerned, counse! for the appsliarits submits that the accused/o.ppellant No. 1 and 3 has siready remained in jai! for about 3 mon.ths and 11 days whereas the appetiQnt No. 2 has QJready remained in jail for- about 2 months and 8 days and the incident took piace about 18 years back, in the fccts and circurnstances of the case, this Court is of the view that it vi'QuId be in the intersst of justice if the jail sentence imposed on the accused/appeilants under this section is reduced to the period already under9one by them. Order accordingly. So far as conviction of the accused/appellants under Section 307/34 IPC is concerned, there is no evldence on record to show that injuries to Gojoncm Kishore (PW-4), Shyam La! (PW-2) and (Sanesh ftam Ratre (PW-5) were grievous in no.ture and dangerous to life especid!y wh-en Dr. Vinod Mande (PW-6) has categorically admitted th.at the expert opinion was sought in respect of the gravity of the injuries but there is no such opinion ovaiiabie in the record nor any such expert has been examined by the pro-secution. Further the evidence is not very clinch.ing that the accused persons have asso.ulted the victims with oin intention or knowiedge to cause their death and taking cumuiative effect of this, it wii! not be safe for this Court to uphoid the conviction of the accused/appellant under Section 307/34 of the Indian Pena! Code. Considering the totatity of th.e facts, oss per opinion of this Court instead of offence under Section 307/34 of the Indian Penal Code, offence under Section 324 of the Indian Penai Code is made out against the. accused/appdlants ond accordingly they are convicted for the same. 10. As reqards offences under Section 323/34 and 324 IPC are concerned, it has been stated by the parties that they have amicabiy settled the dispute between them outside the court without fear and pressure fr-om anyone and that henceforth they will have no grudge against each other. In this view of the matter and keeping in view that the offences under Sec+ions 323/34 and 324 IPC are compoundable in nature, the apptication filed by the parties are allowed and the compromise desired by th.e par+ies is permitted to be entered into. The resutt of this compromise wouid be the acquittal of the appeilorits of the offences punishabie under Sections 323/34 ond 324 of the Indian. Pena! Code. Order accordingly. __— Sdl- 11. Appeal is thus partiy aliowed. n>;t,nker O" judge