HIGH COURT OF MADHYA PRADESH : JABALPUR (SINGLE BENCH : HON’BLE SHRI RAKESH SAKSENA, J) Criminal Appeal No.819/1996 Sahab Ji s/o Rasheed APPELLANT V E R S U S The State of Madhya Pradesh RESPONDENT Shri.S.K. Nema, learned counsel for appellant. Shri R. S. Shukla, Panel Lawyer for respondent/State. J U D G M E N T (25.11.2011) (1) Appellant has filed this appeal against judgment dated9.4.1996 passed by 8th Additional Sessions Judge, Jabalpur in Sessions Trial No.278/95, convicting the appellant u/s 326 of IPC and sentencing him to rigorous imprisonment for 4 years with fine of Rs.1,000/-. In default of payment of fine further rigorous imprisonment for 3 months. (2) In short, the prosecution case is that on 31.1.1995 at about 8 o’clock in the night, when Aqeel Ahmad was chewing betels at the shop of Shyam Singh, appellant Sahab Ji came to him and demanded money. On his refusal to give money he took out a knife and dealt with two blows on his thigh and ran away. The First Information Report (FIR ) Ex.P/11 of the incident was lodged by Aqeel Ahmad himself at police station Hanumantal, Jabalpur at 8.20 p.m. Aqeel Ahmad was sent to Victoria Hospital, Jabalpur for treatment and medical examination. Dr. J. Arora (PW 1) examined his injuries and gave MLC report Ex.P/2. On 3.2.1995 Aqeel Ahmad died due to injuries. His body was sent to Medical College, Jabalpur where Dr. A.K. Jain (PW 2) conducted autopsy and found a long liner wound on the outer side of his right thigh. The wound was infected with gangrene and was emitting foul smell. After the death of Aqeel Ahmad the case was converted u/s 302 of IPC. (3) During investigation, the appellant was arrested and a knife was seized on his information. After investigation, charge sheet against him was filed in the Court. The case was then committed for trial. (4) Learned Additional Sessions Judge framed the charge u/s 302 of IPC. The appellant abjured his guilt and pleaded false implication. (5) Prosecution examined 11 witnesses in Court. Learned A.S.J. relying mainly on the evidence of eye witnesses namely Mohd. Ramjan (PW 4), Irshad Ahmad (PW 5) and Shahadat (PW 6) and the evidence of First Information Report (Ex.P/11), which was treated as a dying declaration of the deceased, held the appellant guilty of commission of the offence. However, in the circumstances of the case finding that no offence u/s 302 of IPC was made out, convicted the appellant u/s 326 of IPC and sentenced him as mentioned above. (6) Aggrieved by the impugned judgment of conviction and sentence appellant has filed this appeal. (7) Shri S.K. Nema learned counsel for the appellant submitted that evidence of eye witnesses was not reliable because they were the chance witnesses. Injury found on the body of deceased was possible by fall and at the most the offence u/s 324 of IPC was made out. Trial Court committed error in convicting the appellant u/s 326 of IPC. The appellant was a young boy therefore sentence deserved to be reduced. On the other hand, learned Panel Lawyer Shri Shukla submitted that the evidence adduced by the prosecution was sufficient to establish the guilt of the appellant. Finding of conviction recorded by the trial Court was justified and called for no interference. (8) I have heard learned counsel for the parties at length and perused the impugned judgment and evidence on record carefully. (9) From the First Information Report (Ex.P/11) lodged by deceased and recorded by Inspector S.R. Sikarwar (PW 10) it is appearant that deceased suffered injuries at the hands of appellant. Apart from the FIR Mohd. Ramjan (PW 4), Irshad Ahmad (PW 5) and Shahadat (PW 6) deposed that appellant dealt knife blows to deceased. Injuries of deceased were examined by Dr. J. Arora (PW 1) in Victoria Hospital, Jabalpur . Doctor found two incised wounds on the thigh of deceased. After death of deceased on 3.2.1995 Dr. A.K. Jain (PW 2) conducted postmortem examination and found one big size wound on the right thigh of deceased.The cause of death of deceased was gangrene due to injury. The postmortem examination report Ex.P/3 was written and signed by Dr. A.K. Jain (PW 2). From the above evidence it is amply established that the deceased died due to homicidal injury. (10) A.S.I. S.R. Sikarwar (PW 10) stated that on 31.1.1995 injured Aqeel Ahmad came to Police Station and informed that appellant Sahab Ji assaulted him. On his narrating the incident he recorded first information report (Ex.P/11). This report was signed by Aqeel Ahmad and by him also. He recorded the report as dictated by Aqeel Ahmad without adding or subtracting anything. He drew a requisition and sent Aqeel Ahmad to Victoria Hospital for treatment and medical examination. During treatment, when Aqeel Ahmad died, he converted the case u/s 302 of IPC. In cross-examination this witness remained firm. There appeared nothing on record to infer that this witness was in any manner interested in deceased or had animus against the appellant, as such, it stood proved that first information report Ex.P/11 recorded by A.S.I. S.R. Sikarwar (PW 10) was truthful and correct version of deceased. Since, as a consequence of the injury received at the hands of appellant, deceased died, the First Information Report (Ex.P/11) has to be treated as a dying declaration u/s 32 of the Evidence Act. (11) Mohd. Ramjan (PW 4), Irshad Ahmad (PW 5) and Shahadat (PW 6) categorically stated that at about 8.00p.m. appellant indulged in quarrel with deceased and dealt a blow of Chhuri on his leg. When Aqeel Ahmad shouted that his leg was cut, appellant ran away. In cross-examination, though some contradictions were pointed out in the evidence of these witnesses, but they pertained only to the details of the incident. Nothing could be gathered from the said contradictions to render the evidence of these eye witnesses as unworthy of credit. Since the incident occurred at a place where the shops of tea and betel were situated, presence of these witnesses can not be said to be unnatural and they can not be branded as chance witnesses. In my opinion, trial Court committed no error in placing reliance on the evidence of aforesaid eye witnesses and concluding that it was the appellant only who caused injuries to deceased Aqeel Ahmad. (12) The learned counsel for the appellant next submitted that from the evidence of Dr. J. Arora (PW 1) and Dr. A.K. Jain (PW 2) it was not proved that the injury found on the body of deceased was grievous in nature. Dr. J. Arora (PW 1) deposed that on examination of Aqeel Ahmad, he found following injuries on his body: (1) Incised wound on right thigh 6 x 3 cm depth of the wound could not be measured. The injury was bleeding profusely and muscles were protruding out. (2) Incised wound of left thigh on back side 3 cm x 3 cm. depth of wound could not be measured. It was also bleeding profusely and muscles were protruding out. According to him, both the injuries were caused by sharp, hard and pointed weapon. The condition of the injured was serious and the injuries were grievous. It is true that Dr. J. Arora (PW 1) stated that such type of injury could have been caused if a person fell over a sharp pointed object, but in the instant case there is nothing on record to indicate that deceased sustained the injury by fall on such an object. (13) Dr. A.K. Jain deposed that on 3.2.1995 he conducted the postmortem examination of the body of Aqeel Ahmad in the Medical College, Jabalpur and found: (1) liner long wound present over lateral surface of the right thigh up to knee joint. There had been gangrene in internal muscle and skin near the wound. It was emitting foul gases. In his opinion, the cause of death of the deceased was gangrene which has resulted due to contaminating of the injury. Postmortem report (Ex.P/3) was written and signed by him. Dr. A.K. Jain (PW 2) stated that he found only one injury on the right thigh of the deceased. He did not see injury in the other thigh. It appears that in view of evidence of Dr. A.K. Jain (PW 2) that the cause of death of deceased was gangrene in the injury, there was only one injury on the right thigh, injury was not on any vital part of the body and the fact that the injury was caused by the appellant in sudden quarrel, learned Additional Sessions Judge found that offence u/s 302 or 304 part 2 of IPC was not made out but since the injury was grievous in nature appellant was liable to be convicted u/s 326 IPC. I am in complete agreement with the reasonings and the findings recorded by the trial Court. It has been established by the evidence of Dr. J. Arora (PW 1) that the injury was grievous in nature, I, therefore uphold the finding of conviction of the appellant u/s 326 of IPC. (14) Learned counsel for the appellant lastly submitted that the injury was caused in the year 1995 i.e. about 16 years ago and the appellant at that time was a young boy of 20 years of age therefore he deserved leniency in the matter of awarding sentence to him. Since appellant has already remained in custody for a period of about one year and three months therefore his jail sentence be reduced to the period of sentence already undergone by him. In view of the fact that appellant brutally caused knife injury to deceased which ultimately resulted into his death I find no extenuating factor to reduce the sentence of appellant who has already been dealt with liberally by the trial Court by awarding rigorous imprisonment of four years only. Accordingly, the conviction of the appellant u/s 326 IPC and sentence of rigorous imprisonment of 4 years and fine of Rs.1,000/- awarded to him by the trial Court is affirmed. Appeal dismissed. (Rakesh Saksena) Judge. Ag/