1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR. ORDER Titi @ Rohitash Vs. State of Rajasthan SB CRIMINAL APPEAL NO.1266/2004. Under Section 374 of the Code of Criminal Procedure. DATE OF ORDER: 24th September, 2008. PRESENT HON'BLE MR. JUSTICE S.P. PATHAK Mr. Gurvinder Singh for the appellant. Mr. B.S. Chabba PP for the State. BY THE COURT: The accused appellant has been convicted and sentenced under section 326 IPC by the learned Additional Sessions Judge (Fast Track) No.1, Alwar in Sessions Case No.70/2004 (79/2004) for a period of 7 years rigorous imprisonment and a fine of Rs.5,000/-, in default of payment of fine to further undergo one year rigorous imprisonment. The facts for the disposal of the present appeal are that on a parcha bayan Ex.P-6 of PW-7 Dinesh Kumar, complainant- injured, the police station Kotwali registered FIR No.165/2004 for offences under sections 143, 324 and 307 IPC. In the parcha bayan it was alleged that on 17.4.2004 at about 6.00 p.m. while Dinesh Kumar- injured was getting the petrol filled in his motor- cycle tank, at that time 5-6 persons came from behind, the accused-appellant Titi was having a borer in his hand which was 2 inserted in his abdomen and also caused injury by borer on his right hand. Other persons were having knife with them. Accused appellant Titi was caught at the spot immediately by police traffic constable. After investigation charge-sheet was filed under section 307, 323, 324, 325 and 326 IPC before the concerned Magistrate. Ultimately, the matter came up for trial before the learned Additional Sessions Judge (Fast Track) no.1, Alwar. The prosecution in all examined 10 witnesses and tendered several documents in evidence. In the statement recorded under section 313 Cr.P.C., the accused denied the allegation of the prosecution and has stated that he also lodged a case against the complainant, therefore, on account of enmity a false complaint has been made against him. No evidence in defence was produced. It is contended by the learned counsel that in the instant case parties have arrived at a compromise in the matter but since section 307 IPC was not compoundable, therefore, the matter could not be compromised. It is contended that even the evidence available on record is not sufficient to convict the accused under section 326 IPC. It is contended that the accused has not been found guilty under section 307 IPC, therefore, even if the case is found proved under section 326 IPC, sentence awarded is at excessive side i.e. 7 years which needs to be reduced suitably. It is also contended that the accused is in jail for about four years, therefore, ends of justice would meet in case the sentence is reduced to the period already undergone by him in jail. 3 On the other hand, learned Public Prosecutor contends that in this case the accused is in the habit of committing such type of crimes as would appear from the reading of paragraph 22 of the impugned judgment that against the accused several cases of similar types were pending in different courts. I have considered the submissions made before me and carefully perused the impugned judgment and the material available on record. In the present matter, the points which requires consideration is (i) whether the conviction recorded under section 326 IPC against the accused appellant is proper; and (ii) whether the sentence of seven years rigorous imprisonment with fine is required to be reduced? It is to be seen that in the instant case, the injured complainant PW-7 Dinesh Kumar in his brief statement stated that on 17.4.2004 while he was talking to Kailash havaldar and Chiman constable on the petrol pump, Hope Circus, Alwar, 5-7 boys came and one of them by a borer inflicted blows on his chest and hand. Accused was apprehended at the spot. He became unconscious and in the hospital, parcha-bayan Ex.P-6 was recorded which contains his signatures. Dr. Phool Singh Choudhary examined his injuries and prepared the injury report Ex.P-4. X-ray was also taken. Ex.P-6 Parcha Bayan fully describes that the accused- appellant had caused injury by a borer which is commonly used for 4 breaking the ice on the chest and hands etc. The genuineness of the parcha bayan Ex.P-6 could not be denied as no effective cross-examination in this regard was done from the injured. PW-2 Dr. Sushma Bhatnagar who has examined the injured and took X- ray of chest of the injured found that his right side lung had collapsed on account of the injury sustained by him. She has proved her report and recorded opinion vide Ex.P-2 which bears her signatures at place 'C' to 'D'. She has also proved X-ray plates Ex.P-3 to P-5. In the cross examination, she has confirmed what she has stated in the examination-in-chief and stated that the injury was grievous in nature and was likely to cause death. PW-5 Dr. Phool Singh Choudhary who has also examined the injured and found four injuries on his person. Injury no.2 and 3 were on the chest and injury no.4 was on the abdomen. In the opinion of the doctor the injuries no.1 and 3 were grievous in nature. In the other evidence, PW-3 Pawan Kumar, PW-4 Chiman Singh Yadav constable and PW-6 Kailash Chand in their statements stated about the act played by the accused inflicting injuries by a borer on the person of injured PW-7. Nothing material has been extracted from the above witnesses in the cross- examination so as to disbelieve their testimony. PW-8 Saheb Singh has conducted investigation in the matter and has proved the memos prepared in this case. 5 A perusal of the evidence led in this case without any manner of doubt suggests that the accused-appellant was responsible for inflicting injuries on the person of the complainant. As per the evidence of the doctor two injuries were grievous in nature. Since the learned trial court acquitted the accused under section 307 IPC and granted permission to compound the offence under section 324 IPC in view of filing of the compromise but considering that the offence under section 326 IPC was made out convicted the accused. The finding so recorded, in my opinion, requires no interference, therefore, it can safely be concluded that the case is well proved against the accused under section 326 IPC. The the second question now requires consideration is as to whether the sentence awarded is to be reduced. It appears from the statement recorded under section 313 Cr.P.C. and also from the cross-examination done in the case from injured Dinesh Kumar PW-7 that a FIR was also lodged on previous occasion by the accused-appellant against the injured. Thus, there appears enmity also. It also appears that the compromise was also filed in this case. In the above circumstances, on going through para 22 of the impugned judgment, it appears that the accused was in the habit of committing such type of offences. There were as many as 14 cases registered against the accused and in one case of the year 1999 under section 394 IPC, the accused-appellant was bound 6 down by the court to maintain peace and be of good behaviour and not to repeat such type of offence but still the accused appellant committed the present offence. At this stage, the counsel for the appellant submits that in all cases the accused-appellant has been acquitted. Even assuming that the accused appellant has been acquitted in all the cases but still one thing remains that he is in the habit of committing such type of offence. Since in this case compromise was filed by the parties before the court, therefore, I deem it proper to reduce the sentence awarded to him by the learned trial court and in my opinion, the ends of justice would meet in case the sentence of 7 years rigorous imprisonment is reduced to 5 years rigorous imprisonment along with fine of Rs.5,000/- and accordingly the order of sentence passed by the learned trial court needs to be modified. In the result, the appeal is partly allowed. While maintaining the conviction recorded by the learned trial court against the accused appellant vide its judgment dated 18.11.2004, the sentence of 7 years rigorous imprisonment is reduced to 5 years rigorous imprisonment with fine of Rs.5,000/-, in default of payment of fine the accused appellant shall further undergo one year rigorous imprisonment. The impugned order of sentence passed by the learned trial court stands modified to the above extent. (S.P. PATHAK),J.