IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Cr. A No. 37/2003 Date of decision: 17. 3. 2010 Pyare Lal …..Petitioner Versus State of H.P. ……Respondents Coram: The Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting ?1 . yes For the Appellant: Mr. Vinay Thakur, Advocate. For the respondents : Anshul Bansal, Addl. Advocate General with Mr. J.S. Rana, Assistant Advocate General. Surinder Singh (Oral) Appellant was convicted and sentenced under Section 307 Indian Penal Code and was ordered to undergo rigorous imprisonment for a period of three years and to pay a fine of Rs. 2000/-, in default of payment of payment of fine, to further undergo simple imprisonment for a period of six months in Sessions Trial No. 22-S/7 of 2001 decided on 22.2.2003. In short, prosecution case, as emerges from the evidence on record, can be stated thus. Complainant Lahori Singh (PW8) was serving in the Indian Army and on 4.2.2001, he went to the office-cum-residence of PW3 Daulat 1 Whether the reporters of Local Papers may be allowed to see the judgment ? - 2 - Ram, Deputy Ranger at Sawra to collect his T.D. permit in respect of two trees. At that time, appellant Pyare Lal was posted as Guard in the Forest Department. He was sitting in the office-cum-resident of the Deputy Ranger. Original permit was handed over to Lahori Singh to get photocopy thereof which he got it done from the market where he also met his cousin Jai Singh and both of them returned to the office-cum-residence of PW3 Daulat Ram around 6.p.m. All of them took liquor. At about 9 30 p.m. there was some altercation between Pyare Lal and Jai Singh. Lahori Singh tried to intervene but appellant picked-up Tawa (iron plate) Ext. P1 lying nearby and hit on the head of Jai Singh which caused bone-deep bleeding injury. Immediately, thereafter PW8 aforesaid rushed to police Station, got recorded his statement under Section 154 of the Code of Criminal Procedure which culminated into FIR Ext. PW9/A. Police visited the spot, took the photographs of the room of PW3 Daulat Ram which was the site of the incident, prepared the site plan, took into possession Towa Ext. P1 and also the blood stains jacket Ext. P2 found on the spot and some papers Ext. P3 to P5 lying on the spot. Jai Singh PW8 was got medically examined. Dr. Raj Kumar (PW1) on his examination found a lacerated wound on the left side forehead extending from above the bridge of nose towards left side 9 cm x ¼ cm bone-deep cut, depressed. Clotted blood over cheeks, nose and forehead. X-ray skull was advised. The nature of injury in his opinion was grievous (life threatening). He issued MLC - 3 - Ext. PW1/A and in his opinion, Towa Ext. P1 could cause the said injury. Towa, jacket and blank papers were sent for forensic examination. As per report Ext. P$, these items contained the human blood. Police recorded the statements of the witnesses. On completion of the investigation, challan was presented in the court for the trial of the appellant. Appellant was charge sheeted and at the end of the trial, he was convicted and sentenced as aforesaid, which has been challenged by him in this appeal. Shri Vinay Thakur, Advocate vehemently argued that no case against the appellant is made out and learned court wrongly placed implicit reliance on the statements of the witnesses and Doctor. The injury in question could be caused while having been struck against the pole of the verandah while intoxicated where the blood stains were also found. On the other hand, learned Additional Advocate General duly assisted by Mr. J.S. Rana , Assistant Advocate General supported the impugned judgment of conviction and sentences. In the instant case, PW2 Jai Singh is an injured witness. He corroborated the prosecution version that PW8 Lahori Singh met him in the Bazar. He accompanied him to the office-cum-residence of PW3 Daulat Ram where the Deputy Ranger aforesaid and the appellant forest Guard were taking liquor. They also joined them. Appellant picked-up the quarrel and assaulted him with the Tawa - 4 - which hit his forehead. He became unconscious. This fact has also been corroborated by PW8 Lahori Singh complainant. He is stated to have given his statement Ext PW8/A to the Police. He denied the defence version that Jai Singh got struck against the pole which was just in front of the door. He denied the suggestion (wrongly mentioned as correct checked from Hindi version) that when Jai Singh entered the office, he started abusing. PW3 Daulat Ram Deputy Ranger though turned hostile but admitted the presence of the appellant with him. He also admitted that Lahori Singh and Jai Singh had entered his room and all of them took liquor together, but then stated that when the appellant picked-up water jug during the course of drinking to add water in the tumbler, then Jai Singh objected to it that he was a Koli by caste and he should not touch the jug which ensued altercation between them. Jai Singh came out and struck against the raised pole in the verandah. He was cross examined by the learned Public Prosecutor with reference to his statement under Section 161 of the code of Criminal Procedure. He admitted the recovery of Tawa Ext. P1 vide memo Ext. PW3/B. He also admitted that blood stained photographs Ext. P6 and P7 were taken into possession by the police from his room. He stated that he did not make inquiry how the blood was found in his room. Thus, his version regarding the occurrence is tainted. PW9 Inspector SHO Shyam Lal stated that blood stains were found on the Towa Ext. P1 which was recovered - 5 - from the room of PW3 aforesaid. He categorically denied that Jai Singh sustained injury by striking the pole in the verandah. PW1 Doctor Raj Kumar testified on oath that the injury in question was life threatening because there was fracture of forehead bone and cranial cavity was open. He also stated that the injury in question could be caused with Tawa Ext. P1. If the statement of the injured and the complainant coupled with the statement of the doctor is seen, it leads to an inescapable conclusion that the injury in question was caused to Jai Singh with the Tawa Ext. P1 by the appellant. Once this conclusion is arrived at then second question remains what offence has been committed by the appellant. PW1 Dr. Raj Kumar stated that injury in question was grievous (life threatening) and fresh in duration. Section 307 of the Indian Penal Code is attracted irrespective of its result, if done with the intention or knowledge, under circumstances mentioned in that section. The intention or knowledge of the accused must be such as is necessary to constitute murder. Without this ingredient being established, there can be no offence of attempt to murder. Under Section307, the intention precedes the act attributed to accused. Therefore, the intention is to be gathered from all circumstances and not merely from the consequences that ensue. The nature of the weapon used, manner in which it issued, motive for the crime severity of the blow, the part of the body where the injury is inflicted - 6 - are some of the factors that may be taken into consideration to determine the intention. In the instant case, there was no previous enmity nor there was intention preceding the assault attributed to the appellant. Had it been so all of them would not have shared drinks together. Intention to kill PW2 Jai Singh by the appellant is missing. It appears to be a case of sudden fight or a drunken brawl. The injury in question was not admitted to be imminently dangerous to life of course it could be grievous. Thus, the offence under Section 307 Indian Penal Code, against the aforesaid background, stands not proved for want of requisite intention despite the fact that the doctor opined the injury in question as dangerous to life without giving adequate reasons. Taylor in his book ‘Principles and Practice of Medical Jurisprudence’, 11th Edition, at page 230, stated as follows:- “The meaning of the words ‘dangerous to life’ is left entirely to the professional knowledge of a witness. It is not sufficient that he should make a simple assertion in that the wound was dangerous to life; he must be prepared to state to the Court satisfactory reasons for this opinion; and these reasons may be rigorously inquired into by counsel for the defence. Danger to life primarily depends upon hemorrhage, shock or damage to a vital organ; and secondly, on the chance of complications such as infection leading to septicaemia, payaemia, tetanus or gas gangrene and of infection of particular parts or tissues- pneumonia, pleurisy, empyema, pericarditis, meningitis, or peritonis; or more remotely to the - 7 - effects of scaring, causing stricture (of the urethra, pesophagus, out etc), paralysis, urinary infection, etc.” As a general principle, the Court is likely to consider as dangerous to life in a legal sense only those wounds in which the danger is imminent. The law appears to contemplate the more immediate rather than the more remote possible dangers.” Modi in his book ‘Medical Jurisprudence and Toxicology,’ 13th Edition at page 238, states as follows: “Danger to life should be imminent before the injuries are designated ‘dangerous to life’ such injuries are extensive, and implicate important structures to organs, so that they may prove fatal in the absence of surgical aid. For instance, a compound fracture of the skull, a wound of a large artery, or rupture of some internal organ, such as the spleen, should be considered dangerous to life. But the injuries which prove fatal remotely by intercurrent diseases, such as tetanus, erysipelas, etc. should not be considered as dangerous.” Therefore, against the aforesaid background, it can be said that the injury caused to the complainant was not imminently dangerous. From the statement of doctor it can at best be said that there were some remote chances of its becoming dangerous to life or becoming sufficient, in ordinary cause of nature, to cause the death of the complainant, in case medical-aid was not rendered. But against the above fact situation, it is not possible to conclude that the appellant intends to cause death or intention to inflict injury which was sufficient in the ordinary course of nature to cause death or that he knew that his act - 8 - was so imminently dangerous that it must in all probability cause the death or cause an injury as is likely to cause death. Burden to prove the ingredients of the offence charged is on the prosecution and, in my opinion, it has failed to discharge the same to record the conviction of the appellant under Section 307 Indian Penal Code. But however, the injury in question is proved to be grievous in nature within the meaning of Section 320 Indian Penal code, therefore, in the circumstances, the appellant is proved to have voluntarily cause grievous injury to PW2 Jai Singh as such his conviction under Section 307 Indian Penal Code is set aside and the appellant is held guilty under Section 325 Indian Penal Code. Accordingly, he stands convicted for the said offence. Next question comes what should be the sentence in this case. Appellant is stated to have remained in custody for about 13 days in this case. He is an official of the Forest Department of the government, therefore, taking a lenient view, the appellant is sentenced to imprisonment already undergone and to pay a fine of Rs. 5000/- in default thereof to undergo simple imprisonment for one month and he is also ordered to pay compensation to victim Jai Singh to the tune of Rs.35,000/-. Total amount of - 9 - Rs.40,000/- shall be deposited by him within one month from today in the learned trial Court. The fine already paid be adjusted and the compensation amount, as stated above, shall be released to the complainant. Appeal stands disposed of Send down the record. March 17, 2010 (Surinder Singh), (cm) Judge