1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR J U D G M E N T JOG SINGH VS. STATE OF RAJ. “S.B. CRIMINAL APPEAL No.361/1989 UNDER SECTION 374(2) Cr.PC. AGAINST THE JUDGMENT DATED 16.09.1989 PASSED BY THE LEARNED DISTRICT & SESSIONS JUDGE, JODHPUR IN SESSIONS CASE NO.45/1987.” DATED : 17.08.2010 P R E S E N T HON'BLE MR.JUSTICE KAILASH CHANDRA JOSHI Mr.B.S.Rathore, for the appellant. Mr.A.R.Nikub, P.P. ***** BY THE COURT:- Accused appellant Jog Singh has preferred this appeal against the judgment of conviction and order of sentence dated 16.09.1989 passed by the District & Sessions Judge, Jodhpur in Sessions Case No.45/87, thereby convicting the accused appellant for the commission of offence under Section 307 IPC and awarding a sentence of 2½ years of rigorous imprisonment and Rs.50/- as a fine and further to undergo one month's rigorous imprisonment in lieu of payment of the fine. 2 The nub of the prosecution story is that on 31.05.1986 one Shri P.C.Chaturvedi, Chief Engineer, Indira Gandhi Canal Colony, Phalodi lodged a written report at Police Station Phalodi stating interalia that on 30.05.1986 at about 11 to 12 PM in the night, Babu Lal and Magraj were beaten by Shri Jog Singh and they were lying in an unconscious condition in front of Jog Singh's house. The report of this incidence was given to the lodger of the First Information Report by Shri Mohan Lal, a Contractor. On this report, a Criminal Case No.49/86, under Section 307 IPC was registered and the investigation commenced. During the course of investigation, statements of witnesses were recorded and injuries on the body of injured were examined by the Medical Officer and after usual investigation, charge sheet under Section 307 IPC was filed in the Court of Munsiff and Judicial Magistrate, Ist Class, Phalodi, from where the case was committed for trial to the Court of District & Sessions Judge, Jodhpur. The learned trial judge charged the accused appellant for commission of offence under Section 307 IPC to which the accused did not plead guilty and claimed for trial. Prosecution examined as many as 13 witnesses, namely, PW/1 Chaturdaan, PW/2 Magraj, PW/3 Babu Lal, PW/4 Premchand Chaturvedi, PW/5 Durga Ram S/o Shriram, PW/6 Dr.Kamal Kumar Sabarwal, PW/7 Durga Ram S/o Bheeka Ram, PW/8 Chaman Lal, PW/9 Dr.Ratan Lal, PW/10 Dr.Dharmendra Sharma, PW/11 Prem Singh, PW/12 Ghewar Chand and PW/13 Mohan Singh. 3 The accused was asked to explain the incriminating evidence adduced by the prosecution during the course of the trial against which the accused adduced no evidence. The learned trial court while convicting the accused appellant under Section 307 IPC awarded sentence as narrated above. While assailing the judgment of the learned trial court, the main contention of the learned counsel for the appellant was that the learned trial judge had failed to appreciate the prosecution evidence in right perspective and had erred in appreciating the witnesses. Further contention of the learned counsel for the appellant was that the learned trial court had committed an error in relying on the statements of PW/2 Magraj and PW/3 Babu Lal. Further contention of the learned counsel for the appellant was that PW/11 Prem Singh, Station House Officer, of Police Station Phalodi had stated that during the investigation it was revealed to him that the accused had been asked to bring his Dharam- sister by both the injured persons. This statement was sufficient in itself to prove the fact that the accused had been provoked by this twosome demand and get violent against them. In such a case the accused could not be held guilty beyond the purview of Section 335 of the IPC. The fact of a sudden and grave provocation had also been stated by the accused appellant under Section 313, Cr.P.C. The counsel for the appellant further argued that the accused appellant could not have had any motive or intention of murder in the above circumstances. The learned Public Prosecutor vehemently defended the judgment 4 of the learned trial judge and further argued that the appreciation of evidence as concluded by the learned trial judge did not suffer from any infirmity or illegality and the judgment of conviction and order of sentence passed by the learned District Judge did not require any interference. While considering the rival contention of the both the parties, I have perused the record of the trial court and also perused the statements of the witnesses. In this case, PW/2 Magraj and PW/3 Babu Lal were examined as eye-witnesses and they were the injured persons also. Except these two witnesses, the other witnesses PW/8 ChamanLal, PW/12 Poonchand and PW/13 Mohan Singh did not corroborate the evidence of both the injured persons and were declared hostile during the course of trial. PW/6 Dr.Kamal Kumar Sabarwal, PW/10 Dr.Dharmendra Sharma and PW/9 Dr.Ratan Lal were examined as the expert witnesses, who examined the injuries on the body of both the injured persons and further prepared the X-Ray report on the basis of the X- Ray films. PW/1 Chaturdaan deposed that on 31.05.1986 he was posted as Head Constable at Police Station Phalodi and on the fateful night of 31.05.1986 at about 12.45 AM report Ex.P-1 was lodged by Premchand. On the basis of that, he had registered a criminal case. PW/2 Magraj who was injured, while supporting the facts 5 narrated in the First Information Report deposed that he himself, Jog Singh and Babu Lal were taking drinks outside his quarter on 30.05.1986. At that time Reference was made to an incident that had occurred on 20.05.1986. They proved Jog Singh about his involvement in that incident at which Jog Singh became furious and started beating them with an iron pipe. As a result, Babu Lal and he himself were seriously injured. By the time hearing loud cries, Chaman Lal and Mohan Singh came to the site. The iron pipe was snatched away from Jog Singh. He further deposed that he soon lost his consciousness. He re-gained his consciousness only at Mahatma Gandhi Hospital, Jodhpur. The police seized his Pant, Vest and T- Shirt. PW/3 Babu Lal corroborated the evidence of PW/2 Magraj. PW/4 Premchand had deposed that on 30.05.1986, he was sleeping in his quarter when Mohan Singh, Contractor came there and informed him that Babu Lal and Magraj were in a serious condition. He then took Babu Lal and Magraj to the Phalodi Hospital but found no doctor then. After providing first aid to the injured, the Medical Officer of Phalodi suggested to take both the injured persons to Mahatma Gandhi Hospital, Jodhpur. PW/5 Durga Ram S/o Shriram, is the witness of Memo Ex.P-7 as he deposed that the Investigating Officer had inspected the site in his presence. 6 PW/6 Dr.Kamal Kumar Sabarwal deposed that on 30.06.1986 he was posted as a Radiologist at Mahatma Gandhi Hospital, Jodhpur. On that day, on the requisition of Dr.Dharmendra Sharma, Medial Jurist and in his presence and under his supervision, X-Ray of Magraj S/o Sidha Ram was conducted and on the basis of the X-Ray Films No.8705 and 8706 as Ex.P-6 and Ex.P-7, he had prepared X-Ray report Ex.P-10. There was a fracture on the radius ulna bone of Magraj. PW/7 Durga Ram is again a formal witness and the witness of Memo Ex.P-5 & Ex.P-6. PW/9 Dr.Ratan Lal deposed that on 31.05.1986 he was posted as Professor of Radiology in Mahatma Gandhi Hospital, Jodhpur and on that day, on the requisition of Dr.Dharmendra Sharma, Medical Jurist, he had prepared an X-Ray report Ex.P-13 on the basis of X-Ray Films Ex.P-15, Ex.P-16 & Ex.P-17. According to the X-Ray reports there was a fracture in the 7th , the 8 & the 9th Ribs of Babu Lal. On the same day, he had also prepared an X-Ray Report [Ex.P-14] of Magraj and on the basis of X-Ray Films (19, 20 & 21 and there was a X-Ray of right fronto parietal region of skull and on right zygotic bone). PW/10 Dr.Dharmendra Sharma deposed that on 31.05.1986 he was posted as Medical Jurist, at Mahatma Gandhi Hospital, Jodhpur. On that day he examined the injuries on the body of the injured Babu Lal and Magraj and he observed the following injuries. Injuries on the body of Babu Lal : 7 (i) Lacerated wound 6 x 0.8 cm x bn deep on the left side of parietal region (ii) Lacerated wound 3 x 0.5 cm x bn. deep on the occipital region. (iii) Bruise – 5 x 1 cm on the left scapula region (iv) Bruise - 7 x 1 cm on the back in middle (v) Abrasion – 0.8 x 0.8 cm on the left mastoid region Injuries on the body of Magraj : (i) Lacerated wound 6 x 0.8 cm x bone deep on the Rt. side of face vertical (ii) Lacerated wound 4 x 0.5 cm x bone deep on the Rt.side of parietal region front (iii) Lacerated wound 7 x 0.8 cm x bone deep on the Rt.side of parietal region post portion (iv) Lacerated wound 6 x 0.7 cm x bone deep just behind injury No.3 (v) 2” defined swelling with bruise on the dorsal asp. of Rt. forearm On the basis of X-Ray report received from Radiologist the following injuries were grievous in nature. Grievous Injuries of Babu Lal : (i) An old scar 5 X 5 ½ cm in the epigastric region Skiagram right forearm < AP lateral | in popular (No.8705, 8706 dated 03.06.1986). 8 (ii) Fracture of lower shaft of radius and ulna are seen. Grievous Injuries of Magraj : A black tip on the medial end of the right caluide. 1. Skull < PA Both lateral No.8610, 11, 12 dated 31.05.1986. there is no evidence of any bury injury. 2. Chest < PA Both oblique No.8607, 8708, 8709 dated 31.05.1986. There is fracture of 7th, 8th & 9th Ribs of the left side. PW/11 Prem Singh is Investigating Officer, who investigated the case. Both the injured i.e. PW/2 Magraj and PW/3 Babu Lal deposed false statements in their examination-in-chief about the place where liquor was being consumed by them alongwith accused appellant Jog Singh. As per examination-in-chief of these two witnesses, it was in the front of the house of Magraj where the liquor was being consumed. On the other hand, both have admitted in their examination-in-chief that incident happened at the residence of accused, who is a Class IV employee whereas PW/2 Magraj and PW/3 Babu Lal were Upper Divisional Clerk in Indira Gandhi Canal Project at the relevant time. It is significant that considerable liquor was consumed by them and then quarrel occurred because Magraj and Babu Lal told the accused to bring his Dharam Sister for them. Such demand is enough to provoke any reasonable person. Reference may be made on the statements of 9 PW/11 Prem Singh and PW/13 Mohan Singh who stated that after the incident accused told them these facts. Further PW/11 Prem Singh, Investigating Officer also deposed that on inquiry accused told him these facts during the course of investigation. There was no prior preparation nor there was any pre-meditation. An iron rod/pipe was lying nearby accused which he picked up and inflicted blows. Though, everyone was intoxicated, no inordinate force was used. PW/2 Magraj and PW/3 Babu Lal suffered injuries also but no repeated blow on vital part of the body of injured was caused. Had it been a case where PW/2 Magraj and PW/3 Babu Lal were not at fault, they would have immediately lodged report to the police also. To the contrary, they kept mum and the report of the incident was lodged by one PW/4 Prem Chand Chaturvedi. Intention is mental element to be inferred from preceding and successive circumstances to the incident. Accused entertained Magraj and Babu Lal at his house in a friendly manner and he permitted them to have drink there while they were drinking, a hasty demand at about 10.00 PM was made, which provoked the accused appellant and without pre-meditation he picked iron rod/pipe and assaulted PW/2 Magraj and PW/3 Babu Lal which resulted into fracture of right fronto parietal region of skull and fracture of right zygotic bone of Magraj and Babu Lal had fracture of 7th, 8th and 9th Ribs on the left side and in addition to those fractures some other injuries were caused. The versions of the injured were not supported by any independent 10 witnesses. PW/2 Magraj and PW/3 Babu Lal also concealed the truth on the material point while they deposed in examination-in-chief that drink was being taken in front of the house of Magraj. They were amicably sitting at the house of accused who permitted them to enjoy drinks and because of provocation he assaulted without any pre- meditation, therefore, it can be inferred that the intention to cause death of the injured persons or to cause grievous injuries could not be said as the accused was deprived of the power of self control by provocation caused by injured persons. In view of the above discussion, I am of the considered view that the act of the accused appellant could not travel beyond Section 335 of the IPC and no intention to cause the death or attempt to cause death can be inferred in the above circumstances. As a result of aforementioned discussions, the conviction under Section 307 IPC and the order of sentence for commission of above offence, cannot be sustained. The conviction of the accused appellant is modified from Section 307 IPC to that of Section 335 IPC. Coming to the point of sentence, it may be relevant that the incident took place in the year 1986 and about 24 years have passed to the incident. The present age of the accused must be about 59 years. Looking to all the facts and circumstances of the case, no fruitful purpose shall be served in sending the accused behind the Bars. It is, therefore, ordered that accused is extended the benefit of Section 4 of the Probation of Offenders Act. If the accused appellant furnishes a 11 personal bond in the sum of RS. 10,000/- with two sureties of Rs.5,000/- each to the satisfaction of trial court that he will maintain good conduct and behaviour and will also not commit any offence within three years of the execution of the bail bonds, then he need not serve any sentence. Accordingly, the appeal preferred by the accused appellant is partly allowed, as indicated above. (KAILASH CHANDRA JOSHI ), J. /mamta/