[1] IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR JUDGMENT S.B. CRIMINAL APPEAL NO. 1008/2004 OM PRAKASH Vs. STATE OF RAJASTHAN S.B. CRIMINAL APPEAL UNDER SECTION 374 CR.P.C. AGAINST THE JUDGMENT DATED 11.08.2004 PASSED BY THE ADDITIONAL DISTRICT & SESSIONS JUDGE (FAST TRACK) NO.2, BARAN, HEADQUARTER CHHABRA, DISTRICT BARAN IN SESSIONS CASE NO. 172/2003. Date: 22/05/2008. HON'BLE MR. JUSTICE K.S. RATHORE Mr. S.L. Songara for the accused-appellant. Mr. B.S. Chhaba, Public Prosecutor for the State. *** The present criminal appeal is directed against the judgment dated 11.08.2004 passed by the Additional District & Sessions Judge (Fast Track) No.2, Baran, Headquarter Chhabra, District Baran, whereby the accused-appellant has been convicted under Section 307 IPC and sentenced to undergo rigorous imprisonment for seven years with a fine of Rs. 5,000/-, in default of payment of fine, to further undergo rigorous imprisonment for one year. Brief facts of the case are that FIR No. 43/2003 was registered at Police Station Atru on the basis of the Parcha-Bayan of complainant Pappulal S/o Heera Lal, aged 25 years, R/o Deewali, P.S. Atru given on 01.02.2003 at about 11.45 a.m., [2] wherein it has been stated that yesterday in the evening at about 8.00 p.m. he was going to a flour mill for buying flour and when he was returning back to his home, near Kunjed-Ka-Rasta accused Omprakash who was under the influence of liquor and was having Gandasi with him, interrupted the complainant and inflicted Gandasi blow on his left eye as also on the nose, upon which the complainant fell down. At that time, Raju S/o Jagannath Meghwal was with him, who took him to his house and in the next morning he was taken to the hospital. On the basis of this report, a case for the offences under Sections 341 and 307 IPC was registered and investigation commenced. After investigation, challan for the offences under Sections 341, 324, 326 and 307 IPC was filed against the accused-appellant in the Court of Judicial Magistrate, Atru, who committed the case to the Sessions Court as the case was triable by the Sessions Court, therefrom the same was transferred to the Court of Additional Sessions Judge (Fast Track) No.2, Baran for trial. Charges for the offences under Sections 341, 324, 326 and 307 IPC were framed against the accused-appellant, who denied the same and claimed trial. The prosecution in support of its case examined as many as 16 witnesses and exhibited documents Ex.P1 to Ex.P14. In the explanation under Section 313 Cr.P.C., the accused-appellant denied [3] the charges and claimed innocence. However, no witness in defence was examined by the accused- appellant. The learned Additional District & Sessions Judge (Fast Track) No.2, Baran after hearing final submissions of the respective parties, convicted and sentenced the accused-appellant vide impugned judgment dated 11.08.2004 as indicated herein above. Learned counsel appearing for the accused- appellant submits that the trial Court has not properly considered the evidence and the statement recorded as there is material contradiction in the statement of complainant-injured PW3 Pappulal. It is also contended that PW2 Suresh, PW6 Prahlad and PW7 Rameshwar have turned hostile and they did not support the prosecution story. Similarly PW1 Manohar Bai, who is the wife of complainant Pappulal, is interested witness and has categorically stated in her statement that she had not seen the incident. Apart from that, the statements of PW4 Rajendra and PW10 Devishankar have been considered by the trial Court, whereas they are interested witnesses and there is material contradiction in their statements. Further as per the statement of PW8 Kajod, no prima-facie case for the offence under Section 307 IPC is made out against the accused-appellant. The statements of PW14 Bhagwan Singh and PW16 [4] Bharat Singh, who were the Investigating Officers, have also been referred by the learned counsel for the accused-appellant. PW16 Bharat Singh, the Investigating Officer, in his cross examination deposed that no blood was found on the spot and it has also been admitted that the statement of injured Pappulal was recorded after 9 days of the incident as he was out of station for his treatment. It is also stated that there was no blood stain found on the Gandasi which was recovered on the information furnished by the accused-appellant and was seized vide Ex.P7. Further there was no enmity between the parties and the prosecution failed to produce any independent witness and only relied upon the interested witnesses and the recovery of Gandasi has also not been made from the accused-appellant as per the provisions. Thus, the prosecution utterly failed to prove the offence under Section 307 IPC against the accused-appellant beyond reasonable doubt. Learned counsel for the accused-appellant placed reliance on the judgments rendered by the Hon'ble Supreme Court in the case of Anil Prakash Shukla Vs. Arvind Shukla, 2007 R.C.C. (SC) 582 as well as in the case of State of Madhya Pradesh Vs. Kedar Yadav, 2007 R.C.C. (SC) 255. Per contra, learned Public Prosecutor appearing for the State submitted that the [5] prosecution is able to prove the guilty against the accused-appellant for the offence under Section 307 IPC beyond doubt as the complainant Pappulal S/o Heera Lal lodged a complaint against the accused- appellant on 01.02.2003 at about 11.45 a.m. that while the complainant was going back to his home from the flour mill, at about 8.00 p.m. accused Omprakash who was under the influence of liquor and was having Gandasi with him, started abusing the complainant and upon protest by the complainant, accused Omprakash inflicted Gandasi blow on the left eye and on the nose of the complainant and on account of the injuries he fell down. At that time, Raju S/o Jagannath was with him who took him to his house and in the morning the complainant- injured was taken to the hospital on account of the injuries inflicted by the accused-appellant. His left eye was completely damaged and he lost his eyesight. As the injuries were caused with the intention to kill complainant-injured Pappulal, therefore, a case was registered against the accused-appellant for the offences under Sections 341 and 307 IPC and subsequently charges for the offences under Sections 341, 324, 326 and 307 IPC were framed against the accused-appellant. The prosecution examined as many as 16 witnesses and all the witnesses have supported the story of the prosecution and as the complainant-injured lost his eyesight and his left eye has been completely [6] damaged, therefore, looking to the nature of the injuries which could be fatal and looking to the intention of the accused-appellant, the trial Court has rightly convicted and sentenced the accused- appellant vide impugned judgment dated 11.08.2004 to undergo rigorous imprisonment for seven years with a fine of Rs. 5,000/- under Section 307 IPC. I have heard learned counsel for the accused-appellant, learned Public Prosecutor for the State and have also gone through the impugned judgment dated 11.08.2004 as well as the judgments referred by the learned counsel for the accused- appellant and scanned the material available on the record. I am not convinced with the submissions made on behalf of the accused-appellant that there is material contradiction in the statement of the complainant-injured PW3 Pappulal as he has categorically stated that accused-appellant Omprakash intentionally inflicted Gandasi blow on his left eye and on the nose and on the basis of the evidence of the complainant-injured and the other witness, the prosecution is able to establish the fact that accused-appellant Omprakash inflicted Gandasi blow on the left eye and nose of the complainant-injured Pappulal and this injury was grievous in nature and due to this injury, the complainant-injured lost his vision of left eye. The wife of the complainant-injured, Smt. Manohar [7] Bai also supported the prosecution story. PW4 Rajendra, who is an independent witness, was present at the time of the incident and immediately after the scuffle, he ran away from the place of occurrence, but he verified this fact that the accused-appellant inflicted Gandasi blow on the left eye of the complainant and relying upon the statements of PW2 Suresh and PW4 Rajendra and looking to the nature of injuries as the complainant-injured lost his vision of left eye, the trial Court convicted the accused-appellant for the offence under Section 307 IPC and sentenced to undergo rigorous imprisonment for seven years with a fine of Rs. 5,000/-. As per the record, the accused-appellant has already undergone the sentence of about 3 years and 10 months, whereas the sentence awarded to the accused-appellant under Section 307 IPC is rigorous imprisonment for seven years. Having gone through the material available on record and upon careful perusal of the statements of the witnesses and other evidence, it is no doubt that the accused-appellant caused injuries by Gandasi on the left eye and nose of the complainant-injured Pappulal and on account of these injuries, the complainant-injured Pappulal lost his vision of left eye and, therefore, the accused-appellant has rightly been convicted under Section 307 IPC by the trial Court, but looking to [8] the facts and circumstances of the case, the nature of injuries and the fact that the accused-appellant has already remained in custody for about 3 years and 10 months, ends of justice would be met if the accused-appellant is sentenced to the period already undergone by him in confinement. For the reasons stated herein above, the judgment of the trial Court dated 11.08.2004 so far as convicting the accused-appellant under Section 307 IPC is concerned, the same is upheld but instead of sentence of rigorous imprisonment for seven years under Section 307 IPC, the accused- appellant is sentenced to the period already undergone by him in confinement. The accused- appellant, who is in Central Jail, Kota, shall be set at liberty forthwith, if not required to be detained in any other case. The criminal appeal filed by accused- appellant Omprakash is partly allowed and the impugned judgment dated 11.08.2004 passed by the Additional District & Sessions Judge (Fast Track) No.2, Baran, Headquarter Chhabra, District Baran stands modified to the extent as indicated herein above. (K.S. RATHORE), J. /KKC/