Crl.Appeal No. 1186-SB of 2001 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Crl.Appeal No. 1186-SB of 2001 Date of decision: 6.1.2011 Rakesh Kumar … Appellant Versus State of Haryana … Respondent CORAM: HON’BLE MR. JUSTICE JORA SINGH. Present: Mr.R.S.Mamli, Advocate, for the appellant. Mr.Manish Deswal, DAG,Haryana. … JORA SINGH, J. This criminal appeal was preferred by Rakesh Kumar to challenge the judgment of conviction and order of sentence dated 6.10.2001 passed by Additional Sessions Judge, Jagadhri, in Sessions Case No.11 of 1997, arising out of FIR No. 224 dated 29.7.1997 under Section 307 IPC, PS Sadar, Jagadhri. By the said judgment, he was convicted under Section 324 IPC and sentenced to undergo RI for two years and to pay a fine of Rs.5,000/-, in default of payment of fine, to further undergo SI for three months. Prosecution story, in brief, is that on 29.7.1997, a telephonic message was received in the police station from Gaba Hospital, Yamuna Nagar, regarding admission of Bal Kishan. On receipt of information, ASI Dalip Kumar along with other police officials had gone to Gaba Hospital, Yamuna Nagar, and moved an application requesting the doctor to opine as to whether Bal Kishan was fit to make statement or not. Bal Kishan was declared unfit to make statement. Statement of Molu Ram, complainant, Crl.Appeal No. 1186-SB of 2001 2 who was present in the hospital, was recorded. He reported that on 28.7.1997, his brother Bal Kishan after lunch was sleeping. He along with his another brother Ram Kumar was working in the fields. At about 1.00 PM, he heard noise of his brother Bal Kishan `Bachao-Bachao’. On hearing noise, he along with Ram Kumar came at the spot, then noticed Rakesh Kumar armed with a knife in his hand. Rakesh Kumar gave blow in the abdomen of Bal Kishan. They tried to catch him but he managed to run away from the spot. Bal Kishan was shifted to the hospital. Motive to cause injury was that some amount was due from Bal Kishan. Bal Kishan requested for some time to make payment. Then Rakesh Kumar felt offended. Statement of Molu Ram was sent to the concerned police station, on the basis of which, formal FIR was recorded. IO after inspecting the spot prepared rough site plan with correct marginal notes. Statement of Bal Kishan was also recorded when he was declared fit to make statement by the doctor. Appellant was arrested and after completion of investigation, challan was presented in Court. Accused was charged under Section 307 IPC, to which he pleaded not guilty and claimed trial. Prosecution examined PW1 SI Randhir Singh, who stated that after verifying the investigation, he has prepared report under Section 173 Cr.P.C. PW2 Bhushan Lal, Patwari, prepared scaled site plan (Ex.PA). PW3 Constable Ram Niwas tendered his affidavit (Ex.PB). PW4 Dr. Mridu stated that Bal Kishan remained admitted in Gaba Hospital. On 29.7.1997, application was moved to opine as to whether injured was fit to make statement or not but he was declared unfit to Crl.Appeal No. 1186-SB of 2001 3 make statement. On 1.8.1997, again application was moved to opine as to whether injured was fit to make statement or not. Then he was declared fit to make statement. Injury was noticed in the abdomen of Bal Kishan. PW5 HC Raj Pal tendered his affidavit (Ex.PH). PW6 Dr. Sandeep Kumar Gupta stated that on 28.7.1997 at about 3.45 PM, he has medico legally examined Bal Kishan and found the following injury on his person:- “1. Perforating spindle shape wound on left upper abdomen 5 x 4 cm in size, profusely bleeding.” PW7 Bal Kishan is the injured and reiterated his statement before the police by saying that on 28.7.1997 at about 2.00 PM, he was present in his house. He was to pay Rs.50/- to Rakesh. Rakesh came and enquired about the payment but he was requested to wait till evening. After that, Rakesh started abusing him and gave a knife blow in his abdomen. Raula was raised. Then his brothers came and tried to apprehend Rakesh but he managed to run away from the spot. He (Bal Kishan) was shifted to the hospital, where he was medico legally examined. PW8 Molu Ram is the complainant eye witness. He has supported the version of Bal Kishan, injured. PW9 Ram Kumar is the second eye witness. He has supported the version of Bal Kishan, injured. PW10 ASI Dalip Kumar is the Investigating Officer. After close of prosecution evidence, statement of accused was recorded under Section 313 Cr.P.C. He denied all the prosecution allegations and pleaded to be innocent. Crl.Appeal No. 1186-SB of 2001 4 In defence, DW1 Sohan Lal appeared and stated that as per record, date of birth of Rakesh Kumar is not available in the office. DW2 Raj Kumar stated that as per record maintained by the school, date of birth of Rakesh Kumar is 15.3.1982. Ex.DA is the certificate issued by the Principal. He identified the signatures of Smt. Shakuntla Verma, Principal of the school, as he worked under her control. After hearing learned PP for the State, learned defence counsel for the appellant and from the perusal of evidence on the file, appellant was convicted and sentenced as stated aforesaid. I have heard learned defence counsel for the appellant, learned State counsel and have gone through the evidence on file. Learned defence counsel for the appellant after arguing for some time when failed to point out any infirmity or illegality in the impugned judgment, then stated that impugned judgment is not challenged on the point of conviction. Occurrence is dated 28.7.1997 and at that time, appellant was 22 years’ old. Appellant is the first offender and has already undergone six months and nine days out of actual sentence. Requested to release the appellant on probation. Learned State counsel argued that appellant armed with knife gave blow in the abdomen of the injured. Injury was noticed in the abdomen of injured and this fact is clear from the statements of the doctors. Payment was due from the injured but he was not ready to make payment. Due to this reason, appellant had a grievance and caused injury. Injury cannot be self suffered or self inflicted. Learned defence counsel for the appellant has not challenged the judgment on the point of conviction and only requested to take a lenient Crl.Appeal No. 1186-SB of 2001 5 view, even then I want to scrutinize the evidence as to whether crime was committed as per story or not. Injured when appeared in Court, then on oath stated that he was present in his house. At about 2.00 PM, appellant came. Rs.50/- was due from him. Appellant enquired about the payment but he was requested to wait till evening. After that, appellant started abusing him and gave a knife blow in his abdomen. Occurrence was witnessed by his brothers. Brothers of the injured, namely, Molu Ram, complainant, and Ram Kumar, appeared as PW8 and PW9, respectively, and supported the version of injured by saying that appellant had caused injury with knife in the abdomen of Bal Kishan. Bal Kishan was medico legally examined by Dr. Sandeep Kumar Gupta. One injury was noticed on the person of injured. Injury was noticed in the abdomen and this fact is clear from the statements of Dr. Mridu and Dr. Sandeep Kumar Gupta. Injury was with a sharp edged weapon on the vital part. Earlier to the occurrence, there was minor dispute regarding payment. Money was due from the injured but he was not ready to make payment. After perusing the evidence on file, trial Court rightly opined that appellant has committed offence punishable under Section 324 IPC. Judgment on the point of conviction is upheld. Occurrence is dated 28.7.1997 and at that time, appellant was 22 years’ old. Appellant has already undergone six months and nine days out of actual sentence. He is to become hard criminal if again sent to jail to serve imprisonment as ordered by the trial Court. Ends of justice would be fully met if lenient view is taken. Crl.Appeal No. 1186-SB of 2001 6 Keeping in view the circumstances of this case, instead of directing the appellant to undergo imprisonment as ordered by the trial Court, he is directed to be released on probation on furnishing probation bonds in the sum of Rs.10,000/- with one surety of the like amount for a period of one year to keep peace and to be of good behaviour, with direction to the appellant to undergo imprisonment in case of breach of condition of probation bonds. Fine deposited as per impugned judgment is to be treated as costs of litigation. For the reasons recorded above, appeal without merit is dismissed with modification on the point of sentence. 6.1.2011 ( JORA SINGH ) pk JUDGE