IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL (Chapter VIII, Rule 32(2) (b) Description of Case Criminal Appeal No. 264 of 2004 Date of decision : 14th March, 2008 A.F.R. (Approved for Reporting) ____________________________ Not approved for reporting Initials of Judge Date: 14.03.2008 Note: Bench Reader will attach this at the top of first page of the judgment when it is put up before the Judge for signature. HIGH COURT OF UTTARAKHAND, AT NAINITAL Criminal Appeal No. 264 of 2004 Harbans Kumar @ Guddu S/o Gopal R/o Bhawaniganj Near Cannel P.S. Ramnagar, Distt. Nainital …Appellant Versus State of Uttarakhand …Respondent Mr. Akhil Kumar Sah, Advocate for the appellant. Mr. Nandan Arya, A.G.A. for the respondent. JUDGMENT Hon’ble J.C.S. Rawat, J. This appeal has been preferred against the judgment and order dated 31/07/2004 passed by the Additional Sessions Judge/1st F.T.C., Nainital in Sessions Trial No. 135 of 2003, State Vs. Harbans Kumar @ Guddu whereby the appellant has been convicted & sentenced to undergo rigorous imprisonment of ten years u/s 307 Indian Panel Code, 1860 (for brevity as I.P.C.). The appellant was further directed to pay a fine of Rs. 3,000/- and in default thereto, the appellant should further undergo imprisonment of two months. 2. Brief facts of the prosecution case are that the appellant Harbans Kumar has taken a sum of Rs.500/- as loan from the injured Seaspal. On 01.07.2007 at about 1:00 p.m. injured Seaspal was going towards river Kosi and the appellant was coming from opposite direction. When the injured met the appellant, he demanded a sum of Rs. 500/- which was taken as loan from the appellant. Due to which some scuffle took place in between them and the appellant stabbed him by knife. Injured Seaspal sustained injury on his person and fell down on the ground. Thereafter, the appellant fled away from the spot. The said incident was seen by the father of the injured, Prakash PW1, Jagdish PW3 and Mahendra Prakash. Thereafter, the injured was taken to Ramnagar Civil Hospital by his father Prakash PW1 and other witnesses namely, Jagdish PW3 and Mahendra Prakash where he was medically examined by the doctor. After seeing the precarious condition of the injured, he was referred to Moradabad where his treatment was conducted at Sai Hospital, Moradabad. A report Ex.Ka.1 was lodged by the father of the injured Prakash PW1 at the police station on the same day at about 3:10 p.m. The police started the investigation of the case and arrested accused/appellant on 02.07.2003. The police also recovered knife from the possession of the accused/appellant. After completing the investigation, the police submitted the chargesheet Ex.Ka.13 before the court concerned. 3. After submission of chargesheet, the accused/appellant was committed to the court of Sessions for trial and the trial court framed charge u/s 307 I.P.C. against the accused/appellant. The accused/appellant denied the charge levelled against him and claimed his trial. 4. The prosecution in support of its case examined Prakash PW1, father of the injured Seaspal who claimed himself to the eyewitness of the incident. He has also lodged the F.I.R. before the police station. Seaspal PW2 is the injured witness. He was produced by the prosecution to prove the entire incident. Jagdish PW3 is also eyewitness of the incident. Dr. Harish Lal PW4 is the Medical Officer posted at Ramnagar Civil Hospital. He examined the injured at about 2:05 p.m. on 01.07.2003, i.e. date of the incident. S.I. Roop Singh Bisht PW5 has investigated the matter at the initial stage. Thereafter, the matter was investigated by S.I. Khanjan Lal PW6. Both the witnesses have stated that they conducted the investigation and prepared the papers which have been adduced in the evidence before the trial court. S.I. Khanjan Lal submitted the chargesheet before the Court. 5. The accused-appellant was examined u/s 313 Cr.P.C. and he has pleaded not guilty to the offence. He has further stated that he has been falsely implicated in this case. He has stated in his statement recorded u/s 313 Cr.P.C. that the got seized horns of deer from the house of the father of injured Seaspal by the Forest Department and to that effect a case is pending before the C.J.M., Nainital against the father of the injured due to which, the appellant has been falsely implicated in this case. The defece has also adduced the evidence of Dayawati DW1, wife of the appellant before the court. 6. The learned Sessions Judge, after appreciation of the evidence and hearing the parties convicted the appellant and sentenced him as indicated above. 7. I have heard the learned counsel for the parties and perused the record. 8. At the outset, it needs to be mentioned here that it is not disputed that injured Seaspal PW2 received the injured on the date of the occurrence. It is further established from the evidence of Dr. Harish Lal PW4 who examined injured Seaspal on 01.07.2003 at about 2:05 p.m. Dr. Harish Lal PW4 found the following injury on his person:- i. 6.5 x 2.0 x 3.0 cm., oblique sharp edged would over left lower abdomen, just superior to left anterior iliac spine. In the opinion of Dr. Harish Lal PW4, the injury could have been caused by some sharp edged object and the duration of the injury was less than two hours. The doctor has further opined that the injury could have been caused on 01.07.2003 at 1:00 p.m. 9. Now, I have to examine as to who was the author of the injury received by the injured Seaspal PW2. The case rest on the direct evidence. The prosecution in support of its case examined injured Seaspal PW2 and Jagdish PW3. Both of them claimed to be present at the time of the incident. Both the witnesses have stated in their evidence that on the date of the incident, i.e. 01.07.2003 at about 1:00 p.m., injured Seaspal PW2 was going towards Kosi River and the appellant was coming from the opposite direction. The appellant had taken a loan of Rs. 500/- from the injured Seaspal PW2 prior to the date of the incident. Injured Seaspal PW2 demanded Rs. 500/- which was advanced by him to the appellant as loan. Upon which, scuffle took place in between them. During the course of scuffle, the appellant assaulted injured Seaspal PW2 by knife due to which the injured sustained one injury on his person. Thereafter, the appellant immediately fled away from the place of the occurrence. The injured fell down on the ground and thereafter he was taken to hospital by witnesses Jagdish PW3 and Prakash PW1, father of the injured. The evidence of the incident and participation of the appellant is established by the evidence of Jagdish PW3 and injured Seaspal PW2. It is a settled position of law that injured eyewitness stands on a higher pedestal than an ordinary witness. Seaspal PW2 had sustained injury at the time of the incident and the prosecution has proved the same. It is also well settled principle of law that the testimony of an injured witness is sufficient to base the conviction and no further corroboration is required. The presence of the injured witness cannot be discarded lightly. There is no doubt about the presence of the injured witness at the time of the incident. Injured Seaspal PW2 was cross-examined at length but nothing could be elicited from his evidence to discard his testimony. The testimony of an injured witness has its own relevance and efficacy. {See Narendra Nath Khaware Vs. Parasnath Khaware and others 2003 SCC (Crl) 1144 and State of U.P. Vs. Kishan Chand and others 2004 SCC (Cri) 2013}. The leaned Trial Court has gone through the evidence of injured Seaspal PW1 and Jagdish PW2 and found them credible and cogent. I do not find any fault in the approach of the learned Trial Court. The witnesses have been cross-examined at length but nothing could be elicited during the course of the cross examination of the witnesses. Prakash PW1, father of the injured has also claimed to the eyewitness of the incident. Injured Seaspal PW2 has categorically stated that his father Prakash PW1 was not present at the time of the incident. The learned Trial Court has rightly discarded the evidence of Prakash PW1 as eyewitness of the incident. 10. Learned counsel for the appellant did not dispute the incident and the participation of the accused/appellant in the incident. The only contention raised by the learned counsel for the appellant that the injury was not caused with the intention to cause the death of the injured Seaspal PW2. Learned A.G.A. refuted the contention. The accused/appellant has been convicted u/s 307 I.P.C. by the learned Trial Court. To constitute an offence under Section 307 I.P.C., two ingredients of the offence must be present (a) an intention of or knowledge relating to commission of murder; and (b) the doing of an act towards it. This Section clearly contemplates an act which is done with intention of causing death but which fails to bring about the intended consequence on account of intervening circumstances. The intention or the knowledge of the accused must be such as is necessary to constitute murder. In the absence of an intention or knowledge which is necessary ingredient of Section 307 I.P.C, there can be no offence of attempt to murder. Intent which is the state of mind, cannot be proved by precise or direct evidence as a fact it can only be inferred from the facts and circumstances of the case. Some of the relevant considerations may be the place where injury was inflicted, the nature of the injury and the circumstances in which the incident took place. In the case in hand, the accused/appellant caused only one injury which has been indicated in the preceding paragraph of my judgment. According to Dr. Harish Lal PW4, the injury was of serious nature. It was pointed out by the learned counsel for the appellant that the offence committed by the appellant falls u/s 308 I.P.C. The plea taken by the learned counsel for the appellant relates to applicability of Exception 4 of 300 I.P.C. For bringing in its operation, it has to be established that the act was committed without premeditation, in a sudden fight in the heat of passion, upon a sudden quarrel without the offender having taken undue advantage. If the above ingredients remained there and the intended act had not been completed due to intervening circumstances, it would constitute an offence u/s 308 I.P.C. In the instant case, one injury was caused by the appellant on the injured and there was no prior intention to cause the death and it was a sudden fight. Only a single blow was caused and thereafter without intervention of the witnesses at the spot, the accused/appellant fled away from the spot. In case the accused/appellant had an intention to cause death of the injured, he would have made successive assaults on the person of the injured. There is no evidence that the accused/appellant had made successive assaults on the person of the injured. There were no intervening circumstances which prevented the accused/appellant to make successive assaults on the person of the injured. It is also in the evidence that instead of going anywhere, the accused/appellant went to home. This leads to take an inference that the accused/appellant had no intention to cause the death of the injured by such injury. In the facts and circumstances of the case, the prosecution case fall u/s 308 I.P.C. instead of 307 I.P.C. 11. It was further contended by the learned counsel for the appellant, under the facts and circumstances of the case, a lenient view may be taken in this case. As I have already indicated in the preceding paragraph that appellant is liable to be convicted u/s 308 I.P.C. instead of 307 I.P.C. Accordingly, the appellant is convicted u/s 308 I.P.C. instead of 307 I.P.C. It would be just and proper, looking to the facts of the case, to award custodial sentence of 5 years and fine of Rs. 3000/-. 12. In view of the aforesaid reasons, the appeal is liable to be partly allowed. I, accordingly, alter the conviction of the appellant from Section 307 I.P.C. to Section 308 I.P.C. Custodial sentence of 5 years and fine of Rs.3000/- would meet the ends of justice. 13. The appeal is partly allowed to the aforesaid extent. 14. Let the lower court record be sent back to the court concerned for compliance. Compliance report be submitted within three months from the date of receipt of order. (J.C.S. Rawat, J.) Dated 14th March, 2008 Shiv