An offender must be convicted under Section 326 of the IPC if found guilty of causing grievous injuries: Jharkhand High Court

IN THE HIGH COURT OF JHARKHAND AT RANCHI Criminal Revision No. 3403 Feku Sao son of Late Bhagat Sao resident of village Gotra Thakurtoli P.O. & P.S. Simdega District GumlaThe State of Jharkhand … … … Petitioner … … Opp. Party CORAM: HON BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY Mr. Vikash Pandey Advocate Ms. Rakhi Sharma Advocate Mr. Ashok Kumar A.P.P. For the Petitioner For the Opp. Party 1. Heard Mr. Vikash Pandey learned counsel appearing on behalf of the petitioner along with Ms. Rakhi Sharma Advocate. 2. Heard Mr. Ashok Kumar learned counsel appearing on behalf of the opposite party State. 3. Present criminal revision is directed against the judgment dated 25.02.2003 passed by learned Additional District and Sessions Judge Simdega in Criminal Appeal No. 46 of 1992 whereby the appeal filed by the petitioner has been dismissed and the learned appellate court has confirmed the judgment of conviction and sentence of 2 years rigorous imprisonment dated 26.11.1992 passed by the learned Assistant Sessions Judge Simdega in S.T. No. 209 90 for the offence punishable under Section 326 of the Indian Penal Code. 4. Learned counsel appearing on behalf of the petitioner while assailing the impugned judgments has submitted that though there are concurrent findings recorded by the learned courts below but the impugned judgments are perverse and call for interference. Learned counsel submits that the learned courts below have not properly considered the nature of injury which was a result of single blow on the head of the informant which could not be said to be a grievous injury as defined under Section 323 of the Indian Penal Code. Learned counsel further submits that it has come on record that there was previous enmity between the petitioner and the informant and there was altercation and it appears that at the stage of scuffling the injury was caused. There was no intention to commit the crime and it was merely accidental in nature. Learned counsel further submits that without prejudice to the aforesaid submissions present age of the petitioner is more than 69 years and he has faced the criminal case for more than 30 years now as the F.I.R. was lodged on 31.05.1990 and much time has elapsed from the date of incident. He submits that considering this aspect of the matter the sentence of the petitioner may be modified and some fine may be imposed. He also submits that the present offence is the first offence of the petitioner. 5. Learned counsel appearing on behalf of the opposite party State has opposed the prayer and has submitted that there are concurrent findings recorded by the learned courts below after considering the evidences on record and there is no scope for re appreciation of evidences and coming to a different finding in revisional jurisdiction. He also submits that argument of the petitioner in connection with nature of injury has been duly considered by the learned courts below and the doctor has also opined that injury was grievous in nature. Learned counsel submits that as the injury was grievous in nature even though it was a result of single blow the same was sufficient to convict the petitioner for the offence under Section 326 of the Indian Penal Code. However he does not dispute the fact that it has come on record that there was some enmity between the petitioner and the informant and there was also fight between the parties. It is further not in dispute that the present offence is the first offence of the petitioner. 6. During the course of argument learned counsel for the opposite party State does not dispute the fact that there is no minimum sentence as such prescribed under Section 326 of the Indian Penal Code and at present the petitioner is more than 69 years of age. Learned counsel has also submitted that so far as sentence is concerned it is for the court to take appropriate call in the matter however sentence of two years is sufficient considering the nature of offence. 7. As per the prosecution case F.I.R. Number 42 90 in police station Simdega was instituted for the offence under Section IPC which was based on the statement of informant injured person. It was alleged that on 31.05.1990 at about 7.30 A.M. he was cleaning his shop situated at Simdega Ranchi main road and the petitioner parked his cycle in front of his shop causing inconvenience to his customers to reach his shop. His servant was keeping aside the cycle of the petitioner and told him that his owner would remove the cycle. When the servant was shifting the cycle the petitioner brought Balua from his shop and assaulted the informant on his head causing injury to him. It was also alleged that his servant and two other persons and owner of nearby hotel had seen the occurrence but due to fear none of them came to save him. 8. On the basis of the statement of the informant F.I.R. was instituted. The informant victim was medically examined at Sub Divisional hospital Simdega on 31.05.1990 at about 10.00 A.M. Upon investigation charge sheet under Section 326 324 IPC was submitted and the charge was framed under Section 307 & 326 IPC on 18.02.91. The petitioner pleaded innocence and claimed to be tried. 9. At the stage of trial altogether seven witnesses have been examined including P.W. 5 Doctor who has proved the injury report and P.W. 6 the informant of the case. The Investigating Officer of the case has been examined as P.W. 7. P.W. 2 is the servant of the informant and P.W. 1 is the eye witness whose name has been mentioned in the F.I.R. also. After the prosecution evidence the statement of petitioner was recorded under Section 313 of Cr. P.C. wherein he has denied the evidences against him. In his statement under Section 313 Cr. P.C. he has also stated that there was no scuffling in connection with balua and has further stated that he would give defence evidence. The petitioner produced two defence evidences D.W. 1 and D.W. 2. Learned trial court considered the evidences on record and convicted the petitioner for the offence under Section 326 of the Indian Penal Code. The learned trial court specifically considered the point as to whether the injury inflicted upon the informant was grievous or not and such discussion has been made in para 14 of the trial court’s judgment. The learned trial court recorded that it is not in dispute that prosecution witnesses have clearly deposed that the informant sustained an injury caused by sharp cutting weapon on his head which was caused by Balua and that the doctor observed that the injury was sharp cutting injury 5 centimetre wide and 1.5 centimetre deep on the head and the second injury is one cut injury 3 centimetre long on the scalp. The opinion of the doctor was that the injury was grievous and during the course of cross examination the doctor has stated that the second injury is the result of the first one. The learned trial court was of the view that injury being 1.5 centimetre deep on the head and sharp cut deep to the scalp would cause fracture to the bone therefore the injury was grievous and convicted the petitioner for offence under Section 326 of the Indian Penal Code. The learned trial court while convicting the petitioner has recorded that the present offence is the first offence of the petitioner and considering his age character and proprietary was of the view that minimum punishment should be given to the petitioner and sentenced him for rigorous imprisonment of two years. 10. The learned appellate court also considered the evidences on record and also considered the argument advanced on behalf of the petitioner regarding the nature of injury. The learned Appellate Court considered the same in detail and recorded its finding in para 13 as follows: “While I perused injury reportInjury No. 1 & 2 both were caused by sharp edged weapon. Injury No. 2 is deep to skull bone and doctor in deposition also deposed that second injury was internal injury and was the effect of first injury. First injury sharp cut on head length 5 cm. antero positerio direction. Therefore submission of learned counsel that Doctor did not gave reason for opinion on grievous injury does not seem justified. Lower court in its judgment in Para 14 has rightly discussed regarding grievous injury.” The learned appellate court upheld the conviction and sentence of the petitioner. 11. This court finds that the learned courts below have given concurrent findings based on materials on record. The argument of the petitioner that the nature of injury was not grievous in nature is also devoid of any merit considering the fact that both the learned courts below have considered the nature of injury and even the doctor has deposed that the nature of injury was grievous in nature and considering the depth of the injury the learned trial court was of the view that the same would have caused fracture in the scalp. This court is of the view that the judgment of conviction of the petitioner for offence under Section 326 IPC passed by the learned courts below are well reasoned judgment based on materials including the evidence of the doctor as well as victim and other witnesses who have fully supported the prosecution case. There is no scope for re appreciation of the evidences on record and coming to a different finding in revisional jurisdiction. 12. Considering the fact that the petitioner is more than 69 years of age and has faced the criminal case for about 32 years now this court finds that ends of justice would be served if the sentence is modified to some extent. Accordingly sentence of the petitioner is hereby reduced to a period of one year with fine of Rs. 15 000 to be deposited by the petitioner within a period of three months from the date of communication of the judgment to the learned court below. In case of non deposit of the fine amount within the stipulated time frame the petitioner would serve the sentence already imposed by the learned court below. The 50% of the aforesaid fine amount is directed to be remitted to the victim of the crime i.e. the informantupon due identification. 13. This revision is disposed of with the aforesaid modification of 14. Bail bond furnished by the petitioner is hereby cancelled. 15. Pending I.A. if any dismissed as not pressed. 16. The lower court records be immediately sent to the learned sentence. court below. 17. Let this order be communicated to the court concerned through FAX e mail. Binit Anubha Rawat Choudhary J.) 

Summary: Considering his age, character and proprietary was of the view that minimum punishment should be given to the petitioner and sentenced him for rigorous imprisonment of two years. Such an opinion was held by The Hon’ble High Court of Jharkhand before The Hon’ble Mrs. Justice Anubha Rawat Choudhary in the matter of Feku Sao Vs. The State of Jharkhand [Criminal Revision No. 347 of 2003].  The facts of the case were associated with an appeal that was directed against the judgment passed by the learned Additional District and Sessions Judge on 25.02.2003, wherein the petitioner’s appeal was dismissed and 2 years of rigorous imprisonment was sentenced to him for the offence punishable under Section 326 of the IPC. The counsel representing the petitioner condemned the said impugned judgments. He stated that the judgments were irrational and was called for interference. The counsel also submitted that the nature of the injury was not considered by the courts below properly. It was submitted that the nature of the injury was a direct blow on the head and as stated under section 323 of the IPC, the injury cannot be defined as ‘grievous injury’. The opposition party’s counsel vehemently opposed the prayer and stated that all the evidence found were recorded concurrently by the courts below no scope for re-appreciation of evidence and come to different findings in revisional jurisdiction. The counsel also stated that the submissions of the petitioner’s counsel in connection to the nature of the injury were well-considered and the doctor held that the injury was indeed serious and grievous in nature.  It was reported that on 31.05.1990, the said injured was cleaning his shop situated near the main road and the petitioner caused inconveniences to his customers by parking his cycle there. The servant shifted the cycle and at that time the petitioner brought a Balua and attacked the servant on his head and caused him injury. According to the doctor, the injury was a sharp cutting injury 5 cm wide and 1.5 cm deep on the head and the second injury is one cut injury 3cm long on the scalp.  Considering all the facts and submissions, The Hon’ble Court held “… Considering the fact that the petitioner is more than 69 years of age and has faced the criminal case for about 32 years now, this court finds that ends of justice would be served if the sentence is modified to some extent. Accordingly, sentence of  the petitioner is hereby reduced to a period of one year with fine of Rs. 15,000/- . This revision is disposed of with the aforesaid modification of sentence. Bail bond furnished by the petitioner is hereby cancelled… ”