BISHAN SINGH AND ANR. v.

TI-IE STATE

OCTOBER 9, 2007

[S.B. SINHA AND HARJIT SINGH BEDI, JJ.]

Penal Code, 1860-ss. 147, 3081149, 323 and 325-Accused persons waylaid complainant and caused injuries to him-Case of C previous enmity-Conviction under ss. 147 and 3081149 by courts below-Correctness of-.:Held: Though overt-act attributed against each of the accused having la this, out of seven injuries only one grievous injury caused that too not on the vital part of the body-Thus, accused not guilty u/s. 308 but u/ss. 323 and 325-With regard to D sentence imposed, considering the circumstances .. substantive sentence reduced to the period undergone with fine of Rs. 15, 0001each.

According to the prosecution case, accused had enmity with the complainant. On the fateful day accused assaulted the complainant with Ia this causing injuries to him and took money from him. Brother E of the complainant intervened and he also suffered injuries. FIR was

lodged. Informant alleged that the accused attacked him with the intention to cause his death and had earlier also threatened him. Trial court convicted the appellant for commission of an offence under s. 147 ands. 308/149 IPC and imposed rigorous imprisonment for one F year for offence under s. 147 and rigorous imprisonment for four years for offence under s. 308/149 IPC. High Court upheld the order.

Hence the present appeal.

Partly allowing the appeal, the Court

HELD: 1. Before an accused can be held to be guilty under Section 308 IPC, the ingredients, namely, requisite intention or knowledge on the part of the accused to cause culpable homicide is required to be proved. Six persons allegedly accosted the injured.

BISHAN SINGH v. STATE [SINHA, J.] 799

They had previous enmity. Although overt-act had been attributed A against each of the accused who were having lathis, only seven injuries had been caused and out of them only one of them was grievous, being a fracture on the arm, which was not the vital part of the body. Therefore, the accused could not be said to have committed any offence under section 308 IPC. The same would fall B under Sections 323 and 325 thereof.

[Paras 11 and 121 [802-D, E, Fl

2. While imposing punishment in a case of this nature, the court is required to take into consideration the factors which may weigh with the court for taking a lenient view in the matter. The incident is C of 1984. 23 years have elapsed. Appellants had all along remained on bail. It is not stated that they had ever misused the privilege of bail. The incident does not reflect any cruelty on their part or any mental depravity. They had been in custody for more than five months. In a situation of this nature, it may not be proper for this 0 Court to send the accused persons back to prison. However, the injured had suffered pains at the hands of the appellants. Therefore, while their substantive sentence may be reduced to the period undergone, they should pay a fine of Rs. 15,000/- each failing which they should undergo simple imprisonment for a period of one year E each. If the aforementioned amount is realized, a sum of Rs. 25,000/- out of the sum, may be paid to the informant.

[Para 14] [802-G, H; 803-A, B, C]

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.

F 1390of2007.

From the Judgment and final Order dated 14.3.2007 of the High Court ofUttarakhand at Nainital in Criminal Appeal No. 343/2001.

Gaw-av Agrawal for the Appellants.

Rachna Srivastava, A.AG and Anuvrat Shaima for the Respondent.

The Judgment of the Court was delivered by

S.B. SINHA, J. 1. Leave granted.

2. Bishan Singh son ofBachchi Singh and Govind Ballabh son of

Krishnanand, the two surviving accused, who were tried and convicted for commission of an offence under Sections 14 7 and 3081149 of the Indian Penal Code (IPC) are before us; the other four accused, namely, Arjun Singh, Shivraj, Govind Singh and Bhairav Dutt having expired.

3. One Harish Bhatt was the complainant. On 30.09.1984 at about 06.30 p.m. when he was going towards his village, the accused persons allegedly assaulted him with lathis and took out a sum ofRs.400/- from his pocket. His brother Ghanshyam Dutt Bhatt intervened. It was alleged that the accused persons were inimically disposed of towards the injured c and had attacked him with an intention to cause his death. The injuries suffered by Harish Bhatt as per the injury report prepared by Dr. J.S.

Pangti (PW-6) are as under :

"1. Lacerated wound 3 cm x I cm on scalp at right parietal region,

D 14 cm above the right eye-brow. Scalp deep. Fresh bleeding present.

Lacerated wound 5 cm x Y2 cm x scalp deep on scalp, at right parietal area, 19 cm above the right eye-brow.

,., Lacerated wound 3 cm x \t4 cm x skin deep, 4 cm above the ..).

E right eye-brow at right forehead, 6 cm x 7 cm swelling around the wound.

Abrasion I cm x Yi cm, at upper lip, 3 cm from the right angle of the mouth.

F 4/1. Abrasion I cm x Yi cm at lower lip right angle of mouth.

Contusion mark 10 cm x 5 cm above right shoulder reddish in colour. Swelling 2 cm around the wound.

Contusion mark 6 cm x 6.5 cm on above and front and middle

G of left arm, 13 cm below the shoulder joint 1 cm swelling arow1d the injury.

Contusion 12 cm x 10 cm at fore-arm, 8 cm from the left wrist joint Yi cm swelling around the injury.

H . 8.

Complain of pain in both lower legs and thigh, but no injuq

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BI SHAN SINGH v. STATE [SINHA, J.] 801

seen."

4. Admittedly, all the injuries except injury no.7 were simple ones.

Injury No. 7 being a fracture with dislocation of wrist joint was found to be grievous one. The injured witness examined himself as PW-5. In his deposition, he alleged :

" .. .I used to stop the accused from fighting with the poor people

and I was witness against the accused persons in the litigation between Shanti Joshi and accused persons. That is why the accused beat me. My head was wounded. My kurta was full of blood and seizure report ofkurta had been made in the hospital ... " c

5. The learned Trial Judge relying on or on the basis of the testimonies of the said witness as also his brother, convicted the appellants for commission of an offence under Sections 14 7 and 308/149 IPC and sentenced them to undergo rigorous imprisonment for one year for the offence punishable under Section 14 7 IPC and rigorous imprisonment for D four years for the offence punishable under Section 308/149 IPC.

6. Although in the First Information Report, the informant had alleged that all the six accused had earlier threatened to kill him as also burn his hut and the said attack was with an intention to kill him, but the offence E recorded therein was under Sections 14 7 and 323 IPC. The charge-sheet was, however, submitted, inter alia, under Section 308 IPC.

7. We have noticed hereinbefore that in his deposition PW-5 stated about the existing enmity between the parties. It does not appear from his deposition that he had made any statement to the effect that the accused F had attacked him with an intention to kill. The learned Trial Judge in his judgment solely relying upon the allegations made in the First Information Report opined that a case under Section 308 IPC was made out.

8. Interestingly, the learned Trial Judge observed that the charge G

- )- under Section 308 IPC read with Section 149 thereof was proved, because the eye-witnesses had clearly sated that they were aimed with la this.

9. The learned Trial Judge did not notice the ingredients of Section

A 308 IPC which provides for existence of an intenion or knowledge. -(

10. The High Court also dismissed the appeal, opining:

"33. From perusal ofrecord it has been established that the intention of the accused persons was to commit culpable homicide.

They had enmity with the injured Harish Bhatt. Threats were also given to him by the accused persons to ruin his life. PW-4, Ghanshyam Dutt has clearly stated that when he reached at the spot he saw that the accused persons were beating the injured recklessly with Lathis-Dantas. Injuries were also caused on scalp.

Looking to the seat of injuries and the fact and circumstances of the case the prosecution has been able to prove the offence u/s 308/149 IPC against the accused persons. The finding of the trigl court is just and proper and need no inference by the appellate court."

11. Before an accused can be held to be guilty under Section 308 IPC, it was necessary to arrive at a finding that the ingredients thereof, nan1ely, requisite intention or knowledge' was existing. There cannot be any doubt whatsoever that such an intention or knowledge on the part of the accused to cause culpable homicide is required to be proved. Six E persons allegedly accosted the injured. They had previous enmity.

Although overt-act had been attributed against each of the accused who were having Jahtis, only seven injuries had been caused and out of them only one of them was grievous, being a fracture on the rum, which was not the vital part of the body.

12. The accused, therefore, in our opinion, could not be said to have committed any offence under Section 308 IPC. The same would fall under Sections 323 ru1d 325 thereof.

13. The question now is what punishment should be awarded.

14. While imposing punislm1ent in a case of this nature, the court is required to take into consideration the factors which may weigh \vi.th the court for taking a lenient view in the matter. The incident is of 1984. 23 years have elapsed. Appellants had all along remained on bail. It is not H stated that they had ever misused the privilege of bail. The incident does

."-.

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BI SHAN SINGH v. ST A TE [SINHA, J.] 803

not reflect any cruelty on their part or any mental depravity. They had A been in custody for more than five months. In a situation ofthis nature, we are of the opinion that it may not be proper for this Court to send tlw accused persons back to prison. However, the injured had suffered pains at the hands of the appellants. We are, therefore, of the opinion that while their substantive sentence may be reduced to the period undergone, they B should pay a fine of Rs. 15,000/- (Rupees fifteen thousand) each; failing which they should undergo simple imprisonment for a period of one year each. If the aforementioned amount is realized, a sum of Rs. 25,000/- (Rupees twenty five thousand) out of tki.e sum, may be paid to the informant.

15. Appellants who are in custody shall be released forthwith. if not required in connection with any other case, subject to the aforementioned conditions.

16. The appeal is allowed to the aforementioned extent.

N.J.

Appeal partly allowed.