Rajasthan High Court - Jaipur
Jalim Singh vs State Of Rajasthan on 29 March, 2005
Equivalent citations: RLW2005(3)RAJ1577, 2005(2)WLC829
JUDGMENT F.C. Bansal, J.
1. The instant appeal is directed against the Judgment dated 20.11.2003 passed by the learned Additional Sessions Judge (Fast Track) No. 4, Jhalawar whereby accused appellant Jalim Singh has been convicted under Section 307 IPC and sentenced to suffer R.I. for five years and a fine of Rs. 1,000/- in default of payment of fine to further undergo R.I. for one year. Co-accused Bhagwati, Nand Kishore and Mohan have been acquitted of the charges under Section 307/34 and 323/34 IPC.
2. Briefly stated, the facts of the prosecution case are that on 20.06.98 at about 12.00 noon appellant Jalim Singh fired a gunshot and caused injuries on the person of PW3 Lakhmichand in front of the house of PW 12 Sugren, brother of PW 3 Lakhmichand in village Nandiya Khedi, P.S. Jhalarapatan. As per the prosecution evidence, the appellant along with other accused had come at the house of Sugren on previous day. They wanted to take away Mst. Salot D/o Sugren forcibly who was already married to Roopchand. On this account a scuffle took place between Sugren and accused persons. Sugren and Jalim Singh grappled each other. Thereafter the appellant fired a shot and caused injuries on left elbow, right forearm, left thigh back of the chest and abdomen of PW 3 Lakhmichand. On the basis of 'Parcha-Bayan' Ex.P1 of PW 3 Lakhmichand which was recorded by PW 10 Mohan Singh. ASI, P.S. Jhalarapatan in S.R.G. Hospital, Jhalawar, FIR Ex.P2 was registered and investigation commenced. On completion of investigation a charge-sheet was filed against the against the appellant and other co-accused. In due course the case was committed to the Court of Sessions Judge and no transfer by the learned Sessions Judge it was tried by the learned Additional Sessions Judge (Fast Track).
3. Learned Additional Sessions Judge framed charges under Sections 307/34 and 323/34 against all the accused. The accused denied the charges and claimed trial. To prove the charges, the prosecution examined as many as is witnesses. In their statements recorded under Section 313 Cr.P.C., all the accused pleaded innocence. No evidence was adduced in defence.
4. The learned Additional Sessions Judge on hearing the final submissions made by both the parties, convicted and sentenced the appellant Jalim Singh as indicated herein-above and acquitted him of the charge under Section 323/34 IPC. The remaining accused were acquitted of both the charges.
5. I have heard the learned counsel appearing for the accused- appellant, the learned Public Prosecutor for the State and have also perused the impugned Judgment as also the entire prosecution evidence.
6. Learned counsel for the appellant contended that except injured PW 3 Lakhmichand and his wife PW 2 Kalawati, none of the alleged eye-witness has supported the prosecution and therefore, the prosecution has failed to prove that the appellant had caused injuries to PW3 Lakhmichand. This contention of the learned counsel has no force. It is true that except PW 2 Kalawati and PW 3 Lakhmichand (injured), none of the remaining eye-witnesses has supported the prosecution case, but only on this ground it cannot be held that the appellant had not caused the firearm injuries to PW 3 Lakhmichand. As per the testimony of PW 3 Lakhmichand, when he reached at the house of his brother Sugren he found his brother and accused exchanging hot words. They were grappling each other. The accused wanted to take away Mst. Salol D/o Sugren forcibly. In the course of grappling appellant Jalim Singh fired a gunshot and caused injuries to PW 3 Lakhmichand. PW2 Kalawati has supported her husband so far as the appellant is concerned.
7. Apart from that, the testimony of Lakhmichand stands corroborated by the medical evidence. PW 9 Dr. Chandra Shekhar Vyas has deposed that on 27.6.1998 as Medical Jurist, S.R.G. Hospital, Jhalawar, he examined Lakhmichand S/o Jharma and found the following injuries on his person--
(1) Tatooing with swelling 1/4"x 1/4"x 1/4" left back of elbow.
(2) Tatooing with swelling 1/4"x 1/4"x1/4" middle forearm posteriorly.
(3) Tatooing with swelling 1/2"x1/4"x1/4" right forearm lower 1/3rd.
(4) Tatooing with swelling 1/2"x1/2"x1/2" left thigh upper 1/3rd medially.
(5) Tatooing with swelling 1/2"x1/2"x1/2" left chest wall.
(6) Tatooing with swelling 1/2"x1/2"x1/2", 3" below injury No. 5.
(7) Tatooing with swelling 1/2"1/2"x1/2" lower chest left side.
(8) Tatooing with swelling 1/2"x1/2"x1/2" left side of abdomen. Dr. Vyas further stated that all the injuries were simple in nature. The duration of injuries was within six hours. He prepared Injury Report Ex.P9. It was further stated by Dr. Vyas that on X-ray of abdomen, left thigh, chest and right elbow pellets were seen. In view of the medical evidence, reliance can be placed on the testimony of PW 3 Lakhmichand and his wife PW 2 Kalawati. On close and careful scrutiny of the testimony of the aforesaid witnesses, I found it cogent and credible. Thus, in my considered view also, the prosecution has succeeded to prove beyond reasonable doubt that the appellant had caused injuries by firing a gunshot on the person of PW 3 Lakhmichand.
8. It was also submitted by the learned counsel that no offence under Section 307 IPC is made out against the appellant and the Trial Court has committed as error in convicting the appellant. Learned counsel further contended that one of the injuries found on the person of PW3 Lakhmichand at the time of his medical examination was grievous in nature. On medical examination, Dr. Vyas opined that all the injuries were simple in nature. On X-ray no fracture was found. Though Dr. Vyas has stated before the Trial Court that he had performed operation on PW3 Lakhmichand and on opening of abdomen he found minimal gas under diaphragm, multiple pellets also seen. Biliary fluid was present in abdominal cavity, there was perforation of ilium (small gut) and, therefore, in his opinion injury in abdomen was grievous and dangerous to life. But neither the operation notes nor the bed head ticket has been produced by the prosecution in its evidence. Learned counsel contended that the injuries caused to Lakhmichand were not imminently dangerous. At best it can be said that there can be some remote chance of their becoming dangerous to life or becoming sufficient in the ordinary course of nature to cause the death of the injured, in case medical aid was not rendered. Danger to life from an injury should be imminent to constitute it as a dangerous one. Learned counsel submitted that in these circumstances, the present case does not travel beyond Section 324 IPC.
9. The learned Public Prosecutor appearing for the State submitted that Dr. Vyas has said that the injury sustained by Lakhmichand in his abdomen was dangerous to life and it was sufficient in the ordinary course of nature to cause death and therefore, the prosecution has been able prove charge under Section 307 IPC against the appellant.
10. I have considered the rival submissions and have also perused the testimony of Dr. Vyas. At the time of the medical examination Dr. Vyas opined that all the injuries were simple in nature, caused by firearm. As per his testimony, on X-ray no bony injury was found. Grievous hurt has been defined in Section 320 of the Indian Penal Code which reads as under:-
"320. Grievous hurt.- The following kinds of hurt only are designated as "grievous":-
First.- Emasculation.
Secondly.- Permanent privation of the sight of either eye. Thirdly.- Permanent privation of the hearing of either ear. Fourthly.- Privation of any member of joint.
Fifthly.- Destruction or permanent impairing of the powers of any member of joint.
Sixthly.- Permanent disfiguration of the head or face. Seventhly.- Fracture or dislocation of a bone or tooth.
Eighthly.- Any hurt which endangers life or which causes the sufferer to be during the space of twenty days in severe bodily pain, or unable to follow his ordinary pursuits."
11. As per the testimony of Dr. Vyas, injuries sustained by Lakhmichand do not come under Clause (1) to (7). As per his testimony, injury in the abdomen was grievous in nature being dangerous to life and thus comes under clause 'Eighthly.
12. In Madan Lal v. State of Himachal Pradesh, 1990 Cr.L.J. 310, Himachal Pradesh High Court has observed as under:-
"Taylor in his book 'Principles and Practice of Medical Jurisprudence.' 11th Edition, at page 230, stated as follows:-
"The meaning of the words 'dangerous to life' is left entirely to the professional knowledge of a witness. It is not sufficient that he should make a simple assertion that the wound was dangerous to life; he must be prepared to state to the Court satisfactory reasons for this opinion, and these reasons may be rigorously inquired into by counsel for the defence. Danger to life primarily depends upon haemorrhage shock or damage to a vital organ; and secondly, on the chance of complications such as infection leading to septicaemi payaemia, tetanus or gas ganerene and of infection of particular parts or tissues pneumonia, pleurisy, empyema, paricarditis, meningitis or peritonis; or more remotely to the effects of scaring, causing stricture (or the urethra, pesophagus, out, etc.), paralysis, urinery infection, etc. "As a general principle, the Court is likely to consider as dangerous to life in a danger is imminent. The law appears to contemplate the more immediate rather than the more, remote possible danger...."
Modi in his book 'Medical Jurisprudence and Toxicology, 13th Edition, at page 238, states as follows:
"Danger to life should be imminent before the injuries are designated 'dangerous to life', such injuries are extensive, and implicate important structures to organs, so that they may prove fatal in the absence of surgical aid. For instance, a compound fracutre of the skull, a would of 'large artery' or rupture of some internal organ, such as the spleen, should be considered dangerous to life. But the injuries which prove fatal remotely by intercurrent diseases, such as tetanus, erysipelas, etc. should not be considered as dangerous."
The opinion of the these celebrated authors clearly reveals that danger to life from an injury should be imminent to constitute it as a dangerous one. Such injuries are of serious nature like haemorrhage, shock or injuries implicating important structure or organs causing imminent danger.
Therefore, it can be said that the injuries caused to the complainant were not imminently dangerous nor caused on the vital part of the body. At best, it can be said that there could be some remote chance of their becoming dangerous to life or becoming sufficient, in ordinary course of nature, to cause the death of the complainant, in case medical and was not rendered. Intention or knowledge are alternative ingredients of this offence. Now, from the evidence discussed above as well as to be discussed hereinafter, it is not possible to conclude that the appellant intended to cause the death of intended to inflict injury which was sufficient in the ordinary course of nature to cause death or that he knew that his act was so imminently dangerous that it must in all this probability cause the death or cause an injury as is likely to cause death. The burden to prove all this is upon the prosecution and, in my opinion, it has failed to discharge the same to the extent to record a finding of commission of an offence under Section 307 of the Penal Code."
13. In the instant case, neither operation notes nor the bed head ticket was produced by the prosecution before the Trial Court. There is not evidence on record to show that for how many days the injured Lakhmichand remained in the hospital for treatment. As stated above, at the time of medical examination it was opined by Dr. Vyas that all the injuries found on the body of Lakhmichand were simple in nature. He was no unconscious it was not mentioned in the injury report Ex.P9 that his condition was serious. There is nothing on record to show that during treatment the condition of injured Lakhmichand was ever critical or serious.
14. In view of these facts, it cannot be held that any of the injuries sustained by injured Lakhmichand was dangerous to his life and was sufficient in the ordinary course of nature to cause death. The prosecution has also failed to prove that because of the injuries PW3 Lakhmichand was unable to follow his ordinary pursuits for twenty days.
15. As per the testimony of PW3 Lakhmichand, on arrival at the house of his brother Sugren the found both Sugren and the appellant grappling each other and the appellant fired a gunshot which hit on his person. Having considered the testimony of PW 3 Lakhmichand, I am of the view that the appellant had no intention to cause the death or to cause such bodily injury which was sufficient in the ordinary course of nature to cause the death of PW 3 Lakhmichand.
16. For the aforesaid reasons, I have come to the conclusion that the prosecution has failed to prove the charge under Section 307 IPC against the appellant. The offence does not travel beyond Section 324 IPC and the appellant is held guilty for the offence punishable under Section 324 IPC. The appellant has already suffered imprisonment for more than 17 months. In view of the facts and circumstances of the case, he is sentenced to the period already undergone by him.
17. In the result, the appeal of accused-appellant Jalim Singh is partly allowed. While modifying the Judgment and order dated 20.11.2003 passed by the learned Additional Sessions Judge (Fast Track) No. 4, Jhalawar, he is acquitted of the charge under Section 307 IPC. Instead he is convicted under Section 324 of the Indian Penal Code and sentenced to the period already undergone by him. He is in custody. He shall be set at liberty forthwith, if not wanted in any other case.