Punjab-Haryana High Court
Iqbal Son Of Manzur Ali vs State Of Haryana on 30 November, 2011
Crl. Appeal No. 1334-SB of 2001(O&M) -1-
In the High Court of Punjab and Haryana at Chandigarh
Crl. Appeal No. 1334-SB of 2001(O&M)
Date of Decision: November 30, 2011
Iqbal son of Manzur Ali
---Petitioner
versus
State of Haryana
---Respondent
Coram: HON'BLE MR. JUSTICE GURDEV SINGH
***
Present: Mr.Tribhuwan Dahiya, Advocate
for the petitioner
Mr. Sidharth Sarup, DAG, Haryana
***
Gurdev Singh, J.
The appellant-accused, Iqbal son of Manzur Khan, has preferred this appeal against the judgment dated 21.3.2001 passed by Additional Sessions Judge, Faridabad, vide which he was convicted for the offence under Section 307 IPC and order dated 23.3.2001, vide which he was sentenced to undergo rigorous imprisonment for five years and to pay a fine of `2000/- and in default thereof to further undergo rigorous imprisonment for a period of two months. He was also tried for the offences under Section 452, 324, 427 IPC and Section 25 of the Arms Act, 1959, but was acquitted of those offences, vide the said judgment.
The prosecution case, in brief, is that on 24.7.1999, at about 9/9.30 p.m., Sanwar Mal, complainant-injured, PW-7, was coming back to Crl. Appeal No. 1334-SB of 2001(O&M) -2- his house from the shop of the Barber. When he reached in front of his house, Iqbal accused, accompanied by one unknown person came to that place, who were holding knives in their hands. The accused asked his companion to catch hold of him and thereafter, he was held by that person and was given blows with the knives by that person as well as by the accused on his head, chest, shoulder and left hand. He raised an alarm, which attracted a scooterist. When that scooterist tried to park his scooter, both these assailants left him and assaulted that scooterist. When the scooterist raised an alarm, one motor cyclist came there and both those assailants caught hold of him and they started grappling with each other. A number of persons collected at the spot and both of them managed to escape from that place. Thereafter, they went inside a house and broke the door shutters thereof. They were chased away by the villagers. The complainant was removed to Escort hospital, Faridabad, where he was medically examined by Dr. Rajeev Nayyar, PW-6, who found 8 injuries on his person, which were described in the Medico Legal report, Ex. PE. That doctor sent his ruqa, Ex. PF, to the police station and on the receipt thereof, Ram Dutt, SI, PW-9, came to that hospital. He gave application, Ex. PG/2, for enquiring about the fitness of the complainant-injured to make his statement and he was declared fit by the doctor, vide his endorsement Ex. PG/3. Thereafter, the SI recorded the statement of the complainant, Ex. PH, about the present occurrence and after making his endorsement, Ex. PH/1, upon the same, sent that to the police station and on the basis thereof, formal FIR, Ex. PH/3 was recorded against the accused under Section 307/34 IPC and Section 25 of the Arms Act, 1959. Thereafter, the SI went to the place of occurrence and after inspecting the same, prepared the rough site plans, Ex. Crl. Appeal No. 1334-SB of 2001(O&M) -3- PJ and PJ/1. In the course of investigation knife, which is said to be of the accused, was produced before him by Mukesh and the same was taken into possession, Vide Memo Ex. PK. The injuries on the person of the complainant were subjected to X-ray examination by Dr. Abha Prashar, PW-10, about which she gave her report, Ex. PM, and the same was based upon the Skiagrams EX. PM/1 to PM/5. In the course of investigation, the opinion of the doctor, Ex. PL/1, was obtained to the effect that injuries on the person of the injured were dangerous to life. The accused was arrested and after the completion of the investigation, the challan was put in before the JMIC, Faridabad, who committed the same to the Court of Session on the ground that the offence under Section 307 IPC was exclusively triable by that court.
On appearance of the accused, before the court, the mandatory provisions of Section 207 Cr.P.C. were complied with by supplying him with the copies of the challan and the documents sent along with the police report and relied upon by the prosecution. From the perusal of those documents and after hearing public prosecutor for the State and the accused in person, the learned Additional Sessions Judge, Faridabad, found sufficient grounds for presuming that the accused committed the offences punishable under Sections 307, 324, 427 and 452 read with Section 34 IPC and Section 25 of the Arms Act, 1959. He was charged accordingly, to which he pleaded not guilty and claimed trial.
To bring home the guilt of the accused, prosecution examined Khub Singh, Photographer, PW-1, Ram Chritra PW-2, Ranbir Singh, HC, PW-3, Girraj Singh, ASI, PW-4, Ashok Kumar, Draftsman, PW-5, Dr. Rajeev Nayyar, PW-6, Sanwar Mal, PW-7, Balbir Singh, PW-8, Crl. Appeal No. 1334-SB of 2001(O&M) -4- Ram Dutt, SI, PW-9, Dr. Abha Prashar, PW-10, Dr. V.K.Garg, PW-11 and Ravinder, PW-12.
After the close of the prosecution evidence, the accused was examined by the trial court and his statement was recorded under Section 313 Cr.P.C. The incriminating circumstances appearing against him in the prosecution evidence were put to him in order to enable him to explain the same. He denied all those circumstances and pleaded his innocence and false implication. He was called upon to enter on his defence but he did not produce any evidence in his defence.
After going through the evidence, so produced on the record and hearing Public Prosecutor for the State and learned defence counsel for the accused, the learned trial court convicted and sentenced the accused, as aforesaid.
I have heard learned counsel for the parties.
At the time of arguments, learned counsel for the accused did not challenge the findings recorded by the trial court about the causing of injuries by the present accused with the help of the knife to the complainant-injured. He confined his arguments regarding the maintaining of the sentence of the accused under Section 307 IPC. He submitted that from the evidence produced by the prosecution, it cannot be said that the accused committed the offence under that Section. None of the injury on his person was declared as sufficient to cause the death. There are three different opinions given by three different doctors at three different times. The doctor, who medically examined the complainant, described all the injuries to be simple in nature and again those injuries were declared as simple whereas third time, the opinion of the other doctor was obtained to Crl. Appeal No. 1334-SB of 2001(O&M) -5- the effect that those injuries were dangerous to life. The doctor who gave that opinion was never examined in the Court and no opportunity was given to the accused to test his opinion by cross-examining him. It cannot be inferred from the nature of the injuries or from the seat thereof, that the accused had the intention to cause the death of the complainant. The punctured wounds were found to be superficial in nature and at the most, it can be said that those were skin deep. All other injuries were lacerated wounds. During X-ray examination, no fracture was detected. No such opinion that the injuries were dangerous to life, could have been recorded. This Court is not bound by any such opinion, and on the basis of the evidence so produced on the record, it is to be concluded that injuries were simple in nature. Therefore, the conviction of the accused is liable to be converted from Section 307 IPC to 324 IPC and resultantly, the sentence, so imposed upon him is also to be reduced. He supported his arguments by Single Bench judgment of this Court rendered in the case of Satpal Singh vs. State of Punjab 2011(3) RCR (Criminal) 410.
On the other hand, it has been submitted by State counsel that the first two opinions by the doctors were given without taking note of the X-ray report. After the injuries on the person of the complainant were X- rayed , the Radiologist gave his report Ex. PH, and the third opinion was given by the doctor that all the injuries were dangerous to life. It is not the requirement of law that for convicting a person under Section 307 IPC, doctor must give an opinion that injuries, so caused were sufficient to cause the death. The intention is to be inferred from the nature of the injuries and the surrounding circumstances. From the statement of the complainant, coupled with the number of injuries, the seat thereof, and the Crl. Appeal No. 1334-SB of 2001(O&M) -6- weapon used for causing the same, it can easily be inferred that the intention of the accused was to cause the death of the complainant. Therefore, he was rightly convicted for the offence under Section 307 IPC and there is no ground to convert it into a minor offence under Section 324 IPC.
It was stated by Sanwar Mal, complainant, PW-7 that he was way laid, while returning to his house on 24.7.1999 at about 9/9.30 p.m., by Iqbal, accused and another person. He was assaulted by both of them with the help of knives and injuries were inflicted with the help of those knives. He no where stated that the injuries were caused to him with the intention to kill him.
It was stated by Dr. Rajeev Nayyar, PW-6, that on 24.7.1999, he medico legally examined the complainant and found the following injuries on his person:-
1. Lacerated wound about 1½ '' x ½'' over right parietal region of skull.
2. Lacerated wound about ½ '' x ½'' below wound No. 1
3. Lacerated wound about 1½ '' x ½'' over right occipital region of skull
4. Lacerated wound about ½ '' x ½'' about ½'' below wound No.
3.
5. Lacerated wound 1 '' x ½'' over back.
6. Lacerated wound about 1'' x ½'' over left back of shoulder.
7. A punctured wound about 1 cm over hypochondrium with sharp margins.
8. A punctured wound about 1 cm x 3 cm over left back of chest Crl. Appeal No. 1334-SB of 2001(O&M) -7- in the region of 5th and 6th intercostal space.
He further stated that injuries No. 1 to 6 were caused with the help of a blunt weapon where as injuries No. 7 and 8 were caused with the help of sharp edged weapon. He testified that Medico Legal Report is Ex. PE. He also proved on record his opinion Ex. PG/1, which was given on the application, EX. PG, moved by the police. This application was given on 10.8.1999 and he had described all the injuries as simple in nature.
The second opinion, Ex. PC, was given on the application, which was moved by the Investigating Agency on 2.10.1999. As per that opinion, injuries No. 2 to 7 were simple in nature.
The prosecution tried to prove the third opinion on the record as Ex. PL. No doctor was examined for proving that opinion and that was just tendered in evidence. No evidence was produced for proving that the doctor, who gave that opinion had died or was out of the reach of the Court or his presence could not have been procured without unnecessary delay. It was vehemently contended by the State counsel that this opinion is based upon the X-ray report, Ex. PM. It cannot be said to be so as it is very much apparent from the report, Ex. PM, that no bony injury was detected and even no free air was seen beneath the domes in the X-ray of abdomen. There is no other document proved by the prosecution, which may show that the opinion Ex. PL, is the correct opinion. In fact, this Court is confronted with two different opinions, which are totally contradictory to each other.
In Satpal Singh's case (supra), which was cited by the learned defence counsel for the accused, it was held by a Single Bench of this Court that injury falling under Section 307 IPC must be an injury which is sufficient to cause the death and in order to arrive at a proper conclusion, Crl. Appeal No. 1334-SB of 2001(O&M) -8- the Court is to see the nature and dimension of the injury, the location thereof and the damage which had been caused, though the expert might have opined the injury as dangerous to life. The Hon'ble Judge also tried to draw the distinction between "dangerous to life" and "endangering life".
Essential ingredients to constitute an offence under Section 307 IPC were laid down by Hon'ble the Supreme Court in Chamanbhai Jagabhai Patel vs. State of Gujrat 2009(4) Criminal Court Cases 484. As per that ruling, the following are the essential ingredients:-
(i)that the death of a human being was attempted;
(ii)that such death was attempted to be caused by, or in consequence of the act of the accused; and
(iii)that such act was done with the intention of causing death; or that it was done with the intention of causing such bodily injury as: (a) the accused knew to be likely to cause death; or
(b) was sufficient in the ordinary course of nature to cause death, or that the accused attempted to cause death by doing an act known to him to be so imminently dangerous that it must in all probability cause (a) death, or (b) such bodily injury as is likely to cause death.
It was also held by Hon'ble the Supreme Court in State of Madhya Pradesh vs. Imrat 2009(1) Criminal Court Cases 107 that for conviction under Section 307 IPC, it is sufficient if there is present an intent coupled with some overt act in execution thereof. It is not essential that some bodily injury capable of causing death should have been inflicted. Again while dealing with the case of attempt on life, it was observed by the Apex Court in Rattan Singh vs. State of Madhya Crl. Appeal No. 1334-SB of 2001(O&M) -9- Pradesh 2009(4) Criminal Court Cases 737 that it is the intention or knowledge and not the injury inflicted which is the deciding factor for applicability of Section 307 IPC. It was also held therein that an accused charged under Section 307 IPC cannot be acquitted merely because the injuries inflicted on the victim were in the nature of simple hurt. It is sufficient in law, if there is present intention coupled with overt act in execution thereof.
Therefore, in order to determine whether the act of the accused in causing the injuries to the complainant falls within the mischief of Section 307 IPC, it is his intention or knowledge, while causing those injuries, is to be seen. That is the deciding factor and not the nature of injuries alone. The act must be done with such intention or knowledge and under such circumstance that if the death be caused by that act, the offence of murder will emerge.
Therefore, much weight is not to be given to the nature of the injuries but to the intention or knowledge of the accused, which he was having at the time of causing those injuries. Such intention or knowledge cannot be proved by means of direct evidence and it is to be inferred from the circumstances, natures of injuries, seat thereof and the damage which has been caused to the complainant. As already said above, the complainant did not state in the Court that injuries were caused to him by the accused with the intention to cause his death. All the injuries were simple in nature. Only the seat of the injuries caused in the chest can be said to be on the vital part of the body. It is pertinent to note that the punctured wounds found on the chest were superficial in nature. At the most, it can be said that those were skin deep, as the depth was never Crl. Appeal No. 1334-SB of 2001(O&M) -10- recorded in the Medico Legal Report by he doctor. If the intention of the accused was to cause the death of the complainant, he must have given those injuries with force resulting in damage to the vital organs of the body. No bony injury was detected in the X-ray report nor any organ, what to say of the vital organ, was found to have been damaged. Therefore, it cannot be said that the accused had the intention or the knowledge to cause the death of the deceased. Therefore, injuries caused by him would fall under Sections 323 and 324 IPC.
In the result, this appeal is decided to the effect that the conviction of the accused under Section 307 IPC is converted to under Sections 323 and 324 IPC.
As a result of this modification, sentence so imposed upon the accused under Section 307 IPC is set aside. He is sentenced to undergo rigorous imprisonment for a period of three months under Section 323 IPC and he is sentenced to undergo rigorous imprisonment for a period of two years and to pay a fine of ` 5000/- and in default thereof, to further undergo rigorous imprisonment for a period of three months under Section 324 IPC.
The appellant-accused be taken into custody for undergoing the remaining part of his sentence.
This order be certified to the trial court for necessary action. Records of the trial court be returned forthwith.
(GURDEV SINGH) JUDGE November 30, 2011 PARAMJIT