Rajasthan High Court - Jaipur
Durga Lal @ Durgesh vs State Of Rajasthan on 19 September, 2001
Equivalent citations: 2002(2)WLN494
JUDGMENT Sunil Kumar Garg, J.
1. This appeal has been preferred by the accused appellant Durga Lal from Jail against the judgment and order dated 3.5.1999 passed by the learned Additional Sessions Judge, Gulabpura in Sessions Case No. 3/99 whereby the learned Additional Sessions Judge has convicted the accused appellant for offence under Section 307 I.P.C. and sentenced him as under:
Name of Convicted Sentence Awarded
Accused under Section
Durga Lal 307 I.P.C. 5 Years R.I. and a fine of Rs. 500
in default to further undergo 3
months R.I.
1A. Since in this case nobody was representing the accused appellant, this Court vide order dated 21.5.2001 appointed Shri Vijay Purohit as amicus curiae in this case.
2. It arises in the following circumstances:
(i) On 28.11.1998 at about 1 a.m. in the night P.W. 3 Durga Prasad gave 'Parcha Bayan' Ex.P/2 to P.W. 6 Ramdhan in the hospital stating that he was Watchman and he was performing his duties as Watchman. He went to Asind near bus-stand and at about 12.30 a.m., he saw someone near the shop of P.W.1 Ladu Lal and he lit his torch to see that man, but that man hide himself, then he went towards him and that man gave knife blow on his stomach and that man was named as accused appellant.
3. On this report, police chalked out regular F.I.R. Ex.P/5 and started investigation.
4. During investigation P.W. 3 Durgaprasad was got medically examined by P.W. 9 Dr. Nemichand and his injury report is Ex.P/8 and he received one injury on his abdomen and P.W. 9 Dr. Nemichand has opined that injury as grievous one and through letter Ex.P/7, P.W. 9 Dr. Nemichand further opined that on 2.12.1998 that injury which was received by P.W. 3 Durgaprasad on his stomach might be dangerous to life.
5. The accused appellant was arrested through Fard Ex.P/3 on 27.11.1998 and after usual investigation the police submitted challan against the accused appellant in the court of Magistrate from where the case was committed to the Additional Sessions Judge, Gulabpura.
6. On 28.1.1999 the learned Additional Sessions Judge, Gulabpura framed charge for offence under 'Section 307 I.P.C. against the accused appellant who pleaded not guilty and claimed trial.
7. During trial, the prosecution examined as many as 9 witnesses in support of its case. The accused in his statement under Section 313 Cr.P.C. denied to have committed any offence and no evidence was led in defence.
8. At the conclusion of the trial, the learned trial Judge through his judgment and order dated 3.5.1999 convicted and sentenced the accused appellants as stated above.
9. Aggrieved from the said judgment and order, this appeal has been filed by the accused appellant.
10. In this appeal, the learned Counsel for the accused appellant has raised following two submissions:
(i) The accused appellant gave only one knife blow on the stomach of P.W. 3 Durga Prasad, therefore, from this act of the accused appellant, it cannot be gathered that the accused appellant had intention to murder P.W. 3 Durga Prasad and the case of the accused appellant cannot travel beyond Section 324 I.P.C. or at best Section 326 I.P.C.
(ii) That since the accused appellant is in jail since 28.11.1998 and more than 2 and 1/2 years have passed, therefore, he may be released for the period already undergone.
11. On the other hand, the learned P.P. has submitted that the judgment and order passed by the learned Additional Sessions Judge are based on correct appreciation of evidence and they do not call for interference by this Court.
12. I have heard both and perused record and impugned judgment.
13. Before proceeding further, medical evidence in this case has to be seen which is found in the statement of P.W. 9 Dr. Nemi Chand. P.W. 9 Dr. Nemi Chand has stated that on 27.11.1998 he was posted as Medical Officer, Asind. On police requisition he examined P.W. 3 Durgaprasad and found following injury on his person:
Perforation injury 4 cm. x 1.5 cm. x intentional loop coming out from abdomen.
14. He has further stated that P.W. 3 Durga Prasad was referred to M.G.M. Hospital, Bhilwara for surgery as well as for X-ray. He has proved his report Ex.P/8 and he has assigned this injury as grievous one. He has further opined on Ex.P/7 that injury might to dangerous to life and in cross-examination he admits that in injury Report Ex.P/8, he has not mentioned that this injury might be dangerous to life.
15. Thus, from the statement of P.W.9 Dr. Nemi Chand and after perusing the injury report Ex.P/8, it appears that P.W.3 Durga Prasad received a perforation injury on his abdomen and it was treated by P.W.9 Dr. Nemi Chand as grievous one.
16. The next question which arises for consideration is whether by causing this injury offence under 307 I.P.C. is made out or not.
17. Before convicting the accused appellant for offence under Section 307 I.P.C. the prosecution has to prove the following facts:
(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.
(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 such 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, the accused having no excuse for incurring the risk of causing such death or injury.
18. Keeping in mind the above principle, the case of the prosecution has to be examined.
19. It is very much clear that the accused appellant made only one attempt and simply because this injury was caused by sharp edged weapon like knife and it was caused on vital part, such injury by itself in absence of any evidence about existence of any fracture or X-ray report, would not be sufficient for conviction for offence under Section 307 I.P.C. as P.W. 9 Dr. Nemi Chand has not stated anywhere that the said injury was sufficient in the ordinary course of nature to cause death. Therefore, the findings of conviction for offence under Section 307 I.P.C. recorded by the learned Additional Sessions Judge cannot be sustained and act of the accused falls under Section 326 I.P.C. and findings of conviction for offence under Section 307 I.P.C. recorded by the learned Additional Sessions Judge are liable to be altered accordingly and accused appellant is liable to be convicted for offence under Section 326 I.P.C. in place of Section 307 I.P.C.
ON THE POINT OF SENTENCE
20. Looking to the fact that the accused appellant is in jail from 27.11.1998 i.e. for a period of more than 2 and 1/2 years. For offence under Section 326 I.P.C. if the accused appellant is sentenced to the period already undergone by them, it would meet the ends of justice.
21. In the result this appeal filed by the accused appellant Durga Lal is partly allowed in the following manner:
The conviction of accused appellant for the offence under Section 307 I.P.C. recorded by the learned Additional Sessions Judge, Gulabpura vide his judgment dated 3.5.1999 is altered and instead of 307 I.P.C., he is convicted for offence under Section 326 I.P.C. and the judgment of learned Additional Sessions Judge, Gulabpura stands modified accordingly.
For offence under Section 326 I.P.C. the accused appellant is sentenced to the period already undergone by him. The order of sentence dated 3.5.1999 passed by the learned Additional Sessions Judge, Gulabpura also stands modified accordingly.
The accused appellant is in jail, he be released forthwith if not wanted in any other case.