S.L. Kochar, J.
1. The appellants have preferred this appeal against the judgment dated 16-11-2002 passed in S.T. No. 560/2000 by 1st Addl. Sessions Judge, Alirajpur, District Jhabua (M.P.), whereby convicted the appellants under Section 307/34 of the Indian Penal Code and sentenced them to RI for seven years with fine of Rs. 100/-, in default of payment of fine amount they shall undergo additional SI for one month.
2. According to the prosecution case, on 16-3-2000 in the evening at 5:30 p.m., complainant Chhidu (P.W. 1) was sitting at the outskirt of Village Vejada-Sakdi. Complainant returned back after attending 'Bhagoria' festival of their tribal community, at that moment appellants reached over there having 'Falia' and while saying that complainant was behaving like a proudy person and also asked him as to why he was sitting there; they assaulted him by 'Falia' causing injuries on back, right neck and back of the skull. Complainant fell on the ground and after some time his brother Kasia (P.W. 2), Girmitia (P.W. 5), Ajma (P.W. 4) and Jagla (P.W. 3), alongwith Naval Singh, reached on the spot. The complainant disclosed about the incident to these persons and they took him to Police Station on the next day at 7:00 a.m. First Information Report (Exh. P-1) was lodged by Chhidu (P.W. 1). The police had registered the offence under Section 307/34 of the Indian Penal Code and under Sections 25 and 27 of the Arms Act. Dr. R.C. Panika (P.W. 6) medically examined the complainant and gave MLC report (Exh. P-16). Complainant was referred to for further treatment and treated by Dr. R. Mandal (P.W. 8). Complainant Chhidu remained hospitalized from 17-3-2000 to 14-4-2000. Bed head tickets were proved by Dr. R. Mandal (P.W. 8), vide Exh. P-19. Appellants were nabbed and on due investigation charge-sheeted for commission of above mentioned offences.
3. Appellants denied the charges and examined Gundia (D.W. 1) and Bhim Singh (D.W. 2) in their defence of alibi. Learned Trial Court after recording the statement of prosecution witnesses and hearing both the parties, convicted the appellants as indicated herein above.
4. Having heard the learned Counsel for the parties and after perusing the entire record, it borne out that conviction of the appellants under Section 307 of the IPC is not maintainable.
5. It is well settled legal position that for constituting the offence under Section 307 of the IPC, only nature of injury is not a decisive factor but Court has to see on the basis of surrounding circumstances, whether appellants were having requisite intention for committing murder of the victim or there was every likelihood of death of victim because of the act of the accused person/ persons and if victim would have died, accused person/persons would have been held guilty for commission of offence of murder. For judging the intention of the accused person/persons, the motive always plays a vital role. See : AIR 1965 Supreme Court Page 843 Sarjuprasad v. State of Bihar. In the instant case, there is no evidence of motive and according to complainant Chhidu (P.W, 1), he was simply sitting and appellants reached over there and while saying that he was, now a days, behaving like a proudy person, each appellant gave one blow and caused injuries to complainant. In the opinion of Dr. R.C. Panika (P.W. 6), he found three incised wound on the person of the complainant Chhidu but there was no fracture or damage to any internal vital organ and he referred the patient for further treatment to Civil Hospital, Alirajpur. Dr. R. Mandal (P.W. 8) has proved Bed Head Ticket (Exh. P-18) and stated specifically that injuries sustained by complainant were simple in nature and there was no fracture of any bone. Dr. R. Mandal has nowhere stated that during the course of admission, as indoor patient from 17-3-2000 to 13-4-2000, complainant was not in a position to perform his ordinary pursuits or there was any severe bodily pain.
6. Section 320, Clause 8 of the IPC reads as under:
Section 320. The following kinds of hurt only are designated as 'grievous':
First.- *** *** ***Secondly.- *** *** ***Thirdly.- *** *** ***Fourthly.- *** *** ***Fifthly.- *** *** ***Seventhly.- *** *** ***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.
7. Therefore, on the basis of period of admission in the hospital, i.e., 27 days, it cannot be said that the case of the prosecution would fall under Clause 8 of Section 320 of the IPC defining grievous hurt. The learned Trial Court has failed to consider the definition and incorrectly mentioned in Paragraph 7 of the impugned judgment that only because of admission of the complainant for 27 days as indoor patient he was unable to perform his daily routine general work or perform ordinary pursuits. Both the doctors have nowhere stated that complainant was unable to perform his daily routine work or in severe bodily pain. In this view of the matter, there is no reason to hold that complainant suffered grievous injuries or serious injuries or injuries sufficient in ordinary course of nature to cause death. On the basis of medical evidence, it is crystal clear that complainant sustained simple injuries. This is also clear from the fact that complainant sustained injuries on 16-3-2000 in the evening at 5:30 p.m. and he remained in the village without any treatment up to next day morning and taken to the Police Station, where he lodged the report (Exh. P-1) at 7:00 a.m. The distance of Police Station was shown 5 kilometers. Complainant was conscious at the time of lodging of the report. If the injuries would have been serious in nature, complainant would not have remained in conscious condition without any treatment and because of incised wound on vital part of the body as well as bleeding, he would have been either died or became unconscious. There is no intervening factor, which prohibited the appellants to gave some more blows and serious blows for committing murder of the complainant, if they had intention to commit his murder. The nature of injury appears to be only skin-cut whereas 'Falia' used by the appellants is a very heavy sharp edged weapon made by iron and slightly heavy blow on neck would have taken the lief of the complainant.
8. Under all these circumstances of the case, in the considered opinion of this Court offence under Section 307 of the IPC is not made out and appellants, at the most, would be liable for causing simple injuries by dangerous weapon punishable under Section 324/34 of the IPC.
9. The offence under Section 324 of the IPC is compoundable, but by the recent amendment in Criminal Procedure Code, 1973 by Amendment Act No. 25/2005, is made non-compoundable and yet this amendment has not come into force. By notification dated 21-6-2006, Central Government in exercise of power conferred by Sub-section (2) of Section 1 of the Criminal Procedure Code (Amendment) Act, 2005 (No. 25/2005)(for short 'the Code') appointed the 23rd June, 2006 as the date, on which provisions of said Act, except the provisions of Sections 16, 25, 28(a), 28(b), 38, 42(a), 42(b), 42(f)(III), (IV) and 44(a), shall come into force. It is clear from this notification that the amendment making the offence under Section 324 of the IPC non-compoundable, has not come into force. In the Amendment Act, there is no provision for application of this Act in pending cases retrospectively. Therefore, in the considered opinion of this Court, provision of Sections 28(a), 28(b) of the Amendment Act would not be applicable in the instant case because the incident occurred prior to the Amendment Act No. 25/2005.
10. In view of the foregoing discussion the offence, at the most, against the appellants would be made out under Section 324 read with Section 34 of the IPC and this offence is compoundable with the permission of this Court as per provision under Section 320, Sub-section (2) read with Sub-section (5) of 'the Code' and this Court does not find any reason for refusing the prayer of the appellants as well as the complainant for granting permission to compound the offence, hence permission is granted. In consequence thereof I.A. No. 3217/08 is allowed and appellants are acquitted from the offence under Section 324/34 of the IPC, as per provision under Sub-section (8) of Section 320 of 'the Code'. The appellants are on bail, their bail bonds and surety bonds stand discharged. Fine amount, if deposited by the appellants, be refunded to them.
11. Office is directed to send a copy of this judgment along with the record to the Trial Court for immediate compliance.