Full Judgment
S.L. Kochar, J.
1. For taking exception to the judgment and order of conviction and sentence passed against them by learned II Addl. Sessions Judge, Alirajpur in the matter of Sessions Trial No. 421/2002, the appellants have approached this Court by preferring this appeal. Learned II Addl. Sessions Judge had convicted the appellants for the offence punishable under Section 307, 307/34 of the IPC and sentenced them to undergo RI for seven years each and fine of Rs. 300/- each in default of the fine, they shall undergo imprisonment for one month.
2. The prosecution case in short is that on 19-7-2002 in the evening complainant Dhulia (PW. 1) was returning back from the house of his relation named Kunwarsingh from village Moriavada after taking meals on celebration of festival 'Divasa' (shraad of the forefathers of Kunwarsingh, in tribal community of Jhabua District, they are arranging this function on the day of dark moon one day prior or after). On the way Dhulia met appellants near the house of Ratansingh Bheel. The appellants asked complainant Dhulia as to why he came to their village to participate and take meal on occasion of 'Divasa', upon this complainant Dhulia (PW. 1) replied the appellats that who arc them to ask and inquire all this. The appellants annoyed on this answer and appellant No. 2 Ratniya and No. 3 Ukesh caught hold of the complainant Dhulia and appellant No. 1 Bhadariya shot an arrow which pierced near right ear of the complainant. Complainant immediately went back to the house of Kunwarsingh and disclosed about the incident. The incident was also witnessed by Hirlibai and Premsingh. The complainant lodged the report in the police station vide Ex. P.1 on the same day in the night at 12 p.m., thereafter he was medically examined by Dr. P.K. Dhoke (PW. 5). His MLC report is Ex. P.19. After due investigation, charge sheet was filed for the above mentioned offences by the police. The appellants denied the charges and pleaded innocence, therefore, put on trial. The prosecution has examined in total five witnesses and got proved 21 documents in its favour whereas appellants have not examined any witness in defence. The learned trial Court, after hearing both the parties, convicted the appellants as mentioned hereinabove.
3. The learned Counsel for appellants have submitted that even if the complete prosecution case is accepted, the offence would not travel more than Section 324/34 of the IPC. They have also submitted that there is no opinion available on record given by medical expert about the nature of injury. Appellant shot only one arrow without aiming a particular part of the body of the complainant and same has caused injury below right ear 1 cm x 1 cm x 15 cm deep. It has also been submitted that appellants were having no previous enmity for forming intention to commit murder of complainant Dhulia (PW. 1). The incident occurred all of a sudden when Dhulia and appellants met on the way and complainat instead of giving simple reply to the query put by the appellants behaved arrogantly with them. The learned Counsel has also submitted that the appellant No. 1 Bhadriya is in jail since three year three months and 26 days whereas appellants No. 2 and 3 remained in jail in total nine month and 25 days. The learned Counsel has also submitted that the appellants comes from tribal community of Jhabua District. They are the first offender and married persons. During the course of pendency of this appeal, daughter of appellant No. 1 Bhadriya has also died, therefore, on all these grounds they prayed for leniency in sentencing the appellants.
4. On the other hand the learned Counsel for State has submitted that for the purposes of constitution of offence punishable under Section 307 of the IPC the nature of injury is not very material. Even in a case of simple injury accused can be convicted under Section 307 of the IPC if he has caused the injury with intention to commit murder of the injured person.
5. Having heard the learned Counsel for parties and after perusing the entire record, it emerged that Dhulia (PW. l) has specifically stated in paragraph five that he was not having any enmity or previous ill will with the appellants. He was injured without any reason. The conviction is based only on the testimony of Dhulia (PW. l). Other independent witnesses Hirlibai (PW. 2) and Mirlibai (PW. 3) have turned hostile and witness Kunwarsingh has not been examined to whom injured immediately disclosed about the incident. Dr. P.K. Dhoke (PW. 5) has examined the complainant first time in the intervening night of 19th and 20th at 2.15 a.m. He found only one injury below the right ear adeasuring 1 cm x 1 cm x 15 cm deep. In examination-in-chief, para two this witness has said that injury was dangerous to life but in cross-examination para five he has deposed that injury could be dangerous to life or could not be but the injury was caused on vital part of the body. This witness has also deposed that blade of arrow was embedded in the injury because of which he mentioned the depth of the injury on assessment and admitted the appellant in the hospital for further treatment. According to this witness, complainant remained admitted in the hospital from 20th July, 2002 to 1st August, 2002. He proved bed head ticket vide Ex. P. 21 but prosecution has not got proved the contents of the bed head ticket, therefore, mere making exhibit upon the head ticket would not be sufficient to consider the contents of the documents which were required to be stated on oath by the author of bed head ticket. This Doctor has not stated that the complete bed head ticket was written by him and he only attended and treated the injured Dhulia (PW. 1) during the period as indoor patient. In view of all these factual position, it would be very difficult to draw inference that the appellant No. 1 Bhadriya caused injury with an intention that if the deceased would have died because of the said injury, appellant No. 1 would be liable for commission of culpable homicide amount to murder. There is no dispute that for determination of the intention of the culprit, only nature of injury is not sufficient but the same can be determined on the basis of the surrounding circumstances i.e. nature of injury, motive on the part of the accused, nature of weapon, part of the body on which injury intended was caused and whether there was any intervening factor because of which the accused could not fulfill his desire and intention. For determination of intention, motive of the accused always plays an important role. In absence of motive, it would be difficult to say that the injury was caused with Intention to commit murder of injured especially when only one blow was caused by the accused and that too was without aiming a particular part of the body of the injured. See : 1965 CriLJ766 Sarju Prasad v. State of Bihar : 1972 CriLJ469 Jainarayan Mishra v. State. In the instant case, Dhulia (PW. 1) has deposed specifically that appellant No. 1 Bhadriya shot arrow which pierced below his right ear. The witness has not stated that appellant aimed below his right ear and thereafter shot arrow which pierced at the place aimed by the appellants. In the instant case, there was no intervening factor also. The injured was caught by appellants Nos. 2 and 3 and all the three were having bow and arrow, therefore, they could cause further arrow shot injuries to the complainant. The appellants Nos. 1 and 2 have not caused any injury. Against them the evidence is that they caught complainant Dhulia (PW. 1). Though they were having bow and arrow but they did not use the same, therefore, they can at the most be held responsible for sharing common intention of the appellant No. 1 Badriya for causing simple injury to com plainant, therefore, they would be liable for conviction under Section 324/34 of the IPC sharing common intention of the appellant No. 1 Badriya. Though Dr. P.K. Dhoke has deposed in cross-examination that injury could be and could not be dangerous to life but looking to the depth of injury, vital part of the body i.e. below the right ear of the complainant and the period of admission as indoor patient, the injury caused by the appellant No. 1 Bhadriya was grievous in nature.
6. In the result, this appeal is allowed in part. Conviction and sentence of the appellants under Sections 307, 307/34 of the IPC are hereby set aside and instead thereof appellant No. 1 Bhadriya is convicted under Section 326 of the IPC, sentenced to the period already undergone (three year three month and 26 days) and appellants No. 2 Ratniya and No. 3 Ukesh are convicted under Section 324/34 of the IPC, sentenced to the period already undergone (nine months 25 days) and fine amount of Rs. 300/- upon each of the three appellant as imposed by the trial Court, in default they shall suffer SI for one month. The learned trial Court is directed to release the appellant No. 1 Bhadriya forthwith upon his depositing fine amount of Rs. 300/-. The appellants Nos. 2 and 3 are on bail. They are directed to deposit the fine amount on 16th December, 2005, only thereafter their bail bond and surety bond stand cancelled. Failing to deposit the fine amount by the appellants Nos. 2 and 3, the learned trial Court is directed to initiate appropriate proceeding against them in accordance with the provisions of law.
7. The office is directed to send copy of the judgment along with the record immediately to the trial Court.