Full Judgment
Mahesh Chandra Sharma, J.
1. This is an Appeal arising out of a judgment dated 26-9-1986 passed by the learned Additional Sessions Judge, Gangapur City Camp Hindaun in Sessions Case No. 99/83 whereby he has convicted the accused appellant for the offence under Section 307 and 324/34, IPC and sentenced him to undergo 4 years rigorous imprisonment and to pay a fine of Rs. 200/- and in default of payment of fine to undergo 3 months simple imprisonment and for the offence under Section 307, IPC sentenced him to undergo for one year rigorous imprisonment and fine of Rs. 100/- and in default of payment of fine to undergo further simple imprisonment for one, month. All the substantive sentences to run concurrently.
2. The brief facts of the case are that Jaggan P.W. 4 submitted a written report Ex. P.4 to the SHO Police Station Todabheem in which he stated as under:
(Vernacular matter omitted..... Ed.)
3. Upon this report, the police registered a case under Sections 147, 148, 149, 307, 323, 324 and Section 341, IPC against Haricharan, Sodya, Babu Lal, Staya alias Satya Prakash Radheyshyam, Ramsahay Prahlad Singh Kedar and Babu Lal S/o Gangasahay and Section 34, IPC and started investigation. After investigation, a challan was filed against the accused before Court of Addl. Munsif and Judicial Magistrate, Hindaun City who committed the case to the Court of Addl. Sessions Judge Gangapur City. The learned trial Court has framed charge against the accused Haricharan for the offences under Sections 147, 148, 307, 324 read with Sections 149, 323 and 323/149, IPC, against accused Satya Prakash for the offence under Sections 147, 307/149, 324/149, 323 and 323/149, IPC and Section 323 read with Section 149 IPC, against accused Radheyashyam for the offence under Sections 147, 307/149, 324/149, 323 & 323/149, against accused Ramsahay for the offence under Sections 147, 307/149, 324/149, 323 & 323/149, IPC, against accused Prahlad Singh for the offence under Sections 147, 307/149, 324/149, 323 and 323/149, IPC, accused Kedar for the offence under Sections 147, 307/149,324/149,323 and 323/149, IPC and against accused Babu Singh for the offence under Sections 147, 307/149, 324/149, 323 and 323/149, IPC. The charges were read over and explained to the accused persons who pleaded not guilty and claimed for trial.
4. During trial, the prosecution in support of its case examined as many as 7 witnesses and got exhibited some documents. Thereafter, the statements of accused appellant were also recorded under Section 313, Cr.P.C.
5. After hearing both the parties, the learned Addl. Sessions Judge, has acquitted all the accused persons except accused appellant Haricharan who has been convicted and sentenced him for the offence under Sections 147, 307, 324/149, 323 and 323/149, IPC.
6. Aggrieved against the judgment and order of the learned trial Court dated the accused appellant has preferred the present appeal.
7. In this appeal Mrs. Suman Sharma appearing on behalf of Mr. Hem Singh Rathore on behalf of the accused appellant contended that from the evidence produced by the prosecution, no offence under Section 307, IPC or 324/34, IPC is made out against the accused appellant. She further contended that 9 persons were implicated by the complainant and the prosecution witnesses and the learned Judge himself found that the case against 7 out of them was not made out from the evidence produced by the prosecution and they have been acquitted from all the charges. She further contended that in the instant case, the main witness is P.W. 2 Badri who is injured. The learned Sessions Judge has discarded his testimony qua the co-accused persons who have been acquitted from all the charges. She further contended that the statement of P.W. 2 Badri was recorded by the police under Section 161, Cr.P.C. after 27 days of the incident and no satisfactory explanation has come on record and her explanation given by the prosecution has not been accepted by the learned trial Court. She contended that no reliance can be placed on the testimony of the witness whose statement has been recorded after considerable delay.
8. Learned Counsel for the appellant further contended that P.W. 4 Jagan is the eyewitness who has been declared hostile by the prosecution. She contended that P.W. 5 Ramcharan, the alleged eye-witness of the incident whose testimony is highly interested and is further full of contradiction and inconsistencies. His testimony has also been discarded by the learned trial Court while acquitting the co-accused persons. So far P.W. 6 Kalyan is concerned, he has also been declared hostile. She further draw the attention of this Court to the statement of P.W. 1 Dr. Radheyshyam Gupta which reproduced as under:
On 23-3-1983 I was posted as Medical Officer, Todabhim. On that day I examined the injuries of Badri S/o. Shri Ram Sahai, aged 50 years, B/S. Jaga, R/o Todabhim on police request No. 37/83 at 6.45 p.m. I found the following injuries on his person:
1. Incised wound 2 x 2 x 1' on mid of right forearm, radial side on dorsal aspect. Opinion was reserved after X-ray examination,
2. Incised wound 5 x 1/2 x ' on right side of face from frontal bone to cheek, Opinion reserved after X-ray,
3. Bruise, 7 x ' on calf of right lleg, simple in nature,
4. Abrasion, 1 x ' on right ankle joint outer aspect, simple in nature,
5. Bruise, 2 x ' outer aspect of right arm. simple in nature.
The injury Nos. 1 and 2 were caused by sharp object while the injury Nos. 3, 4 and 5 were caused by blunt object. The injury report Ex. P.1 was prepared by me and is in my hand, which bears my sign. From A to B, I/m of the injured is mentioned from C to D. Duration of the injuries were about two hrs., I had obtained the thumb impression of the injured Badri at place 'X' on Ex. P.1. On the basis of X-Ray report Ex. P.2 I have prepared the supplementary M.L.R. of Badri. Ex. P.3, which is in my hand and bears my sign from A to B. On the basis of X-ray report I found that the injury No. 2 of Ex. P1 was grievious in nature and there was fracture on tempo parietal bone on right side. Whereas injury No. 1 of Ex. P.1 was simple in nature. In my opinion in the ordinary course of nature the injury No. 2 of Ex. P1 was sufficient to cause death.
In cross-examination by the defence counsel, he deposed as under:
I have not received the X-ray plate of the injured. If X-ray plate would have been available then after examining the X-ray plate I would have given my opinion regarding fracture, but the X-ray report which was received by me indicated the nature of fracture and my opinion is based on the plates are not sent directly to us, they are kept with radiologist. I have not mentioned in supplementary M.L.R. that injury No. 2 was sufficient to cause death as it was not asked at that time when the supplementary M.L.R. was prepared. Since today my opinion regarding the injury No. 2 was asked as such on the basis of X-ray report I can say that the injury No. 2 was grievous in nature and was sufficient in the ordinary course of nature to cause death. As far as I remember the general condition of the patient was good. The patient had come to me without any help of any person. The brain is just below the parietal temporal bone and' there is slight difference between the parietal bone and temporal bone and the brain. Since the brain was not affected as such the patient could not collapse. Unless the brain is not affected the injured will not die, it is a matter of chance whether the brain is affected or not. Out of the injury Nos. 3 to 5, the injury No. 3 cannot be accidental, but the injury No. 4 and 5 may be accidental. Injury No. 1 cannot be accidental. Injury No. 3 cannot be self inflicted. The injury Nos. 4 & 5 cannot be self inflicted. As duration of the injury was within 2 Hrs. so the blood was present in injury Nos. 1 and 2 of Ex. P.1.
9. On the basis of the aforesaid cross-examination of P.W. 1 Dr. Radhey Shyam Gupta proves that the case of the accused appellant comes under the purview of Section 308, IPC instead of Section 307, IPC. The learned Advocate Mrs. Suman Sharma has contended that the case of the accused appellant comes under the purview of Section 308, IPC instead of Section 307, IPC, hence sentence should be reduced for the period already undergone. She further drawn attention of this Court to the fact that the occurrence took place 25 years ago from today and is suffering from different type of disease. According to her, the age of the accused is near about 80 years. She further submitted that the accused appellant is having children of marriageable age.
10. The learned Counsel for the appellant further relied upon a judgment delivered by Apex Court in Naib Singh v. State of Punjab reported in 1986 Cr LJ 2061. The relevant portion of the said judgment reads as under:
Accordingly, the appeal fails and is dismissed. The judgment of the High Court after convicting the appellant under Section 326 of the Indian Penal Code is upheld. As to the sentence, we are inclined to take a lenient view. We are informed that the appellant is a Teacher in a Government School. The circumstances brought out by the prosecution evidence show that he acted in the heat of the moment. Looking to the fact that the incident occurred on April 22, 1973. Some 13 years back, we do not think it desirable to send the appellant back to jail. We accordingly reduce the sentence of rigorous imprisonment for one year awarded by the High Court to imprisonment till the rising of the Court and pay a fine of Rs. 5,000/- or in default, to undergo rigorous imprisonment for a period of six months. The amount of fine shall be deposited in the Court of the Judicial Magistrate, First Class, Muktsar within a period of one month from today. The amount, if recovered, shall be paid to the complainant Darshan Singh by way of compensation. Appeal dismissed.
11. She lastly prays to this Court that a lenient view should be taken in the light of the judgment referred to above. Now, at this stage she is not challenging the conviction part of the judgment.
12. The learned Public Prosecutor has controverted the arguments advanced by the learned Counsel for the appellant.
13. In the light of the judgment of Hon'ble Apex Court (supra) and looking to the fact that the incident took place 25 years ago and the accused appellant is an old man of 80 years, as informed by the learned Counsel for the appellant, he is suffering from different type of disease, I do not think it desirable to send him back to jail.
14. For the reasons mentioned above, I maintain the order of conviction under Section 308, IPC instead of Section 307, IPC and convict the accused appellant under Sections 308 and 324 read with Section 34, IPC. Looking to the facts and circumstances that the appellant has already undergone confinement, ends of justice would be met in sentencing him to the period already undergone by him in confinement.
15. The accused appellant will pay a fine of Rs. 5000/- instead of Rs. 200/-, in default of payment, to further undergo rigorous imprisonment for a period of I month. The amount of fine shall be deposited in the Court of Addl. Sessions Judge, Gangapur City, Camp Hindaun within a period of 3 months from the date of receipt of certified copy of this order. Out of the amount of fine, Rs. 4000/- shall be paid to P.W. 2 Badri.
16. This appeal is partly allowed. The judgment and order dated 26-9-1986 passed by the learned Addl. Sessions Judge, Gangapur City Camp at Hindaun is modified to the extent as indicated above.