Ashok Kumar Vs. State of Haryana - Court Judgment

CRA No.908-SB of 2001 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Appeal No.908-SB of 2001 Date of Decision :

17. 12.2012 Ashok Kumar .......Appellant Versus State of Haryana .......Respondent CORAM:- HON'BLE Mr.JUSTICE JITENDRA CHAUHAN Present: Mr.Mehardeep Singh, Advocate, amicus curiae for the appellant.

Mr.Rudraneel Bhardwaj, AAG, Haryana.

**** JITENDRA CHAUHAN, J.

The present criminal appeal is directed against the judgment and order dated 10/12.07.2001, passed by Additional Sessions Judge, Gurgaon, (hereinafter as 'the trial Court').convicting the accused (herein appellant) for committing offence under Sections 307, 324 of the Indian Penal Code, (for short, 'the IPC') and sentencing him to undergo rigorous imprisonment for a period of four years and to pay a fine of Rs.500/- or in default thereof, to further undergo rigorous imprisonment for a period of one month under Section 307 IPC; and rigorous imprisonment for a period of six months and to pay a fine of CRA No.908-SB of 2001 -2- Rs.200/- or in default thereof, to further undergo rigorous imprisonment for a period of 15 days, under Section 324 IPC.

However, both the sentences were ordered to run concurrently.

The brief facts of the case in hand, as recorded by the learned trial Court in the impugned judgment, are reproduced as under:- “ Briefly, stated the facts of the case of the prosecution as emerging out from the report u/s 173 Cr.P.C.are that on 4.1.99, at about 4.30 P.M.complainant Satpal was doing weight lifting as usual near the baithak of Ram Kumar.

In the mean time accused Ashok Kumar came there and stabbed knife on the right side of his chest.

He repeated the blow and caused injury with the knife on the left eye.

The accused caused the third knife blow on the right side of the abdomen of the complainant.

He raised noise “Mardiya- Mardiya”.

“Bachao-Bachao”.

which attracted Purshotam and Daulat Ram who rescued the complainant from the clutches of the accused.

Otherwise he would have caused more injuries.

It is alleged that motive behind the occurrence was that there had been a quarrel in between the father of the complainant and father of the accused some time prior to this occurrence.

Though the matter CRA No.908-SB of 2001 -3- had been compromised but even then the accused nourished the grudge against the complainant.

The complainant was taken to CHC Pataudi for treatment by his father.

But the doctor of CHC Pataudi referred him to General Hospital, Gurgaon for further treatment.

The Medical Officer of CHC informed the police of PS Pataudi vide ruqua Ex.PR.”

After completion of investigation, charges under Sections 324 and 307 IPC were framed against the accused-appellant to which, he pleaded not guilty and claimed trial.

In order to substantiate the charges against the accused, the prosecution examined Dharampal, Draftsman as PW1; Purshotam Kumar, an eyewitness as PW2; Satpal, injured witness and complainant as PW3; ASI Charan Singh, who registered the formal FIR, as PW4; Dr.

R.K.Sachdeva, who medico-legally examined the injured and issued the MLR as PW5; Rajpal Singh as PW6; HC Veer Singh, the Investigating Officer, as PW7; Dr.D.Bhatnagar, who treated the injured-complainant at Safdarjung Hospital, Delhi, as PW8; and Dr.

G.R.Anand, CHC Pataudi, who sent ruqa Ex.PR to the SHO, PS Pataudi, as PW9.

In his statement under Section 313 Cr.P.C., the accused- appellant denied all the allegations of the prosecution case and CRA No.908-SB of 2001 -4- pleaded false implication.

However, despite seeking and availing opportunity, the accused-appellant did not lead any evidence in his defence.

The learned defence counsel before the learned trial Court pleaded that the prosecution has failed to prove the case against the accused-appellant.

It was further argued that the provisions of Section 307 IPC are not attracted because none of the injuries endangers the life of the injured and at the most, Section 326 IPC can be attracted instead of Section 307 IPC.

It was further contended that neither it was the intention of the accused to cause death of injured- Sat Pal, not it was in his knowledge that the injuries could prove fatal to his life.

The learned trial Court, after hearing both the parties, held that the prosecution has been able to prove the charges under Sections 307 and 324 IPC against the accused beyond reasonable doubt observing that the prosecution has been able to prove that the accused had caused three knife blows on the person of the complainant at the relevant date, time and place; there is no reason to disbelieve the statements of official witnesses to hold that the knife, Ex.P1, was recovered from the accused in pursuance of the disclosure statement; the statement of PW-6, Rajpal Singh, is corroborated by the statement of PW-7, HC Veer Singh; and these statements are sufficient to prove the disclosure statement, recovery memo and rough sketch.

CRA No.908-SB of 2001 -5- Therefore, the accused-appellant was convicted and sentenced for the offence and term as reflected at the outset of this judgment, which is under challenge in the present criminal appeal.

The present appeal was admitted by this Court on 21.08.2001.

The learned amicus curiae contends that no case under Section 307 IPC is made out against the accused-appellant.

As per the prosecution version, the injured, Sat Pal, suffered three injuries.

Injury No.3 was stated to be simple in nature, whereas, injuries No.1 and 2 were kept under observation.

It is contended that in the medical evidence, it has nowhere come that the injuries suffered by the complainant were sufficient to cause death in the ordinary couRs.of nature.

It is further contended that the prosecution has miserably failed to prove the motive of the alleged occurrence.

The father of the petitioner and complainant were inimical to each other.

In the absence of the same, there was no occasion for the accused to go and attack the injured.

The learned amicus curiae lastly submits that the accused- appellant has suffered the agony of protracted trial for more than a decade.

He was a student at the time of the alleged occurrence.

He is not a previous convict.

He has already undergone 01 year 03 months and 06 days of actual sentence.

Therefore, he prays that a lenient CRA No.908-SB of 2001 -6- view may be taken.

On the other hand, the learned State counsel submits that the prosecution has been successful in proving guilt of the accused- appellant.

He caused as many as three repeated stab injuries to PW-3, Satpal, injured and would have caused more injuries in the absence of timely intervention of the eye-witnesses, PW-3, Purshotam and Daulat Ram (since deceased).I have heard the learned counsel for the parties and perused the record with their able assistance.

The fiRs.question which arises for consideration before this Court is whether the occurrence in question took place in the manner asserted by the prosecution.

The prosecution story is that on the fateful day, when the injured-complainant, Sat Pal, was weight lifting near the baithak of Ram Kumar, the accused came and caused three repeated knife blows on his person.

On raising noise by the complainant, PW2, Purshotam and Daulat Ram, a co-villager, who were also present at the spot, rescued the complainant.

During his examination, PW2, Purshotam, the alleged eyewitness, stated that when he along with the complainant, were taking exercise, there was a quarrel between the complainant and accused, Ashok, along with Daulat Ram, complainant, fled away from the spot.

He did not depose with regard the accused causing three knife injuries to the complainant in his presence.

This witness was declared hostile by the CRA No.908-SB of 2001 -7- prosecution.

The other alleged eyewitness, namely, Daulat Ram, died and thus, could not be examined.

However, the injured-complainant, Sat Pal, appeared as PW3, and supported the case of the prosecution.

In the circumstances, this Court is of the considered opinion, that the occurrence itself cannot be denied.

The second question which arises before this Court is whether the injuries on the person of the complainant, Sat Pal, attract the provisions of Section 307 IPC.

Before moving further, it would be appropriate to notice the provisions of Section 307 IPC, which reads thus:- “Attempt to murder.- Whoever does any act with such intention or knowledge, and under such circumstances, that, if he by that act caused death, he would be guilty of murder, shall be punished with imprisonment of either description for a term which may extend to ten year, and shall also be liable to fine; and if hurt is caused to any persons by such act, the offender shall be liable either to imprisonment for life, or to such punishment as is hereinbefore mentioned.

As per the record, the complainant suffered following three injuries:- 1.

Stab wound 1 ½ X ½ c.m.On chest right side 10 c.m.Lateral to the nipple.

Advised X-ray.

CRA No.908-SB of 2001 -8- 2.

Stab wound 1 ½ X ½ c.m.on abdomen left side below ribs.

Advised X-ray.”

3. Incised wound ½ X 1/6 c.m.on face left side.

A further perusal of the record shows that after the incident, the complainant was removed to the Civil Hospital, Gurgaon, where he was medically examined by PW5, Dr.

R.K.Sachdeva, Medical Officer.

Injury No.3 was declared as simple in nature, whereas, injury Nos.1 and 2, were kept under observation.

During his cross- examination, this witness admitted that he was not a surgeon rather he was eye-specialist.

It has also come on record that he did not declare either of Injuries No.1 and 3, as dangerous to life, in the MLR, Ex.PD.

The injured was subsequently removed to Safdarjung Hospital, Delhi, where he was admitted by Dr.

Anju Mishra and discharged by Dr.

Rishab Sharma, Senior Resident.

From this hospital, Dr.D.Bhatnagar, Medical Officer, was examined as PW8, who deposed that if timely medical treatment had not been given to the patient, his life would have been in danger.

In Jai Narain Mishra & others versus State of Bihar, 1972, Criminal Apeals Reporter (S.C.) 19, Hon'ble the Supreme Court has held that “the 4th injury caused by Surad, though endangering life could not be deemed to be an injury which would have necessary CRA No.908-SB of 2001 -9- caused death but for timely medical aid.

The benefit of doubt must, therefore, be given to Suraj with regard to the injury intended to be caused and in our opinion, the offence is not one under Section 307, Indian Penal Code but Section 326 Indian Penal Code.

His conviction under Section 307 Indian Penal Code is set aside and we convict him under Section 326, Indian Penal Code.”

In Atma Singh versus The State of Punjab, 1982(2) Chandigarh Law Reporter, 496, it was held as under:- “The Court is not absolved of the responsibility while deciding a criminal case to form its own conclusion regarding the nature of the injury, Expert's opinion notwithstanding.

The Court has to see the nature and dimension of the injury, its location and the damage that it has caused.

Even when an injury is described as to be one which endangers the life the court to apply its own mind and form its own opinion with regard to the nature of injury, having regard to the factors that should weigh with the Court, already mentioned.

We are also firmly of the view that what wherever a doctor describes an injury as 'dangerous to life' and the nature of the injuries are such which could merit such conclusion then such an injury has to be treated as 'grievous hurt' of the description CRA No.908-SB of 2001 -10- mentioned in fiRs.portion of clause 8 of Section 320 of the Indian Penal Code.”

In the present case, admittedly, there is no specific medical opinion on record to the fact that the injuries suffered by the injured were sufficient to cause death in the ordinary course.

Moreover, the prosecution has also not been able to prove that the accused had the knowledge/intention that the injured would be killed because of these injuries.

In the absence thereof, the accused-appellant cannot be held guilty for commission of offence punishable under Section 307 IPC.

He is guilty of causing grievous hurt punishable under Section 326 IPC.

Ordered accordingly.

As regards the quantum of sentence, the appellant has suffered protracted trial for more than a decade.

He is not a previous convict.

He was a student at the time of the occurrence.

He has already undergone more than 01 year and 03 months of actual sentences.

In the circumstances, the ends of justice would be met if the appellant is awarded sentence of imprisonment of the period already undergone by him.

However, the same shall be subject to the payment of fine of `25,000/-.

The amount shall be paid to the complainant as compensation, within six months from today.

Accordingly, the present appeal is partly allowed with the modification in the conviction and sentence as referred to above.

The CRA No.908-SB of 2001 -11- appellant is stated to be on bail.

His bail bonds shall stand discharged.

( JITENDRA CHAUHAN ) 17.12.2012 JUDGE atulsethi Note: Whether to be referred to reporter ?.

Yes/No