Amit Verma and another vs State of M.P.

Ashok Kumar Tiwari, J.

Appellants herein stand convicted u/s 307/34 of Indian Penal Code vide judgment passed by the 2nd Additional Sessions Judge, Ujjain in Sessions Trial No. 117/03 on 28-8-2003.

2(a). Briefly stated, prosecution''s case is that on 25-1-2003 at about 8.45 O''clock in night appellant Amit Verma and his brother Golu came at the house of complainant Rajendra Rai (PW-2) and they took him, on the pretext that they have to talk with him about Kunti, who is the niece of Rajendra Rai (PW-2). Appellants took Rajendra Rai near the house of Pawar where two boys caught his hands and appellants struck him with knife. After assaulting, appellants and those two boys ran away from the scene of occurrence.

2(b). Thereafter, Rajendra Rai (PW-2) was carried to District Hospital where Dr. Harish Rathore (PW-1) examined and prepared M.L.C. (Ex.P/1). Anoop Mishra (PW-6) reached hospital and Dehati Nalishi (Ex.P/5) was written by him. A crime was registered by the police and investigation was conducted. During investigation, statements of witnesses were recorded and Crime Details Form (Ex.P/10) was prepared. Appellants were arrested and knife used in the incident was recovered on their disclosure statement made by them vide Ex.P/13 and P/14 respectively. After completing the formalities and necessities of investigation, charge sheet was filed against the appellants.

Appellants abjured their guilt and trial was held against them and after trial appellants were held guilty for the commission of offence punishable u/s 307/34 of Indian Penal Code and they were sentenced to undergo rigorous imprisonment for 5 years and to pay a fine of Rs. 1,000/-; in default of payment of fine they were directed to undergo 6 months simple imprisonment. Hence, they have preferred this appeal.

The fact that appellants caused injuries to Rajendra Rai (PW-2) with knives has been established by the prosecution. The testimony of Rajendra Rai (PW-2) himself is trustworthy in this regard. There is nothing in his testimony which may render his testimony unreliable and doubtful. Although the alleged eye witnesses Arun Suryawanshi (PW-3), Anoop Rai (PW-4), Anish Khan (PW-7) and Bablu Khan (PW-8) have not supported the prosecution''s case and they have been declared hostile but there is legal bar on basing a conviction solely on the testimony of the injured himself, if it is found reliable. From the testimony of Bablu Khan (PW-8), it appears that he was present at the time of incident. He has deposed that after 2 or 3 days of incident, Rajendra Rai told him the names of his assailants, but he had forgotten their names. He has deposed that he cannot say whether appellants were amongst the assailants because it was dark there. Anoop Rai (PW-4) has deposed that at Kushalpura at about 8.30 p.m. Rajendra Rai came running to him and he told him that Amit and Golu have injured him with knife. He has stated that he took Rajendra Rai to hospital. He has also stated that Arun was taking a walk there also after taking his meals. He has also stated that Anis and Bablu also arrived there. Thus, the presence of the above witnesses on the spot is established and even the hostile witnesses support the prosecution''s case to the extent of incident being taken place and testimony of Rajendra Rai (PW-2) gets corroborated to some extent by their testimonies. His testimony also stands corroborated by medical evidence. I do not find any infirmity in the testimony of Rajendra Rai (PW-2) and his testimony can be safely acted upon to the extent that appellants inflicted injuries to him with knives.

The contention of the learned counsel for the appellants is that the injuries found on the person of Rajendra Rai (PW-2) have not been proved sufficient to cause his death, therefore, appellants could not have been convicted u/s 307 of Indian Penal Code. The contention of the learned counsel is that Dr. Harish Rathore (PW-1) has stated for the first time in the Court that if the operation would not have been performed, the injury caused to large intestine would have been sufficient in the ordinary course of nature to cause the death of the injured, therefore, his above said version cannot be accepted.

Investigating Officer made a written query to Dr. Harish Rathore (PW-1) who gave his written reply (Ex.P/4). Learned counsel for appellants has submitted that such a reply is not admissible in evidence as it is a sort of statement made to the police during the course of investigation. Leaving this controversy apart, if Ex.P/4 is considered in evidence, it does not help to the prosecution. It appears from the perusal of Ex. P/4 that no opinion regarding the question as to whether death could be caused due to the injuries has been expressed in Ex.P/4. In the written query, it was asked by the police whether the injuries sustained by Rajendra Rai could cause his death? From the perusal of Ex. P/4, it appears, that in reply to the question whether the injuries sustained by Rajendra Rai could be caused by the knives sent to him by Dr. Harish Rathore (PW-1) has stated in his reply that injuries could be caused by both the knives presented before him and in reply to the question regarding the probability of the death of injured Rajendra Rai due to injuries sustained by him, he has simply replied that nature of the injuries has been clearly mentioned in M.L.C. Report.

When we refer to M.L.C. report (Ex.P/1), we find that out of four injuries found on the person of Rajendra Rai, injury No. 2, 3 and 4 have been described as simple in nature while injury No. 1 as grievous in nature. Thus, the statement of Dr. Harish Rathore (PW-1) to the effect that damage caused to large intestine due to injury No. 1 would have been sufficient to cause death if operation was not performed, cannot be safely relied upon. Thus, the conviction of appellants u/s 307 of Indian Penal Code appears palpably wrong as it is based on the medical evidence which is discrepant and shaky.

As already pointed out that in M.L.C. Report (Ex.P/1) injury No. 2, 3 and 4 has been mentioned as simple in nature. Dr. Harish Rathore (PW-1) has also stated in his testimony that these injuries were simple in nature. Injury No. 1 has been mentioned as grievous in nature in Ex. P/l.

Thus, it is established that three simple and one grievous injuries were inflicted with knives by the appellants. There is no evidence to the effect that which of the accused caused Injury No. 1. It appears from the testimony of Rajendra Rai (PW-2) that both appellants struck him knives. Both appellants went to the house of Rajendra Rai (PW-2) and they persuaded him to come with them. From the manner in which the entire incident took place, it could be deduced that both appellants acted in furtherance of the common intention of causing grievous injuries to Rajendra Rai. Hence, both appellants are found guilty for the commission of offence punishable u/s 326 of Indian Penal Code with the help of section 34 of Indian Penal Code.

As regards sentence, looking to the entire facts and circumstances of the case and keeping in view age and antecedents of the appellants, rigorous imprisonment for a term of one year and fine of Rs. 3,000/- (three thousand only) will serve out the ends of justice.

Consequently, this appeal is partly allowed. Appellants are convicted u/s 326/34 of Indian Penal Code instead of u/s 307/34 of Indian Penal Code and they are sentenced to undergo rigorous imprisonment for one year and to pay a fine of Rs. 3,000/- (three thousand only) each; in default of payment of fine, they shall further undergo rigorous imprisonment for six months. Out of fine amount, Rs. 5,000/- (five thousand only) shall be paid to PW-2 Rajendra Rai s/o Motilal Rai r/o Kushalpura Ujjain as compensation. Record be returned.