Bharat Ram vs State of M.P.

R.S. Garg, Ag. C.J.

By this appeal, the appellant challenges his conviction and the sentence awarded to him in Sessions Trial No. 295/90 by the learned Second Additional Sessions Judge, Ambikapur dated 4-12-99 convicting the appellant u/s 307, IPC and sentencing him to R.I. for five years.

The prosecution case in brief is that due to old enmity between original complainant Ram Manik (P.W. 5) and the present appellant Bharat Ram, the present appellant after accosting him caused injuries by means of Tabbal on 12-6-91 at about 11 p.m. The matter was reported to the police by P.W. 4 Sukh Saran Singh on 13-6-91 at about 2.30 p.m. and Crime No. 398/91 was registered against the present appellant.

After registering the report, the police took cognizance of the matter, referred the victim/injured to the hospital where his injuries were examined, repaired and he was provided the medical assistance. The weapon of offence, as alleged, was discovered at the instance of the accused and, thereafter the statements of the witnesses were recorded. Finding that a case is made out for conviction of the appellant u/s 307, IPC, the police filed the challan before the Competent Court. The learned Trial Court framed the charges, gave proper opportunity to the parties to lead evidence and after hearing the parties convicted and sentenced the appellant as referred to above.

The learned counsel for the appellant submits that the victim Ram Manik, who is facing a prosecution u/s 326, IPC on a repprt lodged by the present appellant to encash the enmity has falsely implicated the appellant, though in fact, the appellant was not the assailant. The wife and the daughter of the complainant, who in fact were not the eye witnesses, were projected as such and in any case, the present is not a case falling under the mischief of 307, IPC but is a case falling within the purview of Section 323, IPC looking to the statement of the doctor, who had clearly stated that all the injuries suffered by the complainant were simple in nature.

On the other hand, the learned counsel for the State submits that from the statements of the witnesses, Ram Manik, P.W. 2 Kumari Champa, P.W. 7 Sushila Kumari and the statement of Dr. R. Jeetpure (P.W. 1), it is clearly proved that the appellant was the author of the injuries and the nature of the injuries would clearly show that the appellant in fact meant business and was out to murder him. He has submitted that no case for alteration of the conviction is made out and the sentences awarded to the appellant are in accordance with law.

5-A. I have heard the parties at length and have perused the record.

So far as the criticism of Sukh Saran Singh (P.W. 4) is concerned, the same is not in accordance with law. The submission of the learned counsel for the appellant that because Sukh Saran Singh has been declared hostile, his statements need not be accepted or relied upon. A perusal of the statement of Sukh Saran Singh would show that he was declared hostile for a limited purpose especially relating to recovery of the tabbal from possession of the appellant. So far as the first information is concerned, he positively stated that the first information report was lodged by him. In any case he himself was not an eye witness but was informed by certain other persons. The lodging of the report by said Sukh Saran Singh (P.W. 4) would only show that the matter was immediately reported to police and there was no undue delay.

So far as the statements of Sushila Kumari (P.W. 7), who is also the wife of the complainant, are concerned, she clearly stated that the present appellant caused injuries to her husband. True it is that she admitted in her cross-examination that her husband was a bully and was earning unnecessary fights with the public. Even if the victim, Ram Manik was a bully and was facing a prosecution on the complaint of the present appellant, same would not give right or authority to anybody to settle his scores contrary to law.

P.W. 2 Kumari Champa, is the daughter of the victim. She was clearly stated that the appellant was the assailant and had caused injuries to her father. The said witness is not a child witness but a grown up girl of 18-19 years of age. She positively corroborates P.W. 7 Sushila Kumari.

So far as the statements of the victim Ram Manik (P.W. 5) are concerned, in Para 2 of his statements, he has clearly stated that the accused/appellant caused the injuries and made repeated attacks. In his cross-examination, it was simply suggested to him that he was facing prosecution on the report of the present appellant. It was further suggested to him that the place of the occurrence was within the village itself, but none had come to save him. Probably by this suggestion, the defence suggests that present is a concocted story, otherwise some one would have come to save the person complaining. In the opinion of this Court, non arrival of the other villagers would only show that the present was a case of apathy and not of false implication. The statements of Ram Manik even on the touch-stone of the cross-examination show that the same are reliable and the witness is truthful.

From the statements of the witnesses coupled with the statements of P.W. 1 Dr. R. Jeetpure, it clearly appears that P.W. 5 Ram Manik suffered injuries and the said injuries were caused to him by the present appellant.

Dr. R. Jeetpure (P.W. 1) on examination of the injured found that he suffered the following injuries :

(1) Incised wound 13 cm x 3 cm x muscle deep over top of left shoulder joint;

(2) Incised wound 6 cm x 3 cm x muscle deep on the back of neck at base;

(3) Incised wound 3 1/2 cm x 1/2 cm x skin deep over anterior surface of Rt. arm; and

(4) Incised wound 2 cm x 1 cm deep upto muscle over chest anterior lateral surface 8/9th ribs.

True it is that according to the doctor, the injuries were simple in nature, but the nature of the injuries would not be decisive of everything. The Court is required to see as to what was the metis rea and what preparations were made by the accused and in execution of the mens rea what steps were taken by him. One could understand present to be a case u/s 323, IPC if one simple injury is caused. The manner in which as many as four injuries have been caused on the scapular region, on the back of the neck and at the inter costal region would certainly bring out the offence from the ambit of 323 and 324, IPC The question still would be whether the case would be one for conviction of the appellant u/s 307, IPC. The conviction of a person u/s 307 would be justified if the act was done with an intention to commit murder. Section 307 provides that 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 years, and shall also be liable to fine; and if hurt is caused to any person by such act, the offender shall be liable either to imprisonment for life, or to such punishment as is hereinbefore mentioned.

In the present case, the nature of the injuries which undisputedly are simple in nature would show that there was no likelihood of death. It has also not come on record that the accused either intended or had the knowledge to commit such an act where the death was caused, he would be guilty of murder. Hence in the absence of proof of the intention or the knowledge, it would not be safe to hold that the accused really intended to commit the offence punishable u/s 307, IPC.

Section 308, IPC provides that 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 culpable homicide not amounting to murder, shall be punished with imprisonment of either description for a term which may extend to seven years or with fine, or with both. In the present case, the nature of the injuries inflicted on the part of the body would certainly show that the accused with the intention and/or knowledge under particular circumstances committed the act, by which if he had caused death, he would have been guilty of culpable homicide not amounting to murder. Whether a man can be held guilty u/s 307 or Section 308, IPC, the question would be only of intention and knowledge. u/s 307 an injury is not required, but the very nature of the injury may bring out the case from the mischief of Section 307, IPC. It is pure and simple question of degree. Taking into consideration the totality of the circumstances, the nature of the injuries and the role assigned to the appellant, he can be held guilty for offence u/s 308, IPC. The appeal to this extent is allowed. The conviction of the appellant recorded u/s 307 and the sentence awarded to him for commission of the said offence are set aside, instead he is convicted for commission of the offence punishable u/s 308, IPC.

The learned counsel for the parties are heard on question of sentence. The learned counsel for the appellant submits that the appellant is in jail since 4-12-99 and during the course of the trial, he remained in jail tor period between 18-6-91 to 2-7-91 and as such he has remained injail for atleast about one year and by now he must have earned remission of atleast three months, the sentence already undergone by him if is awarded to him, the same would meet the ends of justice. On the other hand, the learned counsel for the State submits that the nature of the injuries call for deterrent punishment and in any case the sentence for the period already undergone would be most inadequate.

Taking into consideration that the incident had taken place in the year 1991, the appellant had undergone the agony of long drawn trial and has undergone atleast a period of one year, I consider present to be a fit case for awarding sentence for the period which he had already undergone. Apart from that, he shall pay fine of Rs. 7,000/-. In default of the payment of fine, he shall undergo R.l. for a period of two years. On recovery of the fine, the entire amount shall be paid to the victim.

The appeal is allowed to the extent indicated above. The release warrant be sent immediately through the Chief Judicial Magistrate, Am-bikapur (Sarguja).

Criminal Appeal allowed.