Hariya vs State of Madhya Pradesh

S.K. Gangele, J.—The appellant has filed this appeal against the judgment dated 27th December, 1997 passed in S.T. No. 28/1995. The trial Court convicted the appellant for commission of an offence under Section 307 of the IPC and awarded the sentence of RI seven years. Fine amount of Rs.1,000/- has also been imposed against the appellant.

Prosecution story in brief is that on 2.11.1994 at around 7.00 O'' Clock in the evening in front of the house of Gram Sarpanch Gyani and son of Hariya, Bhura and younger brother of Gyani Nandkishore had been playing in between Hariya son of Sarpanch had painted cheek of Gyani. Gyani resisted about the action and thereafter Gyani abused the accused person. In that moment Babu Ahirwar caught hold Gyani and Sarpanch the present appellant came out with a wooden stick (Danda) and inflected an injury on the head of the injured. The injured fell down, he was taken immediately to the hospital and thereafter a Dehati Nalisi (Ex. P.1) was lodged. After lodging of the report the police conducted the investigation and filed the charge sheet against two accused persons for commission of an offence under Section 307/34 of the IPC. The appellant and another accused person abjured the guilt. The trial Court acquitted the another accused person Babu S/o Hariya and convicted the appellant and awarded the sentence.

Learned counsel for the appellant has submitted that the trial court has committed an error of law in holding the appellant guilty for commission of an offence. It is further submitted by the counsel that the complainant received incised injury, however such injury couldn''t be caused by hard and blunt object wooden stick (Danda). Hence, evidence produced by the prosecution is not reliable. He further contended that looking to the nature of injury no offence under Section 307 of the IPC is made out against the appellant.

Learned Public Prosecutor/ Government Advocate has submitted that looking to the nature of injury the trial court has rightly held that the appellant is guilty for commission of an offence punishable under Section 307 of the IPC. He further submitted that the trial court has recorded the reasons in paragraph 17 to 19 about the conduct of the doctor and his evidence cannot be said to be unreliable.

Complainant Gyani, who is an injured witness (P. W. 1) deposed that all the persons had been playing in front of the house of Sarpanch and Bhura had painted his cheek by colour. I resisted the action and thereafter I abused him, then Babu Ahirwar caught hold his hand and Hariya inflicted a blow on his head, I became unconscious and brought to the hospital. I gained conscious on the next date. The report of the incident was lodged at police station, which is Ex.P.1, and I signed the same from A to A. Bhura is the younger son of Sarpanch.

Another witness Bhagwan (P. W.2), deposed that Hariya inflicted injury by a wooden stick on the head of the complainant and thereafter, he and other persons had taken the injured to Ajaygarh Hospital. There was a quarrel between the boys when they were playing. The same facts have been deposed by P. W. 3, Lakhan Lal Tiwari and P. W. 4. Babu. P. W. 3 and P. W. 4 are the eye witnesses. P. W. 1 is injured witness. Dehati Nalsi (Ex. P.1) was lodged at the police station.

P. W. 5 Shri B.S. Upadhyay, deposed that on 2.11.1994, he was posted as Assistant Surgeon at Primary Health Centre Ajaygarh at around 11.00 p. m. he had examined the injured and found the following injuries :

He further opined that injury no.1 was caused by hard and sharp edged weapon. Other injuries No. 2 and 3 were simple in nature and they could be caused by hard and blunt object.

He further deposed that injury No. 1 could not be caused by wooden stick (Lathi). He further admitted the fact that injured was not referred for x-ray. The trial court has also made observations that why the injured was not referred for x-ray. There is no evidence that there was any fracture on the head of the complainant-injured. The doctor specifically opined that injury No. 1 could not be caused by hard and blunt object. The aforesaid evidence of the doctor has been discarded by the trial Court on the ground that the conduct of the doctor P. W. 5 was not proper, a warning was issued by the Civil Surgeon to the doctor because he had not referred the injured for x-ray. Even though, if the version of the doctor and injured witness is believed then there was only one injury of 4 cm x 1 cm on the head of the injured, it was in the right parietal bone to mid sagittal sutine, there was no fracture of any bone. Injured was admitted in the hospital for 20 days. The appellant used the wooden stick (Danda). Looking to the nature of injury, in my opinion the injury was not sufficient to cause death of the injured.

The Supreme Court in the matter of Sankaran Govindan Vs. Lakshmi Bharathi and Others, has held that where there was a lacerated wound of 2 1/2 x 1/2 scalp deep caused by sharp edge weapon, however injury was not sufficient to convict the accused for commission of an offence punishable under Section 307 of the IPC. The Supreme Court has convicted the accused for commission of offence under Section 324 of the IPC. The findings of the Apex Court are as under :

Appellant Mandeo is also convicted under Section 307 IPC and he was sentenced to suffer rigorous imprisonment for 6 years. The evidence shows that he was responsible for the injury on the head which he had given with a Farsa. That injury is described by Dr. Muhra as a lacerated wound 21/2" x 1/2" scalp deep on the left side of the head on the parietal region. It is also described as a simple injury. It is obvious that though a Farsa had been used, the sharp edge of the Farsa may not have been used. But since this injury was caused by an instrument which, used as a weapon of offence, is likely to cause death, the offence would be one under Section 324 IPC. The conviction, therefore, of Mandeo is changed to one under Section 324 IPC and his sentence is reduced to two years rigorous imprisonment. 10. Learned counsel for the appellant has relied on a judgment of the Supreme Court in the matter of Jadu Yadav and others Vs. State of Bihar, and contended that because as per evidence of doctor injury could not be caused by Lathi, hence appellant, who had a Lathi and from whom possession a Lathi was recovered could not be convicted for commission of offence. In my opinion, evidence of the doctor looking to his conduct as noted by the trial court cannot be relied on to the effect that the injury caused on the head could not be caused by a Danda wooden stick because his conduct was suspicious. The wooden stick was recovered from the possession of the accused and injured witness as well as two eye witnesses have deposed that injury was caused by the present appellant. Dehati Nalisy was recorded within sufficient time. In this view of the matter, in my opinion, the appellant cannot be acquitted for commission of offence.

The next question is that whether the appellant has committed an offence under Section 307 of the IPC or not. As noted by the doctor that there was only one injury on the head of the injured/ complainant, which was caused by Danda, wooden stick, which was two-three ft. long as deposed by the witnesses. There is no evidence on record that there was any fracture of scalp. The injured was in the hospital for near about 20 days. Looking to evidence on record and considering the judgment of the Hon''ble Supreme Court, quoted above, in my opinion the appellant could not be held liable for commission of an offence punishable under Section 307 of the IPC, however, he is liable for commission of offence under Section 324 of the IPC.

The next question is in regard to award of compensation to the injured-complainant. According to Section 357 of the IPC the court has power to award compensation to the injured person for any loss and injury caused by the offence. In the present case, the appellant has caused the injury, due to aforesaid injury the injured person was hospitalized and he was in the hospital for near about 20 days. Looking to the aforesaid facts of the case, in my opinion, it would be just and proper to award the compensation of Rs.20,000/- to the complainant- injured.

The appellant has suffered more than three months jail sentence, which is evident from the record. The offence is of the year of 1994, whereas the incident had occurred all of sudden. Looking to the evidence on record, in my opinion, it would be just and proper to award the sentence to the appellant as already undergone. Consequently, the appeal filed by the appellant is partly allowed. His conviction under Section 307 of the IPC is hereby set aside. The appellant is convicted for commission of an offence punishable under Section 324 of the IPC and awarded a sentence as already undergone. It is further directed that the appellant shall pay a compensation of Rs.20,000/- to the injured- complainant. He shall deposit the aforesaid amount before the trial court within a period of three months from the date of receipt of the certified copy of the judgment. The trial Court shall take appropriate steps for disbursing the amount to the complainant-injured person. If the appellant fails to deposit the aforesaid amount, he shall further under go a jail sentence of RI three months. The bail bonds of the appellant are hereby discharged.

Accordingly, appeal is partly allowed.