Liladhar Allias Gatiya vs State Of Rajasthan

Farjand Ali, J

The instant criminal appeal has been preferred against the judgment dated 28.11.1997 passed by the learned Additional Sessions Judge, Phalodi in Sessions Case No.25/1996, whereby the appellant was acquitted of the charge under Section 302 IPC, however, was convicted for the offence under Section 307 IPC and sentenced to undergo seven years' rigorous imprisonment along with fine of Rs.51,000/-, and in default of payment of fine, to further undergo one year simple imprisonment.

The prosecution case, in brief, is that on 05.09.1996, statement of injured Om Prakash was recorded at the local hospital by the then SHO Ashwini Kumar in the presence of Dr. C.P. Mathur and the same was exhibited as Ex.P/15. In the said statement, Om Prakash alleged that while returning after lodging a report regarding an earlier quarrel which had taken place in the morning, accused Liladhar @ Ghatia suddenly emerged near Marudhar Press situated on Pathar Road and inflicted a knife blow below his left ear, resulting in bleeding injuries. On the basis of the said statement, FIR No.178/1996 came to be registered for offences under Sections 302 and 326 IPC and investigation commenced. Om Prakash subsequently succumbed and post-mortem report Ex.P/16 came to be prepared on 06.09.1996. After completion of investigation, charge-sheet for offence under Section 302 IPC was filed against the accused and the matter was committed to the Court of Sessions for trial. During trial, the prosecution examined fifteen witnesses including PW-1 Radheshyam, brother of the deceased, PW-4 Leeladhar, father of the deceased, PW-10 Dr. C.P. Mathur, PW-12 Dr. N.S. Kothari and PW-15 Ashwini Kumar, the Investigating Officer. Certain witnesses turned hostile. Statement of the accused under Section 313 Cr.P.C. was recorded wherein he denied the allegations and claimed innocence. No evidence was led in defence. Upon hearing the parties and appreciation of the evidence available on record, the learned trial Court passed the impugned judgment convicting the appellant under Section 307 IPC while acquitting him of the offence under Section 302 IPC. Hence, the present appeal.

Learned counsel for the appellant vehemently contended that the entire prosecution story suffers from glaring inconsistencies, material improvements and serious infirmities. It was argued that deceased Om Prakash himself, in his earliest version Ex.P/15, specifically attributed only one injury near the left ear to accused Ghatia and did not whisper a single word regarding any abdominal injury. Learned counsel further submitted that in Ex.P/15 itself, the deceased categorically stated that accused Matka was not present at the spot and that the only overt act attributed to accused Ghatia was the knife injury near the ear. It was further contended that PW-1 Radheshyam, who allegedly accompanied the deceased throughout the occurrence, in his statement recorded under Section 161 Cr.P.C. and exhibited as Ex.D/1, also referred only to the injury near the ear and no allegation whatsoever was made regarding any abdominal injury. However, while deposing before the learned trial Court, PW-1 materially improved his version by introducing an altogether new allegation that the accused had also inflicted a knife blow on the abdomen of the deceased. Learned counsel submitted that this material improvement goes to the root of the prosecution case and renders the testimony of PW-1 unreliable insofar as the abdominal injury is concerned. It was, therefore, argued that the prosecution has utterly failed to establish beyond reasonable doubt that the fatal abdominal injury was caused by the appellant.

3.1. Learned counsel further submitted that even according to the medical evidence, the injury near the ear was simple in nature and was not sufficient in the ordinary course of nature to cause death. It was argued that the doctor, in his cross-examination, specifically admitted that the said injury was simple in nature. Thus, neither the requisite intention nor knowledge necessary to constitute an offence under Section 307 IPC can be attributed to the appellant. It was contended that merely because a knife was used would not ipso facto attract Section 307 IPC unless the prosecution establishes intention to commit murder from the surrounding circumstances and nature of injuries caused. According to learned counsel, once the abdominal injury is excluded from consideration, the only injury proved against the appellant remains a simple injury near the ear, which at the highest would constitute an offence under Section 324 IPC.

3.2. Learned counsel for the appellant further submitted that the incident pertains to the year 1996 and almost three decades have elapsed since the occurrence. The appellant has already undergone incarceration for approximately 25 days and has suffered the ordeal of prolonged criminal litigation for all these years. It was thus urged that even if the conviction is altered from Section 307 IPC to Section 324 IPC, no useful purpose would be served by sending the appellant back to custody at this distant point of time and the sentence awarded to him deserves to be reduced to the period already undergone.

Per contra, learned Public Prosecutor supported the impugned judgment and submitted that the prosecution has successfully established that the appellant inflicted knife injuries upon the deceased with the requisite intention and knowledge contemplated under Section 307 IPC. It was argued that the injuries were caused by a sharp-edged weapon and the surrounding circumstances clearly reveal the intention of the appellant. Learned Public Prosecutor further contended that merely because certain witnesses turned hostile or because there were some discrepancies in the statements of witnesses, the otherwise reliable prosecution case cannot be discarded in toto. It was, therefore, prayed that the conviction and sentence recorded by the learned trial Court be maintained.

This Court has bestowed its thoughtful consideration to the rival submissions and minutely examined the entire evidence available on record. The principal question which arises for consideration is as to whether the ingredients necessary for constituting an offence under Section 307 IPC are made out against the appellant or whether the proved act would fall within the ambit of Section 324 IPC.

At the outset, it is apposite to observe that in order to attract Section 307 IPC, the prosecution is required to establish that the accused committed the act with such intention or knowledge and under such circumstances that, had death been caused, the act would have amounted to murder. The essence of the offence under Section 307 IPC is the intention or knowledge to cause death coupled with an overt act in execution thereof. Mere causing of injury by itself is not sufficient to attract Section 307 IPC unless the attendant circumstances unmistakably demonstrate the existence of intention or knowledge contemplated under the provision. While determining whether Section 307 IPC is made out, the Court is required to consider the nature of weapon used, the nature and situs of injuries, severity of blows, part of body targeted, motive, surrounding circumstances and the medical evidence regarding the injuries sustained. Thus, where injuries are simple in nature and the evidence does not clearly establish intention to cause death, conviction under Section 307 IPC ordinarily cannot be sustained.

6.1. In the present case, the earliest version of the prosecution assumes immense significance. Deceased Om Prakash himself lodged report Ex.P/15 wherein he specifically alleged that accused Ghatia inflicted a knife injury near his left ear. In the said report, Om Prakash clearly stated that he was returning along with his brother Radheshyam and their father after lodging a report regarding the earlier quarrel and at that time accused Ghatia suddenly assaulted him. Significantly, in Ex.P/15, it was specifically mentioned that accused Matka was not present with the accused and the only injury attributed to accused Ghatia was the injury near the ear. There was absolutely no reference whatsoever regarding any abdominal injury in the first and most natural version lodged by the deceased himself.

6.2. Om Prakash unfortunately succumbed thereafter and post-mortem report Ex.P/16 was prepared on 06.09.1996. In the post-mortem report, the Medical Officer noticed two injuries on the body of the deceased, namely: (i) an incised wound measuring 2.5 cm on the upper side of neck before the left ear pinna near angle of mandible in oblique direction; and (ii) an incised stab wound on the abdomen below the umbilicus. The cause of death was opined to be shock and hemorrhage due to perforation of the small intestine caused by the stab injury on the abdomen along with other ante-mortem injuries.

6.3. However, what materially affects the prosecution case is that PW-1 Radheshyam, who was allegedly accompanying the deceased throughout the occurrence, in his statement recorded under Section 161 Cr.P.C. and exhibited as Ex.D/1, also reiterated only about the injury near the left ear. No allegation whatsoever was made therein regarding any abdominal injury. Thus, both the earliest version of the deceased and the statement of the alleged eye-witness recorded during investigation consistently referred only to the injury near the ear.

6.4. Surprisingly, when PW-1 Radheshyam entered the witness box before the learned trial Court, he materially improved his version and introduced a completely different story by alleging for the first time that the accused also inflicted a knife blow on the abdomen of the deceased. This material improvement goes to the root of the prosecution case and renders the testimony of PW-1 unreliable insofar as the abdominal injury is concerned. Even the learned trial Court recorded a categorical finding that there was no reliable and trustworthy evidence available on record to conclusively establish that the fatal abdominal injury was caused by the present appellant. The learned trial Court further observed that the investigation conducted in relation to the abdominal injury was highly doubtful and suspicious.

6.5. Thus, once the abdominal injury is excluded from consideration, the only injury proved against the appellant remains the injury near the left ear. The medical evidence further reveals that the said injury was simple in nature. The doctor, in his cross-examination, specifically admitted that the injury near the ear was simple and not sufficient in the ordinary course of nature to cause death. Even as per the post-mortem report, the cause of death was not the injury near the ear but the abdominal stab injury. Therefore, the injury attributed to the appellant cannot be said to be grievous or imminently dangerous so as to unmistakably establish intention or knowledge to commit murder.

6.6. Merely because a knife was used would not automatically attract Section 307 IPC. The prosecution is further required to establish that the injury was inflicted with the requisite intention or knowledge to cause death. In the facts of the present case, the only injury proved against the appellant is a simple injury near the left ear and the same was not inflicted on such a vital part of the body so as to irresistibly lead to an inference that the appellant intended to cause death of Om Prakash. The essential ingredients constituting an offence under Section 307 IPC are, therefore, conspicuously absent in the present case.

6.7. At the same time, it stands sufficiently proved from the evidence available on record that the appellant voluntarily caused hurt to the deceased by means of a sharp-edged weapon. The proved act of the appellant, therefore, squarely falls within the ambit of Section 324 IPC. Consequently, the conviction of the appellant under Section 307 IPC deserves to be altered and converted to one under Section 324 IPC.

6.8. So far as the question of sentence is concerned, the incident pertains to the year 1996 and almost three decades have elapsed since the occurrence. The appellant has already undergone incarceration for about 25 days and has suffered the agony and rigours of protracted criminal proceedings for a considerable length of time. There is no material available on record to indicate any subsequent criminal conduct on the part of the appellant during the intervening period. Looking to the nature of injury proved against the appellant, the long passage of time since the occurrence and the period already undergone by him in custody, no useful purpose would be served by sending the appellant back to prison at this distant point of time. Ends of justice would adequately be met if the sentence awarded to the appellant is reduced to the period already undergone by him.

Consequently, the appeal is partly allowed. The conviction of the appellant under Section 307 IPC recorded by the learned Additional Sessions Judge, Phalodi vide judgment dated 28.11.1997 passed in Sessions Case No.25/1996 is altered to one under Section 324 IPC. The sentence awarded to the appellant is reduced to the period already undergone by him. The fine imposed by the learned trial Court shall remain unaltered. The appellant is on bail and he is not required to surrender. His bail bonds stand discharged.

The record of the learned trial Court be remitted forthwith along with a copy of this judgment for information and necessary compliance.