Mohan Lal vs U.T. Administration

Jitendra Chauhan, J.—The present appeal is directed against the judgment and order dated 28.07.2000 (hereinafter referred to as

''impugned judgment'') whereby the Appellant-Mohan Lal, has been convicted for the commission of offence punishable u/s 307 Indian Penal

Code and has been awarded sentence to undergo rigorous imprisonment for a period of five years and to pay a fine of Rs. 1,000/- and in default

of payment of fine, to further undergo rigorous imprisonment for a period of two months for making an attempt to murder Bihari Lal. He has been

further sentenced to undergo rigorous imprisonment for a period of five years and to pay a fine of Rs. 1,000/- and in default of payment of fine, to

further undergo rigorous imprisonment for a period of two months for making an attempt to murder Sushma Devi. Both the substantive sentences

were ordered to run concurrently.

Briefly stated facts of the present case are that on 25.08.1996, ASI Pargat Singh, Police Post, Sector 22, Chandigarh, received information

from an unknown person to the effect that one Mohan Lal has inflicted injuries to Bihari Lal and his wife Sushma Devi, with a knife in House No.

3516, Sector 23-D, Chandigarh. On the basis of this information, ASI Pargat Singh, along with other police officials went at the spot and came to

know that the injured had already been removed to the hospital. Thereafter, he went to PGI, Chandigarh where the doctor declared Sushma Devi

unfit to make a statement whereas injured-Bihari Lal was declared fit and he suffered a statement to the effect that he was working as Senior

Accountant in the office of Accountant General, Haryana, and had tenanted one room on the top floor of House No. 3516, Sector 23-D,

Chandigarh, since 1989. The accused was also living in a separate room as a tenant on the same floor. On 25.8.1996 at about 7.30 a.m., when

complainant and his wife-Sushma Devi, were sitting in the courtyard in front of Barsati, the accused came out of his room and asked them as to

why they were causing hurdle by sitting in the courtyard. At that time, the complainant was cutting vegetables by sitting on the cot and his wife,

Sushma Devi, was sitting beside him. The accused remarked that he would teach the complainant a lesson for sitting at that place and turned the

cot, on which both the injured were sitting, upside down due to which, both of them fell down on the floor. The accused started grappling with

complainant, Bihari Lal, picked up the knife which had fallen on the floor and gave a knife blow on the backside of Bihari Lal. The complainant and

his wife raised hue and cry and when Sushma Devi tried to intervene in order to save her husband, the accused gave knife blow on her upper left

side near her breast. Thereafter, the accused fled away from the spot.

On the basis of aforesaid statement made by the complainant, investigations were conducted and final report u/s 173 Code of Criminal

Procedure was submitted.

The accused was charge-sheeted for the commission of offence punishable u/s 307 Indian Penal Code to which he pleaded not guilty and

claimed trial.

In order to substantiate its case against the accused, the prosecution examined as many as following 16 witnesses:

PW1-Dr. R.K. Banta, SMO, PGI, Chandigarh, medically examined Sushma Devi on 25.08.1996 and found the following injuries:

Incised wound 4.5cm with tapering edges sharp border in 7th intercostal space in midaxilary, left side with fresh ooze was present. Local

exploration of the wound revealed finger going into pleural space. Left intercostal tube drainage done. Medico-legal X-ray was advised which was

done by Dr. Ashu Seth and reported to be no bone injury vide MLC X-ray No. 43497 dated 25.8.1996.

He further deposed that the injury on the person of Sushma Devi was dangerous to life and was sustained with sharp-edged weapon. On

25.8.1996, he also medically examined Bihari Lal and found the following injury on his person:

Incised wound 4cm on back on left para vertical side with sharp edged weapon tapering at both ends and fresh ooze was present.

He further deposed that he had declared the injury on the person of Bihari Lal as dagerous to life and caused with a sharp-edged weapon.

PW2-Dr. Ashu Seth conducted the X-ray examination of the injuries on the persons of Sushma Devi and Bihari Lal, injured.

PW3-H.C. Rajbir Singh, deposed that he received information in the control room about some quarrel in House No. 3516, Sector 23-D,

Chandigarh whereupon he went to the spot and found Bihari Lal and his wife, Sushma Devi, in injured condition. He removed both the injured to

the PGI in police vehicle. PW4-Dr. Arvind Jindal, medically examined the accused on 25.8.1996 and found the following injuries on his person:

He was having reddish swelling 3X3 cm with central 1.5X0.5 cm Reddish abrasion in the central of swelling with 0.5X0.25 cm Abraded bruise

around the center above abrasion in 3 cm djametar area with another reddish bruise 6 cmX0.5 cm in a manner about 6cm above central abrasion"".

He was having reddish abrasion 2X0.5 cm on the base of left index and with finger with complaint of pain.

He further deposed that the injuries were simple in nature and caused with blunt weapon.

PW5-Constable Manjit Singh took the photographs of the place of occurrence.

PW6-MHC Dalip Singh is a formal witness.

PW7-Bihari Lal, injured, reiterated his version as has been given in Ex. PH.

PW8-Sushma Devi, injured, made almost similar statement as that of PW7.

PW9-Ram Singh, Assistant, CRD Branch, PGI, PWl0-Constable Yash Pal, PW11-ASI Gurmeet Singh, PW12-Balbir Singh and PW13-Dr. R K

Sharma, Deputy Medical Superintendent, PGI,-are the formal witnesses.

PW14-ASI Pargat Singh is the Investigating Officer in this case deposed about the investigations carried out by him.

PW15-Dr. Bharat Dubey, examined Sushma Devi, injured, on 25.8.1996 in the Casualty Ward and found a stab on the left infranammary region in

the 7th inter costal space. He deposed that because of the danger of blood or air getting trapped in the pleural space which could compromise the

respiration of the injured, they had to put a chest tube. This witness declared injury on the person of Sushma Devi as grievous. He also examined

Bihari Lal on 25.08.1996 and found stab wound 4cm. long and around 2cm. deep with exposed muscle tissue in the inter-scapular area on his

person. Nature of the injury on the person of Bihari Lal was also declared grievous.

PW-16 Dr. I. Haque, Sr. Scientific Officer, Central Forensic Science Laboratory proved his report, Ex. PU.

When examined u/s 313 Code of Criminal Procedure the accused denied the allegations appearing against him in the prosecution case and

pleaded his false implication. However, no evidence was led in his defence.

After hearing learned Counsel for the parties and appreciating the material evidence on record, the learned trial Court convicted and sentenced

the accused-Appellant for the offence and term as indicated at the outset of this judgment.

Learned Counsel for the Appellant has argued that there was no previous enmity between the parties. Both the parties were tenants in the same

house and there was no intention or motive behind the incident. There was no premeditation and the quarrel arose at the spur of the moment.

Therefore, there was no intention to cause any injury. The Appellant was empty-handed, it was a sudden fight and the alleged weapon used in the

crime was the same which was being used by the complainant for chopping vegetables.

Learned Counsel has further submitted that there is no eyewitness to the incident although the place of occurrence is a thickly populated area.

Some unknown person informed the Police. The landlord was also joined in the investigation and he made a statement that there was no enmity

between the injured and the accused.

Learned Counsel has stated that initially, the case was registered u/s 324 Indian Penal Code, however, the Investigating Officer moved an

application, Ex. PA/1, on 24.04.1997, for seeking opinion regarding the nature of the injuries sustained by the injured and whether the same could

cause death in the ordinary circumstances. In pursuance of the application, Ex. PA/1, Dr. Mugdha Kulkarni, SMO, recorded her opinion wherein

the injuries were described as dangerous to life and could be suffered with the weapon (knife) shown to the doctor. Learned Counsel submits that

on the basis of opinion rendered by the doctor, the Appellant was challaned u/s 307 Indian Penal Code.

Learned Counsel has submitted that the entire case of the prosecution is based on the opinion rendered by Dr. Mugdha Kulkarni with regard

to the nature of injuries. He has argued that the same cannot be relied upon as Dr. Mugdha Kulkarni, who opined the injuries on the person of the

injured-witnesses as dangerous to life, was not examined. Instead, Deputy Superintendent of the Hospital was examined as PW13, who proved

the signatures of Dr. Mugdha Kulkarni. Learned Counsel submits that non-examination of the doctor on whose opinion, challan u/s 307 Indian

Penal Code was filed, is not sustainable.

Learned Counsel has further arged that the prosecution has failed to explain the injuries on the person of the Appellant. He has submitted that

the Appellant suffered the trauma of litigation for more than 14 years during the trial and the pendency of the present appeal. The Appellant

remained in jail from 28.7.2002 to 12.10.2002.

On the other hand, learned Counsel appearing for the U.T. Administration submitted that from the perusal of the report, Ex. PA/1, dated

24.4.1997, prepared by Dr. Mugdha Kulkarni, the injuries were found to be dangerous to life. The doctor has specifically opined that the injuries

could be caused with the weapon (knife) recovered. Therefore, the case of the prosecution is proved beyond reasonable doubt.

I have heard learned Counsel for the parties and perused the record.

As per the case of the prosecution, the occurrence took place on the second floor of the house which was tenanted by both the parties.

Admittedly, there is no history of previous enmity between the parties. The occurrence in the present case took place on account of sudden and

grave provocation due to exchange of hot words between then?. The Appellant was empty-handed. The complainant was cutting vegetables and

his wife was sitting nearby. The alleged injuries were given with the kitchen knife with which the complainant, Bihari Lal, was cutting the vegetables.

It is also the case of the prosecution that the Appellant ran away from the spot after inflicting the injuries.

Initially, the case was registered u/s 324 Indian Penal Code, however, on information sought by the Investigating Officer, Dr. Mugdha

Kulkarni, SMO, opined the injuries to be dangerous to life and that the same could have been inflicted with the weapon (knife) shown to her.

However, this doctor, who gave the opinion regarding the nature of injuries suffered by the complainant and his wife, has not been examined by the

prosecution. In my opinion, the non-examination of material witness, i.e., Dr. Mugdha Kulkarni, who opined the injuries on the person of the

injured as dangerous to life and in pursuance thereto, the case was converted from Section 324 Indian Penal Code to Section 307 Indian Penal

Code, is fatal to the prosecution case.

Dr. R.K. Banta, PW1, has specifically stated that he never gave any opinion in the present case to the effect that the nature of injuries on the

person of the injured were dangerous to life. As per the statement of Dr. Ashu Seth, PW2, no bone injury was detected.

From the testimony of Dr. Arvinder Jindal, PW3, the accused-Appellant, Mohan Lal, suffered two injuries. The prosecution has not been able

to explain the injuries on the person of the Appellant. Non-explanation of the injuries suffered by the Appellant makes the case of the prosecution

doubtful.

The case of the prosecution is not that the Appellant, after inflicting the injuries, ran away from the spot with the knife as there is no allegation

that the Appellant carried away the same with him. Therefore, the recovery of the knife used in the crime, that too from an open place, which was

accessible to the public is itself doubtful. Moreover, the occurrence has taken place within the premises inhabited by neighbours and other

residents at the ground and first floor thereof, however, no independent witness was joined at the time of recovery of the alleged weapon.

In view of the above discussion and the fact that Dr. -Mugdha Kulkarni, who opined the injuries on the person of the injured as dangerous to

life, has not been examined by the prosecution, I am of the considered opinion that the Appellant cannot be held guilty u/s 307 Indian Penal Code.

Consequently, the offence, committed by the Appellant falls within the purview of Section 324 Indian Penal Code. As regards the question of

quantum of sentence, the accused has been facing agony of litigation for more than 14 years during the trial and during the pendency of the present

appeal and the fact that he has already undergone sentence of about 2 months, impel me to take a lenient view.

Resultantly, the present appeal is partly allowed. The judgment and order of the learned trial Court is modified. The accused-Appellant is

acquitted from the charge u/s 307 Indian Penal Code. However, the Appellant is convicted u/s 324 Indian Penal Code and the sentence of

imprisonment is modified to the period already suffered by him. Except for modification of conviction and sentence, this appeal fails on merits and

is dismissed accordingly.

Ordered accordingly.