Raj Kumar and Others (in Jail) vs State

N.K. Mehrotra, J.—This is an appeal against the judgment and order dated 22.12.1989, passed by the Ist Additional Sessions Judge, Hardoi in S.T. No. 146 of 1989. The accused Appellants have been convicted to six years rigorous imprisonment u/s 307/34, I.P.C.

On the date of listing, nobody appeared from the side of the accused Appellants. Earlier accused had engaged Shri B. Saloman, advocate. On the death of Shri B. Saloman, it was thought proper to serve a notice on the Appellants afresh so that they may engage any counsel. Notices were served as per the report of the C.J.M., Hardoi. Nobody appeared from the side of the Appellants in spite of the service of notice. I heard learned Government Advocate.

Since the appeal is pending since 1990, it was considered proper in the interest of justice to dispose of the appeal on merit after following the decision of the Hon''ble Supreme Court in Bani Singh and ohters Vs. State of U.P., , wherein it was held by the Hon''ble Supreme Court that "it is the duty of the Appellant and his lawyer to remain present on the appointed date, time and place when the appeal is posted for hearing. This is the requirement of the Code on a plain reading of Sections 385 and 386 of the Code. The law does not enjoin that the Court shall adjourn the case if both the Appellant and his lawyer are absent. If the Court does so as a matter of prudence or indulgence, it is a different matter, but it is not bound to adjourn the matter. It can dispose of the appeal after perusing the record and the judgment of the trial court.

In the circumstances of the case, it was not found fit to grant indulgence in such old appeal.

The prosecution case in brief is that Ganga Charan lodged F.I.R. on 5.11.1988 at 10.15 a.m. with the allegation that on the same day at about 9.00 a.m., the accused Raj Kumar, Umesh and Jaswant residents of village Govardhanpur were digging and demolishing the walls of the complainant''s latrine. Ganga Charan''s wife Smt. Chandrawati asked them to desist from demolishing the wall and at this, the accused started abusing her. They pushed her down and hit her with kicks and fists. Smt. Chandrawati raised an alarm and at this, the complainant Ganga Charan, his son Devendra, Jang Bahadur and Faqirey rushed towards that place but in the meantime, the accused attacked Smt. Chandrawati with knife and after that they ran away.

A case under Sections 324, 323, 504 and 506, I.P.C. was registered. The investigation was entrusted to S.I. R. P. Pal. He recorded the statement of complainant on 5.11.1988 and then inspected the spot and prepared its site plan. He recovered blood stained and plain earth from the place of occurrence and prepared its memo. He recorded the statement of other witnesses and the case was converted u/s 326, I.P.C. on the receipt of the injury report and the X-ray report. Subsequently, it was altered u/s 307, I.P.C. on the orders of the higher authorities and the investigation was handed over to the S.I. Tula Ram Pandey who after completing investigation, submitted charge-sheet against the accused persons.

All the three accused were charge-sheeted u/s 307/34, I.P.C. to which they pleaded not guilty. The contention of the accused is that they have been falsely implicated.

Prosecution examined Ganga Charan P.W. 1, Smt. Chandrawati P.W 2, Dr. P. K. Gangwar P.W. 3, Dr. O. P. Mishra P.W. 4, Constable Shiv Bahadur P.W. 5 and Tula Ram Pandey P.W. 6, Dan Bahadur Singh P.W. 7 and Investigating Officer S.I. R. P. Pal P.W. 8.

Smt. Chandrawati was medically examined by Dr. P. K. Gangwar on 5.11.1988 and the following injuries were noted on the body of Smt. Chandrawati by Dr. P. K. Gangwar:

(1) Incised wound 3.5 cm. - 1 cm. - 1 cm. - skin deep on the right forearm 4 cm. above the wrist joint laterally margins clean out.

(2) Incised wound 1.5 cm. - 0.5 cm. - skin deep on the right forearm 5 cm. above the wrist joint medial side.

(3) Incised wound 1.5 cm. - 0.5 cm. - depth not probed on the left side of the abdomen 10 cm. above the umbilicus at 2 O''clock position.

(4) Incised wound 3.5 cm. - 0.5 cm. - depth not probed on the right side of the back just medial to scapula bone.

(5) Incised wound 1.5 cm. - 0.5 cm. - muscle deep on the medial side of the right thigh at perineum 34 cm. above the knee joint front.

(6) Contusion 4 cm. - 2 cm. on the right side of the back just above the hip joint, red colour.

(7) Contusion 3 cm. - 2 cm. on the right knee joint front, red colour.

Smt. Chandrawati was sent for X-ray. Dr. O. P. Mishra Radiologist has prepared X-ray plate of the back and abdomen of Smt. Chandrawati. Dr. O. P. Mishra has given the opinion that the intestine of Smt. Chandrawati was punctured and as a result, gas was seen in the right of the diaphram. He has also given opinion that the damage to the intestine is dangerous to life and sufficient to cause the death.

According to the medical evidence, the injury No. 3 was dangerous to life and was caused by a sharp-edged weapon like knife. The other injuries were simple. The case into Section 307, I.P.C. was converted on the basis of the application addressed to the Superintendent of Police on 11.11.1988.

Relying on the prosecution evidence, the learned Sessions Judge found the accused guilty u/s 307/34, I.P.C. and convicted and sentenced them to six years'' rigorous imprisonment.

It is admitted that accused Jaswant and Umesh are the real brothers and accused Raj Kumar is their cousin. It is also admitted that Raj Kumar is the nephew of Ganga Charan and the houses of the accused Raj Kumar and Ganga Charan are adjoining.

P.W. 1 Ganga Charan has given the statement that a part of the F.I.R. was prepared on the basis of information received from his wife and the rest was written on his own knowledge. He has given the statement that he has not seen the accused demolishing the wall of the latrine. A perusal of the F.I.R. goes to show that the immediate cause of assault was demolition of the wall of latrine and the intervention of Smt. Chandrawati. A perusal of the F.I.R. exhibit Ka-1 goes to show that it is a prompt F.I.R. and the case was registered u/s 324/323/504/506, I.P.C. one hour fifteen minutes after the incident.

After perusal of the F.I.R., I am convinced that the F.I.R. corroborates the prosecution story. P.W. 2 Smt. Chandrawati is the star witness. She has stated that when she was coming back from the house of her husband''s brother Deen Dayal, she saw accused Raj Kumar, Jaswant and Umesh demolishing the wall of her latrine and when she asked them not to demolish it, the accused persons abused and assaulted her near the corner of Faquirey''s house. She raised an alarm and her husband and sons reached there but all the accused stabbed her with knife and on the challenge by her husband and the sons, the accused ran away. I find that the learned Sessions Judge has recorded a finding that the statement of Smt. Chandrawati is supported by medical evidence. He has opined that it cannot be ruled out that stab wounds by knife can also have clear cut margins and it depends upon the shape and sharpness of the knife. He has further opined that considering the measurement of the incised wounds, it cannot reasonably be argued that this could not have been caused by knife. According to the Sessions Judge, there is no inconsistency in the medical and ocular evidence on record. After seeing the evidence on record, I find that the finding recorded by the learned Sessions Judge is in accordance with the evidence on record.

Since the testimony of Smt. Chandrawati is corroborated by the F.I.R. and the medical evidence and since the accused and the complainant are related to each other and, they have their adjoining houses, I find no reason to disbelieve the testimony of Smt. Chandrawati that accused caused injuries first by kicks and fists and then by knife. There are five incised wounds on the body of Smt. Chandrawati caused by three accused Appellants and there is definite statement of Smt. Chandrawati that all the three accused attacked with knife.

Section 307 of the I.P.C. is as follows:

Attempt to murder.-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 herein before mentioned.

For convicting the accused u/s 307, I.P.C., it is required that the act of the accused must be such that if Smt. Chandrawati had succumbed to injuries, they would have been guilty of murder. The attack by knife in the abdomen and the back by which the intestine was punctured, is sufficient to infer that the act of the accused is such that if Smt. Chandrawati would have succumbed to injury of knife, the accused would have been guilty of murder.

The accused persons have taken the plea that material evidence has not been produced: no implements used for demolition of latrine''s wall have been produced ; there is unexplained delay in lodging the F.I.R. and the medical evidence does not support the prosecution case. After seeing the evidence on record and the reasoning given by the learned Sessions Judge, I find no force in any of these contentions.

In view of the above, the appeal is dismissed. The impugned order of conviction and punishment is hereby confirmed.

Let a copy of this judgment be sent to the C.J.M. concerned for compliance within ten days, who will submit the compliance report within one month, thereafter.