Raju vs State of Haryana

S.S. Sudhalkar, J.

This appeal arises from the conviction and sentence awarded by the learned Additional Sessions Judge, Sonepat against the appellant. The appellant was tried and convicted for the offence under section 307 of the Indian Penal Code for attempting to cause death of Mukesh Kumar and was sentenced to undergo rigorous imprisonment for life and also to pay a fine of Rs. 2,000/ and in default of payment of fine, to undergo further rigorous imprisonment for one year. Being aggrieved by the said conviction and sentence, the appellant has filed the present appeal before this Court.

The case of the prosecution is that the injuredMukesh Kumar son of Dharam Singh is a resident of Sonepat. About 8/10 days prior to the incident, an altercation had taken place between the complainant (Mukesh Kumar) and the appellant over rash and negligent driving of motor cycle. The appellant, at that time, had hurled abuses and threatened him by saying that he would see him later on.

On 23.4.1988 at about 7.30 p.m. the complainant had gone to the katcha quarters to purchase vegetable. He met Jasbir Singh and one more person there. When the complainant reached the path leading to katcha quarters from the ESI Dispensary, the appellant met him near the third lane towards the right hand and gave a call to him saying "Mukesh, listen to him". The complainant accompanied the appellant in the street and had hardly covered a short distance when the appellant started saying that he was in his (complainant) search and the appellant at once took out a spring actuated knife and inflicted its blows on the abdomen and chest of the complainant. Jasbir and his companion were also there, and witnessing this occurrence. The complainant ran upto Subhash Chowk on foot and then the complainant stopped a scooter by giving a signal to the driver who was not known to the complainant and the scooterist gave him a lift to the hospital and went away. In the hospital, the doctor gave him first aid and stated that his condition was serious. In the meantime, the complainant asked the doctor to call the friends of his brotherinlaw. The complainant was then taken to the Medical College, Rohtak and thereafter he became unconscious and when he regained his consciousness on 25.4.1988, his complaint was recorded. The complaint was considered as an F.I.R. by A.S.I. Khushi Ram of Police Post M.T. Sonepat and investigation was started. After completion of investigation, challan was lodged in the court of Ilaqa Magistrate, Sonepat who committed the same to the court of Sessions. After trial, the appellant was convicted and sentenced by the learned Additional Sessions Judge, Sonepat. As stated above, this is an appeal against the said order of conviction and sentence awarded by learned Additional Sessions Judge, Sonepat.

We have heard Mr. R.S. Ghai, Senior Advocate with Mr. Vipin Ghai, Advocate for the appellant and Mr. D.S. Bishnoi, learned Deputy Advocate General Haryana for the State.

The only point argued before us by learned Advocate for the appellant is that the conviction against the appellant under section 307 of the Indian Penal Code is not maintainable and the trial court should have convicted the appellant only for the offence under section 326 of the Indian Penal Code. The question, therefore, we may see is that as to what offence is committed by the appellant. When the finding of the causing of the injuries by the appellant to the complainant is not in dispute, only the above mentioned point remains for our decision.

The learned Advocate for the appellant has read the deposition of PW1 Avtar Singh who is Medical Record Clerk, Medical College Hospital, Rohtak and this witness has produced the summoned record. Then the counsel for the appellant has read the deposition of PW2 Dr. S.P. Yadav, Senior Resident of All India Institute of Medical Sciences, Department of Urology, Delhi, who has deposed that on 24.4.1988, he had operated upon Mukeshcomplainant, who was admitted in the Medical College Hospital, Rohtak and found the paritoneal cavity full of blood and there was a stab wound in the peritonium perforating both surfaces of the left lobe of the liver and stomach and there was also perforation of pancreas and the jejunum. He further stated that lesser sac was full of blood. He further stated that the operational notes are in the handwriting of Dr. Bhuvnesh Aggarwal, and he was assisted by Dr. Bhuvnesh Aggarwal and Dr. Ramesh Sethi. He has identified the handwriting and signatures of Dr. Bhuvnesh Aggarwal on operational notes Ex. PA in the surgical case sheet Ex.PA/1. This is in short what the Doctor has stated in his examinationinchief. The learned Advocate for the appellant has also read the deposition of PW7Shri Dharampal, Medical Record Officer, Medical College Hospital, Rohtak. This witness stated that he knew Dr. Sanjay Kumar who has issued MLR, mark X, which bears signatures of Dr. Sanjay Kumar. He has also stated that Ruqqa, mark E/1 also bears signatures of said doctor i.e. Dr. Sanjay Kumar. At mark X2 too, there were signaturs of Dr. Sanjay Kumar. He has also stated that writing mark X3 is also in the pen of doctor Sanjay Kumar and bears his signatures. He has also deposed that he has seen Dr. Sanjay Kumar writing and signing papers during his official duties. This is the medical evidence which is on record.

Mr. Bishnoi, learned Deputy Advocate General has argued that the injury on the vital part is a grievous injury and, therefore, conviction under section 307 of the Indian Penal Code deserves to be confirmed.

The Supreme Court in Jai Narain Mishra v. State of Bihar, 1972 CAR 19 (SC) has that however, three injuries caused to the victim were of simple nature though deadly weapons were used and the fourth injury caused by the accused, though endangering fife was not deemed to be an injury which should have necessarily caused death but for timely medical aid and, therefore, it was held that the accused be convicted under section 326 of the Indian Penal Code and not under section 307 of the Indian Penal Code. The principles laid down in above cited case are directly applicable to the facts of the present case. In the case in hand the injuries were caused to the complainant on the vital organs and there is no dispute regarding the injuries having resulted in causing grievous hurt to the complainant. At the same time there is nothing in evidence to show that if timely medical aid was not given, the injuries would have necessarily caused death of the injured and applying the principles laid down by the Supreme Court in the case of Jai Narain Mishra and others'' case (supra), we find that the conviction under section 307 of the Indian Penal Code against the appellant cannot be sustained. However, for the reasons stated above, the appellant deserves to be convicted for the offence under section 326 of the Indian Penal Code only, because he has caused grievous hurt to the complainant by a sharp edged and a dangerous weapon. Therefore we set aside the conviction and sentence awarded to the appellant by the learned trial Judge under section 307 of the Indian Penal Code and convict him for the offence under section 326 of the Indian Penal Code and sentence him to undergo rigorous imprisonment for three years and to pay a fine of Rs. 2000/ and to suffer further rigorous imprisonment for one year in default of payment of fine.

In the result, the appeal stands partly allowed, in the above terms.