Ranu Ram vs The State of Raj.

Banwari Lal Sharma, J.

This revision petition has been preferred against the impugned judgment dated 29.09.1997 passed by the learned Additional Sessions Judge, No. 2, Jodhpur in Criminal Appeal No. 18/1997 whereby the appeal was dismissed while upholding the judgment of conviction and order of sentence dated 28.05.1996 passed by the learned Chief Judicial Magistrate, Jodhpur in Criminal Regular Case No. 65/1991 by which the petitioner-accused was convicted for the offences under Sections 326 and 323 IPC and was sentenced as under:--

"U/s. 326 IPC:

One year''s rigorous imprisonment with fine of Rs. 2000/-, in default of payment whereof, to further undergo three months'' simple imprisonment.

U/s. 323 IPC:

Fine of Rs. 200/-, in default of payment whereof, to further undergo 15 days'' simple imprisonment."

The brief facts of the case are that on 22.03.1990, injured-complainant Hukmi Chand (PW-4) lodged a report at P.S. Sadar Kotwali, Jodhpur to the effect that when he was going to his office and reached near canal, petitioner-accused, who was standing near the canal, inflicted injury by a glass bottle on his head and when he tried to snatch the bottle, he also sustained injuries on his hand. The incident was witnessed by Nemichand and Hotu Mal, who were standing there. It was also mentioned in the report that a day before the incident, he asked the petitioner-accused to make payment of chat in a mela, upon which the petitioner-accused infuriated.

On the basis of this report, FIR No. 29/1990 was registered for the offences under Sections 307, 323 and 326 IPC on 04.04.1990 and investigation commenced. After investigation, the police filed charge-sheet against the petitioner-accused for the offences under Sections 307, 323 and 326 IPC on 29.06.1990 before the learned Additional Chief Judicial Magistrate, No. 4, Jodhpur. Since the matter was exclusively triable by the Court of Sessions, therefore, the same was committed to the court of learned Sessions Judge, Jodhpur.

The learned Sessions Judge, Jodhpur, after hearing, discharged the petitioner-accused for the offence under Section 307 IPC and as per the provision of Section 228 Cr.P.C., returned the matter to the learned Chief Judicial Magistrate, Jodhpur for trial for the offences under Sections 323 and 326 IPC.

The learned Chief Judicial Magistrate, Jodhpur, on 09.02.1993, framed charges against the petitioner-accused for the offences under Sections 323 and 326 IPC for which he denied and claimed trial.

To substantiate the charges, the prosecution examined as many as 9 witnesses. Thereafter, the petitioner-accused was examined under Section 313 Cr.P.C. and incriminating evidence adduced by the prosecution against him, was put to him and explanation thereto was sought, for which he pleaded that the statements of prosecution witnesses are wrong and did not examine any witness in his defence.

Thereafter, after hearing, the learned trial court convicted and sentenced the petitioner-accused as aforesaid vide judgment dated 28.05.1996.

Aggrieved by the judgment of conviction and order of sentence dated 28.05.1996 passed by the learned trial court, the petitioner-accused preferred before the learned Sessions Judge, Jodhpur, which was transferred to the court of learned Additional Sessions Judge, No. 2, Jodhpur, who after hearing, dismissed the appeal and affirmed the judgment of conviction and order of sentence passed by the learned trial court, vide its judgment dated 29.09.1997. Hence, this revision petition.

I have heard learned counsel for the petitioner and the learned Public Prosecutor.

The learned counsel for the petitioner submits that all the eye-witnesses have turned hostile and they clearly stated in their respective statements that they did not see the incident, still both the courts below convicted and sentenced the petitioner-accused, which is apparently perverse and illegal. Therefore, this revision petition may be allowed and the petitioner-accused may be acquitted from the alleged offences.

In the alternative, he submitted that the petitioner-accused remained in custody for a considerable period, therefore, his sentence may be reduced to already undergone.

Per contra, the learned Public Prosecutor supported the impugned judgments and submitted that the injured-complainant Hukmi Chand (PW-4), in his statement, clearly stated that the petitioner-accused inflicted injury by a glass-bottle on his head which resulted into fracture of parietal bone. He submitted that there was no previous enmity and eye-witness though turned hostile but Nemichand (PW-1), in his cross-examination, clearly supported the statement of injured-complainant, which is also corroborated by the medical evidence and there is concurrent finding of both the courts below. He submitted that so far as hostile witness is concerned, it is settled law that statement of hostile witness is to be considered only to the extent it supports the prosecution case. He further submitted that there is no merit in this revision petition, therefore, the same may be dismissed.

I have considered the rival submissions made at the Bar and perused the material available on record.

From the perusal of statement of injured-complainant Hukmi Chand (PW-4), it reveals that a day before the date of incident, the petitioner-accused had some chat at the thela of one Manoharlal, where injured-complainant was also there being the friend of Manoharlal and asked to make payment of chat for which some altercations took place between the injured and accused and on the date of incident, at about 8.45 AM, when the injured-complainant was going to his office and on kila road, when reached near canal, the petitioner-accused who was already standing there having glass bottle in his hand, inflicted injury on the head of complainant, which resulted in bleeding from his head. The other injuries were inflicted on his hands.

Nemichand (PW-1), who is eye-witness, though turned hostile, but in cross-examination stated that,

Hotchand (PW-6), also turned hostile but stated that he came to hear that Ranu Ram inflicted injuries to Hukmi Chand.

As per the statement of Dr. KK Sabarwal (PW-7), who conducted X-ray of injured-complainant Hukmi Chand (PW-4), proved X-ray (Ex.P/6) and X-ray plates (Ex.P/7, 8 and 9) and stated that on right parietal bone of Hukmi Chand, there was linear fracture.

Dr. BK Malhotra (PW-8), who examined the injuries of injured Hukmi Chand, found following injuries on his body:--

"(1) Cut wound 3.5 cm X 0.7 cm X bone deep on right occipital region, wherefrom blood was oozing.

(2) Abrasion 0.2 cm X 0.2 cm on thumb of right hand.

(3) Abrasion 0.2 cm X 0.2 cm on index finger of left hand."

He also advised X-ray for injury No. 1. As per X-ray, injury No. 1 was found to be grievous in nature. The petitioner-accused has failed to given any explanation of the injury.

Both the courts below, considering the statements of witnesses, corroborated by the medical evidence, reached on the conclusion that the petitioner-accused inflicted injury by glass bottle on the head of complainant Hukmichand (PW-4), resulting into grievous injury by sharp edged weapon and simple injuries on his hands and convicted for the offences under Sections 323 and 326 IPC and sentenced as aforesaid.

It is true that the eye-witnesses turned hostile but Nemichand (PW-1), as discussed above, supported the statement of injured Hukmi Chand (PW-4). For proving a fact, quantity of witnesses is not material but quality is to be seen. The injured Hukmi Chand (PW-4) was subjected to cross-examination at length and nothing emerged from his statement that the petitioner-accused was implicated falsely in this matter leaving behind the actual culprit. Therefore, there is no ground for disbelieving the statement of complainant-injured Hukmi Chand (PW-4), supported by the medical evidence.

In view of the above, the learned trial court rightly convicted the petitioner-accused for the offences under Sections 323 and 326 IPC so also rightly affirmed by the learned appellate court.

So far as sentence is concerned, a meager sentence of one year was awarded for the offence under Section 326 IPC by the learned trial court and affirmed by the learned appellate court, which also does not require any interference. At this juncture, the learned counsel for the petitioner submits that the petitioner is ready to compensate the injured but the Hon''ble Supreme Court, time and again, has held that in appropriate cases, adequate sentences should be awarded to the accused. Therefore, in cases like Section 326 IPC, payment of compensation is no ground to reduce the sentence.

Hence, in view of the above, I find no merit in this revision petition, which deserves to be dismissed and is hereby dismissed.

The petitioner-accused is on bail. His bail bonds are cancelled. The learned trial court is directed to secure his presence for sending him in State custody for serving the remaining sentence.

Record of the courts below be returned with a copy of this order forthwith.