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Judgment
Hon''ble Shri Justice N.K. Gupta, J.—This judgment passed by me shall govern the disposal of above mentioned Criminal Appeals, since both the appeals arise out of common impugned judgment. Criminal Appeal No. 2309/96 is preferred by the appellant Shanker Patel being aggrieved by the judgment and order of sentence dated 30/11/1996 passed by the Fourth Additional Sessions Judge, Sagar in ST No. 184/1995, whereby the appellant was convicted for commission of offence u/s 326 of IPC and sentenced for five years'' RI with fine of Rs. 1,000/-. In default of payment of fine, six month''s SI was also directed.
Criminal Appeal No. 589/97 is preferred by the State against the same judgment that Shanker (appellant in Cr. A. No. 2309/96) was to be convicted for the offence u/s 307 of IPC and sentenced accordingly.
The prosecution''s case, in short, is that on 24.4.1995 at about 6:00 PM in the evening the complainant Pooran (PW-3) was coming back from his field to his house situated at Village Hanota Patkoi (Police Station Banda District Sagar) by a bullock cart filled with fodder. When he was crossing in front of the house of Dashrat, the appellant Shankar and other accused persons stopped his bullock cart and assaulted him. The appellant Shankar had an axe and other accused persons having sticks. Shankar assaulted him with an axe causing injury on his head. Other accused persons pelted stones upon him causing injuries on his back. Accused Dashrath and Dammu assaulted him by sticks due to which the victim sustained injuries in his legs and hands. On his shouting, the witnesses Kamta (PW-8) and Ram Prasad etc. came to the spot, who saved the victim. The victim Pooran was taken to the Police Station Banda where he lodged an FIR Ex. P-3 on the same day. He was directed for his medico legal examination. Dr. P.K. Nema (PW-9) examined the complainant at the Community Health Centre Banda and gave his report Ex. P-16. He found one incised wound on the left side of his head, whereas some contusions and abrasions were found on his left knee, left buttock, right waist, right elbow and other parts of the body. He referred the victim for the X-ray examination and treatment. Dr. V.K. Mishra (PW-11) examined the complainant Radiologically and he found a fracture on the left fronto parietal region of the victim. After due investigation, a charge sheet was filed before the JMFC Banda, who committed the case to the Sessions Judge, Sagar and ultimately it was transferred to the Fourth Additional Sessions Judge, Sagar.
The appellant-accused abjured his guilt. He has stated that he was falsely implicated in the matter. He took a specific plea that he was coming from Banda, then he saw the complainant Pooran, Kamta, Gulab Bai and Ramprasad were assaulting Halki and Dhanbai, and therefore he went to save them, but he did not assault anybody. In support of his defence, Dr. P.K. Nema (DW-1) was examined to prove the injury reports of Halki, Dhan Bai and Shankar, whereas Dhan Bai (DW-2) was examined to tell about the incident.
The learned Fourth Additional Sessions Judge after considering the evidence adduced by the parties acquitted the appellant from the charges of offence under Sections 307 and 323 of IPC but convicted him for the offence u/s 326 of IPC and sentenced as mentioned above. The remaining accused persons were acquitted from all the charges.
I have heard the learned counsel for the parties.
The learned counsel for the appellant Shankar has submitted that he was falsely implicated in the matter. He sustained injuries in the incident. It was a case of free fight. The statement of Pooran (PW-3) may be perused. There is lot of contradictions between the statement given by the various witnesses. One has stated that the appellant assaulted the victim Pooran with a rod, whereas other has stated that he assaulted the victim with an axe. The appellant could not be convicted for any offence due to right of private defence. It is further submitted that the appellant remained in the custody for six months. He has faced the trial and appeal for last 17 years. No criminal activities of the appellant are shown after the alleged incident took place in the year 1995. Under such circumstances, it is prayed that the appellant may not be sent to the jail again.
On the other hand, the learned counsel for the State has submitted that looking at the injuries caused to the victim that he sustained a fracture in his skull, it appears that the appellant was intended to kill the victim, and therefore offence u/s 307 of IPC is made out. The appellant be convicted for the offence u/s 307 of IPC and sentenced accordingly.
After considering the submissions made by the learned counsel for the parties and looking at the facts and circumstances of the case, it is to be considered as to whether the appeal filed by the State can be accepted? Whether the appeal filed by the appellant can be accepted? And whether the sentence directed against the appellant can be reduced?
In the present case, Pooran (PW-3) was examined as a complainant, who has stated that the appellant assaulted him with an axe causing him injury on his head and other accused persons pelted stones upon him. He has further stated that the appellant also assaulted him with a road causing him an injury on his head, and therefore there were two injuries caused on his head. Ramgoli (PW-1), Chhotelal (PW-5), Gulabrani (PW-6) and Ramprasad (PW-7) were examined as eye-witnesses. Ramgoli (PW-1) turned hostile. He did not support the prosecution story. Chhotelal has accepted that he was not an eye-witness, but the incident was told by the victim Pooran. Gulabrani and Kamta have stated that the appellant assaulted the victim Pooran with a stick causing him injury on his head. Ramprasad has stated that the appellant Shankar assaulted him on his head with farsa. If the injury report given by Dr. P.K. Nema (PW-9) is perused, then it would be clear that the victim sustained only one injury on his head and that was incised wound from which cut bone was visible. The remaining injuries were abrasions and contusions caused in his left knee, left buttock, right waist, right elbow etc. He was also complaining some pain in his back. Dr. V.K. Mishra (PW-11) examined the victim Pooran Radiologically and found a fracture on his fronto parietal region. The complainant lodged an FIR Ex. P-3 soon after the incident.
After considering the evidence given by the eyewitnesses and FIR lodged by the complainant along with the medical reports, it is apparent that the appellant Shankar assaulted only once on the head of the complainant with an axe. It appears that the witness Ramprasad thought that it was a farsa whereas witnesses Gulabrani and Kamta, who were away from the spot could not see that whether the appellant had an axe or a stick. The maxim of falsus in omnibus is not applicable in the country. If some portion of the evidence of a witness is not found correct, then it is not necessary to throw his entire evidence. Under such circumstances, if acceptable evidence of these witnesses along with corroborative medical evidence and FIR is considered, then it is proved beyond doubt that the appellant Shankar assaulted the victim Pooran with an axe on his head causing a grievous injury.
The learned counsel for the State has submitted that the appellant would have been convicted for the offence u/s 307 of IPC. In the present case, Dr. Nema or Dr. Mishra did not opine that the injury found was fatal in nature. No vital inner part of the body was damaged. It is apparent that there is no allegation against the appellant that he assaulted the victim for two times and it appears that he gave only one blow to the victim. Since the appellant restrained in giving more blows to the victim, his intention is visible that he was not intended to kill the victim. Under such circumstances, the appellant cannot be convicted for the offence u/s 307 of IPC. The injury if it was found fatal, then still it would fall within the purview of Section 320(8) of IPC, and therefore the appellant was required to be convicted for causing a grave injury with sharp cutting weapon, and therefore he was to be convicted u/s 326 of IPC. The conviction directed by the trial Court for the offence u/s 326 of IPC appears to be correct. The State appeal has not force.
So far as the right of private defence is concerned, Dr. Nema (DW-1) has proved the injuries of Dhan Bai, Halki and Shankar by the medical reports Ex. D-4, D-5 and D-7 respectively. But Dr. Nema has proved that those persons were found injured after sometime of the incident. By proof of the injuries caused to the appellant, it cannot be said that he sustained an injury in the same incident. It was for the defence to prove the FIR lodged by the appellant or his companions about the incident so that it could be considered that the appellant and other persons sustained injuries in the same incident. It was possible that the appellant and other persons sustained injuries in another incident which took place after the present incident done by some eye-witnesses etc. in taking revenge from the appellant etc. Under such circumstances, it was for the defence to prove the FIR lodged by the appellant and his companions to show that they sustained injuries in the same incident and right of private defence was accrued. There is no genesis shown by the appellant by which it can be said that the quarrel started by the complainant. On the contrary, it is proved that the complainant was taking some fodder in his bullock cart and in the meantime he was assaulted. Looking at the evidence given by the complainant Pooran and other eye-witnesses, no right of private defence appears to be accrued to the appellant. It is not proved that he sustained any sudden or grave provocation from the side of the complainant. Under such circumstances, it is clear that the appellant assaulted the victim Pooran with sharp cutting weapon voluntarily and caused him a grave injury and therefore the appellant is the culprit of offence u/s 326 of IPC.
So far as the sentence is concerned, the learned counsel for the appellant has submitted that the appellant remained in the custody for six months. It is true that the appellant has faced the trial and appeal for last 17 years. It is also apparent that the appellant was a youth of 22 years of age at the time of incident and now he has settled in the life. Under such circumstances, it would not be proper to send him in the jail again but a heavy fine may be imposed upon the appellant in the case.
On the basis of the aforesaid discussion, the appeal of the appellant Shankar is partly allowed. His conviction and sentence directed by the trial Court u/s 326 of IPC is hereby maintained, but sentence is reduced to the period which he has already undergone in the custody by enhancing the fine amount from Rs. 1,000/- to Rs. 7,000/-. The appellant is directed to deposit the remaining fine amount before the trial Court within two months from today, failing which he shall undergo nine months'' rigorous imprisonment. If fine amount is deposited, then a sum of Rs. 5,000/- may be given to the complainant Pooran son of Shri Nandlal, R/o Hanota Patkoi, Police Station Banda District Sagar by way of a compensation.
The State appeal appears to be not acceptable, and therefore it is hereby dismissed.
At present the appellant Shankar is on bail. His presence is no more required, therefore it is directed that his bail bonds shall stand discharged. A copy of this judgment be sent to the trial Court with its record for information and compliance.