Virendra vs State of U.P.

Mukteshwar Prasad, J.—This criminal appeal filed by the accused is directed against the judgment and order dated 30.10.1980 passed by Sri Param Singh, the then Vth Additional Sessions Judge Shahjahanpur, whereby he convicted Virendra son of Ganga u/s 307, I.P.C. and sentenced him to undergo rigorous imprisonment for a term of five years.

In brief, the prosecution case was that P.W. 1 Ramdas son of Net Ram was a rickshaw puller. Accused Virendra was a co-villager of Ramdas and was well known to him. On 19.6.1979 at about 7 a.m. Ramdas was standing at Rickshaw stand along with his Rickshaw. Meanwhile, Banwari and Munna arrived there and sat on the rickshaw and asked Ramdas to proceed Powayan. Accused Virendra Yadav stopped rickshaw and ordered Ramdas to carry his wooden planks to his house. He disclosed that the passengers were sitting on his rickshaw and was going to Powayan. He suggested to hire another rickshaw but the accused became angry and used filthy language. On protest by Ramdas, he was threatened. Ramdas tried to proceed towards Powayan but accused whipped out a Bhujali a sharp edged weapon and attacked on the left lower chest of said Ramdas, who raised alarm and fell down. A number of witnesses including Ambika Prasad and Suresh rebuked the accused and then he ran away towards Bazar.

Ramdas reached the police station on a rickshaw on the same day and lodged an oral F.I.R. at 8.05 a.m. The police registered a case crime No. 158 and sent the injured for medical examination. The Medical Officer, Powayan was not available and as such, Ramdas was sent to the District Hospital where P.W. 3 Dr. Mohammad Sharif examined his injuries. The following injury was found on the person of Ramdas:

Incised wound 6 cm. ? 2 cm. ? medial end of wound is chest cavity deep, air comes through it during respiration, wound situated on outer side of lower part of chest left side, 14 cm. Below and lateral from the left nipple at 5 o''clock position. Bleeding present.

In the opinion of the doctor, the injury was caused by a sharp edged weapon and was fresh at the time of examination. He kept the injury under observation and advised X-ray of the chest.

P.W. 5-S.I. Jamal Ahmad Khan started investigation of the case. He interrogated the injured and other witnesses. He made efforts for arrest of the accused but he surrendered in the Court on 22.6.1979. After completing the investigation the Investigating Officer submitted charge sheet against the accused u/s 307, I.P.C.

After committal of the case, the accused was charged u/s 307 of Penal Code on 25.7.1980. He pleaded not guilty.

In support of its case, the prosecution examined Ramdas, the informant and injured as P.W. 1, Munna Lal, one of the passengers of his rickshaw and an eye-witness as P.W. 2, Dr. Mohammad Sharif of District Hospital, Shahjahanpur as P.W. 3, Narendra Pal Singh, who prepared the chik report and made entry in the G.D. as P.W. 4 and S.I. Jamal Ahmad Khan, Investigating Officer of the case as P.W. 5.

Accused Virendra pleaded his false implication in the case on account of enmity between his father Ganga Singh on the one hand and Ram Chandra brother of the accused on the other hand. The defence version is that Ganga Singh got Ram Chandra arrested by the police in several cases of theft and dacoity and stolen articles were recovered from his possession. Accused examined Krishna Chand Saxena, Ahalmad in the Court of City Magistrate, Shahjahanpur as D.W. 1, who proved dying declaration dated 19.6.1979 of Ram Dass.

Learned Sessions Judge came to the conclusion that the accused had made an attempt to commit murder of Ramdas by intentionally causing injury with a Bhujali on a vital part of the body. So, he convicted and sentenced the accused as mentioned above. Hence this appeal.

I have heard learned Counsel for the Appellant at length, learned A.G.A. and have perused the record.

First of all, it was urged on behalf of the Appellant that there was no intention of the Appellant to commit murder of Ramdas and offence committed by him at the most comes within the ambit of Section 324, I.P.C. He drew my attention to the injury report of Ramdas and statement of Dr. Sharif and contended that the injury was not dangerous to life. He, therefore, prayed that appeal may be dismissed and Appellant may be sentenced to the period already undergone by him. It was also pointed out that the accused was a young man of about 18 years at the time of incident and as such, he deserves sympathy of the Court. Since there was no intention to commit murder, the trial Judge erred in convicting the Appellant u/s 307, I.P.C. Reliance was placed by the learned Counsel for the Appellant on the following decisions:

(1) Madan Pal and Another Vs. State of U.P.,

(2) Rajesh Kumar and Anr. v. State 1999 (1) ACR 479: (39) 1999 ACC 601.

Learned A.G.A. has supported the finding of the court below and submitted that the injury in question was caused on a vital part of the body and eye-witnesses have fully supported the prosecution version. Dr. Sharif gave out in unambiguous words that the injury was on the vital part of the body and could prove fatal. According to the doctor, the condition of the injured was serious and on 19.6.1979 itself he was shifted to District Hospital, Bareilly and dying declaration was also recorded on the same day.

After having gone through the decisions relied upon by the learned Counsel for the Appellant and considering the arguments advanced on behalf of the parties, I find that the contention of the learned Counsel for the Appellant has no legs to stand. In the instant case, P.W. 1 Ramdas, the injured fully supported the prosecution story and testified that he was going to Powayan with two passengers Munna and Banwari on his rickshaw but his rickshaw was stopped by the accused. The accused threatened to kill him and used abusive language. He was attacked with a Bhujali. The injured was cross-examined extensively on behalf of the Appellant but nothing could be elicited therein to disbelieve his testimony. The injured denied suggestion that he and his brother were assaulted somewhere else at the time of committing theft during night. P.W. 2 Munna Lal fully corroborated the statement of injured and claimed to have seen the accused giving blow in the chest of Ramdas with a Bhujali. Munna Lal was also cross-examined at length.

Dr. Sharif gave out that injury in question was caused by a sharp edged weapon and was chest cavity deep and air was coming from the injury during respiration. The injury was on the vital part of the body and was bleeding at the time of medical examination also. Moreover, it could prove fatal. Besides, sufficient reliable oral evidence of the injured and eye-witnesses coupled with medical evidence on record, I find that the incident was reported to the police promptly by the injured himself. He lodged an F.I.R. within an hour of the incident at the police station situated at a distance of 2 miles from the place of occurrence. Similarly, injury was medically examined at 10.40 a.m. on the same day. In view of the seat and nature of injury and weapon used, I am not prepared to accept this argument that there was no intention on the part of the Appellant to cause death. The Appellant, who was well known to the accused, saw two passengers sitting on the rickshaw. He, however, insisted to carry his wooden planks on the rickshaw to his house first. When injured pleaded for mercy and suggested to have any other rickshaw, the Appellant lost his temper and stabbed Ramdas. In this view of the matter, this argument is not acceptable that the offence punishable u/s 307, I.P.C. was not committed. It is noteworthy that law requires that intention and knowledge of the accused as well as circumstances in which offence was committed are relevant consideration for deciding whether a case falls within the ambit of Section 307, I.P.C. or not. In the present case, a poor rickshaw puller was attacked upon with a Bhujali by a young man aged about 18 years. He must have left his house in the morning with a view to earn his livelihood but he was hospitalised and ultimately taken to Bareilly for better treatment. The Appellant examined Ahalmad of the Court of the City Magistrate who had recorded the dying declaration of the injured. It is noteworthy that injured survived and as such, dying declaration is not a substantive evidence.

In view of the aforesaid discussions and scrutiny of the evidence on record, I find that the learned court below committed no illegality in appraisal of the evidence led by the prosecution and rightly found the Appellant guilty u/s 307, I.P.C.

So far as sentence is concerned, the accused was undergoing imprisonment for life in some murder case and was granted bail by this Court during pendency of the appeal. He was also involved in a case u/s 436, I.P.C. and had been refused bail. Considering all these aspects, the trial court sentenced the accused to a term of five years. In my opinion, there is no valid ground to reduce the period of sentence.

In the result, the appeal filed by the accused fails and is hereby dismissed. The conviction and sentence passed against the Appellant are maintained. The Appellant is on bail. His bail bonds are cancelled and sureties are discharged. The Appellant shall surrender in the trial court and be sent to Jail to serve out the sentence. In case, he does not surrender, the trial court shall cause him arrested and send him to jail.

Let record received from the trial court be sent back along with copy of this judgment.