Balwan Singh vs Bhupinder & Ors.
2013 Latest Caselaw 1254 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                                   Reserved on: February 27, 2013
                                   Pronounced on: March 13, 2013

+                             CRL.REV.P. 314/2007

       BALWAN SINGH                                        ..... Petitioner
                   Through:                Ms. Purnima Maheshwari, Advocate

                     versus

       BHUPINDER & ORS.                                      ..... Respondents
                   Through:                Mr. Sunil Sharma, Additional Public
                                           Prosecutor for respondent-State
       CORAM:
       HON'BLE MR. JUSTICE SUNIL GAUR

                                 JUDGMENT

1. Impugned order of 23rd February, 2007 convicting respondent- accused persons for the offence under Section 324/34 of IPC and sentencing them to the period already undergone with fine of `50,000/- to be disbursed as compensation to the injured, is under challenge in this revision petition by petitioner-injured.

2. At the hearing, it was urged on behalf of petitioner that the offence committed in this case falls under Section 326 of IPC whereas respondent- accused persons have been convicted for the offence under Section 324 of IPC which is unwarranted and so this revision petition deserves to be allowed to the extent of altering the conviction of respondent-accused persons from under Section 324 of IPC to under Section 326 of IPC, as petitioner-injured had sustained two penetrating wounds i.e. of 1 cm X 1

cm on the right side of his abdomen and of 3 cm X 3 cm on left side on left lateral of his abdomen wall. It was pointed out by petitioner's counsel that the doctor had opined the injury to be dangerous as it has been found on vital part of the body for which period of imprisonment undergone by respondent-accused persons of less than a month is not an adequate punishment and so they deserve to be suitably punished by altering their conviction for the offence under Section 324 of IPC to Section 326 of IPC. In support of above submissions, reliance is placed upon decisions in Ramesh & Raj Kumar v. State 1989(1) Crimes 261 (Raj.); Niranjan Singh v. State of Madhya Pradesh AIR 2007 SC 2434 and Crl. Appeal No.710/2009 Sagar v. State rendered on 27th September, 2010.

3. When this revision petition was admitted for final hearing, none had appeared on behalf of respondent-accused persons and at the final hearing, it was submitted by learned Additional Public Prosecutor for respondent- State that since the injury sustained by injured had been opined to be dangerous, therefore, respondent-accused persons ought to have been convicted for the offence under Section 325 of IPC.

4. Upon having heard both the sides and on perusal of the impugned judgment and decisions cited, I find that merely because an injury has been opined to be dangerous by the doctor, the said opinion would not be binding on the Court, who can come to its own conclusion regarding the nature of injury. This is what the trial judge has done in the impugned order, whose operative portion reads as under: -

"It is argued by Ld. APP that the injury was opined dangerous by the doctor. However there is no material to

show on record as to how this injury was opined to be dangerous by the said doctor. In fact depth of the stab wound is also not shown in the MLC. Therefore I am of the opinion that prosecution has not been able to prove its case beyond reasonable doubt that the injury caused was so deep that accused should be presumed to posses the knowledge that the such injury likely to cause death of the injured. In these circumstances I am of the opinion that prosecution has been able to prove a prima facie case under Section 324/34 IPC against both the accused persons. Accordingly I convict both of them under Section 324/34 IPC."

5. Since it is not the case of petitioner-injured that he had remained admitted in hospital for a period of 20 days due to the injuries sustained in this incident, therefore, the injuries sustained by petitioner have been rightly treated to be constituting offence under Section 324 of IPC as the depth of the injuries had not been given nor the injuries sustained are shown to be extensive one. Thus, the offence committed by respondent- accused persons would come within the ambit of Section 324/34 of IPC and the sentence imposed upon them cannot be said to be inadequate and so, the decisions relied upon by petitioner's counsel are of no avail. Rather, Apex Court in Kailash Prasad Kanodia and Anr. v. State of Bihar AIR 1980 SC 106 had altered the conviction from Section 326 to Section 324 of IPC where medical evidence had not disclosed any serious injury on the vital part of the body of the injured. In the instant case also, in view of the nature and extent of injuries sustained by the petitioner, they cannot be termed as grievous as its depth is not known.

6. In light of the aforesaid, finding no illegality or infirmity in the impugned order, I dismiss this petition.

(SUNIL GAUR) Judge March 13, 2013 s