Rajasthan High Court - Jodhpur

Takhat Singh And Anr vs State on 29 March, 2022

Bench: Pushpendra Singh Bhati

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Criminal Appeal No. 1955/2017

1. Takhat Singh S/o Sh. Tej Singh

2. Tej Singh S/o Sh. Roop Singh, Both Appellants Are By Caste Rajput And Residents Of Village Ranawatwada- Bamaniya, Police Station Jhalara, Tehsil Salumber, District Udaipur Raj. Presently Lodged In Sub-Jail, Salumber

----Appellants Versus State Of Rajasthan

----Respondent

For Appellant(s) : Mr. Pradeep Shah For Respondent(s) : Mr. Mukhtiyar Khan PP

HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI

Order

29/03/2022

1. In the wake of instant surge in COVID - 19 cases and spread

of its highly infectious Omicron variant, abundant caution is being

maintained, while hearing the matters in the Court, for the safety

of all concerned.

2. This criminal appeal under Section 374(2) Cr.P.C. has been

preferred claiming the following reliefs:

"It is, therefore, most humbly prayed that Your Lordships may graciously be pleased to allow this criminal appeal and the impugned judgment and order dated 21.11.2017 passed by learned Additional Sessions Judge, Salumber, District Udaipur, convicting and sentencing the appellants for the offences under Sections 341, 323/34, 324/34, 326/34, 307/34 of IPC and Section 4/25 of the Arms Act, may kindly be

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quashed and set aside and the appellants may kindly be acquitted for the said offence."

3. Learned counsel for the parties jointly submit that the matter

is covered by the judgment rendered by this Court in Sohan Puri &

Ors. Vs. State (S.B. Criminal Appeal No.894/2005, decided on

23.03.2022), which reads as under:

"1. In the wake of instant surge in COVID - 19 cases and spread of its highly infectious Omicron variant, abundant caution is being maintained, while hearing the matters in the Court, for the safety of all concerned.

2. These criminal appeals, under Section 374 Cr.P.C have been preferred claiming the following reliefs:

Appeal No. 894/2005:

"It is, therefore, most respectfully prayed that the appeal of the appellants may kindly be allowed and the judgment dt.25.11.05 passed by learned Addl. Sessions Judge (Fast Track) No.1, Bikaner in Sessions case No.317/2003 - State v/s Sohan Puri & Ors. may kindly be quashed and set aside to the extent of conviction to the appellants, and the appellants may kindly be acquitted from the charges."

Appeal No. 910/2005:

"Therefore, it is prayed by the humble appellant that this Criminal appeal may kindly be allowed and the impugned Judgment dated 25.11.2005 passed by the Additional Session Judge (Fast Track) No.1, Bikaner may kindly be quashed and set aside and benefit of probation act may kindly be given to the present appellant because no other criminal case is pending against him, therefore, it would in the interest of justice to grant him benefit of probation act. Record of the trial court may kindly be directed to called for the proper decision of the case."

3. The brief facts of the case, as placed before this Court by Mr. Vineet Jain, learned Senior Counsel assisted by Mr. Pravin Vyas appearing on behalf of the appellants are that the appellants were convicted for offences under Sections 148, 307, 307/149, 323, 323/149, 324/149, 326 & 326/149

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I.P.C. vide the impugned judgments, dated 25.11.2005, passed by the learned Additional Sessions Judge (Fast Track) No. 1 Bikaner in Sessions Case No. 317/03 & 18/2005. 3.1 The present controversy arose when both the parties had staked claim over possession of a certain land, and that in the heat of the moment, a physical tussle broke out between the parties in respect of the land in question, and F.I.R.s were lodged and cross cases were filed, subsequent to said incident. Thus, as per the pleaded facts, the present criminal appeals pertain to the said cross cases between the parties.

3.2 The present appeals preferred against the judgments of conviction in question were admitted and the sentences so awarded to the appellants were suspended. However, upon an application being preferred by the applicant/appellant- Shiv Puri @ Babu Puri under Section 482 Cr.P.C. seeking suspension of his conviction (in S.B. Criminal Appeal No.894/2005), the same was allowed by this Hon'ble Court on 14.12.2016. Thereafter, while the criminal appeals were pending consideration before this Hon'ble Court, a compromise was entered into between the parties (in criminal appeal No.894/2005), which upon being presented before this Hon'ble Court on 22.01.2020, was ordered to be verified by the Registrar (Judicial); the same was accordingly verified on the same day.

4. Learned Senior Counsel for the appellants submits that owing to the fact that the learned Court below acquitted the concerned parties (criminal appeal No.910/2005) of charges under Section 447 IPC, and that the incident in question occurred in the spur of the moment over 20 years ago, which later on was compromised between the concerned parties. 4.1 As regards accused-appellant Gopal Ram (in Criminal Appeal No.910/2005), learned Senior Counsel submits that though his name is not appearing in the aforementioned compromise, but since the parties have settled the dispute between them coupled with the fact that the said accused/appellant was held guilty for the offence under Section 323 IPC only, therefore, the indulgence of acquittal may also be granted in his case.

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5. Learned Senior Counsel for the appellants placed reliance on the judgment of the Hon'ble Apex Court rendered in Ramgopal & Anr. Vs. The State of Madhya Pradesh 2021 (4) Crimes 17 (SC) wherein the Hon'ble Court observed as under:-

"It is also noteworthy that even in the absence of an express provision akin to Section 482 Code of Criminal Procedure conferring powers on the Supreme Court to abrogate and set aside criminal proceedings, the jurisdiction exercisable Under Article 142 of the Constitution embraces this Court with scopious powers to quash criminal proceedings also, so as to secure complete justice. In doing so, due regard must be given to the overarching objective of sentencing in the criminal justice system, which is grounded on the sub-lime philosophy of maintenance of peace of the collective and that the rationale of placing an individual behind bars is aimed at his reformation.

We thus sum-up and hold that as opposed to Section 320 Code of Criminal Procedure where the Court is squarely guided by the compromise between the parties in respect of offences 'compoundable' within the statutory framework, the extra- ordinary power enjoined upon a High Court Under Section 482 Code of Criminal Procedure or vested in this Court Under Article 142 of the Constitution, can be invoked beyond the metes and bounds of Section 320 Code of Criminal Procedure Nonetheless, we reiterate that such powers of wide amplitude ought to be exercised carefully in the context of quashing criminal proceedings, bearing in mind: (i) Nature and effect of the offence on the conscious of the society; (ii) Seriousness of the injury, if any; (iii) Voluntary nature of compromise between the Accused and the victim; & (iv) Conduct of the Accused persons, prior to and after the occurrence of the purported offence and/or other relevant considerations. Having appraised the afore-stated para-meters and weighing upon the peculiar facts and circumstances of the two appeals before us, we are inclined to invoke powers Under Article 142 and quash the criminal proceedings and consequently set aside the conviction in both the appeals. We say so for the reasons that:

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Firstly, the occurrence(s) involved in these appeals can be categorized as purely personal or having overtones of criminal proceedings of private nature; Secondly, the nature of injuries incurred, for which the Appellants have been convicted, do not appear to exhibit their mental depravity or commission of an offence of such a serious nature that quashing of which would override public interest;

Thirdly, given the nature of the offence and injuries, it is immaterial that the trial against the Appellants had been concluded or their appeal(s) against conviction stand dismissed;

Fourthly, the parties on their own volition, without any coercion or compulsion, willingly and voluntarily have buried their differences and wish to accord a quietus to their dispute(s);

Fifthly, the occurrence(s) in both the cases took place way back in the years 2000 and 1995, respectively. There is nothing on record to evince that either before or after the purported compromise, any untoward incident transpired between the parties;

Sixthly, since the Appellants and the complainant(s) are residents of the same village(s) and/or work in close vicinity, the quashing of criminal proceedings will advance peace, harmony, and fellowship amongst the parties who have decided to forget and forgive any ill-will and have no vengeance against each other; and Seventhly, the cause of administration of criminal justice system would remain un-effected on acceptance of the amicable settlement between the parties and/or resultant acquittal of the Appellants; more so looking at their present age."

6. On the other hand, learned counsel for the respondents, however, oppose the submissions so made on behalf of the appellants, and submit that the offences in question are that of a serious nature, Section 307 I.P.C. being amongst the offences, and that a compromise between the concerned parties, in a criminal case wherein

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the intention of the accused person(s) in inflicting injuries, the success of which is immaterial, is that of causing grave injury on vital parts of the body, as may be ascertained from the facts and circumstances of the case, as also from the record of the case.

7. Learned Public Prosecutor drew the attention of this Court to the judgments rendered by the Hon'ble Apex Court in:-

7.1 M.E. Shivalingamurthy Vs. C.B.I. Bengaluru (2020) 2 SCC 768 "LEGAL PRINCIPLES APPLICABLE IN REGARD TO AN APPLICATION SEEKING DISCHARGE This is an area covered by a large body of case law. We refer to a recent judgment which has referred to the earlier decisions, viz., P. Vijayan v. State of Kerala and Anr. (2010) 2 SCC 398 and discern the following principles: i. If two views are possible and one of them gives rise to suspicion only as distinguished from grave suspicion, the Trial Judge would be empowered to discharge the Accused.

ii. The Trial Judge is not a mere Post Office to frame the charge at the instance of the prosecution. iii. The Judge has merely to sift the evidence in order to find out whether or not there is sufficient ground for proceeding. Evidence would consist of the statements recorded by the Police or the documents produced before the Court.

iv. If the evidence, which the Prosecutor proposes to adduce to prove the guilt of the Accused, even if fully accepted before it is challenged in cross examination or rebutted by the defence evidence, if any, "cannot show that the Accused committed offence, then, there will be no sufficient ground for proceeding with the trial". v. It is open to the Accused to explain away the materials giving rise to the grave suspicion.

vi. The court has to consider the broad probabilities, the total effect of the evidence and the documents produced before the court, any basic infirmities appearing in the case and so on. This, however, would not entitle the court to make a roving inquiry into the pros and cons.

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vii. At the time of framing of the charges, the probative value of the material on record cannot be gone into, and the material brought on record by the prosecution, has to be accepted as true.

viii. There must exist some materials for entertaining the strong suspicion which can form the basis for drawing up a charge and refusing to discharge the Accused. The defence of the Accused is not to be looked into at the stage when the Accused seeks to be discharged Under Section 227 of the Code of Criminal Procedure (See State of J & K v. Sudershan Chakkar and Anr. AIR 1995 SC 1954). The expression, "the record of the case", used in Section 227 of the Code of Criminal Procedure, is to be understood as the documents and the articles, if any, produced by the prosecution. The Code does not give any right to the Accused to produce any document at the stage of framing of the charge. At the stage of framing of the charge, the submission of the Accused is to be confined to the material produced by the Police (See State of Orissa v. Debendra Nath Padhi MANU/ SC/1010/2004 : AIR 2005 SC 359)."

7.2 The State of Madhya Pradesh Vs. Kanha (2019) 3 SCC 605 wherein the following was observed:-

"Several judgments of this Court have interpreted Section 307 of the Penal Code. In State of Maharashtra v. Balram Bama Patil (1983) 2 SCC 28, this Court held that it is not necessary that a bodily injury sufficient under normal circumstances to cause death should have been inflicted:

9. ...To justify a conviction under this Section it is not essential that bodily injury capable of causing death should have been inflicted. Although the nature of injury actually caused may often give considerable assistance in coming to a finding as to the intention of the Accused, such intention may also be deduced from other circumstances, and may even, in some cases, be ascertained without any reference at all to actual wounds.

The Section makes a distinction between an act of the Accused and its result, if any. Such an act may not be attended by any result so far as the person assaulted is concerned, but still there may be cases in which the culprit would be liable under this

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section. It is not necessary that the injury actually caused to the victim of the assault should be sufficient under ordinary circumstances to cause the death of the person assaulted. What the Court has to see is whether the act, irrespective of its result, was done with the intention or knowledge and under circumstances mentioned in this section. An attempt in order to be criminal need not be the penultimate act. It is sufficient in law, if there is present an intent coupled with some overt act in execution thereof. This position in law was followed by subsequent benches of this Court. In State of M.P. v. Saleem (2005) 5 SCC 554, this Court held thus:

13. It is sufficient to justify a conviction Under Section 307 if there is present an intent coupled with some overt act in execution thereof. It is not essential that bodily injury capable of causing death should have been inflicted. The Section makes a distinction between the act of the Accused and its result, if any. The court has to see whether the act, irrespective of its result, was done with the intention or knowledge and under circumstances mentioned in the section. Therefore, an Accused charged Under Section 307 Indian Penal Code cannot be acquitted merely because the injuries inflicted on the victim were in the nature of a simple hurt. In Jage Ram v. State of Haryana (2015) 11 SCC 366, this Court held that to establish the commission of an offence Under Section 307, it is not essential that a fatal injury capable of causing death should have been inflicted:

12. For the purpose of conviction Under Section 307 Indian Penal Code, the prosecution has to establish (i) the intention to commit murder; and (ii) the act done by the Accused. The burden is on the prosecution that the Accused had attempted to commit the murder of the prosecution witness. Whether the Accused person intended to commit murder of another person would depend upon the facts and circumstances of each case. To justify a conviction Under Section 307 Indian Penal Code, it is not essential that fatal injury capable of causing death should have been caused. Although the

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nature of injury actually caused may be of assistance in coming to a finding as to the intention of the Accused, such intention may also be adduced from other circumstances. The intention of the Accused is to be gathered from the circumstances like the nature of the weapon used, words used by the Accused at the time of the incident, motive of the Accused, parts of the body where the injury was caused and the nature of injury and severity of the blows given, etc. The above judgments of this Court lead us to the conclusion that proof of grievous or life-threatening hurt is not a sine qua non for the offence Under Section 307 of the Penal Code. The intention of the Accused can be ascertained from the actual injury, if any, as well as from surrounding circumstances. Among other things, the nature of the weapon used and the severity of the blows inflicted can be considered to infer intent.

7.3 Rambabu Vs. State of M.P. 2019 SCC OnLine MP 1554 "In the present case, the allegations against the present appellant are that he had given a lathi blow on the head of the victim. Head is, undisputedly, a vital part of the body and any injury to the said part of the body may result in death of the victim.

The Supreme Court in the case of State of Madhya Pradesh v. Harjeet Singh, passed on 19 February, 2019 in Criminal Appeal No. 1190 of 2009 has held as under: -- 5.6 Section 307 uses the term "hurt" which has been explained in Section 319, I.P.C.; and not "grievous hurt" within the meaning of Section 320 I.P.C. If a person causes hurt with the intention or knowledge that he may cause death, it would attract Section 307. This Court in R. Prakash v. State of Karnataka, 1 held that: "...The first blow was on a vital part, that is on the temporal region. Even though other blows were on non vital parts, that does not take away the rigor of Section 307 IPC ....... It is sufficient to justify a conviction under Section 307 if there is present 1 (2004) 9 SCC 27 15 an intent coupled with some overt act in execution thereof. It is not essential that bodily injury capable of causing death should have

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been inflicted. Although the nature of injury actually caused may often give considerable assistance in coming to a finding as to the intention of the accused, such intention may also be deduced from other circumstances, and may even, in some cases, be ascertained without any reference at all to actual wounds. The Sections makes a distinction between the act of the accused and its result, if any. The Court has to see whether the act, irrespective of its result, was done with the intention or knowledge and under circumstances mentioned in the Section." (emphasis supplied) If the assailant acts with the intention or knowledge that such action might cause death, and hurt is caused, then the provisions of Section 307 I.P.C. would be applicable. There is no requirement for the injury to be on a "vital part" of the body, merely causing 'hurt' is sufficient to attract S. 307 I.P.C.2 This Court in Jage Ram v. State of Haryana 3 held that:

"12. For the purpose of conviction under Section 307 IPC, prosecution 2 State of Madhya Pradesh v. Mohan, (2013) 14 SCC 116 3 (2015) 11 SCC 366 16 has to establish (i) the intention to commit murder and (ii) the act done by the accused. The burden is on the prosecution that accused had attempted to commit the murder of the prosecution witness. Whether the accused person intended to commit murder of another person would depend upon the facts and circumstances of each case.

To justify a conviction under Section 307 IPC, it is not essential that fatal injury capable of causing death should have been caused. Although the nature of injury actually caused may be of assistance in coming to a finding as to the intention of the accused, such intention may also be adduced from other circumstances. The intention of the accused is to be gathered from the circumstances like the nature of the weapon used, words used by the accused at the time of the incident, motive of the accused, parts of the body where the injury was

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caused and the nature of injury and severity of the blows given etc."

(emphasis supplied) Thus, it is clear that the allegations made against the appellant do prima facie make out an offence under Section 307 of IPC. Under these circumstances, this Court is of the considered opinion that no case is made out for suspension of sentence and grant of bail"

8. Heard learned counsel for the parties and, perused the record of the case and the judgments cited at the Bar.

9. This Court keeps into consideration the following judgments rendered by the Hon'ble Apex Court in:-

9.1 Amit Kapoor Vs. Ramesh Chander and Ors. (2012) 9 SCC 460 wherein the Hon'ble Apex Court, with regard to the exercise of a High Court's inherent powers under Section 482 Cr.P.C, observed asunder:-

"The jurisdiction of the Court under Section 397 can be exercised so as to examine the correctness, legality or proprietary of an order passed by the trial court or the inferior court, as the case may be. Though the section does not specifically use the expression 'prevent abuse of process of any court or otherwise to secure the ends of justice', the jurisdiction under Section 397 is a very limited one. The legality, proprietary or correctness of an order passed by a court is the very foundation of exercise of jurisdiction under Section 397 but ultimately it also requires justice to be done. The jurisdiction could be exercised where there is palpable error, non-compliance with the provisions of law, the decision is completely erroneous or where the judicial discretion is exercised arbitrarily. On the other hand, Section 482 is based upon the maxim quando lex liquid alicuiconcedit, conceder videtur id quo res ipsa esse non protest, i.e., when the law gives anything to anyone, it also gives all those things without which the thing itself would be unavoidable. The Section confers very wide power on the Court to do justice and to ensure that the process of the Court is not permitted to be abused.

It may be somewhat necessary to have a comparative examination of the powers exercisable by the Court under these two provisions. There may be some overlapping

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between these two powers because both are aimed at securing the ends of justice and both have an element of discretion. But, at the same time, inherent power under Section 482 of the Code being an extraordinary and residuary power, it is inapplicable in regard to matters which are specifically provided for under other provisions of the Code. To put it simply, normally the court may not invoke its power under Section 482 of the Code where a party could have availed of the remedy available under Section 397 of the Code itself. The inherent powers under Section 482 of the Code are of a wide magnitude and are not as limited as the power under Section 397. Section 482 can be invoked where the order in question is neither an interlocutory order within the meaning of Section 397(2) nor a final order in the strict sense. Reference in this regard can be made to Raj Kapoor and Ors. v. State of Punjab and Ors. MANU/SC/0210/1979 : AIR 1980 SC 258 : (1980) 1 SCC 43]}. In this very case, this Court has observed that inherent power under Section 482 may not be exercised if the bar under Sections 397(2) and 397(3) applies, except in extraordinary situations, to prevent abuse of the process of the Court. This itself shows the fine distinction between the powers exercisable by the Court under these two provisions. In this very case, the Court also considered as to whether the inherent powers of the High Court under Section 482 stand repelled when the revisional power under Section 397 overlaps. Rejecting the argument, the Court said that the opening words of Section 482 contradict this contention because nothing in the Code, not even Section 397, can affect the amplitude of the inherent powers preserved in so many terms by the language of Section 482. There is no total ban on the exercise of inherent powers where abuse of the process of the Court or any other extraordinary situation invites the court's jurisdiction. The limitation is self-restraint, nothing more. The distinction between a final and interlocutory order is well known in law. The orders which will be free from the bar of Section 397(2) would be the orders which are not purely interlocutory but, at the same time, are less than a final disposal. They should be the orders which do

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determine some right and still are not finally rendering the Court functus officio of the lis. The provisions of Section 482 are pervasive. It should not subvert legal interdicts written into the same Code but, however, inherent powers of the Court unquestionably have to be read and construed as free of restriction."

9.2 Gimpex Private Limited Vs. Manoj Goel [2022] 169 SCL 258 (SC) wherein the following was observed: -

"On the basis of the above compromise, Mukesh Goel was granted bail. Sitaram Goel and the Respondent were granted anticipatory bail by the Metropolitan Magistrate on 26 March 2013 and 3 April 2013 on the basis of the deed of compromise.

When a complainant party enters into a compromise agreement with the Accused, it may be for a multitude of reasons-higher compensation, faster recovery of money, uncertainty of trial and strength of the complaint, among others."

10. Looking into the medical record of the case, this Court finds that the nature of injury created a doubt as to whether there was any intention of causing death, or causing attempt to murder.

10.1 The learned trial court, while establishing the making out of the offence under Section 307 IPC was unable to balance the applicability of Section 326 IPC vis-a-vis Section 307 IPC. The benefit of doubt arising out of such imbalance has to go to the accused, and thus, while interfering in the impugned judgment, this Court deems it appropriate to replace the conviction under Section 307 IPC with Section 326 IPC.

10.2 After having done so, this Court moves on to consider that the compromise has been entered into between the parties and the fact that they being neighbours have decided to bury the hatchet. The incident is an old one and the learned counsel for both the parties jointly pray that the conviction be set aside, while accepting the compromise in accordance with the afore-cited precedent law.

11. Accordingly, Appeal No.894/2005, where conviction already stood scaled down from Section 307 IPC to Section 326 IPC, is further interfered with, and the appeal is

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hereby allowed. The conviction of the appellant as recorded vide judgment dated 25.11.2005 passed by the learned Additional Sessions Judge (Fast Track) No.1, Bikaner in Sessions Case No.317/2003 is quashed and set aside. The appellant is acquitted of the charges levelled against him. The appellant is on bail; he need not surrender. His bail bonds stand discharged accordingly.

12. Learned counsel for the parties in the connected Appeal being Appeal No.910/2005 jointly and fairly submit that the allegations in the said appeal are a trivial offshoot of the main litigation, which has already been set to rest by this Court, and thus, the conviction in the same being only under Section 323 IPC, as jointly submitted, be set at rest. Thus, it is deemed appropriate to give the appellant in the said appeal the benefit of the Probation of Offenders Act.

13. The impugned judgment dated 25.11.2005 passed by the learned Additional Sessions Judge (Fast Track) No.1, Bikaner in Sessions Case No.18/2005 is upheld with the following observations;

13.1 This Court takes note of the fact that the maximum punishment under Section 323 IPC is imprisonment for a period not beyond one year, and therefore, falls within the purview of Section 3 of the Probation of Offenders Act, 1958, wherein a person on being found guilty of having committed any offence punishable under the IPC or any other law for the time being in force, wherein the imprisonment is not beyond two years may be released by the Court, after due admonition, if he does not have any previous criminal antecedents.

Section 323 IPC reads as follows: -

"323. Punishment for voluntarily causing hurt.-- Whoever, except in the case provided for by section 334, voluntarily causes hurt, shall be punished with imprisonment of either description for a term which may extend to one year, or with fine which may extend to one thousand rupees, or with both."

Section 3 of the Act of 1958 reads as follows:- "3. Power of court to release certain offenders after admonition.--

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When any person is found guilty of having committed an offence punishable under section 379 or section 380 or section 381 or section 404 or section 420 of the Indian Penal Code, (45 of 1860) or any offence punishable with imprisonment for not more than two years, or with fine, or with both, under the Indian Penal Code or any other law, and no previous conviction is proved against him and the court by which the person is found guilty is of opinion that, having regard to the circumstances of the case including the nature of the offence, and the character of the offender, it is expedient so to do, then, notwithstanding anything contained in any other law for the time being in force, the court may, instead of sentencing him to any punishment or releasing him on probation of good conduct under section 4, release him after due admonition.

Explanation.--For the purposes of this section, previous conviction against a person shall include any previous order made against him under this section or section 4.

13.2 This Court, in light of the aforesaid observations, deems the present case to be a fit case for granting of benefit under Section 3 of the Act of 1958. This Court hereby, in Criminal Appeal No.910/2005, noting that the appellant has no prior criminal antecedents and was convicted under Section 323 IPC by the learned court below, wherein the maximum sentence of imprisonment as aforementioned, is one year; and this Court, being conscious of the fact that the appellant's sentence was suspended by this Court in its order dated 16.12.2005, hereby directs that the appellant in Criminal Appeal No.910/2005 be released under Section 3 of the Act of 1958 after due admonition.

13.3 Criminal Appeal No.910/2005 is thus partly allowed.

14. All pending applications stand disposed of. Record of the learned court below be sent back forthwith."

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4. Learned counsel for the petitioner placed reliance upon the

judgment rendered by this Hon'ble Court at Jaipur Bench in

Banwari Lal & Ors. Vs. State of Rajasthan, 2008 CRI.L.J.

3256, relevant portion of which reads as under:

"17. ... since Radiologist was not produced for evidence therefore, in absence of that it could not be concluded that injured received grievous injuries....

19. ... In this case, the prosecution has failed to produce. Radiologist for examination P.W. 15 Dr. Rakesh Sharma, in his opinion that injury No.1 was dangerous to life and injury No.12 was serious in nature and remaining injuries were simple in nature. In view of the above, the impugned judgment passed by learned trial Court, in my considered view, requires modification."

5. The appellant No.2 is said to have already expired. And in

the present case, the injury, based on the evidence placed on

record, cannot be opined to be dangerous to life, unless the

Radiologist/Surgeon, who performed the surgery was examined.

Therefore, the conclusion that the injury in question could be

dangerous to life does not induce confidence of this Court.

6. In light of the aforequoted judgment passed by this Court on

23.03.2022, and keeping in mind the peculiar facts and

circumstances of the present case, the conviction of the appellant

No.1 is scaled down from Section 307 IPC to Section 326 IPC.

7. This Court observes that the parties are close family

members and the mutual compromise has been voluntarily