Rajasthan High Court
Pappu S/O Heera Lal Rao vs State Of Rajasthan on 21 February, 2024
Author: Sudesh Bansal
Bench: Sudesh Bansal
[2024:RJ-JP:6024]
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Criminal Appeal No. 42/1991
Pappu S/o Heera Lal Rao, Resident of Village Aktasha, Police
Station Taleda, District Bundi, at present serving sentence in
District Jail, Bundi
----Accused-Appellant
Versus
State of Rajasthan through Public Prosecutor
----Respondent
For Appellant(s) : Mr. Harendra Singh,
Mr. Jaswant Singh Rathore for
Mr. Biri Singh, Sr. Adv.
For Respondent(s) : Mr. S.S. Mahla, PP
HON'BLE MR. JUSTICE SUDESH BANSAL
Order
RESERVED ON 05/02/2024
PRONOUNCED ON February 21st, 2024
1. Instant criminal appeal has been filed under Section 374(2)
CrPC by the accused appellant challenging the judgment dated
11.02.1991 in Sessions case No.42/1989 passed by the Sessions
Judge, Bundi whereby he has been convicted for offence under
Section 307 IPC and sentenced to undergo four years rigorous
imprisonment, fine of Rs.1000/-, in default to further undergo six
months rigorous imprisonment.
2. Facts of the case are that on 24-12-1988 in night at about
11.00 PM, a parcha bayan of injured Abdul Latif was recorded at
General Hospital Bundi, wherein he stated that in night of 24-12-
1988 around 8.15 PM he along with Shekh Umar, Mohammad Hafij
[2024:RJ-JP:6024] (2 of 12) [CRLA-42/1991]
and Maksood was going to Aktasa cinema hall then on bridge near
Aktasa accused Pappu along with one other met him and pappu
suddenly with the intention to kill him, inflicted a knife blow from
sharp side at testicles, the other person caught his hands, when
his companions pushed them, they ran away. He further stated
that around two months ago, Pappu was playing bugle loudly,
opposite the shop of Gulshan, which was objected by him, due to
which altercations ensued between both of them, and since then
pappu had animosity with him.
On the basis of this parcha bayan, an FIR No.178/1988 was
registered for offence under Section 307 IPC and investigation
commenced. After concluding investigation, charge-sheet was filed
against accused Pappu and Radhe Shyam, but the accused Radhey
Shyam was discharged in view of evidence, that he caught the
injured after inflicting injury, but charge-sheet u/s.307 IPC was
filed against accused Pappu.
3. The prosecution examined twelve witnesses and exhibited
documents, including injury report of Abdul Latif. In defence
evidence, the accused pleaded not guilty and stated that on the
date of incident, 5-6 persons encircled him and a scuffle took
place, due to which Latif fell down from the bridge and sustained
injuries, and the he has been falsely implicated in this criminal
case. The trial Court considering oral and documentary evidence
produced by the prosecution, convicted and sentenced the
accused in aforesaid terms.
4.1 Counsel for accused-appellant contended that the stab
wound, suffered by the injured Abdul Latif below the abdomen
[2024:RJ-JP:6024] (3 of 12) [CRLA-42/1991]
part cannot be treated a grievous hurt, sufficient to cause death.
Dr. Jitendra, who performed operation of the injured and was the
best witness to opine about the nature of the injury, has not been
produced by the prosecution. And only Dr.Kamlesh, who initially
made check up of injured at hospital and prepared the medical
report (Ex.P-3) has been produced as PW.5. According to
statement of Doctor (PW.5), at the time of check-up, the injured
was in conscious state of mind and his condition was stated to be
good. The stab wound was found of 1¼" wide and ½" depth, blood
pressure was observed as 110 and pulse were 100 p.m. Therefore,
considering all such circumstances, the stab injury to injured at
the most may be treated as grievous, but how and not sufficient
to cause death. The duty Doctor on what basis, opined such injury
to be dangerous to life is having no basis and no reason has been
assigned by him. He contended that no document of
hospitalization of the injured, and as to how long he remained
hospitalized, has been placed on record. The opinion of
Dr.Kamlesh (Pw.5) in the injury report (Ex.P3) is perfunctory in
nature without close analysis and without any basis, which do not
match with the good condition of injured, hence, such an opinion
deserves to be discarded.
4.2 In addition, counsel for accused-appellant has contended
that recovery of knife, allegedly used by the accused-appellant to
cause the stab wound is suspicious, as firstly, the incident
occurred in the night of 24-12-1988 and the knife has been
recovered on 1-1-1989, through fard japti (Ex.P-5). Both
witnesses of recovery of knife, namely Murlidhar (Pw.8) and
[2024:RJ-JP:6024] (4 of 12) [CRLA-42/1991]
Jumma (Pw.9) have turned hostile. The seized knife has not been
found sustained any blood stains, nor seized knife was shown to
the injured or other eye witnesses, to indentify that the injury was
caused by using the same knife.
4.3 He further contended that there is several variance in
statements of the injured and other eye witnesses Maksood Ali
(Pw.4), Shekh Umar (Pw.6) and Mohd. Hafiz (Pw.10) in respect of
having any previous animosity between the accused and the
injured. The altercation alleged by the injured to have ensued
between both, is of about two months ago, prior to the incident
and that may not be treated as sufficient, to infer motive/
intention on the part of accused-appellant to kill the injured.
4.4 The trial court failed to advert its attention that in the
present case, main element of mens rea, on the part of accused
and an intention to kill, which is sine qua non to bring home the
charge u/s.307 IPC against the accused, are not proved.
4.5 Counsel for accused-appellant has prayed that for aforesaid
reasons, conviction of accused for offence u/s.307 IPC is not
proved beyond reasonable doubt and the trial court has committed
an error of fact and law in passing the impugned judgment,
however, in the alternative placing reliance on judgment of Delhi
High Court in case of Sumit Gupta vs. State NCT, decided on
15-10-2014, it has been prayed that the case against the
accused-appellant does not travel beyond the scope of Section
325 IPC or at the most 326 IPC, hence, the conviction of accused
u/s.307 IPC be altered.
[2024:RJ-JP:6024] (5 of 12) [CRLA-42/1991]
4.6 He submits that the punishment awarded to accused-
appellant is harsh and unjust, which may be reduced to the period
of sentence already undergone by the accused and although the
amount of fine may be suitably enhanced.
4.7 He submitted that the accused be granted benefit of
probation taking into consideration of his young age and having no
criminal antecedents, looking to his future.
5. Learned Public Prosecutor has supported the impugned
judgment.
6. Heard. Considered.
7. The appellant-accused has been convicted for offence u/s.
307 IPC. In order to held an accused guilty for offence u/s. 307
IPC, the essential ingredient is to prove the mens rea on the part
of accused, to have intention and motive to kill the person on
whom he inflicted injury. Mens rea can be inferred from various
facts i.e. weapon used, place and nature of injury, motive and
other attending circumstances etc. The prosecution is required to
establish by cogent and convincing evidence beyond reasonable
doubt that the accused inflicted injury with an intent to murder
the victim/ injured.
8. Coming to facts of the instant case, the injured in his parcha
bayan has stated that the stab injury was caused by the accused
using a knife below the abdomen part at his testicles. The nature
of injury has been assessed by the Doctor on duty, Dr.Kamlesh
(PW.5), and as per his statement, the injury is 1¼" inch wide and
½" depth on lower part of stomach, such injury is verified by the
injury report (Ex.P3). It is clear from the statement of the Doctor
[2024:RJ-JP:6024] (6 of 12) [CRLA-42/1991]
that the injured was operated by Dr. Jitendra, and during course of
operation two penetrating wounds were found in the small
intestine and there is no injury to testicles of injured. In the
opinion of this Court, Dr. Jitendra who performed operation was
the person who could have opined about the injury as to whether
it is dangerous to life and could have caused death of the injured?
Indisputably, neither any medical opinion was obtained from Dr.
Jitendra, nor Dr. Jitendra was produced in evidence by the
prosecution. Although, in the injury report, prepared by Dr.
Kamlesh (PW.5), it has been indicated that the nature of the injury
is "grievous and dangerous to life", however, as per statements of
Dr. Kamlesh (PW.5) at the time of checking up, the injured was
not in serious condition but he was in conscious state of mind and
in good condition as also his pulse and BP were observed normal
as noted in the report. From statements of the injured Abdul Latif
(PW.3), it appears that after receiving the injury, firstly he was
taken to hospital at Taleda. But he was referred to Government
Hospital, Bundi. The injured himself has not made an iota of
statement that by such injury he could have died. All three eye
witnesses Maksood Ali (PW.4), Sheikh Umar (PW.6) and Mohd.
Afeez (PW.10) do not corroborate the factum of possibility of
death of injured by such a stab wound. Three eye witnesses state
to take the injured hospital, but there are no blood stain on
clothes of any one. By such injury and from physical symptom of
the injured and other attending circumstances, it is difficult to
infer that the injury in question was, so grievous in nature, that it
was sufficient to cause death. No record has been placed by the
[2024:RJ-JP:6024] (7 of 12) [CRLA-42/1991]
prosecution to establish as to how long the injured remained
hospitalized.
9. In such circumstances, the opinion made by Dr. Kamlesh
(PW.5), merely on the basis of outer body check up of the injured,
that the injury is "grievous and dangerous to life" has no
foundational basis and cannot be taken an absolute truth, moreso
when same does not find any corroboration, by other supportive
evidence/ circumstances. Learned trial Court, only on the basis of
medical report (Ex.P3), without adverting to other evidence and
circumstances, as discussed hereinabove, recorded the finding
that the injury is dangerous to life and could have cause death of
the injured. Such finding of the trial Court are perverse.
10. In the present case, the injury in lower abdomen part of the
injured Abdul Latif (PW.3) has occurred by a single blow. Section
320 IPC defines those injuries which can be treated "grievous
hurt", and eight kinds of hurt are designated as grievous. Clause
(viii) of Section 320 IPC speaks of two natures, one any hurt
which endangers life or another which causes the sufferer to be
during the space of 20 days, (a) in sever bodily pain, or (b) unable
to follow his ordinary pursuits. An injury can be treated to be
endangered to life, if the same itself is of such nature that it may
put the life of injured in danger. In the present case, the injury
suffered by the injured may not fall wholly within the scope of
Clause (viii) of the Section 320 of IPC causing any danger to life of
injured but at the most can be treated grievous hurt.
11. Coming to the intention/ motive of the accused, this Court
finds that there is variance in evidence of the injured and other
[2024:RJ-JP:6024] (8 of 12) [CRLA-42/1991]
three eye witnesses. According to the injured, two months ago,
from the date of incident, some altercation occurred between the
injured and the accused, on a trivial issue of playing buggle loudly
by the accused, therefore, the accused attacked the injured to kill
him. Whereas according to the accused on 24.12.1988, about 5-6
persons encircled him at the bridge and a scuffle took place, and
the injured Abdul Latif fell down from the bridge and sustained the
injury.
The injury has been alleged to have caused by knife, and one
knife has been recovered on 01.01.1989 vide recovery memo
(Ex.P5). On the recovered knife, no blood stains have been found.
Two witnesses of the recovery memo of knife namely Murlidhar
(PW.8) and Jumma (PW.9), have turned hostile. The recovered
knife, was never placed before the injured, during his cross-
examination, to identify the weapon. Thus, the recovery of knife
and the injury caused by the said knife is doubtful and has not
been proved in accordance with law.
12. In such totality of circumstances, it cannot be gathered that
the accused inflicted the injury with the recovered knife having an
intention/ motive to kill the injured. At the most, if statements of
the injured are believed to have caused injury by the accused, it
can be observed that the intention of the accused was only to
cause hurt, which hurt at the most, does fall in the category of
grievous hurt. In such view of the matter and in the backdrop of
aforediscussed facts, at the most, the accused can be held guilty
for offence u/s. 325 IPC. The trial Court has committed illegality in
holding the accused guilty for offence u/s. 307 IPC. Thus, the
[2024:RJ-JP:6024] (9 of 12) [CRLA-42/1991]
conviction of accused for offence u/s. 307 IPC deserves to be
converted to offence u/s. 325 IPC. This Court, finds support to its
aforesaid view, from the judgment of Delhi High Court in case of
Sumit Gupta (supra), relied upon by the counsel for accused.
13. Reference of the judgment in case of Mangal Singh Vs.
Kishan Singh [(2009) 17 SCC 303], can be made wherein the
conviction of accused-appellant for offence u/s.307 IPC was
converted into offence u/s.326 IPC, in the circumstance where the
Doctor made a statement that the injured might have died if
medical care was not provided to him, but he has not stated that
injuries were sufficient in the course of nature to cause death. The
Hon'ble Apex Court on the issue of awarding sentence held that in
a case where the offence is old one, the accused may not be sent
to jail, however, the custodial sentence should be substituted by
fine, so that the offender feels guilty, and the justice is done to the
victim. It was observed that the delay in trial of a case cause
acute suffer to the victim sometimes more than the accused.
14. Coming to the question of quantum of sentence, this Court
finds that the incident occurred in the night of 24.12.1988 i.e.
about 35 years ago. The accused was arrested on 29.12.1988 and
remained in custody till 25.02.1989 and 10-11 days during appeal
i.e. for about more than two months. At the time of incident the
accused was a young boy of 18 years, having no criminal
antecedents. Before this Court also no other criminal antecedent
of appellant has been pointed out. During pendency of appeal, the
sentence of the accused was suspended and he remained on bail.
[2024:RJ-JP:6024] (10 of 12) [CRLA-42/1991]
15. Counsel placed reliance on the judgment of the Apex Court in
Alister Anthony Pareira Vs. State of Maharashtra [(2012) 2
SCC 648] observed as under:
"There is no straitjacket formula for sentencing an
accused on proof of crime. The courts have evolved certain
principles: twin objective of the sentencing policy is
deterrence and correction. What sentence would meet the
ends of justice depends on the facts and circumstances of
each case and the court must keep in mind the gravity of
the crime, motive for the crime, nature of the offence and
all other attendant circumstance."
16. Reliance has been placed on the judgment passed by the
Hon'ble Supreme Court in Haripada Das Vs. State of West
Bengal [(1998) 9 SCC 678], wherein it was observed thus:-
".... considering the fact that the respondent had
already undergone detention for some period and the case
is pending for a pretty long time for which he had suffered
both financial hardship and mental agony and also
considering the fact that he had been released on bail as
far back as on 17-1-1986, we feel that the ends of justice
will met in the facts of the case if the sentence is reduced
to the period already undergone...."
17. In the case of The State of Uttar Pradesh Vs. Tribhuwan
[(2018) 1 SCC 90], the Hon'ble Apex Court while affirming the
conviction of accused for offence u/s.325 IPC, substituted the
sentence of four years rigorous imprisonment into period of forty
days spent by the accused in jail, however, maintained the amount
of fine of Rs.10,000/-.
18. Reliance has also been placed on the judgment in case of
Omanakkuttan Vs. State of Kerala [(2021)12 SCC 92],
wherein the Apex Court reduced the sentence awarded to accused
punished for offences u/s.308 and 326 IPC for the period already
undergone. Reference has also been made to the judgment in
[2024:RJ-JP:6024] (11 of 12) [CRLA-42/1991]
case of Murali Vs. State [(2021)1 SCC 726] wherein the Apex
Court considering the fact that appellants have no other criminal
antecedent the punishment for offences u/s. 147, 148, 341, 352,
323, 324, 307 and 34 IPC was reduced to the period already
undergone.
19. Recently in case of Mohinder Singh Vs. State of Haryana
[(2021) 18 SCC 296], the Hon'ble Apex Court reduced the
sentence of accused punished for offence u/s.324 and 326 IPC to
the period already undergone, which was found more than four
months in that case. The Apex Court observed that the inordinate
delay in disposing the case is the relevant circumstance to alter
the sentence and instead of sending the accused to prison, after
25 years of the incident, the sentence of incarceration is reduced
to the period already undergone, but fine was enhanced from
Rs.4000/- to Rs.24,000/- and the same was directed to be paid to
the victim as compensation u/s.357 Cr.P.C.
20. Having considered aforediscussed factual matrix of the case
and judgments referred hereinabove, in the opinion of this Court,
the interest of justice would be served, the accused is punished
for the period already undergone by him in incarceration, however,
the amount of fine is enhanced to Rs.50,000/-, which shall be paid
to the injured.
21. For reasons discussed hereinabove, the conviction of accused
appellant for offence u/s.307 IPC is converted to u/s.325 IPC and
he is punished by sentence to the period already undergone by
him. However, the amount of fine is enhanced to Rs.50,000/-,
[2024:RJ-JP:6024] (12 of 12) [CRLA-42/1991]
which shall be paid to the injured legal heir. The amount of fine so
enhanced be deposited within a period of 60 days from today.
22. Accordingly, the appeal stands disposed of as above and the
impugned judgment stands modified accordingly.
23. Record be sent back to the trial Court.
(SUDESH BANSAL),J
arn/5
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