Mahesh Chandra Sharma, J.@mdashThis appeal has been filed against the judgment dated 4-9-1986 passed by Additional Sessions Judge, Sikar in Criminal Case No. 1/1985, whereby the accused appellants have been convicted for the offences under Sections 307, 326/149, 324, 314/149, 323/149 and 148, IPC and sentenced as under:-
For the offence u/s 307, IPC: Three years'' RI with a fine of Rs. 500/- each and in default of payment of fine, to further undergo 3 months'' RI.
For the offence u/s 326/149, IPC: Two years'' RI with a fine of Rs. 500/- each; and in default of payment of fine; to further undergo three months'' RI.
For the offence under Sections 324, 314/149, IPC: One years'' RI with a fine of Rs. 400/- each; in default of payment of fine, to further undergo three months'' RI.
For the offence u/s 323/149, IPC: Six months'' RI with a fine of Rs. 300/- each; in default of payment of fine, to further undergo 3 months'' RI.
For the offence u/s 148, IPC: One years'' RI with a fine of Rs. 200/- each and in default of payment of fine, to further undergo 3 months'' RI.
Brief facts of the case are that on 21-9-1981, an FIR was lodged by Jeevan Singh at Police Station, Losal. Thereafter investigation was started and on completion of investigation, the police filed challan against the accused appellants for the offences under Sections 307, 147, 148, 149, 326, 324 and 323, IPC before the Magistrate concerned. Thereafter the Magistrate committed the case for trial to the Sessions Court. The trial Court framed charges against the accused appellants, who denied for the same and claimed for trial. Thereafter the prosecution has produced the witnesses and exhibited some documents. The statement of the accused appellants were recorded u/s 313, Cr. P.C. After hearing both the sides, the learned trial Court has convicted the accused appellants vide his judgment dated 4-9-1986, as indicated hereinabove.
2. Against the said judgment dated 4-9-1986, the appellants have filed the instant appeal.
3. Learned counsel for the accused appellants has contended that accused appellants Bajrang Singh and Narayan Singh have died, as such the appeal filed on their behalf has abated and hence the same be dismissed as such.
4. So far as the appeal filed on behalf of accused appellants Bhanwar Singh, Richpal Singh, Prahlad Ram and Daulat Singh is concerned, learned counsel for the appellants has contended that looking to the statement of Dr. Bhanwar Lal (P.W. 1), who has not stated anywhere in his statement that injury, that was found on the person of the injured, was sufficient to cause death in the ordinary course of nature, the conviction of the appellants should be altered from Sections 307, IPC to 308, IPC.
5. In support of his contentions, he has relied upon the judgment rendered by the Coordinate Bench of this Court in the case of
Relevant paras are reproduced as under:
5. The question that next arises is with regard to the offence that can be said to have been committed by the accused appellant. The submission of Shri Bhartiya was that in the facts and circumstances of the case, the only offence which can be said to have been committed was falling u/s 308, IPC and that the Additional Sessions Judge has erred in convicting the accused appellant for the offence u/s 307, IPC. In this connection Shri Bhartiya has invited my attention to the statement of Dr. Y.K. Sharma P.W. 6 and has pointed out that Dr. Y.K. Sharma stated that the injury sustained by Jafar Mohd. was sufficient to cause death, but it has not been stated by Dr. Sharma that the said injury was sufficient in the ordinary course of nature to cause death.
6. I have perused the statement of Dr. Y.K. Sharma and I find that during the course of examination-in-chief he has stated that the injury found after operation could result in death. Dr. Sharma has not stated that injury that was found on the person of Jafar Mohd. was sufficient in the ordinary course of nature to cause death. In the circumstances it cannot be said that if Jafar Mohd. had died, the appellant would have been guilty of the offence u/s 302, IPC. In the facts and circumstances of the case the offence that would have been made out against the appellant in case Jafar Mohd. had died, would have been culpable homicide not amounting to murder punishable u/s 304, IPC inasmuch as the appellant could only be attributed with the intention to cause an injury which was likely to cause death. The conviction of the appellant for the offence u/s 307, IPC cannot, therefore, be sustained and he can only be held guilty for the offence punishable u/s 308, IPC.
6. It was held in the aforesaid paras that Doctor not stating that the injury was sufficient to cause death in the ordinary course of nature, the conviction of the appellant for the offence u/s 307, IPC cannot, therefore, be sustained and he can only be held guilty for the offence punishable u/s 308, IPC.
7. Learned counsel for the appellants has also placed reliance on the judgment rendered by the Division Bench of this Court in the case of
8. He has further requested that looking to the fact that occurrence took place on 21-9-1981, which is about 32 years ago from today and there were six appellants, out of which two have died, as mentioned above and four accused appellants are alive, who are old persons, accused appellant Bhanwar Singh has remained in confinement for about 18 days; accused appellant Richpal Singh has remained in confinement for about 8 days; accused appellant Prahlad Ram has remained in confinement for about 18 days and accused appellant Daulat Singh has remained in confinement for about 18 days, the appellants should be released on probation and if not, then for the period already undergone by them in confinement, as indicated hereinabove.
9. On the other hand, learned PP appearing for the State has opposed the same.
10. I have heard learned counsel for the parties and carefully perused the relevant material on record including the impugned judgment. I have also perused the statement of Dr. Bhanwar Lal (P.W. 1), which evinces that he has not stated that injury was sufficient to cause death in the ordinary course of nature. Thus, the only offence, which can be said to have been committed by the accused appellants is falling u/s 308, IPC and not u/s 307, IPC. The trial Court has erred in convicting the accused appellants for the offence u/s 307, IPC. Looking to the facts and circumstances of the case, I do not think it proper to release the accused appellants on probation, E contra, the ends of justice would be met if the sentence of the appellants is reduced for the period already undergone by them in confinement, as indicated above.
11. For these reasons this appeal is disposed of with the following directions:
(i) The appeal filed on behalf of accused appellants Bajrang Singh and Narayan Singh is dismissed as having been abated.
(ii) The appeal filed on behalf of accused appellants Bhanwar Singh; Richpal Singh; Prahlad Ram and Daulat Singh is partly allowed;
iii) The conviction of the accused appellants is altered from Section 307, IPC to Section 308, IPC.
iv) The sentence of accused appellants is reduced to the period already undergone by them in confinement, as indicated above.
v) The accused appellants are on bail. They need not surrender and their bail bonds stand cancelled.
Impugned judgment stands modified, as indicated above.
