Virender Singh, J.
1. Appellant Rajinder son of Leela is convicted under Section 307 IPC vide impugned judgment of learned Additional Sessions Judge, Narnaul dated 25.1.1995 and has been sentenced to undergo RI for 7 years and to pay fine of Rs. 2,000/. In default of payment of fine to further undergo RI for a period of 3 years. Aggrieved by the judgment of conviction and sentence, he has preferred the present appeal.
2. It is worth mentioning here that along with the present appellant Basti Ram son of Sheo Narain was also booked. He, however, stands acquitted by the trial Court. State of Haryana has not preferred any appeal against his acquittal.
3. The appellant was charged under Section 307 IPC by the trial Court on the allegations that on 1.2.1994 in the area of Bocharia, he had assaulted Bhup Singhinjured (PW1) with Kulhari. In brief, the case of the prosecution is that on 1.2.1994 at about 3.00 P.M. Bhup Singh PW1 was going from his house to his tubewell for irrigating his agricultural land. When he reached near the pond situated outside the village, he came across the present appellant and Basti Ram (since acquitted) who was standing in the way. The appellant was armed with Kulhari. He enquired from Bhup Singh as to where he was going. Upon which Bhup Singh told him that he was going to his fields for operating tubewell. On this the appellant sarcastically remarked that he would despatch him to the fields. Basti Ram coaccused of the present appellant then caught hold of Bhup Singh and Rajinder Singh gave a blow with his kulhari on the back of his neck. He consequently fell down. The appellant and his coaccused then fled away. The occurrence was seen by Budh Ram, Shiv Lal, Gajraj and Om Parkash (PW2). Bhup was immediately removed to Hospital by his father Dalip Singh, Subhash and one Hanuman (PW6).
4. The motive projected is that an altercation had taken place between the present appellant and Bhup Singh about an year prior to the occurrence on the question of passing along the boundary line of the fields. Doctor of Primary Health Centre sent ruqa to Police Station Ateli whereupon HC Vijender Singh PW7 went to the hospital and recorded the statement Ex. PA of injured Bhup Singh. He made his endorsement Ex. PA/1 and sent the ruqa to the concerned police station for recording of the FIR whereupon the formal FIR Ex. PA/2 was recorded. Jai Narain (PW8) took up the investigation of this case on 2.2.1994, went to the spot, prepared rough site plan Ex. PW8/A. He also recorded the statement of certain PWs and took into possession the clothes of injured Bhup Singh. Opinion of the doctor regarding the nature of the injury was also obtained by this witness. He arrested the appellant on 10.2.1994 and on interrogation he suffered disclosure statement that he had kept concealed an axe in the mustard fields of one Hari Ram and could get the same recovered. In pursuance of his disclosure statement he got the iron axe Ex. P1 recovered and the same was also taken into possession vide separate recovery memo. After the completion of the investigation, the appellant was challaned in this case whereas the coaccused Basti Ram was found innocent and put in column No. 2. He was subsequently summoned to face trial on an application moved under Section 319 Cr.P.C. by the State.
5. In order to prove the charge of Section 307 IPC, the prosecution has examined Bhup Singh as PW1 the injured of this case who has reiterated his version already given by him in his initial statement Ex. PA which is the basis of the registration of the present case.
6. PW2 is Om Parkash son of Bhagwan Singh who had allegedly seen the occurrence. However, he did not support the case of the prosecution and was declared hostile.
7. PW3 Attar Singh is a formal witness who had brought the bed head ticket (medical record) of Bhup Singh injured along with all the Xray films. The said record is exhibited as Ex. PB.
8. Dr. S.C. Goyal PW4 on 1.2.1994 at about 5.40 P.M. had medicolegally examined Bhup Singh and found the following injuries on his person :
"An elliptical clean edged wound present on right side of beck and back of neck size 6x1 cm in the centre bone deep, fresh bleeding and referred to surgeon for further opinion, movements of the neck were restricted."
9. He was referred to surgeon. This witness also gave his opinion to the effect that injury on the back of Bhup Singh was dangerous to life. He also gave opinion to the effect that the injury on the person of Bhup Singh can be caused by the axe Ex. P1.
10. Sher Singh, Patwari PW5 is the witness of preparing the scaled site plan of the place of recovery.
11. Hanuman son of Banwari Lal PW6 has stated to the effect that on 1.2.1994 at about 33.00 P.M. when he was returning to the village from his tubewell and when he reached near the village pond, he noticed that several persons had assembled there and some persons were rushing to the pond. He had seen Om Parkash also rushing from the village towards pond along with Sube Singh, Lal Singh, Gajraj etc. and on his asking he was told that some quarrel had taken place between Rajinder and Bhup Singh. He then states that when he reached there, he saw Bhup Singh, his father on one side and brothers of present appellant on the other side, exchanging abusive language with each other and then the present appellant came on the spot and gave a blow on the beck of Bhup Singh with his Kulhari from behind.
12. HC Vijender Singh PW7 has partly investigated this case to the extent that on 1.2.1994 while posted in police station Ateli, on receipt of the memo Ex. PD, he went to the hospital and recorded statement Ex. PA of Bhup Singh.
13. Jai Narain SI PW8 is the Investigating Officer. His investigation has already been detailed in the proceeding paras.
14. Dr. Ashish Khurana PW9 has stated that on 4.2.1994 on the written request of the police, he gave the opinion regarding the nature of injury on the person of Bhup Singh and described the said injury as cervical spine injury with hemiplegia right side with urinary retention.
15. Gajraj, Dharampal PWs were, however, not produced by the prosecution as having been won over. Certain other formal witnesses were also left by the State as unnecessary.
16. The defence taken up by the appellant is of false implication. However, he did not lead any defence evidence.
17. The appellant has suffered conviction for the charge. Hence this appeal.
18. I have heard Mr. V.S. Rathore, learned counsel for the appellant, Mr. Bijender Dhankar, learned A.A.G., Haryana assisted by Mr. N.K. Sanghi, learned counsel for the complainant. With their assistance, I have gone through the entire record minutely.
19. Mr. Rathore firstly argues that prosecution has suppressed the genesis of the occurrence and in fact the first version has been withheld by the prosecution, and a new story has been developed by the complainant in this case with an ulterior motive. He in this regard has drawn my attention to the statement of Bhup Singh PW1 who in his statement in the Court has stated that after the occurrence, he was taken to Police Station, Ateli where his statement was recorded in the police station and then he was taken to Primary Health Centre where he was given first aid by the Doctor at Ateli and then referred him to General Hospital, Narnaul. The learned counsel has also drawn my attention to the statement of PW6 Hanuman also where he has also stated that he along with other persons had taken Bhup Singh to police station, Ateli by a jeep where they were told by the police to first go to the hospital and then they brought Bhup Singh to PHC Ateli. According to the learned counsel, this witness has rather stated that the doctor had insisted that he would examine the injured and give him the treatment only after the police registers a criminal case and from the hospital, the father of Bhup Singh went to the police station to lodge the report with the police and then HC came to PHC Ateli. From this, he develops his arguments and submitted that infact the police was informed first of all before injured Bhup Singh was examined by the doctor and a story has been developed subsequently of the choice of the complainant in which it is now projected that ruqa was sent to the concerned police station at Ateli where HC Vijender Singh PW7 reached the hospital and recorded the statement of Bhup Singh Ex. PA. This indicates that first version has been withheld by the complainant side and this fact is enough to infer that the prosecution is suppressing the genesis of the occurrence and as such whole of the prosecution case falls on the ground.
20. The next argument advanced by the learned counsel is that the complainant side is coining up entirely a new story which is apparently against the very case of the prosecution set up in Ex. PAthe statement of Bhup Singh. Relevant portion from the statement of Hanuman PW6 has been read over before me where he states that when he reached near village pond, he saw many persons rushing towards the pond and Om Parkash was also going towards village pond along with Sube Singh, Lal Singh, Gajraj etc. On his asking, he was told that a quarrel had taken place between Bhup Singh and the present appellant whereupon he also reached the pond and saw Bhup Singh and his father on one side and Rajinder''s three brothers namely Krishan, Risal and Udai Singh on the other side. They were exchanging abusive language with each other. Rajinder Singh present appellant reached the spot and then caused Kulhari blow on the beck of Bhup Singh. Learned counsel dwelling upon his arguments contends that the aforesaid statement of Hanuman PW6 is totally in contradiction with the statement of Bhup Singhthe injured who does not talk a word about the presence of his father on one side or the three brothers of the appellant on the other side or even exchanging of abusive language in between two sides. This material lacuna again demolishes the very case of the prosecution which is otherwise shrouded under the clouds of doubt.
21. The learned counsel then contends that the occurrence has not taken place in the manner as it is suggested by the prosecution. Bhup Singh states that he had suffered the injury near the pond whereas scaled site plan Ex. PW8/A reflects otherwise. As per the scaled site plan, the occurrence has taken place in the fields. This is indicative of the fact that the prosecution is not coming forward with clean picture about the assault. Another weakness in this regard which the learned counsel wants to point out is that no blood stained shirt is taken by the police at the time of the preparation of the MLR of Bhup Singh. On 6th day of the occurrence, father of injured hands over a Tehmat of the injured to police. This all indicates that infact Bhup Singh had received injuries in the fields when he was without the shirt and a story of assault at pond has been introduced by the complainant party subsequently. This rather knocks at the bottom of the prosecution case and reflects that the investigation in this case from the very beginning is tainted one and the investigating officer had been conniving with the complainant side on all aspects. In this eventuality even the possibility of substitution of the real accused cannot be ruled out.
22. Attacking the investigation part, learned counsel otherwise contends that even the recovery of axe which is shown to have been recovered from the appellant in pursuance of his disclosure statement, in fact is planted upon him. In this context he draws my attention to the statement of PW6 Hanuman wherein in the crossexamination, he has stated that the appellant did not make any disclosure statement regarding the concealment of weapon nor he produced any weapon to the police in his presence. Learned counsel takes me through the statement of Jai Narain SI PW8, the Investigating Officer also who has stated that the appellant was interrogated on 10.2.1994 in the presence of Hanuman and HC Vijender Singh. He then contends that recovery of axe is a crude padding in itself in order to falsely implicate the present appellant.
23. Lastly, arguing on the gravity of the offence, he contends vehemently that Section 307 IPC is not made out in the instant case for the reason that there is no motive in this case; there is no premeditation; there is no repetition of the injury by the appellant and even otherwise from the allegations, the present case is the outcome of sudden brawl in the fields. From the medical point of view also, the learned counsel contends that no depth of the injury is given in this case by the doctor who had initially examined Bhup Singh; that the Surgeon who had treated the injured is not produced in this case and the statement of Dr. Ashish Khurana PW9 cannot be relied upon for the purpose of bringing the present case within the four corners of 307 IPC as only Surgeon could make a categorical statement to the effect that the life of injured Bhup Singh was in danger or the injury suffered by him was sufficient to cause death in the ordinary course of nature but for timely aid. In support of his contentions, learned counsel has relied on Dhan Raj v. Rajesh, 1994(2) RCR(Crl.) 79 (P&H) ; Rakha Ram v. State of Haryana, 1995(2) RCR(Crl.) 140 (P&H) ; State of Punjab v. Bir Singh, 2002(3) RCR(Crl.) 496 (P&H) ; Khattan v. State of Rajasthan, 1989(1) Crimes 257 and Sampuran Singh v. State of Haryana, 1999(1) RCR(Crl.) 121 (P&H). He thus contends that the present case, at the most would come within the mischief of Section 324 IPC only or may be Section 326 IPC at the most but not under Section 307 IPC.
24. On the basis of the aforesaid submissions, learned counsel prays for acquittal of the appellant or in the alternative diluting the offence from 307 IPC to lesser one.
25. At the same time, the learned counsel beseech for a lenient view in quantifying the sentence and submitted that the appellant has already undergone 8 months of his substantive sentence; that the occurrence is of the year 1994; that the appellant has already faced the agony of protracted trial; that at the time of occurrence, he was of the of 35 years; that he is the only bread winner of the family and as such his case calls for a lenient view with regard to quantum of sentence.
26. Repudiating the arguments advanced by the learned counsel for the appellant, learned State counsel assisted by Mr. N.K. Sanghi Advocate states that case of the prosecution is proved to the hilt. Even if certain discrepancies have crept in the statement of the injured or Hanuman PW6 the same cannot shatter the basic substratum of the prosecution case. Bhup Singh has categorically stated that when he reached near the pond outside the village, the present appellant who was armed with kulhari stopped him and gave a kulhari blow on the back of his neck. According to the learned State Counsel, there cannot be any reason with Bhup Singh to falsely implicate the present appellant. Even otherwise, there is no suggestion to Bhup Singh that he has any enmity with someone else. The motive projected by the prosecution, according to the State counsel is also proved. He then contends that even if some laxity has crept in the investigation so far as recovery of axe is concerned but that too would not weaken the statement of Bhup Singh injured who has received a very serious injury at the hands of the present appellant. On the point of nature of offence, the learned State counsel submits that even if the doctor (Surgeon) who had treated the injured in the hospital has not been produced by the prosecution, that by itself would not be a ground to conclude that Section 307 IPC in this particular case is not made out when Dr. Ashish Khurana PW9 has categorically stated that the injury has resulted into hemiplegia of right side. The appellant thus cannot escape from his liability of the offence punishable under Section 307 IPC and the conviction as recorded by the trial court deserves to be upheld, the State counsel so contends.
27. With regard to quantum of sentence, the learned State counsel submits that the appellant does not deserve even the least sympathy in this case as the attack on the neck of injured Bhup Singh by Kulhari has made him permanently disabled person. Bhup Singh was of the age of hardly 18 years at the time of occurrence. For rest of his life, he has been made a crippled and disabled person.
28. Picking up the thread, learned counsel for the complainant submits that while upholding the conviction of the appellant, injured Bhup Singh should also be awarded compensation under Section 357 Cr.P.C. keeping in view the loss suffered by him on account of the injury.
29. After considering the rival contentions of either side and rescanning the entire evidence very carefully, I am of the considered view that the prosecution has been able to prove its case to the hilt against the appellant for the charge of Section 307 IPC. His conviction as recorded by the trial Court thus deserves to be upheld. The reasons are set out as under.
30. In my view the prosecution has not suppressed the genesis of the occurrence or the first version. No doubt PW6 Hanuman has come up with a story which is somewhat different from the statement of Bhup Singh but to my mind that does not demolish the basic case of the prosecution. Hanuman PW6 states that some altercation had ensued between father of Bhup Singh and three brothers of present appellant and then the appellant gave a Kulhari blow on the beck of Bhup Singh. No doubt, Bhup Singh is silent in this regard. But he is, however, very specific about the assault by Kulhari on him at the hands of the present appellant. It is a case of single injury inflicted on his person by the appellant. The statement of Hanuman in this regard, in my considered view, has to be ignored as a stray statement. It is well settled by various judicial pronouncements that conviction can be passed even on the statement of injured alone if it is convincing. In the instant case, in my view, the statement of Bhup Singh PW1, does not suffer from any intrinsic infirmity which knocks at the bottom of the case so as to disbelieve the case of the prosecution in its entirety. By any stretch of imagination, the present case cannot be said to be a case if substitution. Bhup Singh injured would be the last person to falsely implicate the present appellant by substituting him from the said assailant. No doubt the motive as projected in this case is again somewhat stale. But at the same time, the motive pales into insignificance if the eye version account is convincing. Taking the instant case from any angle, I do not find any reason to disbelieve the statement of Bhup Singh at all. It is worthy of credence on all material aspects.
31. Much has been said by the learned State counsel about the place of occurrence or even the investigation conducted in this case. I am meeting both these points together. I have once again seen the scaled site plan as also the rough site plan in the light of the statement given by Bhup Singh injured. No doubt, in the site plan, the place of occurrence is shown in the fields and no pond is shown nearby. But this fact, in my view, does not dent the case of the prosecution at all. The very case of the prosecution is that occurrence has taken place near the pond. Om Parkash PW2 who has been even declared hostile also states that he saw Bhup Singh falling down on the ground from the side of village pond. So is the statement of PW6 Hanuman. It appears that in the site plan the stress is laid on the place where the occurrence had taken place and for this reason the pond is not depicted. In my considered view, it is no infirmity.
32. Similarly, I do not find any weakness in investigation which would uproot the case of the prosecution. Even if blood stained shirt is not taken in possession by the Investigating Officer after the MLR of Bhup Singh was prepared that by itself would not be considered as a weakness in prosecution case. It cannot in any manner dislodge the basic case as set up by Bhup Singh. No doubt some discrepancies have come with regard to the factum of recovery of axe as the statement of PW6 Hanuman run counter to the statement of SI Jai Narain, the Investigating Officer but that too would not be a ground to reject the case of the prosecution outrightly which is otherwise proved. At the cost of repetition, I may observe once again that there is no reason to disbelieve the statement of Bhup Singh which is otherwise corroborated by medical evidence.
33. Let us now examine the case of the prosecution from the angle of gravity of offence. Learned counsel for the appellant has made all his attempts to dilute the offence from Section 307 IPC to 326 IPC or even 324 IPC. I do not find any force in his submission. No doubt the appellant has not repeated the blow of Kulhari after giving one injury on the back of the neck of Bhup Singh injured but it cannot be said that the appellant had no motive in his bosom. Assuming for sake of arguments that there was no premeditation in this case viz. to open assault on the injured yet the present case would not fall within the ambit of Section 324 IPC or 326 IPC. I am dealing with this aspect on the basis of medical evidence available on the file. No doubt the depth of the injury is not probed in this case. Admittedly, no Surgeon has also been produced by the prosecutrix except Dr. Ashish Khurana who when stepped into the witness box has stated that it was a case of cervical spine injury with hemiplegia right side. He also states that he had not carried out any operation in this case. From this, learned counsel made an attempt to develop that Section 307 IPC is not made out. In this regard reference to the bed head ticket (medical record) Ex. PB assumes great importance. I have seen it very minutely. Bhup Singh injured remained hospitalised from 2.2.1994 to 25.3.1994. A perusal of the complete record indicates that the injury on his person (neck) has resulted into right side hemiplegia within 24 hours.
34. For attracting Section 307 IPC, it is not essential to inflict the bodily injury which is capable of causing death. Their Lordships of Apex Court in a recent judgment rendered in Girija Shankar v. State of U.P., 2004(3) SCC 793 have observed that to justify conviction under Section 307 IPC, 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. It is further observed therein that 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 the section. It is sufficient inlaw, if there is present an intent coupled with some overt act in execution thereof.
35. In the instant case, as per the prosecution case, the present appellant in fact waylaid Bhup Singh injured when he was going to his fields and thereafter sarcastically passed remarks that he will take him to the fields and then caused an injury with full force on his neck by the Kulhari he was having in his hands. The effect of injury leaves no room for doubt to conclude that the act of the appellant squarely falls within four corners of offence punishable under Section 307 IPC and not under Section 326 or 324 IPC, as contended by the learned counsel for the appellant.
36. The authorities relied upon by the learned counsel for the appellant are distinguishable on facts of the instant case and would not lend any advantage to the case of the appellant.
37. As a sequel to what is discussed herein above, in my view, the prosecution has been able to prove the charge of Section 307 IPC against the present appellant beyond any shadow of reasonable doubt and as such the conviction as recorded by the trial Court for the said charge is reaffirmed.
38. I, however, find some force in the submissions made by the learned counsel for the appellant with regard to the quantum of sentence. As stated and not disputed by the learned State counsel or even by the counsel for the complainant that appellant has already undergone 8 months of his substantive sentence. He was of the age of 35 years at the time of occurrence. He has also faced the agony of protracted trial as the occurrence relates to the year 1994 and the instant appeal could not be heard for 9 years after its admission on account of heavy pendency. Keeping in view the totality of facts and circumstances of the instant case, the ends of justice would be adequately met if the substantive sentence of 7 years as awarded by the trial Court is reduced to three years. It is so ordered.
39. At the same time, this Court is also conscious of the fact that Bhup Singh injured who was of the age of 18 years has received a very serious injury at the hands of appellant which has resulted into the disability of his right side.
40. I, thus, award Rs. 40,000/ as compensation to be paid by the present appellant to injured Bhup Singh under Section 357 Cr.P.C Let this amount be deposited by the appellant within three months from the date of the receipt of the certified copy and the same in turn shall be disbursed to the complainant by the trial Court. In default of the same, the learned trial Court would initiate proceedings to recover the said amount according to law. The fine as awarded by the trial Court shall remain as it is.
41. With the modification in the quantum of sentence, as indicated above, the present appeal stands dismissed.
42. The appellant is on bail. He shall now surrender to custody to serve the reminder of his substantive sentence.
