Garg, J.@mdashThis appeal has been filed by the Slate of Rajasthan against the judgment and order of acquittal dated 9.6.1993 passed by the learned Special Judge, SC/ST Gases, Sri Ganganagar in Sessions Case No. 8/92 by which he acquitted the accused respondent of the charges for the offence under Sections 458 and 307 IPC and u/s 3(2)(v) of the Scheduled Castes and Scheduled. Tribes (Prevention of Atrocities) Act, 1989 (hereinafter referred to as ''the SC/ST Act'')-
2. The facts giving rise to this appeal, in short, are as follows:- On 14.10.1991 at about 3.30 AM, PW1 Tej Kaur lodged a report before PW 10 Prem Nath, S.H.O., Police Station Gajsinghpur District Sri Ganganagar stating inter-alia that her son Brijlal, PW8 went to field for irrigating the crops and in the mid-night, PW2 Kala Singh came to her house and told her that at about 11.00 PM in the night, accused respondent caused injuries on the person of PW8 Brijlal with sword with an intention to murder him and he was about to die. It was further stated in the report that this incident was witnessed by PW2 Kala Singh and Dhanna Singh. It was further stated in the report that thereafter, she went on the spot and found PW8 Brijlal lying on the cot and she further found many injuries on the person of PW8 Brijlal and blood was oozing and his condition was serious one and, thereafter, PW8 Brijlal was taken to the hospital in tractor and then the report was lodged.
On this report, police chalked out regular FIR Ex.P/1 and started investigation. During investigation, medical examination of PW8 Brijlal was got conducted by PW6 Dr. Kailash Nath and his injury report is Ex.P/13, which shows that he received as many as 24 injuries and out of these injuries, injuries No.3 and 5 were grievous in nature. The X-ray report is Ex.P/14. The accused respondent was arrested on 22.10.1991 through arrest memo Ex.P/16 and during investigation, on the information of the accused respondent, police recovered clothes of the accused respondent, which were stained with blood and also recovered one sword etc.
After usual investigation, police submitted challan for the offence u/s 458 and 307 IPC and u/s 3(2)(v) of the SC/ST Act against the accused respondent in the Court of Magistrate from where the case was committed to the Court of Session.
On 14.2.1992, the learned Special Judge, SC/ST Cases, Sri Ganganagar framed Charges for the offence under Sections 458 and 307 IPC and u/s 3(2)(v) of the SC/ST Act. The charges were read over and explained to the accused respondent, who pleaded not guilty and claimed trial.
During the course of trial, the prosecution in support of its case examined as many as 11 witnesses and got exhibited some documents. Thereafter, statement of the accused respondent u/s 313 Cr.P.C. was recorded. In defence, no evidence was led by the accused respondent.
After conclusion of trial, the learned Special Judge, SC/ST Cases, Sri Ganganagar through his judgment and order dated 9.6.1993 acquitted the accused respondent of all the charges framed against him holding inter-alia:-
1. That PW2 Kala Singh and PW3 Jogendra Singh when they were to give statement before the Court they were shown police statements just before their statement and thus, their statements, which were recorded thereafter by the Court, had no value as they were hit by Section 162 Cr.P.C.
2. That for the sake of argument if point No. 1 may not be found to be true, there are material contradictions between the statements of these two witnesses.
3. That so far as statement of PW3 Jogendra Singh is concerned, he has not been shown as eye witness in the FIR Ex.P/1 and apart from this, he is a Sadu of PW2 Kala Singh and thus, his statement was not found reliable by the learned trial Judge.
4. That how and in what manner the accused respondent abused PW8 Brijlal, it is not clear and on this point, there are material contradictions among the statements of prosecution witnesses.
5. That since PW8 Brijlal was in the state of intoxication when injuries were caused to him, therefore, it was not possible for him to identify, who caused injuries to him.
6. That so far as the recovery is concerned, molbirs have not supported the prosecution case.
7. That there is evidence in the statements of the prosecution witnesses that on the date of occurrence, night was dark one and in the room, there was light of Diya of kerosene oil, but that Diya has not been produced and from this point of view also, there is no question of seeing the person, injuries to PW8 Brijlal.
In the above circumstances, the learned Special Judge came to me conclusion that no case for the offence under Sections 458 and 307 IPC and u/s 3(2)(v) of SC/ST Act is made out against the accused respondent and thus, he acquitted accused respondent of the said offences.
Aggrieved from the said judgment and order dated 9.6.1993 passed by the learned Special Judge, SC/ST Cases, Sri Ganganagar, this appeal has been filed by the State of Rajasthan.
3. In this appeal, it has been argued by the learned Public Prosecutor for the State that the learned trial Judge has wrongly disbelieved the evidence of the prosecution witnesses on minor contradictions etc. and especially when there is statement of PW8 Brijlal, injured himself, which is supported by [he medical evidence, therefore, impugned judgment is perverse and erroneous and findings of acquittal for the offence under Sections 307 and 458 IPC recorded by the learned triat Judge be set aside. However, the learned Public Prosecutor has not challenged the findings of acquiltal for the offence u/s 3(2)(v) of the SC/ST Act.
4. On the other hand, the learned counsel appearing for the accused respondents has submitted that the impugned judgment and order of acquittal passed by the learned trial Judge are based on correct appreciation of evidence and thus, they in call for interference by this Court and this appeal filed by the State of Raj. be dismissed.
5. I have heard the learned Public Prosecutor and the learned counsel for the accused respondent and perused the record of the case.
6. in this case, the alleged-incident took place at about 11.00 PM on 13.10.91 and report was lodged by PW1 Tej Kaur, mother of injured PW8 Brijlal, at about 3.30 AM on 14.10.91, meaning thereby just after few hours of the occurrence. In the report Ex.P/1, there is clear mention of the fact that PW8 Brijla! was beaten with sword by accused respondent and PW1 Tej Kaur was informed about this beating by PW2 Kala Singh.
7. Before proceeding further, medical evidence of this case has to be seen, which is found in the statement of PW6 Dr. Kailash Nath.
8. PW-6 Dr. Kailash Nath slates that on 14.10.1991 he was Medical Jurist and on that day he examined PW8 Brijlal and found the following 24 injuries on his person:-
1. Incised would 4" x 3/4 x bone deep on leftside face. By sharp edged weapon.
2. Incised would 2" x 1/3" x bone deep on chin. By sharp edged weapon.
3. Incised wound 3" x 1/2 x bone cul & brain deep on forehead. Grievous in nature and caused by sharp edged weapon,
4. Incised wound 2" x 1/4" x bone deep. One end on injury No. 3 forehead. By sharp edged weapon.
5. Incised wound 2 1/4" x 1/4" x bone deep on right parietal region by sharp edged weapon.
6. Incised wound 1/2 x 1/5" muscles deep on upper leg. Simple by sharp edged weapon.
7. Incised wound (2) 2 x 1/5" x muscles deep on left side hand. Simple '' by sharp edged weapon.
8. Incised wound 2" x 1/2" x muscles deep on left shoulder medially. Simple by sharp edged weapon.
9. Incised wound I 1/2" x 1/4 x bone deep left shin above ankle. By sharp edged weapon.
10. Incised wound 2" x 1" x muscles deep on upper 1/3 Rt. Thigh lateral side. By sharp edged weapon.
11. Incised would 2 1/4" x 1/4 x bone deep on right knee. Simple by sharp edged weapon.
12. Incised wound 2" x 1/4" x muscles deep on right palm medially. By sharp edged weapon.
13. Incised wound 2 1/2" x 1/2" x bone deep on right forearm upper l/3rd posteriorly. By sharp edged weapon.
14. Incised wound 2" x 1/2" x muscles deep on right arm medially. Simple by sharp edged weapon.
15. Incised wound 2 1/4" x 1/4" x bone deep on back of left middle and ring finger. By sharp edged weapon.
16. Incised wound 1 1/2" x 1/4 x muscles deep on left wrist. By sharp edged weapon.
17. Incised wound 1" x 1/4" x muscles deep on back of first meta corpal bone (left). By sharp edged weapon.
18. Incised wound 3/4" x 1/4 x muscles deep on left palm. By sharp edged weapon.
19. Incised wound 3" x 1/5" x muscles deep on left arm laterally. Simple by sharp edged weapon.
20. Incised wound 4" x 1/3" x muscles deep near medial border and left scapula. By sharp edged weapon.
21. Incised wound 2" x 1/5 x muscles deep on left paim middle. Simple by sharp edged weapon.
22. Incised wound (3) 1" x 1/4" x thickness + Pina in left ear. Simple by sharp edged weapon.
23. Incised wound (3) 3" x 1/4 x bone deep 1" on left parietal region. By sharp edged weapon.
24. Incised wound 3" x 1/4 x bone deep on left side ,neck and mastoid. By sharp edged weapon.
He has further stated that out of these 24 injuries, injuries No.3 and 15 were grievous in nature. He has further stated that in case proper treatment would not have been given to PW8 Brijlal, these two injuries might have been fatal. He has further admitted in cross examination that when he examined PW8 Brijlal, he was not conscious, but this fact has not been mentioned by him in his report Ex.P/13, but he has mentioned in report Ex.P/13 that his nerves were not in movement nor his blood pressure could be recorded and his general condition was poor.
9. The fact that these two injuries were grievous one was further confirmed by PW11 Dr: Shankar Dev, who was Radiologist and make X-ray report Ex.P/14.
10. Thus, from the statement of PW6 Kailash Nath and PW11 pr. Shankar Dev, it is concluded that general condition of PW8 Brijlal was poor and he received as many as 24 injuries on his person and out of 24 injuries, two injuries No.3 and 15 were grievous in nature and injury No.3 was on very vital part i.e. forehead.
11. The next question that arises for consideration is whether these injuries were caused to PW8 Brijlal by the accused respondent or not.
12. The learned Special Judge has assigned some reasons by which he did not believe the statement of PW8 Brijlal injured and other witnesses, namely, PW2 Kala Singh and PW3 Jogendra Singh.
13. In my considered opinion, the findings of acquiltal recorded by the learned Special Judge are not only perverse one, but erroneous in all manner and order of acquittal passed by him should be set aside so far as the of fences under Sections 307 and 458 1PC are concerned.
14. In the report Ex.P/1, which was lodged just after few hours of occurrence, there is a clear mention of the fact that PW8 Brijlal was beaten with sword by the accused respondent.
15. PW2 Kala Singh is the witness, who informed PW1 Tej Kaur about the alleged incident and is name was also found in the report Ex.P/1. He states that at about 9.00 PM on the same day, accused respondent came and some altercation took place between him and PW8 Brijlal and, thereafter, accused respondent went away. He further states that at about 11.00 PM, accused respondent again came and when PW8 Brijlal was sleeping on his cot, accused respondent gave him many blows with sword and before PW8 Brijlal could have been saved, accused respondent had caused injuries to him. He has further stated that thereafter, he informed PWI Tej Kaur mother of injured PW8 Brijlal. This witness was cross-examined at length, but only one fact has come out that there was light coming from Diya of kerosene oil.
16. So far as the statement of PW3 Jogendra Singh is concerned, it is not being discussed here as in the report Ex.P/1, his name does not find place. But, the main witness is injured Brijlal himself, who has been examined as PW8.
17. PW8 Brijtal has clearly stated in examination-in-chief that an incident look place at 9.00 PM and at that time, PW3 Jogendra Singh, PW2 Kala Singh and Dhanna Singh were also there and, thereafter, accused respondent went away and then he came again at 11.00 PM and caused many injuries to him with sword and on his making hue and cry, PW2 Kala Singh, PW3 Jogendra Singh and Dhanna Singh came there and thereafter, accused ran away and he became unconscious. This witness was cross examined at length, but nothing has come out which affects his testimony.
18. From the statement of PW8 Brijlal, it cannot be presumed or inferred that he is telling lie or falsely implicating the accused respondent, rather it appears that his statement is straight forward, reliable and trustworthy. His statement is fully corroborated by the medical evidence and other evidence. From his statement, it appears that injuries, which were received by him, were caused by the accused respondent. His statement further gets corroboration from the statements of PW2 Kala Singh and PWI Tej Kaur. PWI Tej Kaur was informed about the incident by PW2 Kala Singh and PWI Tej Kaur lodged the report Ex.P/1 just after the occurrence. Thus, to say that the name of the accused respondent was mentioned by these witnesses to falsely implicate is not correct as the name of accused respondent was mentioned just after the occurrence and at that time, there was no time available to hatch conspiracy of falsely implicating the accused respondent. From the statements of PW2 Kala Singh and PW8 Brijlal, it further appears that first incident took place at 9.00 PM and, thereafter, accused respondent went away and, thereafter, he again came back and caused injuries to PW8 Brijlal.
19. For the reasons stated above, it is held that the statement of PW8 Brijlal is reliable and trustworthy and reliance can be placed on his testimony and from his statement, it is well proved that the accused respondents have caused injuries to injured Brijlal, PW8 and the findings of the learned Special Judge by which he has not accepted the statement of PW8 Brijlal and acquitted the accused respondents of charges for the offence u/s 307 and 458 IPC are liable to be set aside, as they are perverse and against the weight of the evidence on record and there is manifest error and the learned Special Judge misread the evidence and indulged in conjectural inferences and surmises.
20. The next question that arises for consideration is whether the injuries, which were received by PW8 Brijlal, are sufficient to make out a case for the offence u/s 307 IPC or not.
21. To prove the charge for the offence u/s 307 IPC, the prosecution has to prove :-
1. That the accused did an act.
2. That it was done
(i) with the intention, or
(ii) with the knowledge-
(a) of causing death;
(b) of causing such bodily injury as the accused knew to be likely to cause the death of the person to whom the harm was attempted to be caused; or
(c) of causing bodily injury to a person and the bodily injury intended to be inflicted would have been sufficient in the ordinary course of nature to cause death; or
(d) that the act if completed would have been so imminently dangerous that it would have in all probability caused death or such bodily injury as is likely to cause death; and the act attempted was committed without any excuse for incurring the risk of causing death or such injury as aforesaid.
22. In order to attract the penalty u/s 307 IPC, the murderous intent is an essential element. That intention can be gathered from the nature of weapon, the parts of the body where injury is inflicted, nature of injuries inflicted and the opportunity available which the accused gets.
23. It may also be pointed out here that in coining to the conclusion, the act of the accused should be kept in mind and not the result. In other words, the angle of guilt has to be viewed from the point of intention and not from the result achieved.
24. Keeping the above principles in mind the present case is being examined.
25. In the present case, the weapon like sword has been used by the accused respondent in causing injuries to PW8 Brijlal and he caused not a single or two injuries, but caused 24 injuries including some of them on vital part. Therefore, intention of the accused respondent to murder PW8 Brijlal can be gathered. The injuries received by PW8 Brijlal itself go to show that accused respondent had no intention except to murder PW8 Brijlal. Thus, it is a fit case where it can be said that accused respondent had intention lo kill PW8 Brijtal and therefore, he should have been convicted for the offence u/s 307 IPC for attempting lo commit murder of PW8 Brijlal and since he has caused the injuries lo PW8 Brijlal in the kotha, therefore, the prosecution case is also well proved for the offence u/s 458 IPC against the accused respondent. Thus, the learned Special Judge was not right in acquitting the accused respondent of the charges for the offence under Sections 307 and 458 IPC and his findings on this count are liable to be set aside.
26. So far as the evidence of recovery, which is found doubtful by the learned Special Judge is concerned, the same is not very much material in this case when there is direct evidence. Therefore, findings of the learned Special Judge in this respect are not appreciable one.
27. The findings of the learned Special Judge that since PW8 Brijlal was in the Slate of intoxication, he was not in a position to recognize accused respondent, are not correct one, as accused respondent was known to him. Had there been a case of total unknown person, the position would have been different one, but in the present case, earlier to alleged incident, one incident took place between them and, therefore, there is no possibility of implicating the accused respondent falsely.
28. It may be stated here that the visibility capacity of urban people who are acclamatised to fluorescent lights of incandescent lamps is not the standard to be applied to villagers whose optical potency is attuned to country made lamps. Their visibility is conditioned to such lights and hence it would be quite possible for them to identify men and the matters in such light.
29. Thus, when there is a light of Diya of kerosene oil, from this light, PW2 Kala Singh and PW8 Brijlal could very well see the face of the accused respondent and thus, the findings of the learned Special Judge that since Diya has not been produced by the prosecution, therefore, they should not be believed on this count, are liable to be set aside. In other words, for fault of I.O., case of the prosecution should not suffer.
30. The finding of the learned Special Judge that there are material contradictions in the statements of the prosecution witnesses, is not appreciable one. There may be minor contradictions in the statements of the prosecution witnesses, but they are of trivial nature and do not affect the prosecution case. It may be slated here that if there are minor omissions or contradictions in the statement of any witness, such omissions or contradictions are bound to come and they can be called natural one. Minor discrepancy guarantees that the witnesses are not tuitored. Therefore, if minor contradictions are found, they are to be over-looked.
31. For the reasons staled above, it is held that the prosecution by producing cogent and reliable evidence has proved its case beyond all reasonable doubts against the accused respondent doubts against the accused respondent for the offence under Sections 307 and 458 IPC and thus, they are liable to be convicted for the offence u/s 307 and 458 IPC and the findings of the learned Special Judge acquitting the accused respondent of the said offences are liable to be set aside, as they are not based on correct appreciation of evidence and they are perverse and erroneous.
32. The Hon''ble Supreme Court in Hari Ram v. State of Rajasthan (1), has held that power of the High Court while hearing an appeal against the order of acquittal is as wide as an appeal against conviction.
33. The Court is cautious of the principles governing and regulating the hearing of appeal by the High Court against an order of acquittal passed by the trial court as laid down by the Hon''ble Supreme Court in Ajit Savant Majagavi v. State of Karnataka (2), and keeping these principles in mind, the findings of the learned Special Judge are being reversed and set aside as they are perverse and erroneous and there is manifest error and the learned Special Judge misread the evidence and indulged in conjectural inferences and surmises.
On point of sentence
34. The accused respondent is going to be convicted for the offence under Sections 307 and 458 IPC.
35. The accused respondent was arrested on 22.10.1991 and was released on 9th June, 1993.
36. Since the accused respondent has remained in jail only for about one year and eight months, therefore, the prayer that he may be sentenced to the period already undergone by him cannot be accepted, as the period is not sufficient looking to the nature and graveness of injuries and offence.
37. Looking to the entire facts and circumstances of the case and the fact that incident took place on 13.10.1991, if the accused respondent is sentenced to undergo four years RI and lo pay fine of Rs. 1,000/-, in default of payment of fine to further undergo six months RI for the offence u/s 307 IPC and four years RI and to pay fine of Rs. 1000/-, in default of payment of fine lo further undergo six months RI for the offence u/s 458 IPC, It would meet the ends of justice.
In the result, this appeal filed by the State of Rajasthan is allowed and the impugned judgment and order dated 9.6.-1993 passed by the learned Special Judge, SC/ST Cases, Sri Ganganagar in Sessions Case No. 8/92 acquitting the accused respondent for the offence u/s 307 and 458 1PC are set aside and the accused respondent Satnam Singh @ Satta Singh is convicted for the offence under Sections 307 and 458 1PC and for the offence under Sections 307 and 458 IPC and for the offence u/s 307 IPC he is sentenced to undergo four years RI and to pay fine of Rs. 1,000/-, in default of payment of Pine, to further undergo six months RI and for the offence u/s 458 IPC, he is sentenced to undergo four years RI and to pay fine of Rs. 1000A, in default of payment of fine, to further undergo six months RI. Both the substantive sentences shall run concurrently. As per the provisions of Section 428 Cr.P.C., the period of detention, if any, undergone by accused respondent during the investigation or trial shall be set off from four years'' RI.
Since the accused respondent is on bail, he shall surrender before the trial court immediately and in case he does not surrender before the trial court, the trial court shall taken necessary steps for arresting him and sending him to jail to serve out the remaining period of sentence.
The judgment and order dated 9.6.1993 passed by the learned Special Judge, SC/ST Cases, Sri Ganganagar acquitting the accused respondent for the offence u/s 3(2)(v) of the SC/ST Case are confirmed.
