Criminal Appeal No.370 of 1996

14th September, 2007

Petitioner Counsel: Mr. A. M. RIZWY
Respondent Counsel: Mr. A. S. SONARE

Cases Cited:
Lakshimi Singh Vs. State of Bihar, AIR 1976 SC 2263 [Para 11]
The State of Madhya Pradesh Vs. Rajkumar, 1971(3) SCC 436 [Para 11]
Dominic Varkey Vs. State of Kerla, AIR 1971 SC 1208 [Para 13]

JUDGMENT

JUDGMENT :- This is an appeal by appellant/accused, who were convicted under Section 324 of the Indian Penal Code and were sentenced to imprisonment for period of one year and fine of Rs.500/-. The appellants shall hereinafter be referred to as accused.

2. The facts giving rise to this appeal are as follows -

An election of Gram-panchayat was held in village Khandala (Mariam Bee). The accused and the complainant belong to rival groups. The candidates belonging to the party of accused were declared successful in the election. The successful candidates had taken out a victory procession which was allegedly passing from infront of the house of complainant Kishor Jagnade. While the procession was so passing, it is alleged that accused No.3 Gulab abused Kishor. Kishor questioned him as to why he was being abused. It is alleged that thereupon accused No.1 caught hold of Kishor and accused No.3 delivered a blow with sword-stick on the chest and stomach of Kishor. When Vilas Ivnate came to the rescue of Kishor, he too was assaulted by Ramu - accused No.2 - and the other accused. The complainant and Vilas were removed to the hospital. They later lodged report with the police. The Police had registered an offence under Section 307 read with Section 34 of the Indian Penal Code. The accused were arrested. Accused Gulab discovered the weapon of the offence; while Ramu discovered a stick. Accordingly, a panchanama was drawn. After the statements of witnesses were recorded, the charge-sheet under Section 307 of the Indian Penal Code was filed against the accused. The Judicial Magistrate (F.C.) committed the case to the court of Sessions.

3. The court of Sessions framed charge against the accused under section 307 read with section 34 of the Indian Penal Code but found the accused guilty of offence under section 324 of Indian Penal Code and sentenced them to one year rigorous imprisonment. Being aggrieved by that order of conviction and sentence, this appeal has been preferred.

4. I have heard Mr. Rizwy, learned counsel for the accused and Mr. A. S. Sonare, Additional Public Prosecutor for the State.

5. As many as eleven witnesses have been examined by the prosecution. No defence witness has been examined. Before adverting to the evidence, it would be necessary to mention here a few admitted facts. All accused in their statement under Section 313 of the Cr.P.Code admit that a victory procession was taken out by their group for having been elected in Gram Panchayat election. When the procession was passing from infront of house of complainant Kishor, he objected to that. Both Kishor and Vilas were standing infront of the house. The accused admit their presence in the procession.

6. It is in this background that the evidence has to be scanned. It is deposed by PW-1 Kishor that party of the accused persons won the election while their party had lost. It is further deposed that when the victory procession was passing infront of his house, accused No.3 Gulab abused him and he asked him why he was abusing him and then accused No.3 Gulab stabbed him on the stomach and the chest. He states that Vilas Ivnate was also assaulted by accused No.2 Ramdas with an iron rod. Further he goes on to depose that his uncle Vinayak took him to hospital and then report (Exh.24) was lodged. Witness also admits that he is facing trial with others for assault of Kanthiram. He also admits having assaulted Kanthiram with stick. The evidence of PW-1 Kishor is corroborated by PW-2 Pankaj - his brother. He also states that accused No.3 Gulab assaulted Kishor with gupti on chest and stomach. Further he states that when Vilas Ivnate came to the rescue of his brother, he was assaulted by accused No.2 Ramdas and Gulab assaulted him with sword-stick while he was trying to run away. PW-3 Vilas - the other injured - also states that accused No.3 Gulab was abusing Kishor and he stabbed Kishor while Sopan - accused No.1 - had caught him. He also states that when he went to the rescue of Kishor, accused No.3 Gulab assaulted him with gupti. He further states that accused No.2 Ramdas assaulted him with iron rod and stroke fell on his hand while trying to avoid being hit on the head. PW-4 Sandeep gives identical version.

7. Although PWs-2, 3 and 4 speak of Sopan - accused No.1 - having caught hold of Kishor, Kishor himself does not say that he was caught hold of by Sopan. On the other hand, he says that he does not know if Sopan assaulted anybody. If at all as stated by PWs-2 and 3, Sopan had really caught hold of Kishor, he would not have failed to say so. The fact that Kishor does not say that Sopan had caught hold of him, the statement of other prosecution witnesses with regard to that fact cannot be accepted and that makes the case against accused No.1 Sopan doubtful. It cannot, therefore, be said that prosecution has proved its case as against accused No.1 Sopan beyond reasonable doubt.

8. Even the case as against accused No.2 Ramdas appears to be weak. PW-3 Vilas Ivnate has stated that he was assaulted by Ramu with an iron rod and while avoiding the blow on head, he received the stroke of iron rod on the hand. Even the other witnesses i.e. PW-2, 4 and 5 say that Vilas Ivnate was assaulted with iron rod. If a blow was dealt with by an iron rod and stroke had fallen on the hand, there ought to be an injury on the hand. The Medical Officer had found only one injury on the person of Vilas which is described as follows-

"stab injury on abdomen right side. Time of injury 1 1/2 hours. Injury was grievous. Nature of object sharp cutting object".

This is the only injury caused to Vilas and it is caused by sharp cutting object such as knife. Iron rod is a hard and blunt object. There is no injury on any hand of Vilas at all. Therefore, as stated earlier, had a stroke been dealt with by an iron rod, there ought to be a contusion or laceration at least. There is not even an abrasion on either hand or anywhere on the body since only one injury which is a stab injury was found on the person of Vilas. It is, therefore, once again doubtful if accused No.2 Ramdas had taken part in assault. He is, therefore, also entitled to a benefit of reasonable doubt.

9. Evidence of PW-1 and 3 clearly, however, goes to show that accused No.3 Gulab did cause injury with gupti to both PW-1 Kishor and PW-3 Vilas. The evidence of Medical Officer Dr. Meshram corroborates the version of these two prosecution witnesses. Following injuries were found on the person of both Kishor and Vilas.

"1. stab injury on epigastic region. Size of injury 1" x 1½.

2. stab injury on a chest left side. Size of injury 1" x ½" x 1½". Age of the injury 1 1/2 hour. Injury was grievous. Nature of object dharp cutting object."

Following injuries were found on the person of Vilas.

"stab injury on abdomen right side. Time of injury 1½ hours. Injury was grievous. Nature of object sharp cutting object".

10. PW-9 Dr. Meshram has stated that the injuries could be caused by sharp cutting object shown to him in the court. This particular weapon was discovered by accused No.3 Gulab vide memorandum (Exh.49) and seized vide panchanama (Exh.50). There is, therefore, no manner of doubt that accused No.3 Gulab caused injuries to Kishor and Vilas by means of sharp cutting weapon.

11. Mr. Rizwy, learned counsel for the accused, contended that witnesses do not explain injuries on the person of one Kanthiram and therefore it can be said that the witnesses are suppressing the origin and genesis of the incident. The submission is not correct. PW-1 Kishor admits that he is being prosecuted for assaulting Kanthiram and he even admits even assaulted Kanthiram. The Medical Certificate of Kanthiram is even proved by the prosecution. It is, therefore, not correct to say that the prosecution has suppressed or has not tried to explain the injury caused to Kanthiram. The decision reported in AIR 1976 SC 2263 (Lakshimi Singh and others Vs. State of Bihar) cited by learned counsel, therefore, has no bearing on the case at hand. There may be few omissions and improvements in what PWs-3 and 4 are saying with regard to assault on Kanthiram. However, the main injured witness admits fairly of assault on Kanthiram. In fact, it can be said that the accused persons do not explain the injury on the person of Kishor as well as Vilas. As far as assault on PWs-1 and 3 is concerned, their own evidence is quite worthy of credit and consistent with the F.I.R. Hence, the decision reported in 1971(3) SCC 436 (The State of Madhya Pradesh Vs. Rajkumar and another) has also no bearing on the case at hand.

12. It was contended that the accused had acted in self defence. Firstly, Gulab himself was not assaulted. The person who was assaulted was Kanthiram. Accused Gulab, therefore, was not acting in self defence. Assuming that he was trying to save Kanthiram, it is apparent that he exceeded the right of defence. He had caused two stab injuries to Kishor, one of which is on the left side of the chest i.e. very vital place where an organ like heart is located, the other one is on the stomach. Even vilas was also assaulted with the said weapon. Kanthiram had merely suffered superficial injury as is apparent from certificate on record. In the circumstances, I find that the accused No.3 had exceeded the right of self defence by using a sharp cutting weapon and assaulting two persons.

13. Mr. Rizwy, learned counsel, had then cited one decision reported in AIR 1971 SC 1208 (Dominic Varkey Vs. State of Kerla). The facts of the reported cases are dissimilar. The evidence of PWs-1 and 3 and the Medical Officer, as said earlier, clearly establishes that it was accused No.3 who was author of the injuries caused to Kishore as well as Vilas. He was rightly held guilty of offence under section 324 of the Indian Penal Code. There is no substance in his appeal. However, I have found that the accused Nos.1 and 2 are entitled to benefit of reasonable doubt and their appeals must, therefore, succeed. Hence, the order.

The appeal is partly allowed.

The appellant/accused Nos.1 and 2 are acquitted of the offence punishable under Section 324 of the Indian Penal Code. Their conviction and sentence are set aside. If the accused Nos.1 and 2 have paid fine, it be refunded to them.

The appeal of appellant/accused No.3 is dismissed.

An intimation be given to the trial court to commit accused No.3 to the jail to serve out the remaining part of the sentence, if he has not already undergone that sentence.

Order accordingly.