Partly allowed

Pappu S/O Heera Lal Rao v. State of Rajasthan

Rajasthan HC21 Feb 2024CRLA/42/1991

Case brief

AI extract

What is this about?

The High Court allowed an appeal against conviction for attempt to murder. The court acquitted the appellant of Section 307 IPC due to insufficient proof of intent to kill and reconvicted him under Section 325 IPC, enhancing the fine and reducing imprisonment to the period already undergone.

What did the court decide?

Conviction under Section 307 IPC converted to Section 325 IPC; sentence of imprisonment reduced to period already undergone; fine enhanced to Rs.50,000.

Pappu S/O Heera Lal Rao Vs State of Rajasthan — Murder and Culpable Homicide | Rajasthan HC (2024)

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HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR

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S.B. Criminal Appeal No. 42/1991

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Pappu S/o Heera Lal Rao, Resident of Village Aktasha, Police Station Taleda, District Bundi, at present serving sentence in District Jail, Bundi

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----Accused-Appellant

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Versus

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State of Rajasthan through Public Prosecutor

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----Respondent

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For Appellant(s) : Mr. Harendra Singh, Mr. Jaswant Singh Rathore for Mr. Biri Singh, Sr. Adv.

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For Respondent(s) : Mr. S.S. Mahla, PP

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HON'BLE MR. JUSTICE SUDESH BANSAL

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Order

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RESERVED ON 05/02/2024 PRONOUNCED ON February 21^st , 2024

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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.

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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 24-121988 around 8.15 PM he along with Shekh Umar, Mohammad Hafij

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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.

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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.

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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.

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4.1 Counsel for accused-appellant contended that the stab wound, suffered by the injured Abdul Latif below the abdomen

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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.

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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

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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.

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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.

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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.

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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.

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4.6 He submits that the punishment awarded to accusedappellant 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.

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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.

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Learned Public Prosecutor has supported the impugned judgment.

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Heard. Considered.

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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.

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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

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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

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prosecution to establish as to how long the injured remained hospitalized.

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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.

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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.

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Coming to the intention/ motive of the accused, this Court finds that there is variance in evidence of the injured and other

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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.

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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 crossexamination, 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.

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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

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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.

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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.

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Counsel placed reliance on the judgment of the Apex Court in

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Alister Anthony Pareira Vs. State of Maharashtra [(2012) 2

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SCC 648] observed as under:

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“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.”

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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:-

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“…. 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….”

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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/-.

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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

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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.

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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.

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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.

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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/-,

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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.

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