Skip to content


Babulal Vs. State of Rajasthan - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtRajasthan High Court
Decided On
Case NumberS.B. Criminal Appeal No. 457/1977
Judge
Reported in1983WLN(UC)547
AppellantBabulal
RespondentState of Rajasthan
Excerpt:
.....incident to the police.;(d) penal code - section 308--knife used for cutting vegetables--only one knife injury inflicted--no intention to cause death--knowledge can be attributed to accused--held, accused is punishable under section 308 and not under section 307.;the knife has a small blade (4 angul). it is normally used by vegetable sellers for cutting the vegetables. taking into account the fact that the background in which the incident took place, the natury of the knife used and the further fact that only one injury was inflicted by the appellant on the person of ram chandra, it cannot be said that in inflicting the injury on the person of ram chandra, the appellant had the intention of causing the death or he had an intention of causing such injury which is sufficient in the..........where his injuries were examined by dr. p. dayal (pw 9) on 28th may, 1977 at 11.05 p.m. vide injury report ex, p. 5. according to the said injury report ram chandra had an incised wound 2cm x 0.3 cm on the abdomen about 1.5 cm to the left of umbilious (transverse) and omentum was protruding through the wound along with clots of blood. an operation was performed on 22th may 1977 at 1.30 a.m. and during the course of operation the abdomen was opened by left paramedian incision. on opening the abdomen blood and a few clots came out. exploration revealed a small perforation at the greater curvature of stomach through which clots were coming out. during the course of operation, the perforation of the stomach was closed. the investigation was conducted by narain singh (pw 11) who.....
Judgment:

S.C. Agarwal, J.

1. Appellant Babulal was tried before the Addl. Sessions Judge No. 1, Jodhpur on charges under Sections 307 and 326 IPC. The Addl. Sessions Judge by his judgment dated 30-9-/977 while acquitting the appellant of the offence Under Section 326 IPC convicted him of the offence under Section 307 IPC and sentenced him to rigorous imprisonment for a period of two years and to pay a fine of Rs. 200/- and in default of payment of fine to undergo rigorous imprisonment for a further period of two months.

2. The case of the prosecution is that Ghanshyamdas (PW 1) has his shop at Sadar market near clock tower at Jodhpur. On 28th May, 1977 at about 10 p.m. Ram Chandra (PW 6), the brother of Ghanshyamdas was standing in front of the shop and Asharam (PW 3), Mevaram (PW 4), Gaffar (PW 5) and Tajkhan (PW 7) who were employees of Ghanshyamdas were also standing outside the shop and were cutting jokes with each other. At that time the appellant passed by and asked the servants as to why they were fighting and when they told the appellant that he was nobody to interfere in their matter, a quarrel took place between the appellant and the servant and appellant gave a slap to Asharam. When Ram Chandra asked the appellant as to why he had slapped his servant, the appellant gave a blow with the knife on the stomach of Ram Chandra and thereafter the appellant ran away. A written report (Ex. P 1) was given by Ghanshyamdas to Narain Singh ASI, In-charge, police Out-post Girdikot on 29th May, 1977 at 4 a.m. and on the basis of the said report an FIR was recorded at police station Sadarbazar Jodhpur on 29th May, 1977 at 6 a.m. and a case under Section 324 and 397 IPC was registered. The case of the prosecution is further that immediately after the occurrence the injured Ram Chandra was taken to Mahatma Gandhi hospital, Jodhpur where his injuries were examined by Dr. P. Dayal (PW 9) on 28th May, 1977 at 11.05 p.m. vide injury report Ex, P. 5. According to the said injury report Ram Chandra had an incised wound 2cm x 0.3 cm on the abdomen about 1.5 cm to the left of umbilious (transverse) and omentum was protruding through the wound along with clots of blood. An operation was performed on 22th May 1977 at 1.30 a.m. and during the course of operation the abdomen was opened by left paramedian incision. On opening the abdomen blood and a few clots came out. Exploration revealed a small perforation at the greater curvature of stomach through which clots were coming out. During the course of operation, the perforation of the stomach was closed. The investigation was conducted by Narain Singh (PW 11) who prepared the site plan Ex. P 2, the memo of site inspection Ex. P 3 and also seized the blood stained clothes of Ram Chandra vide memo Ex. P 9. The appellant was arrested on 9-6-1977 vide arrest memo Ex P 10. After his arrest he gave information vide memo Ex. P 7 on 10-6-1977 about his having concealed a knife in the house of his maternal grand father and in pursuance of the said information a knife was recovered from the house of Bishanmal vide memo Ex. P 4. After completing the investigation the police filed a charge sheet against the appellant and the appellant was committed for trial to the court of Sessions and charges Under Sections 307 and 324 IPC were framed by the Additional Sessions Judge No. 1, Jodhpur. The appellant did not plead guilty to the charges and claimed to be tried.

3. The prosecution, in support of its case, examined eleven witnesses. Asharam (PW 3), Mevaram (PW 4), Gaffar (PW 5), Ram Chandra (PW 6) and Tajkhan (PW 7) have been examined as eye witnesses of the occurrence. Ghanshyam Das (PW 1) lodged the FIR, Kastoor Chand (PW 2) is the attesting witness of the site plan Ex. P 2 and memo of site inspection Ex. P 3. Asandas (PW 8) is the attesting witness of the memo Ex. P 4 with regard to the recovery of the knife. Dr. P. Dayal (PW 9) is the medical officer who had examined the injuries on the person of Ram Chandra (PW 6) and has proved the injury report Ex. P 5. Dr. P.M. Mehta (PW 10) is the medical officer who has performed the operation on injured Ram Chandra. Narain Singh (PW 11) is the Investigation Officer. The appellant in his statement recorded Under Section 313 Cr. PC denied the peosecution case and also denied that any knife was recovered at his instance He has stated that he carries on business of selling vegetables on a Tnela' and since he carries on this business in front of the shop of the complainant, he is inimical towards him and las falsely got him implicated in this case.

4. The Additional Sessions Judge held that from the evidence of Atmaram (PW 3), Mevaram (PW 4), Gaffar (PW 5), Ramchandra (PW 6) and Tajkhan (PW 7) it was established that on 20th May, 1977 at about 10 p.m. Mevaram, Asharam, Gaffar, Ramchandra and Tajkhan were standing outside the shop of Ghanshyamdas and that Taj and Asharam were exchanging jokes amongst themselves and at that time the, appellant came there and he asked as to why they are fighting and when they said that they were not fighting but exchanging jokes, the appellant gave a slap to Asharam and thereupon Ram Chandra injured who was standing nearby raised on objection as to why he was assaulting persons belonging to his shop, the appellant inflicted an injury on Ram Chandra with a knife and ran away. The Additional Sessions Judge held that the aforesaid witnesses were natural witnesses and no enmity has been suggested against them and no material contradiction has been brought out in their testimony. The Sessions Judge was of the opinion that the testimony of the aforesaid witnesses cannot be rejected only on the ground that in the bed head ticket Ex. P 6 prepared at the Mahatma Gandhi Hospital, it was mentioned that the patient was stabbed by some unknown persons standing at the shop. The Additional Sessions Judge has held that it has not been proved as to who bad written the aforesaid part of the bed head ticket has not been proved and further that it was neither necessary nor relevant to mention the name of the assailant in the bed head ticket. In this regard the Additional Sessions Judge has also observed that the name of the appellant was mentioned in the FIR and that taking into account the fact that a serious injury had been inflicted on the person of Ram Chandra and he had been removed to the hospital immediately Where he was operated, it could not be said that there was an undue delay in making the report to the police. The Addl. Sessions Judge also observed that the evidence of the eye witnesses finds corroboration from the medical evidence of Dr. P. Dayal and Dr. Mehta as well as the recovery of the blood stained clothes of Ramchandra and the recovery of the knife at the instance of the appellant. The Additional Sessions Judge was also of the view that from the medical evidence it was ettablished that the injuries that were inflicted on the person of Ram Chandra were not only grievous but also dangerous to life and that he could be saved only as a result of timely medical aid and operation and that from the injuries that were iflicted on the person of Ram Chandra it can be inferred that the said injury was caused by the assailant with the intention of causing the death. The Additional Sessions Judge, therefore, held that the offence Under Section 307 IPC, was made out against the appellant. In view of the findings aforesaid the Addl Sessions Judge convicted the appellant of the offence under Section 307 IPC. But taking into account the fact that the appellant was below 21 years of ago and this was his first offence the Additional Sessions Judge felt that some leniency may be shown in the matter of imposing the sentence and he, therefore, awarded a sentence of rigorous imprisonment for two years and to pay a fine of Rs. 200/- and in default of payment of fine to undergo rigorous imprisonment for a further period of two months. Feeling aggrieved by the aforesaid conviction and sentence the appellant has filed this appeal.

5. I have heard Shri N.K. Bohra, the learned Counsel for the appellant in support of appeal and Shri Niyajudin Khan, the learned Public Prosecutor for the State.

6. As noticed earlier, the prosecution in support of its case had examined Asharam (PW 3), Mevaram (PW 4), Gaffar (PW 5), Ramchandra (PW 6) and Tajkhan (PW 7), as the eye witnesses of the occurrence. Out of them Ram Chandra (PW 6) is the injured person itself and the other witnesses are employed in the shop of Ghanshyamdas (PW 1), the brother of Ram Chandra. The evidence of all these witnesses is consistent and all of them have deposed that on 28th May, 1977 at about 10 p m. all of them were standing outside the shop of Ghanshyamdas and were exchanging jokes and at that time the appellant reached there and asked them as to why they were fighting to which they replied that they were not fighting and they were cutting jokes and that he was nobody to interfere and thereupon the appellant gave a slap on the face of Asharam to which Ramchandra objected and thereupon the appellant inflicted an injury with a knife on the stomach of Ram Chandra and ran away. It is true that Asharam, Mevaram, Gaffar and Tajkhan happened to be employees in the shop of Ghanshyamdas but that cannot be the reason for discarding their testimony. Moreover, their testimony finds corroboration from the fact that from the report (Ex P 1) lodged by Ghanshyamdas (PW 1) as well as from the medical evidence and the recovery of the knife at the instances of the accused.

7. Shri Bohra, the learned Counsel for the appellant has submitted that reliance should not be placed on the testimony of the aforesaid witnesses for the reason that in the bed head ticket Ex. P 6 which was prepared at the time when Ramchandra was admitted in the Mahatma Gandhi hospital for treatment it has been recorded that the patient was stabbed by some unknown persons standing at some shop. The submission of Shri Bohra was that if the version of the eye witnesses examined by the prosecution is correct and the appellant was the assailant, there was no reason why the name of the appellant was not mentioned in the bed head ticket and that the fact that in the bed head ticket it was mentioned that the patient was stabbed by some unknown person show that the witnesses who have been examined as eye witnesses of She occurrence did not actually see the occurrence and that they have been subsequently set up as the eye witnesses of the occurrence. It is true that in the bed head ticket a summary has given on page 2. In the. summary it is mentioned that the petient was admitted as a case of stab injury in abdomen and it was dioganised as a case of perforation of greater curvature of stomach and that performation was closed and patient was discharged on 14-6-1977. Under this note there are signatures of the person who has made the note. Below the signatures there is a following note; 'Pt. was stabbed by some unknown person. Was standing at some shop.' The aforesaid note does not bear any signatures. Dr. P.M. Mehta (PW 10) has proved certain portions of the bed head ticket which were written by him and Which bear his signatures. The portion relating to summary referred to above has not been proved to have been written by Dr. Mehta. No question was asked to Dr. Mehta, during the course of cross examination about the scribe of that portion of the bed head ticket. Thus there is no evidence as to who was the author of that summary portion of the bed head ticket. The contents of the aforesaid part of the bed head ticket cannot, therefore, be said to have been duly proved. Further more, merely because in the bed head ticket at the time of preparing the summary, after the patient had been discharged from the hospital, some person has written that the patient was stabbed by some unknown person would not belie the testimony of the witnesses who were present at the time of the occurrence and have deposed that it was the appellant who had assaulted the injured with a knife. This evidence of the eye witnesses finds corroboration from the report Ex. P 1 lodged by Ghanshyamdas with Narain Singh (PW 11) on 29th May, 1977 at 4 a.m. which shows that in the report, which was lodged in the police within six hours of the incident, the appellant was named as the assailant. In these circumstances the statement in the bed head ticket which was recorded much later after Ramchandra had been discharged from the hospital that the patient was stabbed by some unknows person cannot carry any weight so as to negative the evidence of the eye witnesses examined by the prosecution.

8. Another contention that was urged by Shri Bohra was that the report Ex. P 1 cannot be regarded as the FIR because the said report was preceded by another report which was made on the telephone by Ghanshyandas and the said report that was made on telephone has been with held by the prosecution. In this regard Shri Bohra has invited my attention to the statement of Ghanshyamdas (PW 1) who has stated that after taking his brother to the M.G. Hospital, he had telephoned and also sent his younger brother to the police station and that Narainsingh had come to the hospital. During the course of cross examination he has stated that he had telephoned at the police station Sadar Kotwali at about 11-11.15 p.m. and on the telephone he had told the police that his brother had been assaulted with a knife and that the appellant was the as assilant. He has further stated that he did not narrate the entire incident on the telephone for the reason that he was told that a person was coming to the hospital. On the basis of the aforesaid statement of Ghanshyamdas all that can be said is that the intimation about the incident was given by Ghanshyamdas on telephone to police station Kotwali but it was not a complete information and all that was stated in that telephone talk was that Ram Chandra had been assaulted with a knife by the appellant. The details were not given by Ghanshyamdas because he was told that a man was coming from the police station and thereafter Narainsingh(PW 11) came to the hospital and Ghanshyamdas gave to him a written report narrating the entire incident. In these circumstances it is not possible to hold that Ghashyamdas had lodged a report earlier at the police station and the report Ex P 1 which was recorded as FIR was recorded subsequently and that the earlier report recorded on the basis of telephonic intimation given by Ghanshyamdas has been with held by the prosecution.

9. Another contention which was urged by Shri Bohra was that there has been undue delay in lodging the report with the police in as much as the incident took place at about 10 p.m. on 28th May, 1977 and the report was handed over to Narain Singh (PW 11) on 29th May, 1977 at 4 a.m. that is, nearly six hourse after the incident. The submission of Shri Bohra was that the police station is only at a distance of two furlongs from the scene of the occurrence and there was no reason why the report was not lodged at the police station immediately after the incident. In my opinion there is no force in the aforesaid contention. From the evidence of Dr. P. Dayal and Dr. P.M. Mehta, it appears that the injury on the person of Ram Chandra was quite serious involving perforation of the greater vurvature of the stomach and, therefore, immediate medical aid for the injured was the first concern of Ghanshyamdas. He, therefore, removed Ram Chandra immediately to the Mahatma Ghandhi Hospital where an operation was performed on 29th May, 1977 at 1.16 a.m. It may also be observed that an intimation was sent to the police station about the incident and Ghanshyamdas was told that a person was coming from the police station. In these circumstances Ghanshyamdas was justified in waiting for the arrival of the police officer in the hospital for the purpose of lodging the report and he lodged the report Ex P 1 when Narain Singh (PW 11) arrived at the hospital on 29th May, 1977 at 4 a.m. In the circumstances aforesaid, it cannot be said that there has been undue delay in lodging of the report about the incident to the police.

10. The next contention urged by Shri Bohra was that even if it be held that it was the appellant who had inflicted the injury on the person of Ramchandra (P W 6) with a knife the appellant cannot be held guilty of the offence Under Section 307 IPC. The submission of Shri Bohra was that the background in which the occurrence took place and the fact that only one injury was inflicted by the appellant and taking into account the nature of the knife that has been recovered at the instance of the appellant it cannot be said that the appellant had the intention to cause the death of Ram Chandra when he inflicted the said injury or had the intention of causing an injury which was sufficient in the ordinary course of nature to cause death. According to Shri Bohra in the facts and circumstances of the case on the basis of injury found on the person of Ram Chandra the appellant can only be attributed with the knowledge that the said injury was likely to cause the death of Ram Chandra and that if Ramchandra had died as a result of the aforesaid injury. the offence which could be said to have been committed by the appellant was one punishable Under Section 304 Part II IPC and, therefore, the appellant can only be held guilty of the offence punishable Under Section 308 IPC. I find force in the aforesaid contention of Shri Bohra. From the evidence of Asharam, Mevaram, Gaffar, Ram Chandra and Tajkhan, it appears that an altercation took place between the appellant on the one hand and these witnesses on the other in front of the shop of Ghanshyam Das and during the course of the said altercation the appellant slapped Asharam and thereupon Ram Chandra intervened and the appellant inflicted an injury with the knife on the stomach of Ram Chandra. Mevaram (PW 4), during the course of cross examination, has stated that the appellant was also participating in the jokes and that the slap that was given by the appellant was also during the course of the joke and there was no enmity between the appellant and Asharam and other persons. From the memo Ex. P.4 relating to the recovery of the knife it appears that the knife has a small blade (4 Angul). It is normally used by vegetable sellers for cutting the vegetables Taking into account the fact that the background in which the incident took place, the nature of the knife used and the further fact that only one injury was inflicted by the appellant on the person of Ram Chandra, it cannot be said that in inflicting the injury on the person of Ram Chandra, the appellant had the intention of causing the death or had an intention of causing such injury which was sufficient in the ordinary course of nature to cause the death. In the circumstances of the case all that can be said is that when the appellant inflicted the injury on the person of Ram Chandra with the knife he must have had the knowledge that the said injury was likely to cause death. In these circumstances the offence that is made out against the appellant is not one punishable under Section 307 IPC but one punishable Under Section 308 IPC.

11. In the matter of sentence it has been pointed that in the memo of arrest Ex. P. 10 the age of the appellant has been mentioned as 18 years. At the time of his examination under Section 313 Gr.PC the appellant gave his age as 16 years but the Addl. Sessions Judge estimated his age between 19 and 20 years. This would show that the appellant was below 21 years of age on the date of the incident. It has also been pointed out that there is no previous conviction against the appellant. Taking into account the facts and circumstances of the case I am of the opinion that it is a fit case in which the appellant can be given the protection of Section 360 Cr. PC.

12. In the result the appeal is partly allowed. The conviction and sentence imposed upon the appellant for the offence Under Section 307 IPC is set aside. The appellant is convicted of the offence Under Section 308 IPC and he is sentenced to rigorous imprisonment for a period of one year and a fine of Rs. 200/- and in default of payment of fine to undergo rigorous imprisonment for a further period of two months The appellant will not be required to undergo the sentence imposed upon him under Section 308 IPC if he furnishes a personal bond in the sum of Rs. 5000/- and a surety in the like amount to keep the peace and be of good behaviour for a period of two years. The aforesaid bonds should be furnished to the satisfation of the Addl. Sessions Judge No. 1 Jodhpur within a period of one month. If the appellant fails to furnish the said bonds within the period prescribed or commit the breach of the aforesaid bond, he will be required to undergo the sentence that has been imposed upon him Under Section 308 IPC.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //