M.L. Jain, J.
1. This is an appeal against the judgment of the learned Sessions judge, Jhunjhunu, dated 23.10.1971 by which he convicted and sentenced the appellants Ram Niwas and Suhala as follows:
(1) Suhala (a) under Section 307 IPC, to rigorous imprisonment for two years and to a fine of Re 100/ in default where of two months rigorous imprisonment;
(b) under Section 452 IPC to rigorous imprisonment for six months and to a fine of Rs. 100/ in default where of rigorous imprisonment for two months.
(2) Ram Niwas (a) under Section 307 read with Section 34 IPC. to rigorous imprisonment for two years and to a fine of Rs. 100/ in default where of to rigorous imprison-for two month;
(b) under Section 452 to rigorous imprisonment for six months and to a fine of Rs. 100/ in default whereof to rigorous imprisonment for two months.
2. I have heard arguments of the learned Counsel for the appellants and the learned Counsel for the State.
3. The facts giving rise to this appeal appear to be like this. Prabhuram PW 2 lodged a report Ex P 2 on 5-5-68 a.m. in police station Singhana that his younger brother Shri Ram was sleeping in the Nohra of his uncle Chunni Ram when at about 5 a.m. the accused appellants entered the Nohra. Accused Ramniwas over-powered Shri Ram sleeping on a cot, while Suhala stabbed 'CHHURA' (a knife) in the chest. When Shri Ram shouted for help, Hanuman and Kanhava Lal ran to his rescue, and the appellants then fled the scene of occurrence They also carried away the knife with them.
4. It was stated in the said report that a month before the said occurrence, Shri Ram had reprimanded the mother of Suhala regarding spoiling of water by her cow When Suhala returned on leave from the military service, he was instigated by his mother and so provoked, he attacked and stabbed Shri Ram.
5. Upon this report, Hari Singh PW 5 registered a case and forwarded Shri Ram for medical examination by Dr. Nawab Ali PW 1 Medical Officer of the hospital at Singhana. The report of the Medical Officer is Ex P 1. Dr. Nawab Ali found on the person of Shri Ram an incised wound piercing the right lung underneath with profuse frothy bleeding from the exit of the wound The air was also coming out of the lung through the wound, making noise The size of the wound was 1' x 1/2' x 2' on the front of right side of chest 1/2' vertically below the right pimple. The injury was described as grievous caused by sharp weapon The patient after first aid was taken to the hospital at Caraway for treatment. The Medical Officer was of the opinion that it the patient was not taken to the surgeon at Cava there was every possibility of danger to his life, He could even die Dr. Nawab Ali in cross examination however, staled that he could say nothing about the death of the incurve because no x-ray was taken Without x-ray it was not possible to know the extent of the injury and of the damage to the lung.
6. It further appears from the evidence of Dr. Nawab Ali that the same day he had also exemined Jagram. Madhi and Ramniwas. Accused Ram Niwas was found to have received a lacerated wound 1' x 0.3' x 0.2' verticarly on the front of foreheed. on the right side 2' above the right eye brow It was a wound simple in nature by blunt weapon The report is Ex D 9 From the medical Ex D7 and D8 it further appears that Jagna Ram received an incised wound on the right temporal region 4' x 1/2' x 2' and 8 bruises of various sizes, covering right leg, left though, left buttock, thoracic vertebra and left and right scapular regions. Madhi received a lacerated wound on the left buttock and five abrasions covering, left elbow and right thigh.
7. Shri Ram PW 3 deposed before the learned Sessions Judge that he was site pins on a cot in the Nohra of his uncle Chunni Ram Kanhaiy Lal PW 4 and Hanuman PW5 were also slapping there At about 5 pm the accused entered the Nohra and while Ram Niwas overpowered him, Suhata stabbed him At that time Hanuman was returning after defecation and Kanhaiya Lal was gargling Kanhaiyalal PW 4 and Haruman PW5 supported the version of Shri Ram. it appears that certain contradictions were pointed to the learned Sessions Judge in the statement of these witnesses, but those were ignored by him as they were without significance and be came to the consuls to that Shri Ram was attacked in the manner the prosecution alleged.
8. It their defence, the accused pleaded that the complainant party had beaten their father Jagna Ram in respect of which they had lodged separate case. In order to provide a defence, this false case instituted against the by the complainant party. Amilal DW 1 was produced to depose that he heard no noise of any 'Marpit' in the Nohra of Chunni Ram, rather he heard a row in the Nohra of Jagna Ram The learned Sessions Judge did not consider the evidence of this witness of any worth.
9. He held that both the accused entered the residential Nohra of Chunni Ram with the intention of attacking Shri Ram. It was in pursuance of their common intention that Suhala stabbed him in the chest The injury which was received by Shri Ram could have caused his death and if Shri Ram were dead, the accused would have been found guilty of murder He there fore, convicted Suhala under Section 307 IPC & Ram Niwas under the same section read with Section 34 thereof and both of then under Section 452 I.P.C.
10. The learned Counsel for the appellants submitted that the convictions cannot be upheld for the following grounds:
(1) The prosecution has not been able to establish any good motive the attack. To allege that some verbal exchanges look place between the injured and the mother of the accused a mouth before which provoked the accused on his return from service on leave was too far fetched an attempt to establish motive.
(2) The judgment of she learned Sessions Judge is very sketchy and he has not cared to critically exemine the evidence.
(3) The investigation was prejudicial and falsely implicated the young boys. The site plan Ex. D2 was not prepared in the spot but was prepared in the hospital The investigation officer prepared the site plan at the instance of Prabhu Ram but Prabhu Ram PW2 deposed in cross-examination that his signatures on the site plan were obtained in the hospital. There was no blood found on the cot or in the place where the injury it said to have been inflicted. The blood stained gudra (quilt) was not produced. It, therefore, should be concluded that the occurrence did not take place at the spot where the prosecution alleges it took place and further it should for the same reason be presumed that the witnesses were not telling the whole truth.
(4) Hanuman PW5 is not an eye witness because he has stated that his brother Kanhaiyalal told him that Ram Niwas ower-powered Shri Ram, while Subala stabbed him He has further stated that he had seen the accused coming out of the Nohra, Suhale with a knife in his hand followed by Ram Niwas The knife was blood stained. When he went inside, then he found Shri Ram lying injured on the cot and Kanhaiyaial was standing nearby He also does not clearly state where exactly the occurrence took place.
(5) Kanhaiya Lal PW 4 was also not an eye witneas But the prosecution made an eye witness out of him. He deposed that he was sleeping there When he got up at about 5 a.m. Shri Ram was sleeping and Hanuman was not there. When be went to wash his much in the 'Poli' and saw that Ram Niwas bad caught Shri Ram while Subala subbed him in the stomach. He is real brother of Hanuman and Shri Ram is his cousin. They were playing cards late night and that is why Shri Ram is said to have slept there. The learned Counsel for the appellants pointed out that it is difficult to understand how the accused could come to know that on that particular night Shri Ram will not be sleeping in the house of his cousin. The distance between the two houses is 150 paces (vide statement of Hanuman PW 5) and the theory that Shri Ram slept in the house of his cousin and not walked to his own house to sleep cannot be believed. Further criticism levelled against the evidence of this witness was that he even changed the seat of injury. The injury was actually inflicted in the chest but he said that it was inflicted in the stomach. He was also examined in the police and in his statement Ex 4 be omitted to say that he shouted when the occurrence took place.
(6) The Medical Officer was unable to d scribe the depth of the wound in the absence of x-ray examination and he has not stated that the injury was sufficient in the ordinary course of nature to cause death. In these circumstances, it was not possible for the learned Sessions Judge to hold that the injury was such as could have resulted in death The offence under Section 307 IPC was, therefore, not made out.
(7) Hari Singh PW 6 recovered a knife upon the information and at the instance of accused Suhsla on 8.5.68. The recovery memo Ex P 8 shows that the knife was not blood stained and the blade was even rusted.
(8) The injuries of the accused were not explained and that throws a doubt upon the veracity of the prosecution witnesses. In the cross-case the accused have been convicted and therefore, the learned Sessions Judge should have thrown away the case of the prosecution as not true.
10. Learned Counsel finally submitted that taking the human probabilities into consideration regarding the motive, place of occurrence, non explanation of the injuries of the accused and prejudicial nature of the investigation, the learned Sessions Judge should have given the benefit of doubt to the accused. in any case, no offence under Section 307 IPC was made out and the injury was nothing more than a hurt covered by Section 324 IPC The occurrence took place in the year 1968 and the accused is an employee in the defence services; If this court came to a conclusion that the accused were rightly convicted, then, they may be given benefit of the Probation of Offenders Act.
11. In reply, the learned Counsel for the State submitted that the case against the appellants was very well proved. The report of the occurrence was promptly lodged within two hours of it and the assailants were also mentioned in the report and presence of the witnesses and the truthfulness of the occurrence. NO suggestion was put in cross examination to the witnesses of the prosecution that Shri Ram was attacked in a place different from where the prosecution alleged be was The accused have not raised a plea of self defence that they inflicted the injuries in the exercise of right of private defence. In the counter case Shri Ram is not one of the assailants and therefore no right of private defence arises against him Even the defence witness Ami Chand DW 1 does not say that the occurrence took place in a different place. As regards the deficiency in the medical evidence learned Counsel for the State submitted that doctor started that the injury was dangerous to life. Even if the Medical Officer failed to say that injury was sufficient in the ordinary course of nature to cause death, the court could arrive at its own conclusion whether the injury was such as was covered under Section 307 IPC or not.
12. I have considered over the evidence on record and the arguments advanced on either side. I do not feel inclined to hold that the judgment of the lower court suffers from any infirmity or that the findings arrived at by the learned Sessions Judge require to be disturbed. The evidence of Shri Ram that he had quarreled with the mother of the accused Suhala's cannot be disbelieved He deposed that Suhala's mother had brought her cow to the piao where he and his brother Lekhram were taking water. The cow put its mouth in one of the pots. Shri Ram cursed that its owner (obliquely she) may die Thereupon, Suhala's mother abused him and threatened him that when her son returned from service, he will be dealt with. Three days before the occurrence, Suhala had come house on leave. He also explained how he happened to sleep, on the night of the occurrence, in the Nohars of his uncle as they had been playing cards late in the night. The evidence of Kanhaiyalal PW 4 also inspires confidence and inspire of the criticism leveled against his evidence I do not find anything in his statement which may enable the court to discard his testimony. Both Shri Ram and Kanharya Lal are supported by the evidence of Hanuman PW 5 and the medical evidence. Their evidence can also not be rejected because the witnesses are cousins and relatives and therefore interested ones. The injury described by the medical officer in his report shows that the right lung was pierced and certainly the injury was sufficient to cause death and dangerous to the life of Shri Ram. There is nothing to support the contention that the investigation agency was prejudiced against the accused. The site plan was prepared on the spot by the Investigation Officer and simply because Prabhu Ram fumbled in cross examination, the statement of Investigation Officer cannot be rejected. Non-production of the blood stained 'Gudra' too does not damage the fairness of the investigation or prosecution. Accused Suhala got no injury but Ram Niwas and his parents did. These injuries were not explained by the prosecution but the cross case shows that these were received in another occurrence taking place in the Nohra of the accused and in which at least Shri Ram was not implicated. Therefore there was no obligation on the prosecution to explain these injuries, not could on that account the witnesses be branded as not wholly true Though the recovered weapon of offence was not found blood stained, yet it cannot be said that the injured was not stabbed with it Moreover, this fact may at its worst, only show that a wrong weapon was got recovered by the accused. Even it the particular weapon was not connected with the assault, it remains true all the same that Subala stabbed Shri Ram with a piecing weapon.
13. The learned Sessions Judge therefore, was correct in holding that the offence which was committed by the accused was covered by Section 307 IPC. There was a clear attempt to cause death by piercing the lung of the victim and should have certainly died if lack were not on his side and prompt medical aid not made available. The dffence does not fall in the category of a simple hurt under Section 324 IPC There is no doubt as to the fact that both the accused committed criminal trespass with the common intention of making a mortal attack on the life of Shri Ram.
14. The fact that the accused are young men and Government employees do not entitle them to any further lenient treatment They have been rewarded only two years rigorous imprisonment and it appears to me that they have already resolved a lenient treatment in this respect.
15. I, therefore, find no force in this appeal and dismiss the same. The convictions and sentences are maintained The accused shall surrender to their bail bonds to serve their sentences. In case they fail to so surrender, the Chief Judicial Magistrate, Jhunjhunu shall have them arrested and committed to jail for the purpose, according to law.