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Pappu Singh @ Laxmansingh Vs. State of Rajasthan - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtRajasthan High Court
Decided On
Case NumberS.B. Criminal Appeal No. 577 of 2001
Judge
Reported in2002(5)WLC566; 2003(1)WLN656
ActsEvidence Act - Sections 2; Indian Penal Code (IPC) - Sections 307 and 324
AppellantPappu Singh @ Laxmansingh
RespondentState of Rajasthan
Advocates: Ramesh Purohit, Public Prosecutor; K.L. Thakur, Adv.
DispositionAppeal dismissed
Cases ReferredDr. Krishna Pal v. State of
Excerpt:
(a) criminal procedure code, 1973 - section 374--conviction and sentence under sections 307, 324 and 323 ipc--appeal--fir alleged to be fabricated--scribe of fir not examined--held, evidentiary value of fir is, in corroborating or contradicting the maker of it--since pw-1 is not maker of fir it cannot be contradicted--even if fir is not proved, testimony of eyewitnesses would not be detracted--non-examination of scribe of fir is only irregular and not fatal to the case of prosecution--statement of pw-1 is corroborated with pw-2 and medical evidence of pw-11--repeated knife blows on person of pw-1 reveal his intention to murder pw-1--finding of conviction under section 323 ipc set aside but confirmed for offences under sections 307 and 324 ipc.;(b) evidence act, 1872 - section.....garg, j. 1. this appeal has been filed by the accused appellant against the judgment and order dated 29.8.2001 passed by the learned addl. sessions judge, nimbahera in sessions case no. 2/99, by which he convicted the accused appellant for the offence under sections 307, 324 and 323 ipc and sentenced in the following manner:-name of accusedappellantconvicted  u;/sec.sentence awardedpappu singh @ laxmansingh307ipcfive years' r1 and to pay a fine of rs. 5000/-, in default of payment offine, to further undergo one year si.324ipcsix months' ri and to pay a fine of rs. 1000/-, in default of payment offine, to further undergo si for onemonth.323ipctwo months' r1 and to pay a fine of rs. 200/-, in default of payment offine, to further undergo 15 days si.all the above substantive sentences.....
Judgment:

Garg, J.

1. This appeal has been filed by the accused appellant against the judgment and order dated 29.8.2001 passed by the learned Addl. Sessions Judge, Nimbahera in Sessions Case No. 2/99, by which he convicted the accused appellant for the offence Under Sections 307, 324 and 323 IPC and sentenced in the following manner:-

Name of accusedappellant

Convicted  u;/Sec.

Sentence awarded

Pappu Singh @ Laxmansingh

307IPC

Five years' R1 and to pay a fine of Rs. 5000/-, in default of payment offine, to further undergo one year SI.

324IPC

Six months' RI and to pay a fine of Rs. 1000/-, in default of payment offine, to further undergo SI for onemonth.

323IPC

Two months' R1 and to pay a fine of Rs. 200/-, in default of payment offine, to further undergo 15 days SI.

All the above substantive sentences were ordered to run concurrently.

2. The facts giving rise to this appeal, in short, are as follows:-

The case of the prosecution is that on 25.8.98 at about 3,15 AM, PW-1 Nand Singh gave parchabayan (Ex.P/1) to one Narain Singh, AS1 to the effect that on 24.8.1998 at about 9.10 p.m. he was going from his house towards market and near to his house there is a house of one Dhan Singh and he found accused appellant, who is son of Dhan Singh standing there. The accused appellant called PW-1 Nand Singh and, there-after, accused appellant took him to his house and at that time, accused appellant was having a big knife and he pierced that knife into the stomach of PW-1 Nand Singh, as a result of which, his intestine came out, another assault by knife was also given to him and accused appellant made third attempt by knife on his head, which was stopped by him through his hands, as a result thereof, he received injuries on his right hand and on his making hue and cry, his wife Resham Kunwar (PW-2) and his father Nana Singh (PW-3) also came on the spot and they intervened in the matter and when they tried to intervene, the accused appellant also gave knife blow on the head of PW 2 Resham Kunwar and when the accused appellant tried to give another knife blow to PW 2 Resham Kunwar, she resisted that blow by putting her right hand and in that intervention, PW 3 Nana Singh, father of PW-1 Nand Singh, also received injuries and after hearing the cries, some neighbourers PW-6 Ambu Singh, PW-5 Shyama Bai and PW-8 Vardi Bai also came on the spot. It was further stated in the parchabayan that accused appellant had caused injuries to PW 1 Nan Singh because of long standing enmity.

On that parchabayan Ex.P/1, a regular FIR Ex.P/14 was chalked out at Police Station Nimbahera and investigation was started.

During investigation, in the Government Hospital, Nimbahera, PW 1 Nand Singh, PW 2 Resham Kunwar and PW 3 Nana Singh were got medically examined by PW 11 Dr. Kamlesh. The injury reports of PW 2 Resham Kunwar, PW 3 Nana Singh and PW 1Nand Singh are Ex.P/9, Ex.P/10 and Ex.P/11 respectively. Since the condition of PW 1 Nand Singh was very serious, therefore, he was referred to RNT Medical College & Associated Group of Hospital, Udaipur, where he was admitted and operation of his stomach was got conducted by PW 9 Umed Singh and operation notes are Ex.P/7A and his discharge certificate is Ex.P/16. The accused appellant was arrested through Ex.P/12 on 2.12.1998 and while in police custody he gave an information Ex.P/15 to PW 15 Devi Singh for recovery of one knife alleged to have been used by him in assaulting PW 1 Nand Singh and others and in pursuance to that information, at the instance of accused appellant, a knife was recovered by PW 15 Devi Singh in presence of PW 12 Mohd. Rasheed and PW 13 Hemant Kumar and the fard of recovery of knife is Ex.P/13. The site plan which was prepared by PW 15 Devi Singh is Ex.P/2.

After usual investigation, police submitted challan against the accused appellant in the Court of Magistrate, from where the case was committed to the Court of Sessions.

On 14.7.1999, the learned Addl. Sessions Judge, Nimbahera framed charges for the offence under Sections 307, 324 and 323 IPC against the accused appellant. The charges were read over and explained to the accused appellant. The accused appellant denied the charges and claimed trial.

During trial, the prosecution in support of its case examined as many as 15 witnesses and got exhibited some documents. Thereafter, statement of the accused appellant under Section 313 Cr.P.C. was recorded. In defence, three witnesses were produced by the accused appellant.

After conclusion of trial, the learned Addl. Sessions Judge, Nimbahera through his judgment and order dated 29.8.2001 convicted the accused appellant for the offence under Sections 307, 324 and 323 IPC and sentenced in the manner as indicated above holding inter- alia that the prosecution has proved its case beyond all reasonable doubts against the accused appellant for the said offences.

Aggrieved from the said judgment and order dated 29.8.2001 passed by the learned Addl. Sessions Judge, Nimbahera, this appeal has been filed by the accused appellant.

3. In this appeal, the learned counsel appearing for the accused appellant has made the following submissions:-

(1) That in the present case, FIR is suspicious document and, therefore, no reliance can be placed on it because of the following reasons:-

(i) That FIR was registered on the basis of statement of injured PW 1 Nand Singh and the same was recorded by Narain Singh, ASI in the Hospital, Nimbahera and in that statement Ex.P/1, there is thumb impression of PW 1 Nand Singh, while in his statement recorded in Court, he has put his signatures on the statement recorded in Court.

(ii) That from perusing the statement of PW 1 Nand Singh and other witnesses, it appears that after the alleged incident, he was unconscious and he was not in a position to give statement and, therefore, whatever is written in Ex.P/1, is not the version of injured PW 1 Nand Singh and on the contrary, if he gave version, that has been suppressed by the police and thus, report Ex.P/1 should be treated as a false and fabricated document.

(2) That the statement of injured PW 1 Nand Singh was recorded on 19.9.1998 whereas alleged incident took place on 24.8.1998 and thus, police deliberately and intentionally did not record the statement of injured PW 1 Nand Singh and this delay creates doubt on the prosecution story.

(3) That in the present case, site inspection was made by PW 15 Devi Singh on 27.9.1998 though alleged incident took place on 24.8.1998 and there were two other injured witnesses PW 2 Resham and PW 3 Nana Singh and thus, there was too much delay in inspecting the site and preparing site plan and police intentionally and deliberately did not inspect the site immediately and this delay creates doubt on the prosecution story.

(4) That in the present case, PW 2 Resham is the wife of injured PW 1 Nand Singh and PW 3 Nana Singh is the father of PW 1 Nand Singh and rest prosecution witnesses have been declared hostile and thus, there are no independent witnesses to support the prosecution case and apart from this, since PW 3 Nana Singh did not receive any injury of sharp edged weapon, therefore, he is not an eye witness and his statement as eye witness is of no value.

(5) That the injury report Ex.P/11 of injured PW 1 Nand Singh is not an original report and it is a copy and, therefore, it is no document in the eye of law and in absence of it, injuries on the person of PW 1 Nand Singh cannot be held to be proved,

(6) That from the injuries which were received by injured PW 1 Nand Singh, no case for attempting to commit murder of PW 1 Nand Singh is made out against the accused appellant and thus, the findings of conviction for the offence under Section 307 IPC cannot be sustained and are liable to be set aside.

Hence, it was prayed that this appeal be allowed and the accused appellant be acquitted of the charges framed against him.

4. On the other hand, the learned Public Prosecutor supported the impugned judgment and order passed by the learned Addl. Sessions Judge, Nimbahera.

5. I have heard the learned counsel for the accused appellant and the learned Public Prosecutor and perused the record of the case.

6. Before discussing the evidence and contentions raised by the learned counsel for the accused appellant, first medical evidence has to be seen.

7. There is no dispute on the point that alleged incident took place on 24.8.1998 at about 9.10 PM and on the very day, PW 1 Nand Singh was got admitted in the Hospital, Nimbahera, where he was medically examined by PW 11 Dr. Kamlesh and other injured PW 2 Resham and PW 3 Nana Singh were also medically examined by PW 11 Dr. Kamlesh.

8. PW 11 Dr. Kamlesh Babel states in his statement that on 25.8.1998 he was Medical Officer in the Referal Hospital, Nimbahera and on that day he examined PW 2 Resham and found the following injuries on her person:-

(1) Incised wound 2 cm x 0.5 cm x subcutaneous deep, on lateral aspect of arm (left) upper 1/3. Simple by sharp edged weapon.

(2) Incised wound 2 cm x 0.5 cmx subcutaneous deep, on Anterio medical aspect of left arm upper 1/3 about 5 cm from injury (1). Simple by sharp edged weapon.

(3) Abrasion 0.5 x 0.1cm on right parietal region. Simple by blunt object.

He has proved the injury report Ex.P/9.

9. Thus, from the statement of PW 11 Dr. Kamlesh, it is proved that injuries mentioned in the injury report Ex.P/9 were received by PW 2 Resham.

10. PW 11 Dr. Kamlesh has further stated that on the same day, he medically examined PW 3 Nana Singh and found two abrasions on his person. He has proved the injury report Ex. P/10.

11. Thus, from the statement of PW 11 Dr. Kamlesh, it is well proved that PW 3 Nana Singh received two abrasions.

12. PW 11 Dr. Kamlesh has further stated that on the same day, he also examined PW 1 Nand Singh and found the following injuries on his person:-

(1) A Stab wound 3.5 cm x 2.5 cm wide x depth, omentum seen coming out of wound. Epigastric region. By sharp edged weapon.

(2) Incised wound 1 cm x 0.5 cmx subcutaneous deep on left lateral quadrant of abdomen. Simple by sharp edged weapon.

(3) Incised wound 1 cm x 0.5 cm x subcutaneous deep on left supraor-bital region. Simple by sharp edged weapon.

(4) Abrasion 7 cm x 0.2 cm, region infraclavicular to strenum. Simple by sharp edged weapon.

He has further stated that for injury No. 1, opinion was reserved and out of four injuries, injuries No. 2, 3 and 4 were simple in nature caused by sharp edged weapon and he prepared injury report of PW 1 Nand Singh and the present injury report Ex.P/11 is the carbon copy of original report. He has further stated that PW 15 Devi Singh, ASI brought operation notes and they were shown to him and, thereafter, he opined in the following manner:-

'After going through bed head ticket and surgical notes, following intra-abdominal injuries seen:-

(1) Massive hemoparitoneum.

(2) Liver tear in anterior surface of left lobe of liver 2- 3 cm long) and on interior surface.

(3) Hepatic vessels damaged.

(4) Ecchymosis on right abdominal wall and peritoneum & around hepatic flexures.

Patient was admitted on 25.8.1998 to 7.9.1998 (as per clinical notes). After evaluating all documents, I am of opinion that injury No. I is dangerous to life,'

13. Thus, from the statement of PW 11 Dr. Kamiesh, it is well proved that PW 1 Nand Singh received four injuries and injury No. 1 was dangerous to life.

14. Before proceeding further, the point whether prosecution has been able to prove injury report Ex.P/11 of PW 1 Nand Singh or not has to be decided first as the learned counsel for the accused appellant has challenged this point on the ground that injury report Ex.P/11 is not the original injury report and, therefore, no reliance can be placed on it.

15. So far as the factual position is concerned it may be stated here that as per the statement of PW 11 Dr. Kamlesh, it is a carbon copy of the original injury report, which was prepared by him. He has also stated that portion 'A to B' on the back of Ex.P/11 is in his hand writing and it bears his signatures at place C to D.

16. It may be stated here that in Ex.P/11, there is endorsement dated 9.9.1998 showing that this photocopy was issued on the request made by SHO and true copy of original carbon copy from the office file and that fact has been verified by the Medical Officer of Health Centre, Nimbahera.

17. Thus, it has come on record that Ex.P/11 is the carbon copy of the original injury report which was prepared by PW 11 Dr. Kamlesh and PW 11 Dr. Kamlesh hascome in witness box to prove Ex.P/11 and furthermore, it has been certified by the Medical Officer of Health Centre, Nimbahera that it is a true copy of original carbon copy from office file.

18. The question that arises for consideration is whether in the above circumstances Ex.P/11 can be treated as secondary evidence or not.

19. In Om Prakash v. State of UP (1), where the Doctor, whose report was sought to be proved, has left the service of Irwin Hospital and his whereabouts were not known and in these circumstances, it was held that the statement of PW 7 Gurbaksh Singh, Head Clerk of Irwin Hospital proving the report Ex.PW 7/A made by Dr. Amarjit Singh was fully in accord with law and no fault can be found with it.

20. However, in the present case, the same doctor, who examined PW1 Nand Singh, has been produced and he has stated that Ex.P/11 is the carbon copy of the original injury report prepared by him. Therefore, no suspicion or doubt should be placed on Ex.P/11.

21. In Prithi Chand v. State of H.P. (2) where a carbon copy was made by one uniform process of the certificate of a doctor given in the performance of professional duty, it was held to be a primary evidence within the meaning of the Explanation 2 to Section 62 of the Evidence Act.

22. From this point of view, even Ex.P/11 can be called as primary evidence and, therefore, to treat it as secondary evidence, no question of doubt in any manner should remain.

23. It may be clarified here that copies made from the original or copies compared with the original are admissible in evidence as secondary evidence. A copy of a copy, when compared with the original, would be receivable as secondary evidence of the original and for that, illustration (b) to Section 63 of the Evidence Act may be referred to.

24. As per Section 63 of the Evidence Act, copies of a copy taken out by mechanical process or compared with the original are secondary evidence.

25. In the present case, Ex.P/11 is not a copy, but a photo copy of carbon copy and, therefore, from every point of view, it would be secondary evidence of the original.

26. The Court is aware that generally speaking copy of a copy is not admissible as secondary evidence but here Ex.P/11 is photo copy of carbon copy of the original and the same has been proved by the same person, who has prepared the original. Therefore, Ex.P/11 can be taken out by mechanical process and not only this, it has also been certified as true copy of original carbon copy from office file. Therefore, from every point of view, if Ex.P/11 has been taken on record or exhibited, no question arises that it was wrongly taken into evidence.

27. For the reasons stated above, it is held that from every point of view Ex.P/11, if not treated as primary evidence for the sake of argument, would be covered by the term 'secondary evidence' and reliance can be placed on it. It is further held that PW11 Dr.Kamlesh has proved the contents of that injury report Ex.P/11.

28. Hence, the argument that the injury report Ex.P/11 is no document in the eye of law, stands rejected.

29. There is no dispute in this case that PW1 Nand Singh had undergone operation and for that, prosecution has produced PW9 Dr. Umed Singh. He states that on 25.8.1998 he was Associated Professor (Surgery), RNT Medical College, Udaipur and on that day, PW1 Nand Singh was admitted in Ward No. 18A and he had a knife injury on his epigastric right angular region and on his left hypochondiam, there was same injury and he was operated by him. He has further stated that because of excessive bleeding, it became a case of cardiac arrest, but it was revived and he wasgiven blood also and according to him, above injuries were fatal injuries. He has proved the bed head ticket Ex.P/7A.

30. Thus, from the statement of PW 9 Dr. Umed Singh, it is very well proved that injuries found on the person of PW 1 Nand Singh were serious one and he was got operated and his discharge ticket is Ex.P/16. The question what offence can be said to have been committed from these injuries would be discussed later on.

31. Now it is to be seen whether the above injuries found on the person of PW 1 Nand Singh, PW 2 Resham and PW Nana Singh were caused by the accused appellant or not.

32. The case of the prosecution is that contents of the report Ex.P/1 were narrated by PW 1 Nand Singh to Narain Singh, ASI. There is also no dispute on the point that Ex.P/1 bears the signatures of PW 4 Gopi Singh and PW 3 Nana Singh also and it also bears thumb impressions of PW 1 Nand Singh and not his signatures.

33. PW 1 Nand Singh states in his examination-in-chief that when he was going towards market, accused appellant met him and he gave knife blow on his stomach, as a result of which, his intestine came out and since accused appellant was Dadda, he beat him. He further states that PW 2 Resham, PW 3 Nana Singh and P?W 4 Gopi Singh also came there. He further states that when, his wife PW 2 Resham came to rescue him, accused appellant also gave knife blow to her and accused appellant also wanted to kill him and from that place of occurrence, he was taken to the police station where he gave information and the same is Ex.P/1.

1 cross examination, this witness admits the following facts:-

(1) That alleged incident took place in front of the house of the accused appellant and his house is very much near to the house of the accused appellant and whether on the spot, PW 5 Shyama Bai and Ram Singh came or not, he cannot say.

(2) That he became unconscious as soon as he received the injuries by knife and he became conscious after 2-3 days and he cannot say what had happened between the period during which he remained unconscious.

34. Thus, from the statement of PW 1 Nand Singh, the fact that he became unconscious just after receiving the injuries has come in picture.

35. PW 2 Resham is the wife of PW 1 Nand Singh. Though in examination-in-chief she states that accused appellant caused injuries to PW 1 Nand Singh, but in cross-examination, she frankly admits that when she reached on the spot, PW 1 Nand Singh was found unconscious.

36. Similar is the statement of PW 3 Nana Singh. He states that when he reached on the spot, he found PW 1 Nand Singh in injured condition and blood was coming out from his body and PW 2 Resham was catching hold him. In cross examination, this witness admits that PW 1 Nand Singh remained unconscious for two days. He further admits that report Ex.P/1 was lodged by him and not by PW 1 Nand Singh as he was unconscious.

37. Similar is the statement of PW 4 Gopi Singh. He states that before he reached on the spot, injuries by knife had already been given to PW 1 Nand Singh.

38. Thus, from the statements of PW1 Nand Singh, PW 2 Resham, PW 3 Nana Singh and PW 4 Gopi Singh, the fact that after receiving the injuries, PW 1 Nand Singh became unconscious and he was not in a position to narrate any thing is well proved and thus, version which was given in Ex.P/1 cannot be said to be the version of PW 1 Nand Singh, as he was unconscious at that time.

39. In this case, Narain Singh, ASI has not been produced by the prosecution and PW 15 Devi Singh, who was ASI in the Police Station Nimbahera has beenproduced and he states that he can identify the writing and signatures of Narain, Singh as he has worked with him and he further states that words contained in Ex.P/1 are in the hand writing of Narain Singh and Ex.P/I was handed over by Narain Singh to PW 14 Shami Lal, who was at that time SHO Police Station and PW 14 Shantilal handed over the same to him as investigation was being conducted by him.

40. In the above facts and circumstances, the question that arises for consideration is what would be the evidentiary value of report Ex.P/1 in the present case.

41. Before appreciating this point, the object of FIR and legal matters pertaining to FIR have to be kept in mind.

42. The principal object of the first information report from the point of view of the informant is to set the criminal law in motion and from the point of view of the investigating authorities is to obtain information about the alleged criminal activity so as to be able to take suitable steps to trace and bring to book the guilty. The F.I.R. in a criminal case is extremely vital and valuable piece of evidence for the purpose of corroborating the oral evidence adduced in the trial. The object of insisting upon prompt lodging of FIR is to obtain prior information regarding the circumstances in which crime was committed, the names of actual culprits and the part played by them as well as the names of eye witnesses. There is no rule or principle of evidence requiring that the injured should always be the first informant. A first information report which sets the process of law in motion can come from any quarter.

43. Thus, FIR is not supposed to be a detailed document. FIR is a document which sets the criminal law into motion and it has to be appreciated keeping in mind the facts and circumstances of each individual case. It is valuable for corroborating or contradicting the maker.

44. Since in the present case, report Ex.P/1 was not lodged by PW 1 Nand Singh, therefore, it cannot be thrown away merely on this ground as the purpose of lodging FIR is to set the criminal law in motion and after lodging the report Ex.P/1, Police started investigation of the case and also got medically examined PW 1 Nand Singh, PW 2 Resham and PW 3 Nana Singh. Therefore, the purpose to set criminal law in motion has been achieved in the present case after lodging report Ex.P/1.

45. In the present case, there is evidence that PW 3 Nana Singh went to the Police Station and Ex.P/1 bears his signatures also. Thus, from this point of view also, it can be said that the report Ex.P/1 was lodged by PW 3 Nana Singh and not by PW 1 Nand Singh.

46. It may be clarified here that Section 154 Cr.P.C. does not require that the report must be given by a person who has personal knowledge of the incident reported. The section speaks of an information relating to the commission of a cognizable offence given to an Officer-in-charge of a Police Station.

47. Thus, if report Ex.P/1 was not lodged by PW 1 Nand Singh, it would not affect the veracity of Ex.P/1. Not only this, for the sake of argument if FIR has not been proved by the prosecution, it would not detract the testimony of the eye witnesses and their testimony has to be assessed on its own merils from the statements given in the Court.

48. Since PW 1 Nand Singh is not the author of report Ex.P/1, therefore, contradiction which has taken place on the point of place of occurrence has to be over looked. In Ex.P/1 there is a mention that the incident took place in the house of accused appellant while from the site plan Ex.P/2, it appears that the incident took place in the market. In these circumstances, the statement of PW Nand Singh shall prevail on the point that the incident took place in the market. The FIR can be used for corroborating or contradicting the marker and since PW I Nand Singh is not the maker of the FIR, therefore, he cannot be contradicted on this point whether incident took place in the house or market.

49. In the present case, since report Ex.P/1 was recorded just after the occurrence, therefore, to think it over that it was fabricated with some ulterior motive, cannot be accepted.

50. It may be stated here that FIR has three necessary ingredients:-

(i) It should neither be vegue nor indefinite, but it should be an information of facts disclosing the commission of a cognizable offence.

(ii) It may be given by anybody; and

(iii) It is not necessary that the offender or the witnesses should be named.

51. From these essential ingredients of FIR, it is very much clear that it can be lodged by anybody. In the present case, report Ex.P/1 bears the signatures of not unknown person, but injured PW 3 Nana Singh, who is father of PW 1 Nand Singh and not only this, Ex.P/1 cannot be said to be vague or indefinite as it contains all material basis events that took place. From this point of view also, report Ex.P/1 cannot be thrown away.

52. So far as the point that Narain Singh, ASI has not been produced is concerned, it may be stated here that non-examination of scribe of FIR can be treated as mere irregularity, but if it is otherwise proved, then it can be said that irregularity has been cured. In the present case, signatures of Narain Singh, who was scribe of Ex.P/1, has been proved by PW 15 Devi Singh, another police official. From this point of view also non- production of Narain Singh is not fatal to the prosecution case.

53. Apart from this, the law has been developed upto the stage that even if FIR is not proved in a case, it would not vitiate the trial as well as conviction. But, in the present stage, as stated above, report Ex.P/1 has been proved.

54. For the reasons stated above, the argument that report/document Ex.P/1 is a fabricated one is rejected and it is held that Ex.P/1 has set the criminal law in motion and though version contained in Ex.P/1 was not given by PW 1 Nand Singh, but it would not affect the prosecution case, as it contained the signatures of injured PW 3 Nana Singh, father of PW-1 Nand Singh and Since PW-3 Nana Singh has also received injuries, therefore, his presence on the spot cannot be doubted and it might be a different matter whether he is an eye witness in actual sense or not, but his presence }ust after the occurrence is well proved.

55. From the statement of PW 1 Nand Singh, the fact that injuries which were received by him were caused by the accused appellant is well proved and his statement gets corroboration from the medical evidence which is found in the statements of PW 11 Dr. Kamlesh and PW 9 Dr. Umed Singh. Furthermore, so far as the statements of PW 2 Resham and PW3 Nana Singh are concerned, they are witnesses of just after occurrence and PW 2 Resham herself received two simple incised wounds at the hands of accused appellant and therefore/her presence on the spot cannot be doubted in any manner and from her statement also, the fact that she and her husband PW 1 Nand Singh received injuries at the hands of the accused appellant, is well proved. Thus, statement of PW 1 Nand Singh further gets corroboration from the statement of PW 2 Resham.

56. So far as the simple injuries found on the person of PW 3 Nana Singh are concerned, they cannot be said to have been caused by the accused appellant as they were not caused by sharp edged weapon, but all abrasions were caused by blunt object. Therefore, the findings of the learned Addl. Sessions Judge that PW 3 Nana Singh also received injuries at the hands of accused appellant cannot be sustained and are liable to be set aside.

57. Thus, it is concluded that on 24.8.1998 PW 1 Nand Singh and PW-2 Resham received injuries by sharp edged weapon at the hands of the accused appellant.

58. The next question that arises for consideration is whether by causing injuries on the person of PW 1 Nand Singh, the accused appellant has committed the offence Under Section 307 IPC or not.

59. Before proceeding further, it may be stated here that from the order of framing charge dated 14.7.1999, it appears that the learned Addl. Session Judge framed charges against the accused appellant for the offence Under Section 307 IPC in respect of injuries caused not only to PW 1 Nand Singh, but also to PW 2 Resham and PW 3 Nana Singh and while convicting accused appellant for the offence Under Section 307 IPC, he has not clarified this aspect. Here it is clarified that the case is being examined for the offence Under Section 307 IPC for only in respect of injuries caused by accused appellant to PW 1 Nand Singh and not to PW 2 Resham and PW 3 Nana Singh.

60. It may be stated here that to justify a conviction Under Section 307 IPC, it is not essential that bodily injury capable of causing death should have been inflicted. The nature of the weapon used, manner in which it is used, motive for the crime, severity of the blow, the part of the body where the injury is inflicted are some of the factors that may be taken into consideration to determine the intention.

61. To prove the charge for the offence Under Section 307 IPC, the prosecution must prove:-

(i) that the death of a human being was attempted;

(ii) that such death was attempted to be caused by, or in consequence of, the act of the accused;

(iii) that such act was done with the intention of causing death; or that it was done with the intention of causing such bodily injury as (a) the accused knew to be likely to cause death; or (b) was sufficient in the ordinary course of nature to cause death; or

That the accused attempted to cause such death by doing an act known in him to be so imminently dangerous that it must in all probability cause (a) death, or (b) such bodily injury as is likely to cause death, the accused having no excuse for incurring the risk of causing such death or injury.

62. The question to be seen is whether the injuries inflicted are sufficient in the ordinary course of nature to cause death and possibility that skilful and efficient medical treatment might prevent the fatal result is wholly irrelevant.

63. In the present case, looking the entire facts and circumstances of the case and the facts that there was profuse bleeding just after the occurrence and intestine from the stomach of injured PW 1 Nand Singh came out; the accused appellant not only gave one knife blow, but he repeatedly gave three blows on the person of PW 1 Nand Singh; PW 1 Nand Singh remained unconscious for 2-3 days and he was operated in RNT Medical College, Udaipur; PW 9 Dr. Umed Singh opined that the condition of PW 1 Nand Singh was serious one and at that time, it became a case of cardiac arrest, but due to medical help, his condition was revived and he had to remain in hospital for many days as is evident from the discharge certificate Ex.P/16, there was heavy loss of blood and that is why; blood was given to PW 1 Nand Singh, it can be concluded that the only intention which the accused appellant had at that time was nothing, but to commit murder of PW 1 Nand Singh. The severity of the blow speaks for itself. The damage done had its own story to tell. Had the hand not been raised by injured PW 1 Nand singh as well as the matter would not have been intervened by PW 2 Resham, the aim of murdering PW 1 Nand Singh would have been achieved by the accused appellant. The blows aim would have clearly spelled out the murderous intent on the part of the accused appellant. In these circumstances, the findings of the learned Addl. Sessions Judge convicting the accused appellant for the offence Under Section 307 IPC for causing injuries to PW 1 Nand Singh are liable to be confirmed.

64. For causing injuries to PW 2 Resham, the accused appellant has committed the offence Under Section 324 IPC. Thus, the findings of the learned Special Judge convicting the accused appellant for the offence under Section 324 IPC are liable to be confirmed.

65. So far as the injuries found on the person of PW 3 Nana Singh are concerned, since these injuries are simple and the accused appellant was having a knife, therefore, these injuries cannot be attributed to accused appellant and thus, accused appellant is entitled to acquittal for the offence Under Section 323 IPC and the findings of the learned Addl. Sessions Judge convicting the accused appellant for the offence Under Section 323 IPC are liable to be set aside.

66. Before parting with this appeal, some arguments raised by the learned counsel for the accused appellant have to be dealt with and the same are that the statement of PW 1 Nand Singh and other witnesses Under Section 161 Cr.P.C. were recorded with some delay. There is no dispute on that point, but testimony of the witnesses cannot be discarded on the ground of delay when there is other convincing and reliable evidence and for that the decision of the Hon'ble Supreme Court in Dr. Krishna Pal v. State of UP (2), may be seen.

67. Thus, no doubt in recording statements, there is dereliction of duty on the part of the police official, but whole prosecution case cannot be rejected on this ground alone.

68. The argument that the statements of PW 1 Nand Singh and PW 2 Resham should not be believed and they are interested being husband and wife and their statements are not corroborated by independent witnesses, is of no value in the present case, as their statements are fully supported by the medical evidence and if some other witnesses have been declared hostile, it would not affect the case of the prosecution nor it would affect the testimony of PW 1 Nand Singh and PW 2 Resham.

On point of sentence

69. No doubt sentencing an accused person is a sensitive exercise of discretion and not a routine or mechanical prescription acting on hunch. It is also well settled that when discretion has been properly exercised along accepted judicial lines, an appellate court should not interfere to the detriment of an accused person except for very strong reasons which must be disclosed on the face of judgment. This Court is also aware that the law is made to protect the innocent by punishing guilty.

70. In my considered opinion, looking to the entire facts and circumstances of the case, the sentence of five years RI for the offence Under Section 307 IPC awarded by the learned Addl. Sessions Judge to the accused appellant appears to be reasonable one. It is neither excessive nor unreasonable. Hence, the accused appellant is not entitled to any relief on point of sentence.

71. In the result, the appeal filed by the accused appellant Pappu Singh @ Laxman Singh is disposed of in the following manner:-

The appeal of the accused appellant against his conviction and sentence for the offence under Sections 307 and 324 IPC IPC is dismissed, after confirming the judgment and order dated 29.8.2001 passed by the learned Addl. Sessions Judge, Nimbahera. But, his appeal against the conviction for the offence Under Section 323 IPC is partly allowed to the extent that his conviction and sentence for the offence Under Section 323 IPC are set aside. Thus, the judgment and order dated 29.8.2001 passed by the learned Addl. Sessions Judge, Nimbahera stand modified to that extent.


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