Babu Lal v. State Of Rajasthan

/div> 323 ipc against accused mohan. Chand mohd. And abdul jabbar; and under sections 148,452,307/149, 323 ipc and section 25 nw section 4 of arms act; against accused bhagwana; and under sections 148, 452, 323/149 and 307/149 ipc against accused riyaz and abdul shakoor. All the accused pleaded not guilty. The prosecution examined pw 1 mohd. Ismail, pw 2 tej singh, pw 3 jamil ahmed, pw 4 nazma, pw 5 abdul sattar, pw 6 mohd. Iqbal, pw 7 sonanram, pw 8 bhanwarlal, pw 9 dr. Amrit adeora, pw 10 virendra singh, pw 11 dr. M. P. Joshi, pw 12 chandra shekar, pw 13 sadiq mohd. , pw 14 mohd. Hanif, pw 15 jalaram, pw 16 gajje singh and pw 17 laxmi narayan. Accused in their statements recorded under section 313 cr. P. C. Denied the correctness of the statements of the witnesses. Accused abdul shakoor pleaded that he was at ahmedabad on the date of occurrence. He has given evidence e\a811 on oath and has examined dw 1 n. U. Khan, dw 2 ismail, dw3 h. C. Takand dw 4 taj mohd. In defence. The learned special judge after hearing the parties acquitted accused mohan and abdul jabbar of all the offences charged with and also acquitted bhagwana and chand mohd. Of the offence under section 323 and babulal, riyaz and abdul shakoor of the offence under section 323/149 ipc. However, she convicted accused babulal bhagwana, chand mohd. , riyaz and abdul shakoor and sentenced them as above.

(3) I have heard the arguments of learned counsel for the appellants and learned public prosecutor for the state respondent.

(4) Learned counsel for the appellants vehemently contended that in this case the learned trial court has committed error in convicting the appellants under section 307 or 307/149 as by the medical evidence it was not borne out that the injury suffered by mohd. Ismail was sufficient in the ordinary course of nature to cause death. They have submitted that since the medical officer who had performed operation has not been examined, it could not be found that the injury suffered by ismail was dangerous to life. The learned counsel have pointed out that by the medical evidence the case did not travel beyond section 323 ipc. As against this, the learned public prosecutor has submitted that of course the prosecution has not been able to examine the doctors who had performed operation on mohd. Ismail but on the basis of the evidence of dr. Armit deora and dr. M. P. Joshi it could certainly be found that mohd. Ismail had suffered grievous hurt in his glueteal region.

(5) I have considered these arguments, dr. M. P. Joshi (pw 11) has deposed that he had examined the injuries of mohd. Ismail on 25 - 4 - 1987 and he had found the following injury on his person: incised stab wound 6 cm x 2 cm muscle deep horizontally on the post lateral aspect of right iliac region lying just behind the anterior superior iliac spine and below the iliac crest. Dr. Joshi has also deposed that on the basis of the operation notes he had prepared the report ex. P/12 and had opined that injury no. 1 of mohd. Ismail was dangerous to life. Dr. Amrit deora (pw 9) has deposed that on 26th may, 1987 he had prepared the report ex. P/8 on the basis of the bed head ticket of mohd. Ismail.

(6) If we read the statement of dr. Amrit deora (pw 9) it becomes clear that he was not the treating doctor of mohd. Ismail. He had also not seen the injuries of mohd. Ismail. He has admitted in clear terms that he had not seen the injured before operation and that he gave his opinion on the basis of the notes recorded on the bed head ticket. The said bed head tickets were also not there in the trial court. It is, thus, clear that whatever has been deposed by dr. Amrit deora, it was not based on his seeing the injuries of mohd. Ismail but it was on the bed head tickets not prepared by him or under his supervision. Since the original bed head tickets were not produced in the court and the doctors who had recorded the notes on that ticket were not examined, the report prepared by dr. Amrit deora is of no value in the eye of law. Dr. Joshi pw 11 has admitted that on the x - ray examination of mohd. Ismail it was found that there was no evidence of bony injury. He has further admitted that the report ex. P/12 was prepared by him on the basis of the bed head ticket and the operation notes prepared by dr. Harsh, dr. Goyal, dr. Jangid and dr. Lohiya. None of these doctors has been examined by the prosecution. The original operation notes were also not on the record at the time, the statement of dr. M. P. Joshi was recorded in the trail court. Dr. Joshi has admitted that he was not present at the time the surgery was done of injured mohd. Ismail. He has also deposed that he had no talks with the operating surgeons regarding this patient. In these circumstances, there is no hesitation in saying that the opinion recorded in the report ex. P/9 is not based on the direct knowledge of dr. M. P. Joshi. When the surgeons who had done surgey and prepared the operation notes have not been examined and original operation notes have not been produced in the case, it cannot be found on the basis of the report ex. P/12 that the injury suffered by mohd. Ismail was dangerous to life. There is no other evidence to hold that the injury was dangerous to life. It may also be stated here that according to dr. Joshi the injury suffered by mohd. Ismail was not on his vital part. In these circumstances, the learned trial judge has certainly committed error when she has convicted the appellants under sections 307 or 307/149 ipc. It has however come in the statement of pw 1 mohd. Ismail that he remained hospitalised for one month. This fact has not been challenged by the accused. The witness has not been cross examined on this point. Under section 320 ipc a hurt which cause the sufferer to be during the space of twenty days in severe bodily pain or unable to follow his ordinary pursuits is also designated as grievous. Since it is established on record that mohd. Ismail had to remain in hospital for one month it has to be found that he was unable to follow his ordinary pursuits during that period. It is therefore, held that the injury sustained by mohd. Ismail was of grievous nature.

(7) Learned counsel for the appellants contended that the story that riyaz and chand mohd. Caught hold of mohd. Ismail should not has been believed by the learned trial court as according to them in such circumstances the injury could not be caused in that region. I find no force in this argument. Mohd. Isrnail (pw 1) has clearly stated that both riyaz and mohd. Shakoor had caught hold of him. This fact has also been deposed by nazma (pw 4) and mohd. Iqbal (pw 6). Even in the fir ex. P/i this fact was also stated. Looking to the consistency of the evidence on this point, it cannot be held that the two accused had not caught hold of babulal at the time of occurrence. There is no merit in this contention of the learned counsel for the appellants that babulal could not give blow on the gluteal region of mohd. Ismail if the two accused caught hold of him on two sides. It is not in the evidence that both the accused had fully covered mohd. Ismail at the time of occurrence. The evidence regarding pea of alibi raised by accused abdul shakoor has been discussed by the learned trial court and i find no infirmity in the finding of the learned trial judge, that the plea raised by abdul shakoor that he was at ahmedabad on the day of occurrence, was not proved on record.

(8) Learned counsel for the appellant has further contended that the story that bhagwana gone to the place of occurrence and he had sword in his hand and that he had tried to inflict sword blood on gafoor should not has been believed by the trial court.

(9) Mohd. Ismail (pw 1) has deposed that accused bhagwana was having a sword in his hand and that he had tried to inflict the blow on abdul gafoor but mohd. Iqbal used a lathi to avoid the blow and the sword first fell on the lathi and it fell down and thereafter babulal had lifted the sword but nazma had snatched the same from his hand. Pw 4 nazma has also deposed that when accused bhagwana wanted to inflict the sword blow on gafoor, iqbal used his lathi to avoid the infliction of the blow and by striking the lath; the sword fell down which was picked up by accused babulal and she snatched the sword from babulal. This is also the version of pw 6 mohd. Iqbal when he says that he had avoided the injury on abdul gafoor by using lathi and the sword of bhagwana fell down which was lifted by babulal but later snatched by nazma.

(10) On a careful study of the statement of the witnesses i find that this story of sword is free from doubt. It is an admitted fact that none had received injury by sword. According to nazma (pw 4) she had snatched the sword from the hands of babulal accused and in that process she had suffered injury on her left forearm. She has further deposed that she had shown her injuries to the doctor. Since nazma had snatched the sword from the hand of accused babulal she was found to suffer incised wound on her hand, however, as per the injury report ex. D/6 nazma has suffered only abrasions of right forearm. No injuries were found on her hand (palm or fingers). It was not possible to have sustained abrasions on the right forearm while snatching the sword from the hands of the assailant. It has, therefore, to be found that the story of use of sword and snatching by nazma is false. It has been deceased by mohd. Iqbal (pw 6) that he had taken the blow of sword on a lath; however, that lathi has not been produced in the case. Mohd. Iqbal himself has admitted that he did not produce that lathi to the police. Had there been use of lath; when bhagwana was - using sword to inflict blow on gafoor, there would have been certainly a mark of blow of sword on the lathi. Gajje singh (pw 16) 10 has admitted that he had not seized the lathi. It shows that there was no mark of blow on the lathi. This further falsifies the story of use of sword in that occurrence.

(11) Mohd. Ismail (pw 1) had deposed that while alighting from the taxi chand mohd. Was having hockey, babulal was 1 laying knife and bhagwana was having a sword and they entered with these weapons. In the earlier part of his statement. Mohd. Ismail has deposed that only riyaz, chand mohd. Shakoor and mohan had alighted from the taxi. Thus, mohd. Ismail has given two different versions regarding bhagwana; first that he was seen in the taxi alongwith a sword and; second that he was standing outside his house from before the taxi come. According to ismail, bhagwana had taken a naked sword there. This fact has also been deposed by mohd. Iqbal (pw 6) when he has said that bhagwana has naked sword in his hands when he entered his house. However, pw 4 nazma has deposed to have seen the sword in the hands of bhagwana after he entered the shop these discrepancies clearly goes to show that the story of sword is nothing but a concoction, it may also be pointed out here that according to all the witnesses bhagwana did not try to pick up the sword again when it fell clown because of the lathi used by mohd. Iqbal. Had bhagwana been there to commit the offence armed with such a deadly weapon, he could not be satisfied simply by attempting on gafoor and not trying to lift it again.

(12) All these circumstances go to show that probably bhagwana was not present at the place of occurrence and the story of using the sword by him is false. Bhagwana is the brother of babulal. It seems that because he happens to be the brother of the main accused his name was added in the fir showing that he had gone there with a sword. When the story of using sword falsifies, it has to be found that bhagwana had not gone and he has been falsely implicated in this case. It may be stated here that in the rr involvement of a person were alleged. However, on investigation, the police came to the conclusion that one innocent, person was implicated. The learned trial court has also found that there was false implication of mohan and abdul jabbar. On a consideration of the evidence produced, i feel that bhagwana has also been falsely implicates in this case and he had not taken part in the occurrence.

(13) Learned counsel for the appellants further contended that none of the accused could be convicted under section 148 ipc and that appellants riyaz, abdul shakoor and chand mohd. Could not be convicted with the aid of section 149 ipc if the participation of bhagwana is not held to be proved. It has been further submitted that they cannot be convicted with the aid of section 34 ipc also as they had no knowledge that babulal was having knife with him. As against this, learned public prosecutor submitted that the accused chand mohd. Had carried hockey with him and that all the accused had gone together and as per the statements of the witnesses babulal was having knife in his hand, it should be found that all the accused had gone to the place of occurrence after fanning unlawful assembly or in furtherance of the common intention of causing hurt to mohd. Ismail and others.

(14) We have already seen that the prosecution story that bhagwana had also taken part in the occurrence is not believable. Now there remains, only four accused, therefore, question of convicting accused under section 145 ipc or any of them with the aid of section 149 ipc does not arise.

(15) However, it has come in the statements of the witnesses that when accused babulal went there, he was having knife in his hand. It has also come in their evidence that chand mohd. Was having hockey in his hand and that he had caused blows by his hockey on abdul gafoor (now dead) and jamil ahmed (also dead). It is, thus, clear that shakoor and riyaz had the knowledge that accused babulal was carrying knife with him and accused chand mohd. Was carrying hockey with him in order to commit offence. All the four accused went in the shop of abdul gafoor and started beating the persons, therefore, it can safely be presumed that they had common intention of causing hurt to mohd. Ismail and others. They are, therefore, liable by virtue of section 34 of the ipc.

(16) The learned trial court has not committed error in convicting all the four accused chand mohd. , riyaz, abdul shakoor and babulal under section 452 ipc as they had entered the house of abdul gafoor after making preparation to cause hurt.

(17) Learned counsel for the appellants contended that the evidence regarding causing knife blow by accused babulal to abdul shakoor should not be believed 215 cuts in the shirt of mohd. Ismail were found cut at two places while according to ismail only one knife blow was inflicted. He has also submitted that there could not be any cut in the shirt and the chaddit by one blow as alleged by the prosecution. There does not seem to be any force in this contention. Mohd. Ismail was wearing pant and underwear at the time of occurrence and the injury was caused on the back portion of the stomach. It was possible that both the underwear and the shirt will be cut by one blow. It was also possible to have to cut marks in the shirt by that blow because while the shirt is in the pant, it is possible that the shirt might have folded and in that manner certainly there could be two marks by one blow. There is consistency in the prosecution evidence that accused babulal was having a knife in his hand when he entered the shop of abdul gafoor and he inflicted a blow on gluteal region of mohd. Ismail. As already found, the prosecution has not been able to establish it a case under section 307 because of insufficient medical evidence but certainly by the evidence produced in the case, the act of accused babulal falls under section 325 ipc and the remaining accused are also liable under section 325 read with section 34 ipc.

(18) Lastly it was submitted by learned counsel for the appellant that accused babulal has already remained in jail for more than two years and this should be considered sufficient term of punishment in this case. It was further submitted that the other appellants should be ordered to be released on probation as they had not caused even grievous hurt to any person. Looking to the facts and circumstances of the case, i deem it proper to reduce the sentence awarded to babulal and to order the release of appellants chand mohd. , riyaz and abdul shakoor on probation.

(19) As a result of the foregoing discussion, appeal of bhagwana is accepted and setting aside his conviction he is acquitted of all the charges. The appeal of appellant babulal is accepted so far as his conviction under sections 148 and 307 ipc is concerned; and setting aside his conviction he is acquitted of the charges under sections 307 and 148 ipc. However, he is convicted under section 325 ipc and sentenced to undergo two years si and pay a fine of rs. 500/ - ; in default 2 months si. His conviction under section 452 ipc and under section 25 read with section 4 of the arms act is maintained. The sentence awarded by the trial court under section 452 ipc is reduced to two yearts si maintainable the order of fine. The sentence under section 25 read with section 4 arms act is also maintained. All the substantive sentences are ordered to run concurrently as directed by the trial court. The appellant is in jail. The jail authorities be informed accordingly. Appeal of appellants chand mohd. , riyaz and abdul shakoor is partly allowed and they are acquitted of the offence under sections 148 and 307/149 ipc. Their conviction under section 452 ipc is maintained. Instead of sentencing them at once, they are ordered to be released on probation for a period of two years on their furnishing bail bonds in the sum of rs. 2,000/ - undertaking to be of good behaviour and keep peace and also to appear before the trial court to undergo the sentence if called upon to do so during that period. These appellants will furnish their bail bonds in the trial court within a period of 30 days. Appeal partly allowed.