Harsh Kumar, J. - This criminal appeal has been filed against impugned judgment and order of conviction dated 30.09.1982 passed by Vth Additional Sessions Judge, Hamirpur in Sessions Trial No. 222 of 1979, under Section 307 I.P.C., P.S. Jalalpur, District Hamirpur convicting the accused appellant u/s 307 I.P.C. and sentencing him with rigorous imprisonment of four years and with fine of Rs. 1,000/-.
2. The brief facts relating to the case are that on 13.12.1978 at about 3:30 p.m. Kishori Sharan lodged a F.I.R. at P.S. Jalalpur District Hamirpur with the allegations that "today at about 12:00 hours in noon his cousin brother Ram Ragubir was taking bath in Burma river when Ram Milan, Raja and Kamlesh armed with lathi and Farsa reached there and on account of old enmity, upon exhortation by Ram Milan, Kamlesh gave a Farsa blow on the head of Ram Ragubir who fell on the ground due to sustaining the injuries of Farsa; that, incident was seen by Ram Dulare, Rampal and Bhola of his village who were also taking bath in the river."
3. Upon investigation charge-sheet was submitted only against accused-appellant Kamlesh under Section 307 I.P.C. and after framing charges against the appellant the prosecution in order to prove its case produced Dr. P.N. Singh as PW-1, eye-witness Ram Dulare as PW-2, constable Hori Lal a formal witness as PW-3, injured Ram Ragubir as PW-4, first informant Kishori Sharan as PW-5 and Investigating Officer Jagdish Singh as PW-6. After completion of prosecution evidence, the statement of accused was recorded under Section 313 Cr.P.C. and after hearing the arguments the trial court passed the impugned order holding the accused-appellant guilty for attempting on the life of Ram Raghubir and convicted him under Section 307 I.P.C. and sentenced with rigorous imprisonment for period of 4 years and fine of Rs. 1000/-. Feeling aggrieved the sole accused-appellant has preferred this appeal.
4. Heard Sri Akhilesh Kumar Pandey, Advocate for accused-appellant, Sri L. D. Rajbhar learned AGA and perused the record, paperbook as well as original record of trial court summoned in appeal.
5. Learned counsel for the appellant contends that appellant has been falsely implicated; that no recovery of the Farsa has been made from the the appellant; that the Farsa blow is alleged to have been caused from behind and so the injured who alleged to have gone unconscious, may not be able to see the assailant; that the appellant has been falsely implicated due to suspicion and old enmity; that there are material contradictions in the statements of prosecution witnesses; that the appellant is not alleged to have repeated the Farsa blow, which shows that he had no motive to cause death of injured Ram Raghubir; that it is not proved from the evidence on record that the alleged Farsa injury, allegedly caused by appellant was grievous in nature or could be dangerous to his life; that for causing single Farsa blow no offence u/s 307 I.P.C. is made out against him and his offence, if any, does not travel beyond Section 324 I.P.C.
6. He further contended that the incident in question is alleged to have taken place about 40 years back and the appellant was granted bail vide order dated 4.10.1982, about 36 years back; that, at the time of his statement under Section 313 Cr.P.C., the accused-appellant was aged about 21 years and after lapse of 36 years since then he has attained the age of 57 years; that, since the age of appellant is around 60 years, the sentence may kindly be reduced considerably or to the period of imprisonment already undergone and if Court finds proper fine may be enhanced.
7. Per contra, learned AGA supported the impugned judgment and order and contended that the prosecution case is fully proved from the evidence on record and there is no reason for false implication on accused-appellant; that, non-recovery of weapon of crime does not absolve the accused from liability of sentence; that the accused-appellant has caused grievous head injury to the injured Ram Raghubir, on account of which he was hospitalized by the Surgeon at Government Hospital, Rath, Hamirpur, as mentioned in his injury report Exhibit A-1, duly proved by Medical Officer PW-1; that in view of single Farsa injury if the offence of accused-appellant, is not found to be covered by Section 307 I.P.C., it is fully covered by provisions of Section 326 I.P.C.
8. Upon hearing counsel for both the parties, perusal of the record I find that learned trial court has analysed the prosecution evidence in detail and in view of the consistent statements of injured, first informant as well as eye-witness Ram Dulare, PW-4, 5 and 2, respectively, corroborated by medical evidence on record, the prosecution case is fully proved. There is no material contradictions in the statements of the prosecution witnesses except minor discrepancies which are natural.
9. Undisputedly single Farsa blow is alleged to have been caused by accused-appellant to injured Ram Raghubir, on account of which though he was admitted in the Hospital vide injury report Exhibit A-1, as stated by PW-1, but there is no supplementary report on record to show the period of hospitalisation or surgery if any, conduction on him. In absence of any supplementary report or other evidence the single injury may not be considered to be dangerous to the life of Ram Raghubir.
10. Moreover, in view of the fact that there was no repetition of Farsa blow by the appellant, it will not be correct to say that he made attempt on life of Ram Raghubir and his offence was covered under Section 307 I.P.C. or Section 326 I.P.C. In absence of any supplementary medical report as mentioned above I find that offence of appellant is covered by the the provisions of Section 324 I.P.C. and his offence does not travel beyond the scope of Section 324 I.P.C. The learned trial court has acted wrongly in convicting the appellant for the offence under Section 307 I.P.C.
11. Accordingly, the impugned judgment and order of conviction under Section 307 I.P.C. is liable to be set aside and appeal is liable to be partly allowed by converting the conviction from Section 307 to 324 I.P.C.
12. Considering the fact that (i) the incident in question had taken place about 40 years ago, (ii) the appellant was young enough at time of incident, (iii) he is on bail since 4.10.1982, since last around 36 years, (iv) he has reached from his twenties to sixties. (v) has remained in custody for few days, I find that it will be just and appropriate to sentence him with rigorous imprisonment for a period already undergone and with fine of Rs. 10,000/-, which will meet the ends of justice.
13. The appeal is partly allowed. The impugned judgment and order of conviction, convicting appellant for the offence under Section 307 I.P.C. is set aside and holding him guilty for the offence u/s 324 I.P.C. his conviction is allowed for the offence under Section 324 I.P.C. He is accordingly sentenced with rigorous imprisonment for a period already undergone and fine of Rs. 10,000/- and in case of default in payment of fine, with simple imprisonment for additional period of three months u/s 324 I.P.C.
14. The appellant is reported to be in custody since 30.07.2018, in furtherance of order of non-bailable warrants issued by this Court on 05.07.2018. He will be released forthwith on payment of fine unless wanted in some other case.
15. The material exhibits, if any, shall be disposed off after statutory period in accordance with rules.
16. Let lower court record be sent back to court below along with a copy of this order for necessary compliance.
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