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CASE NO.: Appeal (crl.)  1390 of 2007

PETITIONER: Bishan Singh & Anr

RESPONDENT: The State

DATE OF JUDGMENT: 09/10/2007

BENCH: S.B. Sinha & Harjit Singh Bedi

JUDGMENT: J U D G M E N T [Arising out of S.L.P. (Crl.) No. 2273 of 2007]

S.B. SINHA, J :

1.      Leave granted.

2.      Bishan Singh son of Bachchi Singh and Govind Ballabh son of  Krishnanand, the two surviving accused, who were tried and convicted for  commission of an offence under Sections 147 and 308/149 of the Indian  Penal Code (IPC) are before us; the other four accused, namely, Arjun  Singh, Shivraj, Govind Singh and Bhairav Dutt having expired.   

3.      One Harish Bhatt was the complainant.  On 30.09.1984 at about 06.30  p.m. when he was going towards his village, the accused persons allegedly  assaulted him with lathis and took out a sum of Rs.400/- from his pocket.   His brother Ghanshyam Dutt Bhatt intervened.  It was alleged that the  accused persons were inimically disposed of towards the injured and had  attacked him with an intention to cause his death.  The injuries suffered by  Harish Bhatt as per the injury report prepared by Dr. J.S. Pangti (PW-6) are  as under :

\0231.  Lacerated wound 3 cm x 1 cm on scalp at  right parietal region, 14 cm above the right  eye-brow.  Scalp deep.  Fresh bleeding  present.     

2.      Lacerated wound 5 cm x = cm x scalp deep  on scalp, at right parietal area, 19 cm above  the right eye-brow.

3.      Lacerated wound 3 cm x < cm x skin deep,  4 cm above the right eye-brow at right  forehead, 6 cm x 7 cm swelling around the  wound.

4.      Abrasion 1 cm x = cm, at upper lip, 3 cm  from the right angle of the mouth.

4/1     Abrasion 1 cm x = cm at lower lip right  angle of mouth.

5.      Contusion mark 10 cm x 5 cm above right  shoulder reddish in colour.  Swelling 2 cm  around the wound.

6.      Contusion mark 6 cm x 6.5 cm on above and  front and middle of left arm, 13 cm below

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the shoulder joint 1 cm swelling around the  injury.

7.      Contusion 12 cm x 10 cm at fore-arm, 8 cm  from the left wrist joint = cm swelling  around the injury.

8.      Complain of pain in both lower legs and  thigh, but no injury seen.\024

4.      Admittedly, all the injuries except injury no.7 were simple ones.   Injury No. 7 being a fracture with dislocation of wrist joint was found to be  grievous one.  The injured witness examined himself as PW-5.  In his  deposition, he alleged :

\023\005I used to stop the accused from fighting with the poor  people and I was witness against the accused persons in  the litigation  between Shanti Joshi and accused persons.   That is why the accused beat me.  My head was  wounded.  My kurta was full of blood and seizure report  of kurta had been made in the hospital\005\024

5.      The learned Trial Judge relying on or  on the basis of the testimonies  of the said witness as also his brother, convicted the appellants for  commission of an offence under Sections 147 and 308/149 IPC and  sentenced them to undergo rigorous imprisonment for one year for the  offence punishable under Section 147 IPC and rigorous imprisonment for  four years for the offence punishable under Section 308/149 IPC.

6.      Although in the First Information Report, the informant had alleged  that all the six accused had earlier threatened to kill him as also burn his hut  and the said attack was with an intention to kill him, but the offence  recorded therein was under Sections 147 and 323  IPC.  The charge-sheet  was, however, submitted, inter alia, under Section 308 IPC.

7.      We have noticed hereinbefore that in his deposition PW-5 stated about  the existing enmity between the parties.  It does not appear from his  deposition that he had made any statement  to the effect that the accused  had  attacked him with an intention to kill.  The learned Trial Judge in his  judgment solely relying upon the allegations made in the First Information  Report opined that a case under Section 308 IPC was made out.   

8.      Interestingly, the learned Trial Judge observed that the charge  under  Section 308 IPC read with Section 149 thereof was proved, because the eye- witnesses had clearly sated that they were armed with lathis.   

9.      The learned Trial Judge did not notice the ingredients of Section 308  IPC which provides for existence of  an intention or knowledge.

10.     The High Court also dismissed the appeal, opining :                                  \02333. From perusal of record it has been  established that the intention of the accused persons was  to commit culpable homicide.  They had enmity with the  injured Harish Bhatt.  Threats were also given to him by  the accused persons to ruin his life.  PW-4, Ghanshyam  Dutt has clearly stated that when he reached at the spot  he saw that the accused persons were beating the injured  recklessly with Lathis-Dantas.  Injuries were also caused  on scalp.  Looking to the seat of injuries and the fact and  circumstances of the case the prosecution has been able  to prove the offence u/s 308/149 IPC against the accused  persons.  The finding of the trial court is just and proper

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and need no inference by the appellate court.\024   

11.     Before an accused can be held to be guilty under Section 308 IPC, it  was necessary to arrive at a finding that the ingredients thereof, namely,  requisite intention or knowledge\022 was existing.  There cannot be any doubt  whatsoever that such an intention or knowledge on the part of the accused to  cause culpable homicide is required to be proved.  Six persons allegedly  accosted the injured.  They had previous enmity.  Although overt-act had  been attributed against each of the accused  who were having lahtis, only  seven injuries had been caused and out of them only one of them was  grievous, being  a fracture on the arm,  which was not the vital part of the  body.

12.     The accused, therefore, in our opinion, could not be said to have  committed any offence under Section 308 IPC.  The same would fall under  Sections 323 and 325 thereof.

13.     The question now is what punishment should be awarded.

14.     While imposing punishment in a case of this nature, the court is  required to take into consideration  the factors which may weigh with the  court for taking a lenient view in the matter.  The incident is of 1984.  23  years have elapsed.  Appellants had all along remained on bail.  It is not  stated that they had ever misused the privilege of bail.  The incident does not  reflect any cruelty on their part or any mental depravity. They had been in  custody for more than five months.  In a situation of this nature, we are of  the opinion that it may not be proper for this Court to send the accused  persons back to prison.  However, the injured had suffered pains at the hands  of the appellants.  We are, therefore, of the opinion that while their  substantive sentence may be  reduced to the period undergone, they should  pay a fine of  Rs. 15,000/- (Rupees fifteen thousand) each; failing which  they should undergo simple imprisonment for a period of one year each.  If  the aforementioned amount is realized, a sum of Rs. 25,000/- (Rupees  twenty five thousand) out of the sum, may be paid to the informant. 15.     Appellants who are in custody shall be released forthwith, if not  required in connection with any other case, subject to the aforementioned  conditions.

16.     The appeal is allowed to the aforementioned extent.