ATUL CHANDRA DASS Vs. STATE

JUDGEMENT

(1.) By the present appeal the Appellant lays a challenge to the judgment dated 15th July, 2009 convicting the Appellant for offence punishable under Section 307 IPC and the order on sentence dated 18th July, 2009 directing him to undergo Rigorous Imprisonment for seven years and to pay fine of 3,000/- and in default of payment of fine to further undergo Simple Imprisonment for three months.

(2.) Briefly the prosecution case is that one Mansoor and the Appellant were working as waiters in the marriage parties etc. with one contractor Guddu and they used to sleep in Rain Basera. On 1st May, 2006 a quarrel ensued between the Appellant and Guddu when the Appellant demanded 200 from him as he had received the payment from the owner. The Appellant was under the influence of alcohol and when they tried to make the Appellant understand, they were sent out from the Rain Basera by its in-charge. Outside the Rain Basera, they again had a quarrel and the Appellant took out a surgical blade from the dub of his pant and gave injury on the front side of the neck of Mansoor. The Appellant was overpowered when he was trying to run away with the help of three more persons who were passing by and was handed over to the police persons who were present patrolling there. After the investigation, charge sheet was filed and after examination of the prosecution witnesses and Appellant under Section 313 Code of Criminal Procedure the Appellant was convicted as above.

(3.) Learned Counsel for the Appellant contended that there are material contradictions in the testimony of PW1 Mansoor. Despite of his being injured and suffering from a dangerous injury, he had sufficient energy to hand over the Appellant to the police. The Appellant allegedly asked for money from Guddu and thus, there was no reason why he would have inflicted injury on PW1 Mansoor, leaving aside PW2 Guddu. Though PW1 Mansoor in his examination-in-chief says that after apprehending the accused with the help of Guddu and two three more persons who were passing by from that place, the accused was handed over to the police, however, in his cross-examination he says that the police met him in the hospital. PW1 has further stated that PW2 Guddu was their contractor whereas PW2 Guddu states that PW1 Mansoor was their head. Despite number of public persons having collected and allegedly apprehending the Appellant, no public person was examined as a witness. Since the Appellant was admittedly heavily drunk, no intention to kill can be attributed to him. As per the MLC, PW1 Mansoor was taken to the hospital by PW2 Guddu and the alleged history of assault is by an unknown person. As PW2 had taken PW1 to the hospital, he should have named the Appellant as the assailant since he knew the Appellant. The injury was opined to be grievous after 21 days. Even as per the prosecution case, the fight was at the spur of the moment and the Appellant was not the aggressor. PW4 has not deposed about the recovery of surgical blade and in his cross-examination states that no proceedings took place in his presence except the arrest memo being prepared. The version of PW5 Constable Rajesh who allegedly saw the incident that two boys were quarreling and grappling with each other and gave a surgical blade to ASI Vijay Kumar from the right side pocket of his pant and that of PW4, Constable Suryakant who had reached at the spot of the incident with SI Vijay Kumar and has deposed that the Appellant has allegedly produced a blade before PW11 SI Vijay Kumar from the right side pocket, are highly improbable. In case the Appellant was still grappling with PW1 or PW3 when PW5 saw them, then there was no occasion for the Appellant to have put the blade in his pocket. The witnesses have stated that the blade was blood stained however, as per the CFSL report Ex.PW11/B blood was not detected on the surgical blade. The Appellant also received injury and there is failure to explain the injuries on the Appellant by the prosecution. Reliance is placed on Provincial Government C.P. and Berar v. Abdul Rahman s/o Ubehdulla Musalman, 1943 AIR(Nag) 145, to contend that injury on chest by knife itself is not sufficient to prove the requisite intention or knowledge contemplated in Section 307, IPC. Relying on Prabhu v. State of Karnataka, 2001 CrLJ 1427. it is contended that the Courts must guard against half baked unprofessional opinions that are based on a very unrealistic and immature knowledge of medical science. In the present case though the MLC states that the patient was conscious and the blood pressure was normal however, he was still declared unfit for statement which strongly casts a doubt upon the true opinion. No opinion of the doctor has been sought whether the injury caused could result in death and thus, no conviction under Section 307 IPC is warranted. Reliance is placed on Kulamani Sahu and Anr. v. State of Orissa, 1994 CrLJ 2245 wherein the conviction under Section 307 IPC was altered to one under Section 326 IPC as there was no medical evidence to show that the act of throwing acid on face and eyes of the injured would have caused death. Simply because the injury has been caused on the vital part and the weapon used is sharp, the same is not sufficient to bring the offence under the ambit of Section 307 IPC as reported in State of Punjab v. Bant Singh and Anr., 1996 CrLJ 3886. Relying on Tukaram Gundu Naik v. State of Maharashra, 1994 CrLJ 224 (SC) and Dharma Pal v. State of Punjab, 1993 CrLJ 2856 (SC) it is contended that even if the Appellant is convicted for an offence punishable under Section 307 IPC, the sentence awarded to him is extremely high as he has been awarded a punishment of Rigorous Imprisonment for seven years. Thus, the Appellant be either acquitted or released on the period of imprisonment already undergone.