KALU Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) THIS appeal arises out of judgment dt. 01-04-83 passed by Addl. Sessions Judge, Gangapur City in Sess. case No. 22/82, whereby appellant Kalu has been convicted u/ss. 307, 452 and 323 IPC and sentenced him to undergo 1/1-2 years' RI with fine of Rs. 500/-; 6 months RI with fine of Rs. 200/-; and only fine of Rs. 500/- under the aforesaid counts respectively.

(2.) IN the F. I. R. it had been alleged that he appellant was having sword at the time of incident and he caused injuries on the person of injured Bishanpal who was medically examined during which injuries were found to have been caused by blunt object. However, during trial the prosecution changed its earlier version and the witnesses deposed that the injuries on the person of Bishanpal have been caused by lathi taking the aid of the afore- narrated circumstnaces, learned counsel for the appellant contended that since the prosecution changed its case after preparation of the injury report, at best the appellant could be convicted under Sec. 325, IPC. However, it cannoi be held that the appellant had any intention to commit murder of Bishanpal. Had he such intention then as per the facts stated in the F. I. R. itself, he had sword in his hand and he could have used sword. But, awoka at the injury report shows that it does not denote any abnormality due to the injuries on the injured person, rather condition of the injured at the time of the medical examination was normal. Only one injury on the head is attributed to the present appellant. Two injuries on the head were found on the person of the injured. INjury attributed to the appellant and allegedly caused by the lathi, on the head is found to have been sustained by blunt object. So, having regard to the circumstances of the case and the nature of the injuries caused by the appellant, I am unable to agree with the trial court that the case falls under Section 307 IPC. There is no evidence of any intention on the part of the appellant either to cause murder of the injured or cause such injuries of which he could have the knowledge, that it was likely to cause murder albeit it cannot be doubted that the appellant had an intention to cause grievous hurt to the injured by lathi. Thus the offence falls under Section 325 IPC and not u/s 307 IPC. Since the offence for which the appellant is found guilty as above, has been committed in the house of the injured, in any view, he has rightly been convicted under Section 452, IPC and for other injuries found on the person of the injured, which were simple and attributed the appellant he was rightly convicted u/s 323 I. P. C. His conviction u/ss 323 and 452 IPC cannot be held to be perverse or based on no legal evidence.