GANESH LAL Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) This is an appeal against the judgment of the learned Additional Sessions Judge, Udaipur dated 28.2.78 whereby the learned trial court has acquitted the accused persons Sunder Lal and Sharafat Khan of all the offences with which they were charged, but has convicted accused Ganesh Lal of offence under Section 326 I.P.C. and has sentenced him to undergo four years rigorous imprisonment together with a fine of Rs. 500/-. In default, he has been ordered to undergo simple imprisonment for two months. It has further been ordered that if the amount of fine is recovered, Rs. 300/- out of this recovered amount of fine shall be paid to injured Ramesh as compensation. The facts necessarily to be noticed for the disposal of the appeal briefly stated are that on 12.5.76, at about 12.30 in the day injured Ramesh Chandra was sitting in his floor mill at Bhopalpura. He was talking to one Abid Ali who is his neighbour. All of a sudden, accused Ganesh Lal, milk vendor, his brother Sunder Lal and Ganesh Lals friend Sharafat alongwith 8-9 other persons came there. Only Ganesh Lal, Sunder Lal and Sharafat entered into the floor mill of Ramesh and started beating him. Ganesh Lal was armed with a knife. Sunder Lal was armed with an iron shaft and Sharafat was having an iron chain with him. Ganesh Lal thurst his knife into the stomach of Ramesh. At that point of time, Rameshs brother Raju, Amar Singh. Kothari, Man Singh etc., arrived at the scene of the occurrence. The accused persons thereafter left in a huff, leaving behind their cycle, iron chain, cloth bag etc. Condition of Ramesh deteriorated. He was, therefore, shifted to the hospital where his injuries were examined and he was operated.

(2.) Written report of the incident was lodged at P.S. Bhopalpura by one Abid Ali which has been marked Ex. p. 2. The injury report which also contains the operation notes has been marked Ex. P. 4. Formal F.I.R. recorded on the basis of the Ex. p. 2, has been marked Ex. P.5. Sight inspection memo which also contains plan has been marked Ex. P. 7. Blood stained clothes of Ramesh were seized vide seizure memo Ex. P.8. The cycle chain and cloth bag etc. were seized vide seizure memo Ex. P. 9. The accused was arrested. At his instance knife was recovered from his possession. The blood stained clothes and knife were sent for medical and serological examination by S.P. Udaipur with a letter marked Ex. P. 6. Medical and Serological reports received in the case have been marked Ex. P. 10 and Ex. P. 11 respectively. After the usual investigation, the case against the three accused persons was challenged in the court of Munsif and Judicial Magistrate I class, Udaipur, from where it was committed for trial to the Sessions Judge, Udaipur. The learned Sessions Judge transferred this case for trial to the court of the Additional Sessions Judge, Udaipur. Accused Ganesh Lal was charged with offences under Sections 148, 449,307, 326 and 323 I.P.C. Other accused persons were also charged with number of offences need not mentioned out because they have been acquitted of all the charges framed against them. Accused Ganesh Lal has been acquitted of the offences under Sections 147, 449, 307 and 323 I.P.C. He has, however been held guilty of the offences under Section 326 I.P.C. and hence this appeal by Ganesh Lal alone.

(3.) I have heard Mr. Mahaveer Chand Bhandari for the accused appellant and Mr. B.C. Bhansali, public prosecutor for the State. I have also meticulously gone through the records of the case. The learned lower court felt that the case against two companions of Ganesh Lal put forth by the prosecution at the trial is doubtful. According to the learned lower court five or more than 5 persons did not participate in the crime and therefore the offence of rioting was not proved against the accused appellant. It only held that the knife blow was inflicted by Ganesh Lal in the stomach of Shri Ramesh and therefore it has held accused Ganesh alone guilty of the offences under Section 326 I.P.C. The injury inflicted by Ganesh was appeared to be dangerous to life as per the testimony of Dr. Dangi. This injury in stomach was not likely to cause death and therefore the accused has been acquitted of the offence under Section 307 I.P.C. The injury being grievous by the sharp weapon, the accused has been held guilty of causing a sharp weapon injury which is dangerous to life and as such provision eighthly of Section 310 I.P.C. is attracted which is punishable under Section 326 I.P.C. The learned counsel of the accused appellant recorded by the learned trial court under section 326 I.P.C. From the testimony of the P.W. Ramesh Chandra P.W. 2 Abid Ali, it is clear that this injury was inflicted by Ganesh Lal with a knife in the epigastria region of Ramesh Chandra. The size of the injury was 11/2 into 1/4 into cavity deep obliquely placed over the upper part of epigastria. On operation of this wound following pathology was observed by Dr. Dangi: - 1/2 long transverse in direction. Sharp injury in the epigastria 1/2 below the ziphoid process penetrating all layers of abdomen upto liver anterior superior surface; 1/2 depth paritorial cavity containing blood.T