SURAJ MAL Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) Learned counsel for the appellant has confined his argument only to the extent that in view of the evidence on record, the conviction of appellant Surajmal under Sec. 326, IPC cannot be sustained and is liable to be quashed. At the most, the evidenqe discloses the offence under Section 324, IPC. Learned counsel argued that according to injured himself, appellant Surajmal inflicted one 'Gandasi' blow on his head, whereas the injury report discloses two injuries, one on forehead and another on occipital and parietal region, with fracture of parietal bone. Both the injuries have been stated to be grievous in nature. In this background, learned counsel contended that there is no evidence to show as to which of those two injuries was given by appellant. In support of his argument, learned counsel, has relied upon a decision of the Apex Court in Ram Lal v. Delhi Administration (AIR 1972 SC 2462 : (1973 Cri LJ 17), wherein their Lordships have observed as under : Since the evidence clearly discloses that two lathi blows had been given on the head and there is no evidence which of these two was given by the appellant, the benefit of doubt must go to him. He may have given the fatal blow or he may have given the blow which did not prove fatal"

(2.) I have given my thoughtful consideration to the above argument and gone through the evidence and material on record. P.W, 2 injured Chhotu Lal has categorically deposed in his examination in chief that appellant Surajmal inflicted a Gandasi blow on his head, while another appellant inflicted 'Gandasi' blow on his left hand. P.W. 1 Bajranglal, an eye-witness of the incident has also deposed that appellant Suraj Mal inflicted Gandasi blow from its front side on the head of Chhotulal. P.W. 3 Kami Chand, brother of injured, who reached the place of incident on hearing the cries of his brother has deposed that the appellants and other accused had encircled his brother who was lying on the earth and the accused were belabouring him. Appellant Surajmal had a Gandasi, while others had axe with them. All these accused were belabouring his brother. Similar is the statement of P.W. 4 Radhey Shyam another brother of injured. It is thus evident that none of the eye-witnesses including injured himself has been able to specifically state that as to on which part of the head of injured the appellant struck 'Gandhasi' below. The injury report Ex. P5 discloses injury No. 2 i.e. incised 'wound of about 5" x .3/4" x 3/4" on frontal bone of forehead of skull and injury No. 2 i.e. incised wound of about 4" x 3/4" x 3/4"on occipital parietal bone of skull. Both the injuries have been described as grievous. The X-ray plates are Exs. 6 and 7, according to which there was fracture of parietal bone. P.W. 6 Dr. Naveen Saxena who has described both the injuries as grievous has not been able to explain as to how the fracture of parietal bone would result in making the Injury on frontal bone as grievous. Since, the evidence clearly discloses that there were two injuries on the head of injured and there is no evidence as to which of those two injuries was caused by the appellant, inasmuch as the appellant had struck a single blow on the head of injured, appellant Suraj Mal cannot be held responsible for causing fracture of parietal bone and hence his conviction under Section 326, IPC cannot be sustained and is liable to be set aside. Instead, he is liable to be convicted for offence under Sec. 324, IPC,

(3.) On the question of sentence, learned counsel for the appellants contended that appellant-deserves to be extended the benefit of Probation of Offenders Act, inasmuch as he is 65 years of age by now and has been facing prosecution for last more than 24 years and that co-accused has also been extended the benefit of Probation of Offenders Act by the learned trial Court.