PRADEEP KUMAR ALIAS PINKU Vs. STATE

JUDGEMENT

(1.) THIS appeal is directed against the judgment of the learned additional Sessions Judge No. 2, Kota whereby the accused appellant was convicted for offence under Section 307 of the IPC and was sentenced to undergo rigorous imprisonment of eight years with a fine of Rs. 50/-and in default of payment of fine to further undergo rigorous imprisonment of one month.

(2.) FACTUAL matrix of the case are that one Smt. Ayodhya Bai submitted a written report on 1-12-1982 to the Police Station kaithooni Police inter alia alleging therein that at about 7. 30 PM on that date she along with her sister's daughter Vimla and son kishan has gone to see the Dusshera Mela. When they reached near Shripura Bus stand, Pradeep @ Pinku, the present petitioner, Chotya, Afzal and Assu approached them from behind. Chotya, Afzal and Assu caught hold of Kishan and accused appellant Pradeep caused to him injuries by knife which he had carried in his pocket. Kishan received three injuries on his person. It was alleged that Ismile and two other persons who were there, intervened and saved him. There was previous enmity between the parties because Kishan's sister was married to pradeep's elder brother who had since left her. On receipt of the written complaint, a regular first information report was chalked out for offences under Sections 307, 34 and 304 IPC. Police upon investigation filed challan against three accused namely pradeep Kumar, the present appellant, chotya and Assu. Their prosecution ultimately led to conviction of only one of them, the other accused being acquitted. It is that conviction which is under challenge in the present appeal.

(3.) SHRI Vijayant Nirwan, learned counsel for the appellant has argued that the trial court erred in law in convicting the accused appellant solely on the testimony of PW-4 smt. Vimla Devi, PW-7 Smt. Ayodhya Bai and PW-8 Kishan. Their statement however do not inspire confidence and therefore they cannot be believed. The prosecution has changed its stand from the first information report when the statement of its Witnesses were recorded in the Court. PW-4 Smt. Vimla devi stated in the cross examination that when she saw accused persons running and found her brother Kishan lying unconscious on the ground and it was then that she raised hue and cry. This clearly implies that she was not the eye witness of the incident. Contradictions made in the statement further indicates that she was not at all present at the time of occurrence. Smt. Ayodhya Bai, was also not present because she has also in the same fashion made number of contradictions. The injured PW-8 Kishan has also not remained consistent in his statement and has made number of improvements from initially disclosed prosecution story. The learned trial Court has erred in law in drawing corroboration from the statement of PW-6 Babbu, who is not an eye witness. Shri Vijayant Agarwal, learned counsel further argued that even if what is stated by all these witnesses is accepted, the charge against the accused appellant cannot be proved beyond Section 308, IPC. Learned counsel in this connection referred to the statement of PW-13 Dr. Y. K. Sharma, the medical Jurist and argued that this witness has clearly stated that he reserved his opinion about three injuries, two of which were stab wound and one was incised wound, until after operation and X-ray. X-ray indicated that there was no bone injury in the chest, skull and there was no air pocket even under the dypragum. This witness though proved the injury report Exhibit P-12 but has stated that he merely opined the injuries to be dangerous to life. On this part of the statement, the learned counsel sought to develop two arguments; firstly that the pw-13 Dr. Y. K. Sharma has stated that he opined about the injuries being dangerous to life on the basis of operation note and bed head ticket but he has admitted in the cross examination that the bed head ticket was not exhibited on record. Secondly, the opinion is only to the effect that injuries Nos. 1 and 2 were dangerous to life, but there was no categorical opinion that these injuries were sufficient in the ordinary course of nature to have caused death of the injured Kishan. Learned counsel therefore submitted that in the, circumstances, the maximum that should be taken as proved against the accused appellant would be offence under Section 308 and not 307. Reliance in this connection is placed on the judgments of this Court in Sua, Lal v. The State of Rajasthan 2008 (2) WLC 614, Munna v. State of Rajasthan 1984 Cr. L. R. (Raj.) 529 and Division Bench judgment of this Court in Jodh Singh v. State of Rajasthan 1984 cr. L. R. (Raj.) 730. ,