MANGI LAL Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) THIS appeal is directed against the judgment of learned Sessions Judge, Jhalawar, dated 18th Sept., 1981, whereby he convicted the accused -appellant for offence Under Section 326 and 324 IPC and sentenced to undergo 3 years' rigorous imprisonment and a fine of Rs. 500/ -, in default of payment of fine to further undergo 3 months' rigorous imprisonment for the aforesaid offences respectively. Both the sentence were directed to run concurrently.

(2.) ONE Poora (PW 1) injured -complainant lodged an FIR at the police station, Piwada at 8.00 p.m. on 10th September, 1978 alleging that his daughter Geeta was married to the accused -appellant, Mangilal about a decade earlier but after the marriage the accused appellant was ill treating her and giving casual beating also. It was alleged that due to the harassment she voluntarily left her husband's house and came to the house of the complainant father about 20 days prior to the date of occurrence. On the date of occurrence, i.e. on 10th September. 1978 at 4.00 p m. when the complainant Poora went to his field for seeing maize crop accused -appellant Mangilal who was lying in ambush with a naked sword, attacked him as a result of which be sustained 3 injuries on his person. On his raising an alarm Onkarlal and Deva are alleged to have appeared on the scene of occurrence who are also cited as eye -witnesses. On receipt of the report the police registered a case for offence Under Section 307 IPC and investigated the case. After completing the investigation a charge -sheet for offence Under Section 307 IPC was submitted against the accused appellant. He was committed to the court of Sessions for trial where on 5th November, 1979 a charge for offence Under Section 307 IPC was read over to him to which he denied and claimed to be tried.

(3.) THE learned Counsel for the appellant submits that none of the eye -witnesses mentioned in the FIR, namely, Onkar and Deva corroborated the statement of Poora injured in the manner alleged by him. It is submitted that the accused appellant was father -in -law who had forcibly brought his daughter, i.e., wife of the accused appellant and he had come to take her back but Poora did not allow his wife to go with him and on the contrary he was giving beating. In these circumstances it is submitted that even if the accused inflicted injuries the offence would not travel beyond Section 335 IPC, i.e, foe causing grievous hurt as a result of sudden and grave provocation It is submitted that other eye -witnesses have been examined in the casa by the prosecution who had not been named in the FIR, namely, Rai Singh, Bhuwana and Amra. It is also submitted that alteration of the charge in the manner done by the learned Sessions Judge has caused prejudice to the case of the accused appellant and no proper opportunity has been given to him for cross examining the Doctor regarding the case Under Section 326 IPC and the compliance of Section 235(2) Cr. PC has also been done mechancally. Lastly it is submitted that in the circumstances of the present case where there is very minor fracture sustained by the complainant and that the incident had taken place 11 years before, it would be a travesity of justice to send the accus ed -appellant to jail again, particularly when he has already remained in jail for about 40 days during investigation and after the judgment passed by the trial court.