KAILASH Vs. STATE THROUGH PS HIRANAGAR INDORE

JUDGEMENT

(1.) THE appellants accused have preferred this appeal under Section 374 of the Cr.P.C. being aggrieved by the judgment dt. 26.5.1999 passed by VIIth Additional Sessions Judge Indore, in S.T. No.192/1998 whereby each of them have been convicted and sentenced under Section 326/34 of the IPC for RI 3 years with fine of Rs. 500.00 with stipulation of further imprisonment in default of depositing the fine amount.

(2.) THE facts giving rise to this appeal in short are that on dt. 20.2.1998 at about 4.30 PM one Jagdish s/o Sitaram the complainant gave some information to the Police Officer of Police Station Hiranagar on which such Police Officer has drawn a Dehati Nalishi which was signed by the complainant, on which the Crime No.18/1998 for the offence under Section 307 read with Section 34 of the IPC was registered against two unknown person at Police Station Hiranagar. As per averments of such Dehati Nalishi and FIR on dt. 20.2.1998 in order to marry with the daughter of one Kanhaiyalal some baarat came to the place of the incident. During ceremony of such marriage, some of the baarati were dancing in the pandal of the marriage. During such dance some quarrel took place amongst the persons participating in the dance of which to subside such quarrel, the victims Santosh and Dinesh went to the pandal and at that time, they were subjected to blow of the knife and bottle, resultantly, Dinesh sustained the grievous injury on his back while Santosh suffered the grievous injury in his stomach. They were taken to the Hospital where their MLC report were prepared and the treatment was provided. As per opinion of the doctor the injuries sustained by the victims were sufficient to cause death in ordinary course of the nature if the same was not treated within time. During investigation on recoding the case diary statement of the victims and other witnesses, the name of the appellants as assailant of the incident were revealed. On completion of the investigation, both the appellants were charge sheeted for the offence of Section 307 read with Section 34 of the IPC.

(3.) SHRI Rajesh Chauhan, learned appearing Counsel of the appellant after taking me through record includes the evidence led by the prosecution as well as the impugned judgment argued that initially the Dehati Nalishi on which the FIR was registered was lodged against the unknown assailant and the name of any of the appellant as culprit was not stated in such report and subsequently on recording the interrogatory statement of the witnesses the appellants have been falsely implicated in the matter. In continuation he stated that as per depositions of the victims viz. Santosh PW-1 and Dinesh PW-2 the name of the assailants were shown to them by one Kanhaiyalal PW-6 but on recording the deposition of such Kanhaiyalal, he has not supported such version of the victims so in this back ground the testimony of the victims against the appellants could not be relied on and such material inconsistency and discrepancy was sufficient to draw inference that the appellants have been falsely implicated in the matter. He further said that on proper appreciation of the evidence the alleged case of Section 326/34 of the IPC is not made out against any of the appellants. In continuation he also said that in any case on proper appreciation of the material available on record and looking to the nature of the injuries sustained by the victims this was not the case of more than Section 324 of the IPC because in the available circumstances it could not be deemed that any alleged injury was sufficient to cause death of the victims in ordinary course of the nature. As such the same could not be treated to be the grievous in nature. The same was only a simple injury and in such premises, the conviction of the appellants under section 307/34 of the IPC requires modification into section 324/34 of the IPC and prayed for the same. He also said that after such modification or even affirming the impugned conviction, taking into consideration that the appellants have already suffered the mental agony of this case for 14 years and besides they have also suffered the judicial custody nearabout 12 days by adopting the lenient view instead of sending them again to jail their awarded jail sentence be reduced up to the aforesaid period for which they have already undergone by imposing or enhancing some amount of fine under the discretion of the Court by allowing this appeal.