- (1.) T. P. Garg, J. This appeal by Sewa Lai and Kashi, accused is directed against their conviction under Sections 307, 307/34, IPC and sentence to undergo rigorous imprison ment for four years each passed by Sri K. C. Singh, Ilnd Addl. Sessions Judge, Mirzapur vide his judgement dated 16-1-1990.
(2.) MEWA Lai and Sewa Lai, Kashi and Smt. Dhanpatiya accused were tried for offences under Sections 307, 307/34 and 109, IPC MEWA Lai and Smt. Dhanpatiya accused were acquitted. Sewa Lai accused was held guilty under Section 307, IPC while Kashi accused was held guilty under Section 307/34, IPC. Both of them were convicted and sentenced to undergo rigorous imprisonment for four years each vide the impugned judgement against which they have filed the present appeal. The case of prosecution as per report Ex. Ka-1 dated 15-12- 1977, made by Chhabbu Lai, complainant, is that his cousin Sewa Lai accused keeps his fuel and cow-dung cakes in his old house and lives separately in his newly constructed house; that on 15-12-1977 at about 5. 15 p. m. Smt. Dhanpatiya accused wife of Sewa Lai, accused had gone to her old house in order to bring some cow-dung cakes where she started abusing the sister of the complainant Smt. Phulawa. Thereupon, a verbal altercation and exchange of abuses took place between these two women. Phool Chand the younger brother of the complainant, asked Smt. Dhanpatiya accused not to abuse his sister, on which Mewa Lai accused exhorted that he should be killed. Thereafter, Sewa Lai accused armed with a spear and his son Kashi accused armed with lathi came running and both of them started belabouring Phool Chand with their respective weapons. Phool Chand fell on the ground. Chandra Bali PW 3 Ram Khelawan and others witnessed the occurence and rescued the injured. Subsequently, they took Phool Chand to the Hospital at Mirzapur where he was medically examined by Dr. Abdul Halim, who found a punctured wound 2 cm. x 1 cm. x cavity deepon sternum 2 cm. below sternum notch, besides an abrasion 5 cm. x 1/4 cm. on outside lower part of left thigh, oblique 8 1/2 cm. above left knee joint. The injured was admitted in the hospital, and referred to the Surgeon. According to the doctor, the injury was caused by some sharp pointed weapon like spear. The investigations were made by Sub-Inspector Gorakhnath Singh, PW 6. After completion of the investigations, the accused were sent up for trial as above. In the trial that followed, the prosecution examined as many as six PWs. viz. Chhabbu Lal PW 1, Phool Chand PW 2, Chandrabali PW 3, Dr. Abdul Halim PW 4, Brij Bhushan PW 5 and Sub-Inspector Gorakhnath Singh PW 6. In their statements recorded under Section 313, Cr. P. C. the accused denied the allegations and stated that it was a false case against them as the complainant wants to grab the Kotharis from them. In their defence, the accused have examined Ram Dular DW1.
(3.) THE trial Judge acquitted Mewa Lal and Smt. Dhanpatiya accused qua the charge while convicted Sewa Lal accused under Section 307, IPC and Kashi accused under Section 307/34, IPC and awarded the aforesaid sentence, vide impugned judgement, against which the present appeal has been filed. During the pendency of the appeal, the accused and Phool Chand injured filed an application stating that the parties have since compromised and so applicant accused be acquitted. A written compromise was also submitted along with this application. Vide order of this Court dated 4-8-1980 the Chief Judicial Magistrate, Mirzapur was asked to verify the compromise. The compromise has since been verified by the Chief Judicial Magistrate, Mirzapur. It was at the outset pointed out that the offence under Section 307, IPC being not compoundable, the prayer of the appellants supported by the prayer of injured cannot be allowed. This submission has considerable force. But then, it has to be seen whether the offence alleged to have been committed in the present case falls within the purview of Section 307, IPC or not. In this connection, the evidence of Dr. Abdul Halim PW 4 can well be referred. This witness medically examined Phool Chand at Sadar Hospital, Mirzapur. He found one punctured wound, as stated above. According to him, this injury was grievious. He has no where state that the injury No. 1 was dangerous to life or that the injury was in danger of death and would have died but for the medical aid. He has simply stated that he referred the patient to the Surgeon. The prosecution has not cared to examine the surgeon, who was perhaps the best witness to say about the gravity of the injury and danger to the life of Phool Chand. This witness was cross-examined quite at length on this point and he has again reiterated that the injury No. 1 was greivious. He goes on to say that he had referred the injured to the Surgeon, but the Surgeon did not give any opinion with regard to the nature of injury No. 1. He admitted that there is no finding on record on the basis of which he could authoritatively say that the injury No. 1 was simple or grievious. He rather added that he was not sure whether the injury No. 1 was simple or grievous. In view of this statement of Dr. Abdul Halim PW 4, it cannot be held beyond reasonable doubt that the injury No. 1 was even grievious what to talk of dangerous to life. Moreover the Surgeon who actually treated the injured has not been examined. He was perhaps the best witness who could have said as to whether injury No. 1 on the person of Phool Chand was actually dangerous to life or that he was in real danger of life without medical treatment. In the absence of there being any such evidence on record and Dr. Abdul Halim being not sure, on the basis of record available, whether the injury was simple or grievious, the benefit must be given to the accused. Consequently injury No. 1 on the person of Phool Chand would be treated as simple, having been caused by sharp pointed weapon. In this view of the matter, the offence will fall under Section 324, IPC and not under Section 307, IPC.;