GARG, J. - (1.) THIS appeal has been filed by the accused appellant, who is in jail. , against the judgment and order dated 4. 10. 2000 passed by the learned Additional Sessions Judge No. 3, Jodhpur in Sessions Case No. 18/2000, by which he acquitted the accused appellant for the offence under sections 326/34 and 324/34, but convicted him for the offence under sections 392 read with Section 397 I. P. C. , 307, 326 and 324 I. P. C. and sentenced in the following manner: Name of accused appellant Convicted under Section Sentence awarded Sunil 392 read with 397 IPC. Seven years RI and to pay a fine of Rs. 100/-, in default of payment of fine, to further undergo three months imprisonment. 307 IPC Five years RI and to pay fine of Rs. 100/-, in default of payment of fine, to further undergo 3 months imprisonment. 326 IPC Three years RI and to pay fine of Rs. 100/-, in default of payment of fine, to further undergo 3 months imprisonment. 324 IPC One year RI. All the above substantive sentences were ordered to run concurrently.
(2.) IT arises in the following circumstances: On 28. 3. 2000 at about 9. 15 a. m. , PW-8 Kamal Kishore lodged a written report Ex. P/18 before PW-6, Bhagwanaram, SHO, Mahamandir Police Station, Jodhpur stating inter-alia that he lived in Jodhpur as a tenant in the house of one Kamal Kishore Gattani and he had a shop of sweets near Mandore Krishi Mandi, Jodhpur and the supervision of goods pertaining to shop was being done by him in the lower portion of house where he lived and he used to live in the upper story. IT was further stated in the report that on 28. 3. 2000 early in the morning at about 6. 30 a. m. , he heard the sound of knocking the door and he asked his wife PW-1 Nirmala to see who was knocking the door and, thereafter, he went to sleep. IT was further stated in the report that after 15-20 minutes, he heard the cries of his wife PW-1 Nirmala and, therefore, he went to open the door, but he found that door was closed, but he heard the cries of his wife PW-1 Nirmala, who was saying that Sunil (present accused appellant) has killed her. Thereafter, he himself started crying and then he heard the noise of starting scooter and then, door was opened and he found his wife PW-1 Nirmala lying on the ground outside the room having blood on her body and on being asked, she told him that accused appellant Sunil and another accused Prakash knocked the door and she opened the door and, thereafter, she went for natural call in the bath room and when she came back from the bath room, she saw accused appellant Sunil and another accused Prakash coming down from the stair-case and she saw the bag, in which money of the shop used to remain, in their hands and seeing her, accused Prakash asked present accused appellant Sunil that this lady PW-1 Nirmala should be killed and, thereafter, accused appellant Sunil took out the knife from his pocket and gave knife blows to her and, thereafter, she cried and in the meanwhile, accused appellant Sunil and his associate Prakash ran away alongwith the bag, which contained near about Rs. 20 or 21,000/ -. On this report, police registered the case and chalked out FIR Ex. P/19 and started investigation. IT may be stated here that since co-accused Prakash was below 16 years of age. therefore, his case was being tried separately by the Juvenile Court and not alongwith the present accused appellant Sunil. During investigation, the accused appellant was arrested on 28. 3. 2000 through Ex. P/22 and the accused appellant gave information to the police to the effect that he could get recovered knife and in pursuance of that information, he got recovered one knife through Ex. P/14. The accused appellant further gave information to the police to the effect that he could get recovered the money, which is alleged to have been stolen away by him and in pursuance of that information, he got recovered the money through Ex. P/16. PW-1 Nirmala was got medically examined by Dr. Jagdish, PW-3 and her injury report is Ex. P/12, which shows that she received as many as six injuries on her person and her X-ray report is Ex. P/11, which has been proved by PW2 Dr. A. L. Chauhan, who has stated that injury No. 3 of PW1 Nirmala was found grievous one as there was evidence of fracture in 3rd rib on left side. After usual investigation, the police submitted challan against the accused appellant in the court of Magistrate, from where the case was committed to the Court of Session. Thereafter, the case was transferred to the court of Additional Sessions Judge No. 3, Jodhpur. On 10. 5. 2000, the learned Addl. Sessions Judge No. 3, Jodhpur framed charges against the accused appellant for the offence under Sections 307, 392 read with 397, 326, 324, 326/34 and 324/34 IPC. The charges were read over and explained to the accused appellant. The accused appellant denied the charges and claimed trial. During trial, the prosecution in support of its case examined as many as 14 witnesses and got exhibited some documents. Thereafter, statement of the accused appellant under Section 313 Cr. P. C. was recorded. In defence, one witness was produced by the accused appellant. After conclusion of trial, the learned Addl. Sessions Judge No. 3, Jodhpur through his judgment and order dated 4. 10. 2000 acquitted the accused appellant for the offence under Section 326/34 and 324/34, but convicted him for the offence under Sections 307, 326, 324 and 392 read with 397 IPC and sentenced in the manner as indicated above holding inter-alia that the prosecution has proved its case beyond all reasonable doubts against the accused appellant for the offence under Sections 307, 326, 324 and 392 read with 397 IPC. Aggrieved from the said judgment and order dated 4. 10. 2000 passed by the learned Addl. Sessions Judge, No. 3, Jodhpur, this appeal has been filed by the accused appellant. In this appeal, the learned counsel for the accused appellant has not challenged the findings of the learned Addl. Sessions Judge No. 3, Jodhpur in respect of the incident mainly of the theft and, thereafter, when accused appellant was resisted by the lady PW-1 Nirmala, she was given beating by accused appellant. But, he has challenged the findings of the learned Addl. Sessions Judge No. 3, Jodhpur on the following points: 1. That while accused appellant Sunil and his associate Prakash were running and leaving the house alongwith the bag of stolen property, scuffle took place and in that scuffle, PW-1 Nirmala received injuries at the hands of the accused appellant and thus, it cannot be said that at the time of commission of robbery, accused appellant caused grievous hurt to PW-1 Nirmala and the injuries, which were caused by accused appellant to PW-1 Nirmala, were caused when accused appellant Sunil and his associate Prakash were about to be apprehended and thus, the accused appellant cannot be convicted for the offence under Section 397 IPC as well as for the offence under Section 392 IPC. 2. That from the injuries, which were received by PW-1 Nirmala, no case for the offence under Section 307 IPC is made out. 3. That whatever offence is found to be proved against the accused appellant, since on the date of occurrence, accused appellant was below 21 years of age, lenient view in awarding sentence should be taken. On the other hand, the learned Public Prosecutor supported the impugned judgment and order passed by the learned Addl. Sessions Judge No. 3, Jodhpur. I have heard the learned counsel for the accused appellant and the learned Public Prosecutor and perused the record of the case. Before proceeding further, medical evidence of this case should be discussed first.
(3.) THE injury report of PW-1 Nirmala is Ex. P/12 and to prove the same, the prosecution has produced PW-3 Dr. Jagdish. Pw-3 Dr. Jagdish states in his statement that on 28. 3. 2000 he was Medical Jurist in the Mahatma Gandhi Hospital, Jodhpur and on that day, he examined Pw1 Nirmala and found the following injuries on her person:- 1. Stitched incised wound 2-1/2 cm long on Lt. Arm. 2. Stitched incised wound 2 cm long on Lt. Arm. 3. Four stitched incised wound 3 cm, 2-1/2 cm 2 cm adn 2 cm long on Lt. side of chest postero laterally. 4. Three stitched incised wound 2 cm, 1-1/2 cm and 1-1/2 cm on Lt. side of chest antero laterally. 5. Stitched incised wound 2 cm long on Lt. axilla. 6. Two abrassions 3 cm x 1/2cm, 2 cm x 1/2 cm on Lt. side lower part of chest. He has further stated that out of six injuries, injuries no. 1 and 2 were simple in nature and injury no. 6 was caused by blunt object and rest were caused by sharp edged weapon and for injuries no. 3 to 5, he advised X-ray. He has proved the injury report Ex. P/12. Another doctor produced by the prosecution in this respect is Pw-2 Dr. A. L. Chauhan, who has stated that after seeing the X- ray plates, he came to the conclusion that there was evidence of fracture in third rib on left side. ;