FAROOQ HASAN, J. - (1.) THIS criminal appeal has arisen out of the judgment dated 19. 7. 1980 passed by the Addl. Sessions Judge, Dausa (Jaipur) whereby the appellant was convicted & sentenced as under : - U/s. 307, & 392 I. P. C. on each count - to undergo 4 year's R. I. with a fine of Rs. 100/ - in default, further one month's R. I.
(2.) BOTH the sentences were ordered to run concurrently. However the appellant was acquitted of the charge under Section 397, IPC, giving benefit of doubt by the trial Court. A first information report was lodged at the police station Dausa on 14. 9. 1979 on a statement (Parcha Bayan) of Mst. Laxmi Devi recorded at Government Hospital, Dausa by Munshi Singh, SHO, wherein he (Laxmi Devi) gave out that on 14th September, 1979 evening on return from a tea-stall of her son, Mahesh Chandra, situated at Bhakri Mod (turn) when she reached near Sayaloo, a boy of 18-19 years old wearing pent & bu-shirt met her and told her as to why are they vacating the stall, to which she replied that her son would be appearing in the examination. It was also given out that as soon as she replied that boy inflicted knief blow below the right ribs of breast and breaking golden chain snatching from her neck ran away. Smt. Laxmi Devi also stated that that boy was sitting all around the day (14. 9. 1979) on her stall, and she gave out his name as Raju, and also shown ignorance about the presence of the persons at site. Cr. case No. 200/79 was registered at the police station Dausa for the offences under Section 307/392, IPC, and after usual investigation, challan was filed against the appellant. The appellant was committed to the Court of Sessions and the Additional Sessions Judge framed charges under Sections 307 and 392 read with 397 IPC, against the appellant who pleaded not guilty and claimed to be tried. Therefore, nine witnesses were examined by the prosecution. The statement of the appellant was recorded under Section 313, Cr. P. C. wherein he denied all the allegations levelled against him and also stated that due to enemi-ty, he has been falsely implicated in the criminal case. No defence witness was produced. After hearing the parties, the appellant was found guilty for the offences under Sections 307 and 392, IPC, and as stated above, was convicted and sentenced. Hence this appeal. First wrangle on behalf of the appellant is that the injuries sustained on the person of injured, Mst. Laxmi Devi, are not grievous in nature inasmuch as it has not been proved by the prosecution that the injury was either danger-ous to life or was sufficient to cause death in the ordinary course of nature. Against this, learned Public Prosecutor vociforcely (sic vociferously?) contended that the injuries were caused by a sharp weapon like knife on the chest of the in-jured which itself is sufficient to infer that the intention of the accused appellant was to commit murder. Having considered, I may state that in the injury report (Ex. P. 1) out of three injuries third injury has been shown as fracture of 10th rib; but, about the nature of this injury being grievous or not, it has been mentioned in the report that it would be confirmed only after X-ray. In the statement, Dr. B. C. Gosh (PW 1) who had prepared Ex. P. 1, has admitted saying. "i cannot say without seeing the X-ray report that the injury No 3 is grievous. " I also observe that no X-ray report is available on record, inasmuch as the prosecution has not claimed that the injuries sustained on the person of Mst. Laxmi Devi was x-rayed or that after x-ray, any fracture was detected. In these circumstances, no inference can be drawn to the effect that the third injury sustained on the person of Mst. Laxmi Devi was grievous in nature. In the injury report, no abnormality is shown by the doctor when he examined Mst. Laxmi Devi. Further, Smt. Laxmi Devi (PW 6) nowhere stated that on sustaining injuries, she became unconscious or any abnormality has been happening. In view of these circumstances, it cannot be held that Smt. Laxmi sustained any grievous injury and that the accused-appellant inflicted that injury with such an intention or knowledge that it would cause death. I don't find any case for the offence under Section 307 or Sec. 326, IPC. And, as such, the appellant deserves to be acquitted of the offence under Section 307, IPC. However, the accused appellant can be held responsible for the offence under Section 324, IPC, because there is no reason to disbelieve the testimony of Smt. Laxmi Devi with regard to the injuries on her person at the hands of the accused appellant, as has come in the evidence of Smt. Laxmi Devi who, in her statement, has deposed that the accused-appellant inflicted knife blows on her person and she sustained injuries - this evidence is corroborated by Dr. B. C. Gosh (PW 1 ).
(3.) AS regards the other charge against the accused-appellant, of Section 392, IPC, the learned counsel for the accused-appellant submitted that no reco- very has been made at the instance of the accused-appellant, whereas the case of the prosecution is that a golden chain was snathe/broken by the accused-appellant from her neck and, as admitted by Smt. Laxmi in her statement, at that time she did not sustain any injury on her neck. Learned counsel added that the aforesaid circumstance is sufficient to discredit the testimony of Smt. Laxmi Devi who was stated that one chain has snatched by the accused-appellant. With regard to snatching of the golden chain, the evidence of Smt. Laxmi Devi has not been corroborated by any of the circumstances. Having considered, I am of the opinion that the circumstances are such which show that the allegation of snatching golden chain has been falsely made against the accused-appellant and I do not find any substantial evidence against the accused-appellant for the commission of the offence under Section 392, IPC so as to connect him with that crime. The accused-appellant is, therefore, liable to be acquitted of the offence under Section 392, IPC. Last plank of attack which is significant and important, made on be-half of the accused-appellant is that at the time of commission of offence, the appellant was a child of 12 years of age and, so his conviction & sentence can not be maintained by virtue of the provisions of the Rajasthan Children Act. In support of his arguments, learned counsel placed reliance on the decision of the Apex Court in Umesh Chandra Vs. State of Rajasthan (1 ). The trial against the accused appellant has vitiated, learned counsel added. ;