Muni alias Ram Mehar vs State of Haryana

B.S. Yadav, J.

Muni alias Ram Mehar (hereinafter also referred to as accused) has been convicted under Section 307 of the Indian Penal Code by learned Additional Sessions Judge, Jind, and has been sentenced to undergo rigorous imprisonment for 5 years. It may be mentioned here that alongwith the present appellant Gopi was also tried for abetment of the offence but the learned trial Court has acquitted him.

The prosecution story as gathered from the evidence is that on 7th November, 1980, which was a Diwali Day, PW 12 Sudershan Kumar returned to his house situated in Jind at about 8 or 8.15 p.m. After entering his house, when he was going to close the main door, someone pushed it open from outside. Sudershan Kumar saw that Muni accused was standing there with a knife in his hand. The accused gave one blow with the knife on his abdomen. Muni aimed another blow on him and the blow fell on his left hand thumb. When Sudershan Kumar raised cries, the accused ran away with his knife. Des Raj (PW 11) who is nephew of Sudershan Kumar, was present on the first story of the house. He came down. On enquiry by him Sudershan Kumar told him that Muni accused had stabbed him. Des Raj arranged a car and Sudershan Kumar was removed to Civil Hospital, Jind, where he was examined by PW 10 Dr. A.K. Gupta at 8.50 p.m. on the same day. The said doctor found the following injuries on the person of Sudershan Kumar :

(1) Incised wound, 4 cm x 1/2 cm x pertionium deep, right iliac fossa, abdomen. Fresh bleeding was present.

(2) Incised wound on the left hand thenal eminence, 4 cm x, 1/2 cm x skin deep. Fresh bleeding was present.

Injury No. 1 was kept under observation while injury No. 2 was declared as simple. In the opinion of the said doctor, both the injuries were caused within 6 hours by sharpedged weapon. Exhibit PK is the medical certificate prepared by him in relation to the injuries of Sudershan Kumar. He also sent ruqa Exhibit PK/5 at 9.15 p.m., to Police Station City, Jind. This ruqa was received by PW 13 A.S.I. Shiv Parshad at 9.30 p.m. on the same day. On its basis, entry No. 23 dated 7th November, 1980 was recorded in the Daily Diary of Police Station by constable Thambu Ram.

The investigation was taken up by PW 13, A.S.I. Shiv Parshad. He went to the hospital on the same day i.e. 7th November, 1980 but PW 10 Dr. A.K. Gupta vide his endorsement Exhibit PK/6 opined at 9.45 p.m. that the patient was unfit to made a statement as he was under the effect of drugs.

On the morning of 8th November, 1980 PW 10 Dr. A.K. Gupta referred Sudershan Kumar to Medical College Hospital, Rohtak, as he was in a serious condition. He also informed the local police at 8.15 a.m. vide his ruqa Exhibit PK/7. PW 13 A.S.I. Shiv Parshad went to Medical College Hospital, Rohtak, and made application Exhibit PH for enquiring about the condition of Sudarshan Kumar to made a statement. Vide endorsement Exhibit PH/1 made at 3.30 p.m. on 8111980. PW 9 Dr. D.N. Tahlan opined that the patient was unfit to made a statement. On 8th November, 1980 PW 7 Dr. R.C. Dadoo performed operation on Sudarshan Kumar. The relevant portion of his operation notes reads as follows :

"Abdomen was opened through 6" long oblique incision. Air came out of the wound. There was dark coloured blood in the pelvis and haematoma around the caecum. There was two small perforations in the caecum. One was near the appendix and the other was over the anterior surface. The first perforation was closed in layers of chronic catget. Through the other perforation case custody was done. A drain was put in the pelvic and the wound was closed. The stab was passing through all the layers of the abdomen including the peritoneum in right iliac fossa and was perforating the caecum at two places."

On 9th November, 1980 PW 13 A.S.I. Shiv Parshad again presented an application Exhibit P1 at 9.20 a.m. to know about the fitness of Sudershan Kumar to made a statement, Vide endorsement Exhibit PI/1 PW 9 Dr. R.N. Tahlan again opined that the patient was unfit to make a statement. At 5.45 p.m. on that day, PW 9 Dr. R.N. Tahlan again opined vide endorsement Exhibit PI/2 that Sudershan Kumar was unfit to make a statement. In the meanwhile Pw 11 Des Raj met PW 13 A.S.I. Shiv Parshad and made statement Exhibit PD/1. The latter sent that statement to Police Station City, Jind, for registration of a case and on its basis formal First Information Report was recorded by PW 5 H.C. Anguri Lal.

On 10th November, 1980 PW 13 A.S.I. Shiv Parshad inspected the spot of occurrence and prepared its visual plan, Exhibit PL. A.S.I. Shiv Parshad recorded the statement of Sudershan Kumar on 11th November, 1980.

Muni accused was arrested on 15th November, 1980. Gopi had obtained anticipatory bail. He was arrested and released on bail on 1st December, 1980. Sudershan Kumar was discharged from the hospital on Ist December, 1980. During investigation plan Exhibit PA of the spot of occurrence, according to scale, was got prepared from PW 3 Shayam Lal Gupta.

The motive for this crime is said to be that PW 2 Vijay Kumar was Joint Secretary of the Girls High School, Jind, while Sudershan Kumar was its President. Some repair was got done in the school building. Gopi was the mason while Muni was a labourer with him. They had worked for several months. Sudershan Kumar (PW 12) had also paid some money to Gopi from his pocket as advance. The work of Gopi was not found satisfactory and, therefore, his services were dispensed with. Sudershan Kumar called Gopi for the return of the amount but he did not turn up. Therefore, it appears that Sudershan Kumar suspected that Gopi had used Muni accused to cause injuries to him.

At the close of the prosecution evidence Gopi and Muni accused were examined under Section 313 of the Code of Criminal Procedure. Gopi admitted that he had worked as a mason for doing repair work in the above named school and that Muni coaccused worked with him. He, however, denied the other allegations.

Muni accused admitted that he had worked with Gopi accused. He also denied of other prosecution allegations. None of the accused has led any defence evidence.

The ocular account of the occurrence has been provided by PW 12 Sudershan Kumar who received injuries in the occurrence. It find corroboration from the statement of PW 11 Des Raj who immediately came to the spot on hearing the crises of the injured, who told him that Muni accused had caused those injuries.

The main argument of the learned counsel for the accused was that in the present case the report to the police was lodged after much delay. It was argued that it is understandable that as Sudershan Kumar had been injured with a knife, there was anxiety on th part of Des Raj (PW 11) to remove his uncle to the hospital. However, he pointed out that Sudershan Kumar had a young son aged 20 years living in the house and that there was also a telephone in the house as a admitted by PW 11 Des Raj and it is surprising that none contacted the police. This point has been discussed in quite detail by the learned trial Court and it has come to the conclusion that the delay was not intentional and moreover, it is not fatal to the prosecution case. I agree with those reason. It has already been noticed above that the police had been trying to contact Sudershan Kumar for recording his statement but as he was not fit to make a statement, it could not be recorded. It is in the statements of PW 11 Des Raj and PW 13 A.S.I. Shiv Kumar that whenever the latter visited the Civil Hospital, Jind, or the Medical College Hospital, Rohtak, the former was not available. P.W. 11 Des Raj has stated that after getting admitted Sudershan Kumar in the Medical College Hospital, Rohtak, on 8th November, 1980 he left for Delhi to inform the fatherinlaw of the injured. PW 1 Din Dayal has stated that Des Raj had come to him at Delhi on 8th November, 1980 at 8.00 p.m. and left for Rohtak on the next day. Therefore, it cannot be said that Des Raj was intentionally avoiding the police. It is also possible that Des Raj might not be knowing the full details of the occurrence as well as about the motive which prompted Muni accused to cause injuries to Sudershan Kumar. Therefore, the police might not have made any attempt to record the statement of Des Raj or any other relation of Sudershan Kumar. It appears that when Sudershan Kumar was not found fit to make a statement upto 9th November, 1980, A.S.I. Shiv Parshad recorded the statement of Des Raj.

It is to be noted that on the file there is no evidence to show that Sudershan Kumar or Des Raj had any animosity towards Muni accused. In fact, the prosecution case is that perhaps Gopi had used Muni accused to cause injuries to Sudershan Kumar. Therefore, I am not going to believe that Des Raj would falsely implicate Muni accused in this crime.

There can be no dispute about the identification of the assailant. It was Diwali night. PW 11 Des Raj and PW 12 Sudershan Kumar have stated their house was illuminated on that night. Otherwise also there was a bulb in the passage of the house where the occurrence took place as is clear from the plan Exhibit PA prepared by PW 3 Shayam Lal Gupta. Therefore, the identification of the assailant was not at all difficult. Substitution is a rare phenomenon. If the assailant had not been identified at the time of occurrence, PW 11 Des Raj and PW 12 Sudershan Kumar would not have named the accused as the assailant.

The learned counsel for the accused argued that perhaps the assailant was Gopi and PW 11 Des Raj and PW 12 Sudershan Kumar confused his name with that of Muni. This argument has no force. Both Gopi and Muni had worked for a few months for carrying out the repairs of the above School, whose President was PW 12 Sudershan Kumar. He (i.e. Sudershan Kumar) must be knowing both Gopi and Muni quite well. Therefore, it is unbelievable that Sudershan Kumar would commit a mistake in identifying Muni.

I have carefully considered the statements of PW 11 Des Raj and PW 12 Sudershan Kumar and I do not find any ground to reject their statements. It is, therefore, held that it was Muni accused who had caused injuries to Sudershan Kumar.

It was next argued by the learned counsel for the appellant that the offence committed by Muni does not fall under Section 307 of the Indian Penal Code as none of the doctors has stated that injury caused on the abdomen of Sudershan Kumar was sufficient to cause death in the present case. According to him, the offence committed by the accused falls under Section 326 of the Indian Penal Code as Sudershan Kumar had remained in the hospital for more than 20 days. In support of his contention he has cited Jagrup Singh v. The State of Punjab, 1973 CLR 253 wherein it was remarked :

"The next question to be determined is the nature of the offence committed by the accused. It is obvious as contended by the learned counsel for the accused that there was no such previous enmity between the parties so as to form a motive for the accused to commit the murder of Kehar Singh. The circumstances of the case clearly show that it was sudden quarrel between them and in the heat of the moment the accused took out a knife and inflicted injuries on Kehar Singh. The only material injury suffered by Kehar Singh was in the abdomen. According to the doctor, it was dangerous to life. But, learned counsel for the accused argued that in consequence of this injury, Kehar Singh was at no time in danger of death : Later, the medical evidence shows that he made improvement and was discharged as cured. In support of this contention that the case in hand does not fall within the ambit of Section 307, Indian Penal Code, learned counsel for the accused placed reliance on Jai Narain Mishra and others v. State of Bihar, 1972 C.A.R. 19, in which their Lordship of the Supreme Court observed :

''In the present case, however, three injuries are of simple nature though deadly weapons were used and the fourth injury caused by Suraj, though endangering life could not be deemed to be an injury which would have necessarily caused death but for timely medical aid. The benefit of doubt must, therefore, be given to Suraj with regard to the injury intended to be caused and, in our opinion, the offence is not one under Section 307 IPC but Section 326 IPC. His conviction under Section 307 IPC is set aside and we convict him under Section 326 IPC.''

In view of the above, I see no reason why Jagrup Singh be not given benefit of doubt so far as his conviction under Section 307, Indian Penal Code, is concerned."

I am of the opinion that the above argument of learned counsel for the appellant has force. No enmity has been pointed out between Muni accused and Sudershan Kumar. None of the doctors, examined by the prosecution, has stated that the injury found on the abdomen of Sudershan Kumar could, in the ordinary course of nature, have caused death but for timely aid, PW 10 Dr. A.K. Gupta has only stated that Injury No. 1 of Sudershan Kumar was dangerous to life. Therefore, in the circumstances of the case, it cannot be said that Muni accused had any intention to murder Sudershan Kumar. Therefore the offence committed by him fells under Section 326 of the Indian Penal Code.

For the foregoing reasons, I alter the conviction of the appellant from one under Section 307 to Section 326 of the Indian Penal Code. The sentence of rigorous imprisonment awarded to the appellant is also reduced to 3 years. The appeal is disposed of accordingly.