JUDGMENT
U.C. Maheshwari J.
1. This appeal is directed by the appellants under Section 374 of Cr.P.C. being aggrieved by the judgment dated 17.8.1990 passed by the Additional Sessions Judge, Sehore in Sessions Trial No. 09/89 convicting the appellants under Section 307 r/w Section 149 and under Section 148 of IPC and each one has been sentenced for five years R 1. with fine of Rs. 500 in default for six month? S.l. In earlier Section while six months R.I. in the Inter one.
2. According to the case of the prosecution on dated 21.7.1987 at about 4 o’clock in the evening the complainant -victim Jai Singh (PW-5) was at the grass field for the purpose of grazing the cattle. The wife of appellant Lilla Kishan and Bapu Lal came there to collect some leaves in such held and went away. Thereafter on account of some earlier enmity the appellant accompanied with other accused lashed with rifle, sticks and axe came there and the appellant Lilakishan, Bapu and Kashiram caught hold the said victim while Other accused Jagannath and Amar Singh tied his hands and legs by turban and accused Lakhan with the help of a boy pressed his mouth. Thereafter, his legs were caught by the appellants Bapu and Lila Kishan while Kashi Ram chopped off the lower pan of the left leg Ganga Ram stood there with rifle. The victim sustained injuries on his back, right eye and left leg. After the incident, the appellants and other accused ran away from the spot. However, the victim reached the field of Chain Singh and mentioned the incident to him. Umrao Singh and Roop Singh took him to his home. They called the Watchman and mentioned him the incident. Due to heavy rain Jai Singh lodged the report to Police, Ahmadpur on 22.7.1988 at 6.40. On registering the offence, the victim was referred to hospital. The MLC report was prepared. He was admitted in the hospital and remained under treatment. On completion of the investigation, the appellants and other accused were charge-sheeted under Section 147, 148, 149, 326 and 307 of IPC.
3. The case was committed to Sessions Court where charges under Section 147, 148, 326/149, 307/149 of IPC were framed against the appellants and other accused. They denied the same, after which the trial was held. The prosecution has examined as many as 15 witnesses to prove its case, while two witnesses were examined on behalf of the appellants and other accused in their defence, Gangaram died during trial, so the case was abated against him. On appreciation of evidence except the appellants, all other accused have been acquitted from the alleged charges while the appellants were held guilty under Section 148 and 307 r/w Section 149 and each one has been sentenced, as said above, hence this appeal.
4. Mr. Jagat Sher Singh and Mr. Raj Kamal Chaturvedi, learned Counsels for the appellants have assailed the impugned judgment firstly by saying that the appellants have been falsely implicated in the case on account of previous enmity with the victim Jai Singh (PW-5) while they have not committed any alleged offence. The same had not been proved by the evidence, led down by the prosecution but on appreciation of the evidence, under the wrong premises, the appellants were held guilty. The same is not sustainable under the law. He also referred some depositions of the prosecution witnesses and said that by disbelieving the set of evidence the other accused were acquitted while relying on the same evidence the appellants were held guilty hence, the impugned judgment is not sustainable on this Count also. He also said that inspite of his aforesaid arguments, if court comes to this conclusion that the appellants are responsible for the alleged incident, then in such case in view of the medical evidence available on record the offence under Section 307 of IPC is not made out. It is only a case of Section 326 of IPC. Accordingly the trial court has wrongly held them guilty under Section 307 of IPC and prayed for modification of their sentence. Lastly he has submitted that the incident took place long back in the year 1988, thereafter more than 17 years have been passed. During this period, no criminal (sic) against any of the appellants. Even prior to the incidents they had no criminal history or antecedents in their past. During the last 17 years all the appellants have settled their lives. Therefore on holding them guilty for any offence either under Section 307 or Section 326 r/w Section 148 and 149 of the IPC their jail sentence be reduced upto the period for which they have suffered the jail during trial in judicial custody and after conviction till passing the order for suspension of sentence. If they are sent again to jail for facing the remaining sentence then their families will have to suffer a lot. He prayed for acquittal of the appellants or decide the appeal in view of the aforesaid other submissions.
5. While on the other hand the, learned Panel lawyer, for the State, Miss Vijay Bhamagar, submitted that the impugned judgment is based on proper appreciation of the evidence. The same does not require any interference at this stage either for acquittal or modification of the conviction of the appellants or even for reducing the jail sentence and prayed for dismissal of this appeal.
6. Having heard the- learned Counsels for the respective parties, I have gone through the record. The victim Jai Singh (PW-5) has stated in his depositions that while he was in grass field, he was assaulted and attacked Yam deadly weapons like axe, rifle and sticks by the appellants. He tried to run away but was caught hold by them and dashed down on the ground and his leg was chopped off. Some other injuries were also caused. He was also threatened by the accused for his life. He further said that his chopped off leg was taken by the appellant Ram Singh in a bag. Subsequent to it the incident was mentioned to Chain Singh (PW-8), Umrao (PW-11) and Roop Singh Singh (PW-9) who took him to his home, then went to the Police Station Ahmadpur where Jai Singh, the victim, lodged the report Ex. P/9. He was referred to the hospital where after preliminary treatment and preparing the MLC, he was sent to Bhopal for further treatment. Subsequent to the treatment he is living with assistance of artificial leg made by medical expert of Jaipur.
7. On perusing the deposition of Chain Singh (PW-8) he has supported the entire incident but he said that on hearing the voice of Jai Singh (PW-5) at his field then he went there and saw Jai Singh in lying on the ground with his leg already chopped off. On asking, Jai Singh was told that his leg was chopped off by Gangaram (deceased accused). He did not say the name of any other accused or appellants. The same thing was said by Roop Singh (PW-9) that on hearing the voice of Jai Singh, he wert to the field of Chain Singh accompanied by Umrao Singh where Jai Singh was lying with his leg chopped off and the name of Gangaram was mentioned by Jai Singh as an assailant. No other name was mentioned while on perusing the depositions of Umrao Singh (PW-11) he also stated as said by the aforesaid two witnesses. Although, some witnesses were declared hostile by the prosecution but in any case one thing is certain that immediately after the incident the victim mentioned the incident to these witnesses and they took him to his home. Due to heavy rain, the FIR was lodged with some delay. The incident was mentioned in the FIR. Even this story has been supported by Jadiyabai (PW-6), the wife of the victim and Nathu Singh, the brother of the victim.
8. On going through the other evidence, it appears that earlier in some other incident, the victim Jai Singh was prosecuted and convicted for murder trial alongwith other five persons in which after facing the sentence he was released. Due to said earlier trial for two murders there was enmity between the victim and the appellants and their families.
9. I have not found any adverse circumstance in the cross examination of aforesaid witnesses, carried out either by defence counsel or by the counsel for the prosecution on declaring them hostile. So, it can be said that the prosecution has successfully proved the case against the appellants that they caught hold the victim in the grass field by forming an unlawful assembly with unlawful object and chopped off the leg of the victim. Although, this act was committed by any of them, but in view of the overwhelming evidence against them regarding formation of unlawful assembly, each one is responsible for the alleged incident. So, it can be assumed that the act of the appellants with premeditation and well planned. Hence, the trial court has not committed any error in holding them guilty for the aforesaid incident. Therefore, by rejecting the arguments put fourth on behalf of the appellants for their acquittal are hereby failed.
10. Coming to the next question whether injuries sustained to Jai Singh (PW-5) was sufficient to cause his death in ordinary course of nature as per requirement of earlier part of Section 300 of the IPC or it was covered under the definition of grievous hurt defined under Sub Section 1, 3, 4, and 8 of Section 320 of IPC. If it was covered by Section 300 of IPG Hence, this appeal deserves to be dismissed and if it is covered by Section 320 of IPC then the appellants could have been convicted only under Section 326 r/w Section 148 and 149 of IPC, hence, the court has to examine the medical evidence in this regard.
11. On perusing the deposition of Dr. Suresh Kumar Jarathe (PW-1) who examined the victim and prepared the MLC report Ex. P/1 of the victim. According to him he found . two contusions, (one is on the upper side of the right eye while other of the right side of the back) and the 1/3rd of his left leg was chopped off below the knee. He also referred for the X-ray by Ex. P/2. The same was found on taking out it as per X-ray plate, Ex. P/41 and its report, Ex. P/42. Hence, it is proved that the victim had sustained permanent destruction and privation of his leg by means of hard and sharp objects the deadly weapon like firsa or axe. The Radiologist Dr. J.S. Thakur, (PW-14) also stated the same while proving said Ex. P/41 and Ex. P/42. Dr. Raghvendra Saghzi (PW-14) has also proved that the aforesaid chopping off the leg was grievous in nature as para 2 of his deposition. Accordingly, such injury was mentioned as grievous in nature. No doctor has specifically mentioned that the said injury was sufficient to cause the death of the victim in ordinary course of nature. Even otherwise chopping off the leg from the body can not be treated as sufficient to cause death. Although. , Dr. Jarathe (PW-1) has stated that this injury could have caused death if the same was not treated within time. Mere on his testimony, it can not be assumed that such injury was sufficient to cause death in ordinary course of nature. Although, offence is heinous because the victim has lost his leg but the court has to consider in accordance with law.
12. It is settled law of the criminal jurisprudence that offender of a criminal case should be punished for such act which he actually committed but not for the one which he might have committed but did not perform. This Principle was led down by the High Court of Peshawar, in the matter of Ghulam Sabir Amir Khan v. Emperor reported in AIR (29) 1942 Peshwar 21 (2) in which it was held as under:
The only act which could fall within the purview of Section 307 is an act which by itself must be ordinarily capable of causing death in the natural and ordinary course of events and accused’s criminal liability must be limited to the act which he in fact did, and cannot be extended so as to embrace the consequences of another act which he might have done but did not do.
13. In: view of the aforesaid, the appellants could be held guilty alongwith Section 148 and 149 of IPC for the offence under Section 326 of IPC but not under Section 307 of the IPC, Hence, it is held that the appellants are liable, to be punished under Section 326, r/w Section 149 and 148 of IPC. Accordingly, they are acquitted from the charges of Section 307 of IPC.
14. Coming to the question of sentence, in view of submissions made by the counsel for the appellants, on perusing the record, it appears that during the trial the appellant No. 1 Kashiram suffered two years and 21 days in judicial custody, the appellant No. 2 Leelakishan suffered two years and 12 days, the appellant No. 3 Kishanlal suffered only for 17 days, the appellant no.4 Ram Singh suffered, four months and 20 days, the appellant No. 5, Arjun Singh suffered 4 months and 15 days, the appellant No. 6 Suraj Singh @ Surya suffered for four months and 20 days, while the appellant No.7 Bapulal suffered two years and 12 days in judicial custody. Besides this they also suffered the jail sentence from the date of the impugned judgment, i.e. 17.8.1990 till passing the order for suspension of sentence on dated 1.12.1990, i.e. about 3 months and 15 days.
Accordingly, the appellant No. 1,2 and 7 suffered more than two and half years in jail while the appellant No. 3 suffered more than 4 months and the appellant No. 4 to 6 have suffered more than 8 months jail custody. The incident took place in the year 1988, prior to that or subsequent to it. I have not found criminal antecedents or history against any of the appellants. It can be assumed during last seventeen years, they have settled their lives with their families. Thus, in such circumstances considering all aspects, I find some substance in the last arguments of the appellants to punish them by adopting some lenient view. As their conviction under Section 307 has already been modified into Section 326 of IPC. Hence, this court has to pass the fresh order for the punishment.
15. My view for reducing the sentence is fortified by the decision of the Apex Court in the matter of Pashora Singh and Anr. v. State of Punjab in which the Apex Court has reduced the sentence upto 52 days for which the accused was remained in jail by enhancing the amount of fine for the offence under .Section 326 of IPC.
16. Therefore, by allowing this appeal in part the appellants are acquitted from the charges under Section 307/149 of IPC instead they are held guilty under Section 326/149 and each one is sentenced to undergo upto the period for which they have already suffered either in judicial custody or alter the conviction till passing the order for suspension of sentence, but with line of Rs. 5000/- against each of the appellants. The line deposited under Section 307/149 shall be adjusted in the aforesaid amount. The Sentence of Section 148 of IPC which the appellants have already suffered such sentence is hereby affirmed. The aforesaid fine amount has to be deposited within 45 days from today failing which the appellants have to or concerning appellant has to suffer further one year R.I. On depositing such fine, out of it, Rs. 20,000/- be given to the victim Jai Singh (PW-5) by calling him through summon. On his non-availability the same be given to his legal representatives. Accordingly, the judgment of the trial court is modified upto the aforesaid extent. The appeal is allowed in part, as intended above.