JUDGMENT
I.P. Singh, J.
1. Appellant Nos. 1 and 2, namely, Lakhan Thakur and Chamari Thakur have been convicted under Section 326 of the Indian Penal Code and sentenced to undergo R.I. for six years each. Appellant No. 3, namely, Lal Bihari Thakur has been convicted under Section 324 of the Indian Penal Code and was sentenced to undergo R.I. for three years.
2. Prosecution case, in short, is that on 9-10-1987 at about 1.30 p.m. the informant had come to Jehanabad Civil Court to appear in a case along with his brother Chotan Thakur and Dimagi Thakur in the Court of the C.J.M., Jehanabad for their bail. After filing their attendance in the Court they were taking tea in a tea stall in the Court compound. His co-villager Lai Bihari Thakur, Lakhan Thakur and Chamari Thakur came there, armed with scissors along with Ram Kewal Thakur, Bhagwan Thakur and Ram Payare Thakur in the tea stall. It has been alleged that the accused Lal Bihari Thakur assaulted with scissors in the back of the informant causing bleeding in the back. Chotan Thakur was assaulted by the appellant Lakhan Thakur on his back, below the neck. Dimagi Thakur was also assaulted by the scissors by appellant Chamari Thakur in his back. Having sustaining the injuries, bleeding started oozing out. On their alarm, co-villager Ram Billam Thakur came running there but he was also assaulted with the brick bats by the appellants. Thereafter, they were taken to the hospital on Rickshaw where they were treated. The reason of assault was that there was enmity between the injured and the appellant. Thereafter, they shifted to the Government Hospital, Jehanabad where the fard beyan of the informant was recorded. On the basis of the fard beyan (Ext-1/A) formal F.I.R. (Ext-3) was registered. After completion of the investigation, chargesheet was submitted against the appellants on the basis of which cognizance was taken and case was committed to the Court of Sessions for trial. Ultimately, the trial concluded in the manner as indicated above. The appellants pleaded not guilty.
3. The prosecution in support of its case examined five witnesses including the informant (P.W. 3). P.W. 1 is Chotan Thakur, P.W. 2 is Dimagi Thakur, P.W. 3 Nand Lal Thakur. All these three witnesses are injured witnesses. P.W. 4 is Satyendra Prasad Gupta, the medical officer and P.W. 5 is Kameshwar Prasad Sinha, the I.O. of the case. P.W. 3 the informant has fully supported the case of the prosecution. According to him, on the date of occurrence i.e. on 9-10-87 at about 1.30 p.m. he had come to Jehanabad Civil Court to appear in a case along with his brother Chotan Thakur and Dimagi Thakur. It has been stated that after filing their attendance in the Court, they were taking tea in the tea stall. In the meantime, his co-villager Lal Bihari Thakur, Lakhan Thakur and Chamari Thakur came there having scissors in their hand. According to him, Ram Kewal Thakur, Bhagwan Thakur and Ram Payare Thakur also came along with above three accused persons near the tea stall. According to him, accused Lal Bihari Thakur assaulted him with scissors in his neck causing bleeding injury. The appellant Lakhan Thakur assaulted Chotan Thakur in his back below the neck. His brother Dimagi Thakur was assaulted with scissors by the appellant Chamari Thakur on his back. All the three received injury and there was bleeding. When they raised alarm co-villager Raj Ballam Thakur came running there who was also assaulted with brick-bats. Thereafter they were taken to the Government Hospital on Rickshaw and treated there. He further stated that his fard beyan was recorded in the Hospital. Other witnesses, P.W. 1 and 2, namely, Chotan Thakur and Dimagi Thakur respectively have also supported the version of informant (P.W. 3). P.W. 4 is Dr. Satyendra Prasad Gupta. According to him, on 9-10-1987 while he was posted at Civil Hospital, Jehanabad at 10.35 p.m. he examined injured Chotan Thakur and found the following injuries on his person:–
Penetrating wound -1/2″ x 1/4″ chest cavity deep bleeding and subcutaneous emphasema present.
According to the opinion of the doctor, nature of injury was dangerous to life and was caused by sharp pointed object like scissors.
On the same day and same time he also examined Nand Lal Thakur and found following injuries on his part:–
One penetrating wound with bleeding 1/2″ x 1/4″ x 1 1/2″ obliquely right side of the back in the inter scapular region.
According to the opinion of the doctor, injury was simple in nature caused by sharp pointed weapon like scissorss.
On the same day and same time he also examined Dimagi Thakur and found following injuries on his part:–
One penetrating wound with bleeding subcutaneous emphysema 1/2″ x 1/4″ chest cavity deep right back.
According to the opinion of the doctor, nature of injury was dangerous to life caused by sharp pointed object like scissors.
P.W. 5, Kameshwar Singh is the Investigating Officer of this case. According to him, on 9-10-1987 he was posted as Sub-Inspector at Jehanabad Police Station. On the same day he received O.D. slip from Jehanabad Civil Hospital and on the basis of it he went to the Hospital at 1.30 p.m. and recorded the fard beyan of injured-informant Nandlal Thakur on the basis of which F.I.R. was registered. He was proved the formal F.I.R. (Ext-3). He again examined the informant and recorded the fard beyan of the informant. According to him, in the same Hospital he examined Dimagi Thakur, Sukhdeo Thakur and Chotal Thakur. He found that on the back of Nandlal Thakur below his neck there was one stitched wound. He also found on the back right side of Dimagi Thakur a cut injury with bleeding. On the back below the neck of Chotan Thakur he also found injury with bleeding. According to him, he also visited the place of occurrence. He has given the full description of the same. He has stated that he did not seized Scissors and Chhura and he did not examined Bhuneshwar, owner of the tea stall.
4. The main contention of the learned counsel for the appellants is that the case is not made out under Section 326 of the Indian Penal Code as for the offence punishable under Section 326 of the Code the assault caused must be grievous under the definition of Section 320 of the Code. It is also submitted by him that the injuries caused should be by a dangerous weapon or by means of any instrument for shooting, stabbing or cutting. In this case Scissors has been used for assault and can cause penitrating injury as such it is a dangerous weapon. However, the injury caused on two persons, namely, Chotan Thakur and Dimagi Thakur (P.Ws. 1 and 2) was on their vital part i.e. on the chest and it was deep to the chest cavity. According to the doctor these injuries were dangerous to their life. However, may it be dangerous to the life but it was not grievous as it is essential ingredient for punishment under Section 326 of the Code. Thus the offence committed by the appellants falls under Section 324 of the Code and not under Section 326 of the Code. Therefore, conviction of the appellants under Section 326 of the Code is altered to that under Section 324 of the Code.
5. In this case compromise petition was filed. Since Section 326 of the Code is not compoundable and appellant Nos. 1 and 2, namely, Lakhan Thakur and Chamari Thakur have been convicted under Section 326 of the Code, the compromise petition has been rejected by this Court vide order dated 25-6-2003. Appellant No. 3, namely, Lal Bihari Thakur has been convicted under Section 324 of the Code and there was a compromise between the parties. As such, conviction and sentence passed against him is hereby set aside and he is acquitted of the charges on the basis of the compromise petition as stated above.
6. Coming to the question of sentence in respect of appellant Nos. 1 and 2, namely, Lakhan Thakur and Chamari Thakur, it has been submitted that the occurrence took place in the year 1987 i.e. 16 years ago and both the appellants have been amply punished during prolonged litigation. It has also been submitted that the compromise petition has also been filed between the appellants and the informant of the case. Moreover, there is no previous criminal antecedent of the appellants and they have remained in jail for some time and as such some lenient view may be taken while awarding the sentence.
7. I am of the view that ends of justice will meet if the sentences of these two appellants, namely, Lakhan Thakur and Chamari Thakur are reduced to the period they have already undergone in jail with a fine of Rs. 3000/- (three thousand) each to be deposited by them within three months from the date of receipt/production of a copy of this order. In default, they will have to undergo R.I. for one year.
8. It is made clear that the amount of fine, if and when realised by these two appellants, will be equally distributed among the injured, namely, Chotan Thakur (P.W. 1), Dimagi Thakur (P.W. 2) and Nandlal Thakur (P.W. 3).
The appeal in respect of appellant No. 3 Lal Bihari Thakur is allowed, and the appeal in respect of appellant Nos. 1 and 2 Lakhan Thakur and Chamari Thakur is dismissed with the aforesaid modification in the sentences.
Appeal in respect of Appellant No. 3 allowed and others dismissed.