JUDGMENT
Lokeshwar Singh Panta, J.
1. Accused Sukhvinder Singh was tried for attempting to commit murder of his real brother Kashmiri Lal and the learned Additional Sessions Judge, Solan by judgment dated 8-3-1989/9-3-1989. convicted him under Section 307 I.P.C. and sentenced him to undergo rigorous imprisonment for five years and to pay a fine of Rs. 1000/- in default of which to undergo rigorous imprisonment for three months. He preferred this appeal against the impugned judgment.
2. The material facts giving rise to this appeal are thus:-
Kashmiri Lal is the real brother of the accused. They belong to District Patiala in the State of Punjab. Kashmiri Lal had been pulling Riksha at Patiala before the occurrence. His wife Smt. Santosh Devi, however, was employed as Sweepress in Military Hospital. Patiala. The in-Laws of Kashmiri Lal reside at Subathu, a small Cantonment of District Solan, Himachal Pradesh. The accused had been living with the victim (PW 2) at Patiala.
3. On 4-10-1987, the accused coined a pretext and fabricated a ground to accompany his brother Kashmiri Lal to Subathu from Patiala. In that attempt he disclosed to his brother that his (brother’s) in-Laws were to lay the foundation stone of their new house and as such the presence of the victim was required at Subathu imminently. The victim replied to the accused that the bus bound for Subathu had already left from Patiala at 4 p.m. and as such no bus was available for them to reach the destination. The accused prevailed upon the victim and offered suggestion that they would stay at Dharampur for the night in case they failed to reach Subathu. Ultimately, both of them reached Chandigarh from Patiala. The accused slipped away from the Bus Stand at Chandigarh and remained absent for half an hour from there. The victim kept waiting during the absence of the accused and ultimately at about 7 p.m. both of them boarded a bus for Dharampur as no direct bus for Subathu was available at that time at Chandigarh. After reaching Dharampur, both of them started their journey to Subathu on foot.
4. They reached near village Rauri, the place of incident. The accused lighted his cigarette. The victim preferred to puff off a “BIRRI. During this process, the victim was walking ahead to the accused. It was about 9.30 p.m. Abruptly, the victim received a ‘Drat’ (cutting instrument) blow on his head. He inquired about it from the accused who accompanied him. The victim placed both his hands on the head so as to ward off further infliction of injuries by the assailant. The accused gave rain of blows to the victim which the latter sustained repeatedly on his head, head hands, arms and other parts of the body. In all the accused allegedly, inflicted 16 distinct injuries on the body of the victim including vital part viz. skull. The victim as a result of multiple infliction of the injuries with sharp-edged weapon dropped down. He though was in his senses, yet he pretended to be unconscious so as to give an impression to the accused that he was already dead. On account of the injuries sustained by him blood started oozing out. It got stained with the clothes of the victim and the assailant. The victim somehow managed to crawl a little distance from the scene of incident and ultimately again fell down near the house of one mason where the electric light was conspicuous. The acccused gave a final threatening to kill the victim. The victim on hearing this dreadly threatening of the accused further managed to get himself camouflaged under the bushes nearly. He also cried for help of the persons if at all available nearly. The accused left the scene of occurrence leaving the victim at the spot.
5. On hearing the screams of the victims, 4/5 persons residing nearby the scene of occurrence gathered there. The victim narrated the incident to them. Lal Chand (PW-8) was one of them. The villagers informed the police at Police Post Subathu. The information was recorded in Rapat Roznamcha (Ex.PE) by Head Constable Baldev Ram (PW-6). He passed on the message to S.I. S.H.O. Bishehar Singh (PW-10). PW-10 recorded Rapat (Ex.PK) and proceeded to the spot. He conducted the investigation and recorded the statement (Ex.PB) of the injured. On the basis of Ex.PB formal F.I.R. (Ex.PB/I) was registered at Police Station, Dharampur. The injured was removed to Primary Health Centre who was later on referred to District Hospital, Solan. PW-10 along with one Kirpa Ram and Lal Chand (PW-8) proceeded towards Subathu. They reached Subathu late at night and then reached the house of Shyam Das (PW-3) Father-in-law of the victim and the accused was apprehended there. He drew site plan (Ex. PL) and recovered the weapon of offence ‘Gandasa’ (Ex.P1) at the instance of disclosure statement (Ex.PJ) made by the accused. Site plan of the recovery of weapon of offence (Ex.PM) was also prepared. He also recovered blood stained articles and clothes packed in Attache-case and taken the article into possession vide recovery memo (Ex.PF). Blood stained earth was taken into possession vide recovery Memo (Ex.PH). Site-plan (Ex.PN) was also prepared. Blood stained clothes of the victim were taken into possession vide recovery Memo. (Ex.PC) after receiving the report of the Chemical Examiner (Ex.PR) and on completion of the investigation, charge sheet was laid.
6. The prosecution examined 10 witnesses. The accused pleaded not guilty to the charge and only stated in his statement under Section 313 of the Code of Criminal Procedure that he was innocent. 7. The learned Additional Sessions Judge, believed the prosecution witnesses and held the accused guilty for the commission of the offence punishable under Section 307 of the Indian Penal Code and sentenced him as mentioned above. 8. I have heard Shri J. K. Verma, learned counsel appearing for the accused and Shri R. M. Bisht, learned Law Officer and have carefully gone through the entire record. 9. The prosecution placed reliance on the evidence of PW-2, PW-3, PW-8, PW-10 and medical evidence of PW-1. 10. Doctor M. R. Lamba (PW-1) was posted as Block Medical Officer at Dharampur since June, 1986. He examined the victim on 5th of October, 1987 and found the following injuries on his person :- 1. .6" x 1 1/2" underlying tendon and muscles cut incised wound on the dorsum of the right hand. 2. 4" x 1/2" x skin deep eliptical incised wound on the dorsum of the right hand near the 1st wound. 3. 2" x 1" x deep to muscles incised wound on the dorsum of the right hand. 4. 3" x 1" x deep to muscle incised wound on the dorsum of the right hand. 5. 3/4" x 1/2" x skin deep incised wound on the dorsum of the right hand. 6. 2 1/2" x 3/4" x bone deep incised wound on the dorsum of left arm. Lower end of shaft of radius is cut. Advised X-ray left arm lower and A.P. and lateral. 7. 4" x 2" x bone deep incised wound, metacarpal bone is cut through and through on the dorsum of left hand. Advised X-ray left hand AP and lateral. 8. 3" x 3/4" x skin deep incised wound on the dorsum of left arm. 9. 3/4" x 1/4" x skin deep incised wound on the dorsum of left hand placed traversely near the wound No. 7. 10. 1" x 1/4" x skin deep incised wound on the dorsum of left hand placed traversely near the wound No. 7. 11. 2" x 1" x muscle deep incised wound in the paroted region in front of the left pinna. 12. 1/2" x 1" x skin deep incised wound and paroted region placed traversely along with wound No. 11. 13. 4" x 1/2" x skin deep incised wound on the right side of the occipital region. 14. 4" x 1/2" x scalp deep wound incised in the occipital region posteriorly and advised X-ray scalp AP and lateral. 15. 5" x 3/4" x scalp deep wound in the occipital region on the left side. 16. 3/4" x 3/4" x skin deep wound adjoining placed traversely to wound No. 15.
11. He found injuries Nos. 1, 2, 3, 4, 5, 8, 9, 10, 11, 12, 13, 15 and 16 of simple nature whereas injuries Nos. 6 and 7 were grievous. It is his evidence that duration of the injuries was three hours and were caused by sharp-edged weapon like ‘Drat’ / ‘Gandasa’ (Ex. P-1). He issued Medico-legal Certificate (Ex. PA). According to his opinion, the injuries could be possibly caused the death of the injured because of the number of injuries and site thereof. He denied the suggestion of the defence that these injuries could be caused by a fall on stony and thorny surface or self-inflicted. He stated in his cross-examination that injuries Nos. 13, 14, 15 and 16 were on the skull of the victim and they could be fatal in spite of their being simple in nature.
12. Kashmiri Lal, the victim appeared as PW-2. He deposed the entire prosecution case. He continued to maintain that he and the accused finally reached Dharampur in the night when the latter again prevailed upon him to start journey on-foot. He stated without an iota of suspicion that near village Rauri, the accused inflicted ‘Drat’ blows from behind which sustained severe injuries on his skull and he gripped his head with both the hands but the accused continued giving ‘Drat’ blows on him due to which he dropped on and gave the impression that he was completely unconscious. Thereafter he managed to crawl a little distance and reached the point where he could notice electric light. He raised loud screams which attracted 4/5 villagers including PW-8. In his cross-examination, the accused failed to elicit anything material which may label his evidence to be tainted, bias or prejudiced. There is sufficient testimony of this witness which fully support the prosecution case that the accused accompanied him to Subathu from Patiala.
13. Lal Chand (PW-8) is another witness. He is resident of village Mohari and has been running a carpentary shop at Subathu. According to his version, he reached at his house in the village at about 9.30 p.m. on 4-10-1987 from his shop and was taking tea. He stated that he heard the cries of one person and in turn he gave a call. The injured told him that his brother had inflicted injuries upon him and that he should be saved and also asked for water. He carried a bucket of water along with 2/ 3 other persons and reached at the spot. He found PW-2 lying near the road in a pool of i blood. He along with other persons brought him on the road. He called Surpanch Kirpa Ram and thereafter he along with Kirpa Ram went to Police Post Subathu and lodged the report. The statement (Ex.PB) made by PW-2 recorded by PW-10 was also signed by him and Kirpa Ram as well. He stated that he accompanied the police to Subathu where the accused was apprehended in the house of Shyam Dass (PW-3). Attache-case containing some blood-stained clothes was taken into possession in his presence. According to his version at the place of occurrence the accused produced weapon of offence i.e. ‘Drat’/ Gandasa’ (Ex.P1) in his presence. He has certified that disclosure statement (Ex.PJ) was made by the accused. In pursuance thereof, accused recovered ‘Drat’/ Gandasa’ (Ex.P1). He is an independent witness and there is nothing on record that he had falsely implicated the accused. His evidence corroborates the evidence of PW-3.
14. There is the evidence of Shyam Dass (PW-3). It is his evidence that the victim is his son-in-law and the accused is real brother of his son-in-law. According to him the accused reached his house at Subathu on 4-10-1987 at about 10.30 p.m. He deposed that he served meals to the accused and inquired him about the well being of accused’s family members. He stated that at about 4 a.m. on 5-10-1987 police came to his house and arrested the accused. An Attache-case was taken into custody by the police out of which clothes and other articles were taken into possession. One trouser and a shirt of the accused had blood stains. In his cross-examination he denied the suggestion of the accused that the accused came to his house at about 1 p.m. (mid-night) and told him that under the influence of liquor on some trifling dispute the victim had fallen in the ‘Khud’ and received the injuries. He further stated that he had not gone to the house of his son-in-law at Patiala for the last one and a half years from the date of recording of his statement by the trial court. Nor he had written any letter to his son-in-law or to his daughter or the accused during that period. He also stated that he had not constructed any house during the days of occurrence.
15. The last material witness is S.I. S.H.O. Bishehar Singh (PW-10) who conducted the investigation. He testified that the disclosure statement (Ex.PJ) under Section 27 of the Evidence Act was recorded by him in the presence of PW-8 besides Sarpanch Kirpa Ram. He further maintained that the accused led him to the bushes where he had concealed ‘Drat’ (Ex.P1) and recovered the same. His evidence has amply corroborated and strengthened the evidence deposed by PWs 3 and 8. Remaining evidence brought on record is of formal nature.
16. The main contentions raised by the learned counsel for the accused before me were twofold.
17. In the first place it was contended by Shri J. K. Verma that the prosecution evidence does not show that the accused was present at the spot or had participated in this offence. In the second place, it was contended that the accused could at best be convicted for an offence under Section 324, I.P.C. and nothing more than that.
18. From the evidence of PW-2, it is established that at the time of incident, the victim was in the company of the accused. The burden lies upon him to explain satisfactorily the circumstances leading to the incident. The evidence plainly demonstrates that he has failed to discharge this burden rather he has made attempts to escape from this responsibility by setting up false defence that under the influence of liquor on some trifling dispute the victim and fallen in the ‘Khud’ and received the injuries. There is nothing on record nor suggested that this witness was inimically disposed towards the accused. In fact material part of his evidence was not subjected to cross-examination. He had no cause for grievance against the accused and there was no reason why he would have unnecessarily implicated his real brother in this manner. It does not stand to reason that this witness an injured would have allowed the real assailant to go unpunished and would have unnecessarily implicated the accused especially when he had no enmity against his real brother. His evidence receives corroboration from the evidence of PW-8.
19. According to Dr. M. R. Lambha, (PW-1) the injuries received by the victim could possibly cause his death as the injuries Nos. 13, 14, 15 and 16 were on the skull in spite of their being simple in nature. The victim was referred by Dr. District Hospital Solan to Indira Gandhi Medical College, Shimla on 6th October, 1987.
20. According to Dr. K. C. Sharma (PW-9) who was posted Medical Superintendent in Indira Gandhi Medical College, Shimla, the injured was referred from District Hospital Solan on 6th October, 1987. His X-rays were taken according to which on right fore-arm and hand, there was fracture of ulna along with Metta Carple fracture, ulna fracture was displaced anteriorly on the left side. The X-ray of left fore-arm shows cummunative fracture radius lower end and lower 3rd shaft radius with extension into the wrist joint.
21. From the evidence it is established that the prosecution has proved its case by leading clinching and cogent evidence that the victim received injuries at the hands of the accused. I do not find any substance in the first contention pressed by the learned counsel for the appellant.
22. Having given my careful consideration to the second contention, I am unable to agree with the learned counsel for the accused. PW-2 had received as many as 16 injuries on his head, hands, arms and other parts of the body. The injury report (Ex.PA) shows that injuries Nos. 6 and 7 were of grievous nature and injuries Nos. 13, 14, 15 and 16 were on the skull. Dr. M. R. Lambha (PW-2) opined that injuries could be caused by sharp-edged weapon like Ex.P1 and could be fatal in spite of their being simple in nature. His statement shows that injuries Nos. 13, 14, 15 and 16 were on the skull which was a vital part of the body. If the accused armed with sharp-edged weapon has started assaulting PW-2 and caused incised wound on his skull, it can be easily inferred that he intended to commit his murder. As such there can be no doubt that the accused would be guilty for the offence of attempting to commit the murder of PW-2 punishable under Section 307, I.P.C.
23. In State of Maharashtra v. Balram Bama Patil, (1983) 2 SCC (Cri.) 320 : (1983 Cri LJ 831), R.B. Misra, J. observed these :-
“… To justify a conviction under this Section it is not essential that bodily injury capable of causing death should have been inflicted. Although the nature of injury actually caused may often give considerable assistance in coming to a finding as to the intention of the accused, such intention may also be deduced from other circumstances, and may even, in some cases, be ascertained without any reference at all to actual wounds. The Section makes a distinction between an act of the accused and its result, if any. Such an act may not be attended by any result so far as the person assaulted is concerned, but still there may be cases in which the culprit would be liable under this Section. It is not necessary that the injury actually caused to the victim of the assault should be sufficient under ordinary circumstances to cause the death of the person assaulted. What the Court has to see is whether the act, irrespective of its result, was done with the intention or knowledge and under circumstances mentioned in this Section. An attempt in order to be criminal need not be the penultimate act. It is sufficient in law, if there is present an intent coupled with some overt act in execution thereof.”
24. The evidence and the circumstances of the case discussed above do not leave the least doubt that the accused intended to commit the murder of his brother PW-2. The learned Additional Sessions Judge has discussed the evidence and has given reasons for holding that the accused entertained a persistent criminal intention to cause death and the victim survived despite the fatal and lethal attack made upon him. I find no reason to take a different view in view of the evidence and circumstances and the law laid down by the Supreme Court referred to above.
25. The result is that the judgment and order of the trial court is confirmed and the appeal is dismissed.
26. The appellant is on bail. He shall surrender to his bail bonds and undergo the remaining portion of the sentence.