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2007(7) Supreme 386
Supreme Court of india
S.B. Sinha & Harjit Singh Bedi, JJ.
Bishan Singh & Anr. — Petitioners
versus
The State — Respondent
Appeal (crl.) 1390 of 2007
[Arising out of S.L.P. (Crl.) No. 2273 of 2007]
Decided on : 09-10-2007
Facts of the case:
1.Out of the six accused persons, four expired. Bishan Singh son of Bachchi Singh and Govind Ballabh son of Krishnanand, the two surviving accused, were tried and convicted for commission of an offence under Sections 147 and 308/149 IPC.
2. The accused persons were said to be inimical towards one Harish Bhatt whom they assaulted on 30.9.1984 with lathis. They were convicted u/s 147 and 308/149 by the Trial Court.
3.High Court dismissed the appeal.
4. Held, the offence fell u/ss 323 and 325. Sentence modified.
Findings of the Court:
Courts below erroneously convicted the accused u/s 308, IPC. Instead, the offence fell u/s 323 and 325.
Result : Appeal allowed to the extent indicated.
Key Points: - The judgment states that existence of an intention to kill is sine qua non of conviction under Section 308 IPC, and without such evidence, conviction cannot be based solely on FIR and weapons carried (paras referenced: p_1, p_11, p_12). - The Court held that the offence fell under Sections 323 and 325 IPC, not 308/149, and accordingly allowed the appeal to the extent of changing the conviction (paras referenced: p_2, p_12, p_18, p_20, p_23, p_11). - The punishment was modified to a fine with alternative simple imprisonment, and a portion of the fine could be paid to the informant; appellants in custody were to be released subject to conditions (paras referenced: p_14, p_15, p_18).
judgment
S.B. SINHA, J. —
1.Leave granted.
2.Bishan Singh son of Bachchi Singh and Govind Ballabh son of Krishnanand, the two surviving accused, who were tried and convicted for commission of an offence under Sections 147 and 308/149 of the Indian Penal Code (IPC) are before us; the other four accused, namely, Arjun Singh, Shivraj, Govind Singh and Bhairav Dutt having expired.
3.One Harish Bhatt was the complainant. On 30.09.1984 at about 06.30 p.m. when he was going towards his village, the accused persons allegedly assaulted him with lathis and took out a sum of Rs.400/- from his pocket. His brother Ghanshyam Dutt Bhatt intervened. It was alleged that the accused persons were inimically disposed of towards the injured and had attacked him with an intention to cause his death. The injuries suffered by Harish Bhatt as per the injury report prepared by Dr. J.S. Pangti (PW-6) are as under :
“1.Lacerated wound 3 cm x 1 cm on scalp at right parietal region, 14 cm above the right eye-brow. Scalp deep. Fresh bleeding present.
2.Lacerated wound 5 cm x = cm x scalp deep on scalp, at right parietal area, 19 cm above the right eye-brow.
3.Lacerated wound 3 cm x < cm x skin deep, 4 cm above the right eye-brow at right forehead, 6 cm x 7 cm swelling around the wound.
4.Abrasion 1 cm x = cm, at upper lip, 3 cm from the right angle of the mouth.
4/1Abrasion 1 cm x = cm at lower lip right angle of mouth.
5.Contusion mark 10 cm x 5 cm above right shoulder reddish in colour. Swelling 2 cm around the wound.
6.Contusion mark 6 cm x 6.5 cm on above and front and middle of left arm, 13 cm below the shoulder joint 1 cm swelling around the injury.
7.Contusion 12 cm x 10 cm at fore-arm, 8 cm from the left wrist joint = cm swelling around the injury.
8.Complain of pain in both lower legs and thigh, but no injury seen.”
4.Admittedly, all the injuries except injury no.7 were simple ones. Injury No. 7 being a fracture with dislocation of wrist joint was found to be grievous one. The injured witness examined himself as PW-5. In his deposition, he alleged :
“I used to stop the accused from fighting with the poor people and I was witness against the accused persons in the litigation between Shanti Joshi and accused persons. That is why the accused beat me. My head was wounded. My kurta was full of blood and seizure report of kurta had been made in the hospital”
5.The learned Trial Judge relying on or on the basis of the testimonies of the said witness as also his brother, convicted the appellants for commission of an offence under Sections 147 and 308/149 IPC and sentenced them to undergo rigorous imprisonment for one year for the offence punishable under Section 147 IPC and rigorous imprisonment for four years for the offence punishable under Section 308/149 IPC.
6.Although in the First Information Report, the informant had alleged that all the six accused had earlier threatened to kill him as also burn his hut and the said attack was with an intention to kill him, but the offence recorded therein was under Sections 147 and 323 IPC. The charge-sheet was, however, submitted, inter alia, under Section 308 IPC.
7.We have noticed hereinbefore that in his deposition PW-5 stated about the existing enmity between the parties. It does not appear from his deposition that he had made any statement to the effect that the accused had attacked him with an intention to kill. The learned Trial Judge in his judgment solely relying upon the allegations made in the First Information Report opined that a case under Section 308 IPC was made out.
8.Interestingly, the learned Trial Judge observed that the charge under Section 308 IPC read with Section 149 thereof was proved, because the eye-witnesses had clearly sated that they were armed with lathis.
9.The learned Trial Judge did not notice the ingredients of Section 308 IPC which provides for existence of an intention or knowledge.
10.The High Court also dismissed the appeal, opining :
“33.From perusal of record it has been established that t
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