IMPORTANT POINT
The central legal point established in the judgment is the requirement to prove mens rea for the offence under Section 307 IPC and the interpretation of the nature of the injury in determining the appropriate section of the Indian Penal Code.

ORDER :

1. Instant criminal appeal has been filed under Section 374(2) CrPC by the accused appellant challenging the judgment dated 11.02.1991 in Sessions case No.42/1989 passed by the Sessions Judge, Bundi whereby he has been convicted for offence under Section 307 IPC and sentenced to undergo four years rigorous imprisonment, fine of Rs.1000/-, in default to further undergo six months rigorous imprisonment.

2. Facts of the case are that on 24-12-1988 in night at about 11.00 PM, a parcha bayan of injured Abdul Latif was recorded at General Hospital Bundi, wherein he stated that in night of 24-12-1988 around 8.15 PM he along with Shekh Umar, Mohammad Hafij and Maksood was going to Aktasa cinema hall then on bridge near Aktasa accused Pappu along with one other met him and pappu suddenly with the intention to kill him, inflicted a knife blow from sharp side at testicles, the other person caught his hands, when his companions pushed them, they ran away. He further stated that around two months ago, Pappu was playing bugle loudly, opposite the shop of Gulshan, which was objected by him, due to which altercations ensued between both of them, and since then pappu had animosity with him.

On the basis of this parcha bayan, an FIR No.178/1988 was registered for offence under Section 307 IPC and investigation commenced. After concluding investigation, charge-sheet was filed against accused Pappu and Radhe Shyam, but the accused Radhey Shyam was discharged in view of evidence, that he caught the injured after inflicting injury, but charge-sheet u/s.307 IPC was filed against accused Pappu.

3. The prosecution examined twelve witnesses and exhibited documents, including injury report of Abdul Latif. In defence evidence, the accused pleaded not guilty and stated that on the date of incident, 5-6 persons encircled him and a scuffle took place, due to which Latif fell down from the bridge and sustained injuries, and the he has been falsely implicated in this criminal case. The trial Court considering oral and documentary evidence produced by the prosecution, convicted and sentenced the accused in aforesaid terms.

4.1 Counsel for accused-appellant contended that the stab wound, suffered by the injured Abdul Latif below the abdomen part cannot be treated a grievous hurt, sufficient to cause death. Dr. Jitendra, who performed operation of the injured and was the best witness to opine about the nature of the injury, has not been produced by the prosecution. And only Dr.Kamlesh, who initially made check up of injured at hospital and prepared the medical report (Ex.P-3) has been produced as PW.5. According to statement of Doctor (PW.5), at the time of check-up, the injured was in conscious state of mind and his condition was stated to be good. The stab wound was found of 1¼” wide and ½” depth, blood pressure was observed as 110 and pulse were 100 p.m. Therefore, considering all such circumstances, the stab injury to injured at the most may be treated as grievous, but how and not sufficient to cause death. The duty Doctor on what basis, opined such injury to be dangerous to life is having no basis and no reason has been assigned by him. He contended that no document of hospitalization of the injured, and as to how long he remained hospitalized, has been placed on record. The opinion of Dr.Kamlesh (Pw.5) in the injury report (Ex.P3) is perfunctory in nature without close analysis and without any basis, which do not match with the good condition of injured, hence, such an opinion deserves to be discarded.

4.2 In addition, counsel for accused-appellant has contended that recovery of knife, allegedly used by the accused-appellant to cause the stab wound is suspicious, as firstly, the incident occurred in the night of 24-12-1988 and the knife has been recovered on 1-1-1989, through fard japti (Ex.P-5). Both witnesses of recovery of knife, namely Murlidhar (Pw.8) and Jumma (Pw.9) have turned hostile. The seized knife has not been found sustained any blood stain