4 Whether This Case Involves A ... vs Charoya Chako Salim Jusab @ Salim

(PER : HONOURABLE MR.JUSTICE AKIL KURESHI)

1. Both these appeals are filed by the State questioning the validity of the judgement dated 31.7.1996 rendered by the learned Additional Sessions Judge, Jamnagar, in Sessions Case No.123/1993. The respondent original accused was charged with offence punishable under section 307 of the Indian Penal Code. The trial Court however, acquitted him for the said offence, instead, convicted him for offence under section 324 of the IPC and imposed sentence already undergone by him. It appears that thus the accused served a small sentence of about two months. The State has therefore, preferred one appeal against acquittal under section 307 and another for enhancement of the sentence.

2. As per the injured Haroon Dawood, PW­3, exh.13, he was the resident of Jamnagar. He knew the accused since they lived in the same locality. At 5:30 in the evening on the date of the incident, he was at home. The accused called him. He therefore, went to the main gate. The accused asked him why he had beaten up his brother. The witness denied his involvement, upon which, as he was turning, the accused gave a knife blow on his left side and ran away. He started shouting upon which his father and others came and took him to the hospital in an autorickshaw.

3. Since involvement of the accused in commission of offence Page 2 of 5 CRIMINAL APPEAL/782/1997 18/04/2015 01:24:35 AM R/CR.A/782/1997 JUDGMENT is not in dispute before us, we may not take detail note of other evidences on record. We would examine the limited question of conviction under appropriate provision of law and sentence.

4. Dr. Manharkumar Mehta, PW­12, exh.24, was the Associate Professor in surgical unit of Jamnagar hospital. He had come with the record since Dr. Namsha who had treated the injured had died. He produced at exh.25 the injury certificate in which one stab wound of 2" x 1.1/2" on the outer side of the left portion of the chest was noted. From the medical papers, he pointed out that the patient was operated thrice. Finally because of persistent passing of blood in the urine, his one kidney had to be removed. In the cross examination, however, he agreed that he was not present during any of these operations and was deposing only on the basis of medical record.

5. Dr. Mehul Babubhai Patel, PW­17, exh.44, had treated injured Haroon Dawood at the said hospital. He had also recorded an injury on the chest of 2" x 1.1/2" which could be caused by sharp cutting instrument. Because of acute pain, he could not measure the depth of the injury. He was of the opinion that the injury was serious. During operation it was found that his kidney was also damaged. In the cross examination, he agreed that no investigation was made to find out whether the patient's kidney was damaged earlier.

6. On the basis of evidence on record, learned Judge found that the accused had assaulted the injured with the knife Page 3 of 5 CRIMINAL APPEAL/782/1997 18/04/2015 01:24:35 AM R/CR.A/782/1997 JUDGMENT and caused the said injury. However, in absence of any details of operations performed and on the basis of other evidence, he concluded that the injury was not such which was sufficient in ordinary course of nature to cause death. He in fact, held that the injury was not grievous. Learned Judge, therefore, convicted the accused for offence under section 324 of the IPC. Considering the fact that the accused was a young boy aged about 24 years, had responsibility of family of ten persons, he awarded a sentence already undergone. He also imposed a fine of Rs.2000/­.

7. From such evidence on record, we are entirely in agreement with the suggestion of learned APP that accused got away with a rather light punishment. We are however, not convinced that his acquittal under section 307 was erroneous. The accused did use the knife and gave one blow on the side of the chest. Significantly, neither the place nor the ferocity of the blow was such to cause any serious damage on the heart or the lungs of the injured. If his intention was to cause death, nothing prevented him either from using his knife on more vulnerable part of the body or repeating the assault. Further, even the death of the injured was not ascertained. Be that as it may, his conviction and sentence for offence under section 324 is somewhat disturbing. Looking to the nature of the injury, it was certainly arguable that his conviction should have been more appropriate under section 326 and not under section 324 of the IPC. In any case, the sentence of even less than two months leaves us somewhat dissatisfied. Had this been a fresh case, we would have most certainly Page 4 of 5 CRIMINAL APPEAL/782/1997 18/04/2015 01:24:35 AM R/CR.A/782/1997 JUDGMENT thought of enhancing the punishment. However, the passage of time persuades us not to send back the accused to jail. The incident is of year 1992. Nearly 23 years have passed since then. The accused a young man of 25 years would have now reached middle age of more than 45 years. He would have further liabilities of children and aged parents. Only on these considerations, we refrain from awarding higher sentence but in no uncertain terms, disapprove the approach of the Court below of conviction and sentencing both.

8. With these observations, both the appeals are dismissed.

R&P be sent back to concerned trial Court.

(AKIL KURESHI, J.) (VIPUL M. PANCHOLI, J.) raghu Page 5 of 5 CRIMINAL APPEAL/782/1997 18/04/2015 01:24:35 AM