RAMESH KUMAR @BABLAversusSTATE OF PUNJAB

                          [2016] 2 S.C.R. 867



                    RAMESH KUMAR @BABLA                                     A
                                   v.
                         STATE OF PUNJAB
                   (Criminal Appeal No.33 5 of2016)
                            APRIL 22, 2016                                  B

        [DIPAK MISRA AND SHIVA KIRTI SINGH, JJ.)
         Penal Code, 1860: ss. 307, 324 or 326 - Clash between two
  groups resulting in injuries on both parties -Allegation against the
, appellant that he gave a sword blow on the head of one person and . C
  also hit the complainant on his head - Other co-accused caused
  several injuries to the complainant - Trial court acquitted the
  remaining six accused persons but convicted only the appellant lll
  s.307 and sentenced to rigorous imprisonment for 3 years- High
  Court affirmed the same - On appeal, held: As per initial version of
  the occurrence, a sword blow near the eye of the complainant was D
  allegedly caused by another co-accused whereas appellant is.
  alleged to have given a sword.blow on the head - It is not clear
  from the evidence as to·which of the two incised injuries was caused
  by the appellant - Injury no. 1 and 2 both are on the head and by
  sharp weapon - Only one of them, injury no. 1 is opined to be
                                                                        E
  grievous but it is accepted by the doctor that it may be possible by
  fall, as doctor did not find any depth in the said injury - In such a
  situation, the appellant is entitled to be treated as the author of
  only the injury no.2 on the head which is said to be a simple injury
  but caused by a sword which is a qangerous weapon - In view of
  that, conviction uls.307 is converted to one u!s.324.                 F
       Sentence/Sentencing: Appellant's conviction uls.307 !PC
 converted to one llls.324 !PC - Occurrence took place in 1997 -At
 the time of incident, appellant was aged 3,(5 years - Parties were
 involved in civil as well as criminal litigationfr9111 before-Appellant,
 as per custody certificate was not involved in any other case -            G
 Appellant is 50 years of age and fully settled in life - To meet the
 ends of justice, benefit of Probation of Offenders Act granted to
 the appellant - Penal Code, 1860 - s.324.
       Partly allowing the appeal, the Court
                                                                            H
                                   867
868          SUPREME COURT REPORTS                     [2016] 2 S.C.R.



A        HELD: 1. In his evidence, PW-2, the doctor has declared
  injnry no.1 and injnry no.7 caused by a blunt weapon to be
  grievous by describing them as dangerous to life. But in cross-
  examination, he has opined that possibility of injury no.1 by fall
  cannot be ruled out. Injury no.1 and 2 both are on the head and
  by sharp weapon. Only one of them, injury no.1 is opined to be
B
  grievous but it is accepted by the doctor that it may be possible
  by fall, obviously because doctor has not found any depth in the
  said injury. In such a situation, the appellant is entitled to be
  tn·ated as the author of only injury no.2 on the head which is said
  tu lie a simple injury but caused by a sword which is a dangerous
C weapon. In view of that, it will not be proper to hold the appellant
  guilty of causing grievous hurt to the complainant and hence for
  having voluntarily caused hurt by a dangerous weapon, he
  deserves to be convicted only for offence u/s.324 IPC which is
  punishable with imprisonment which may extend to three years
  and/or with fine. Since the other co-accused who allegedly caused
D
  some other injuries have been acquitted and the appellant did
  not cause any other injury to the complainant, no case is made
  out u/s.307 IPC, especially when the genesis as well as motive
  for the alleged occurrence remain obscure and under haze. (Paras
  5, 6] [870-D-H; 871-A]
 E       2. Appellant's conviction u/s.307 IPC is converted to one
   u/s.324 IPC. On the question of sentence, it is pertinent to note
   that the occurrence took place in 1997. In his statement u/s. 313
   of the Cr.P.C. the appellant gave his age in 2002 as 36 years. He
   claimed that he and others went to the place of occurrence on
 F getting information that his brother was assaulted by complainant.
   He brought his brother to Police Station and lodged a report. As
   noticed by trial court, parties are involved in civil as well as
   criminal litigation from before. High Court has noted that
   appellant, as per custody certificate, is not involved in any other
   case. In such circumstances, it is not deemed necessary to send
 G the appellant immediately to Jail custody after about 19 years of
   the occurrence when he is 50 years of age and fully settled in life.
   In view of that, the ends of justice would be met by granting
   benefit of Probation of Offenders Act to the appellant. [Paras 7
   and 8] (871-B-DJ
 H
      RAMESH KUMAR @BABLA v. STATE OF PUNJAB                                  869


     CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.                      A
335 of 2016.
      From the Judgment and Order dated 19.10.2015 of the High Court
of Punjab and Haryana at Chandigarh in CRA S 1003-SB of 2002
(O&M).
       Neeraj Kumar Jain, Sr. Adv., Yivek Sharma, Yash Pal Dhingra,            B
Ad vs., with him for the Appellant.
      Ashok Agarwal, AG, Saurabh A. Gupta, AAG, Kuldip Singh, Adv.,
with them for the Respondent.
      The Judgment of the Court was delivered by                               c
        SHIVA KIRTI SINGH, J. 1. By the judgment and order under
appeal dated 19.10.2015 the High Court of Punjab & lhrvana at
Chandigarh dismissed criminal appeal bearing No.CRA S I 003 - SB of
200'.? a~d confirmed the conviction ofappellant under Section 307 of the
!PC by the Additional Sessions Judge, Adhoc, Patiala for which appellant       D
has been ordered to undergo rigorous imprisonment for three years and
also to pay a fine of Rs.2000/-.
        2. The limited issue strenuously canvassed before us in this appeal
is to the effect that appellant should have been convicted under Section
324 or 326 and not under Section 307 of the IPC and ought to have been
                                                                               E
inflicted with a lesser punishment.
        3. Keeping in view the aforesaid issue and the submissions, a
close analysis of the prosecution case reveals that the appellant along
with other six named accused and 3-4 unknown persons allegedly first
assaulted one Rakesh Kumar. The specific allegation against the appellant
                                                                               F
is that he was armed with a sword and he gave a blow which hit Rakesh
Kumar on his head. The companions of Rakesh Kumar, namely
complainant l\amesh Kumar and one Sanjay ran away on their scooter
but they were stopped at some distance by parents of the appellant and
there when they had fallen on the ground, another co-accused gave
sword blow hitting near the.eye of the complainant whereas the appellant       G
gave a sword blow on the head of the complainant. Other co-accused
also allegedly caused several injuries to the complainant. Thereafter the
accused persons ran away and the injured were taken to hospital.
      4. From the narration of the case it further appears that there was
clash between two groups which resulted in injuries on both parties. All       1-1
870            SUPREME COURT REPORTS                            [2016] 2 S.C.R.


A     the seven accused pleaded not guilty to the charge under Section 307
      read with Section 149 of the IPC. The prosecution examined six witnesses
      including a doctor PW-2 and the Investigating Officer PW-6. On
      considering the entire evidence the trial court acquitted the remaining
      six accused persons but convicted only the appellant, as noted already.
      The trial court, thus appears to have accepted only a part of assault and
B
      injury confined to the complainant.
            5. The submission on behalf of the appellant for converting the
      conviction to one under Section 326 !PC though adverted to, has not
      been properly dealt with by the High Court. Only two injuries out of
      seven on the person of the complainant were caused by sharp weapon
 c    and the rest were by blunt weapon. The two injuries by sharp weapon
      are shown to be incised wounds with the following dimensions:
             I. 2.5 cm x 0.25 cm on the left parietal region of the head.
            2. 1.5 cm x 0.25 cm x 0.25 cm nearly perpendicular to injury no.1.
D     In his evidence PW-2, the doctor has declared injury no. I and injury
      no. 7 caused by a blunt weapon to be grievous by describing them as
      dangerous to life. But in cross-examination he has opined that possibility
      of injury no. I by fall cannot be ruled out. As already noticed, as per
      initial version of the occurrence a sword blow near the eye of the
 E    complainant Ramesh Kumar was allegedly caused by another co-accused
      Raj Kumar Chawla whereas appellant is alleged to have given a sword
      blow on the head. It is not clear from the evidence or the discussion as
      to which of the two incised injuries was caused by the appellant. Injury
      no. I and 2 both are on the head and by sharp weapon. Only one of them,
      injury no.I is opined to be grievous but it is accepted by the doctor that it
 F    may be possible by fall, obviously because doctor has not found any
      depth in the said injury. In such a situation the appellant is entitled to be
      treated as the authorof only the injury no.2 on the head which is said to
      be a simple injury but caused by a sword which is a dangerous weapon.
             6. ln view ofaforesaid discussion, it will not be proper to hold the
 G    appellant guilty of causing grievous hurt to the complainant and hence
      for having voluntarily caused hurt by a dangerous weapon, he deserves
      to be convicted only for offence under Section 324 IPC which is
      punishable with imprisonment which may extend to three years and/or
      with fine. Since the other co-accused who allegedly caused some other
      injuries have been acquitted and the appellant did not cause any other
 H
       RAMESH KUMAR @BABLA v. STATE OF PUNJAB                                    871
                       [SHIVA KIRT! SINGH, J.]

injury to the complainant, no case is made out under Section 307 !PC,             A
especially when the genesis as well as motive for the alleged occurrence
remain obscure and under haze.
       7. Accordingly the appeal is allowed in part by converting
appellant's conviction under Section 307 !PC to one under Section 324
!PC. On the question of sentence, it is pertinent to note that the                B
occurrence took place in 1997. In his statement under Section 313 of the
Code of Criminal Procedure the appellant gave his age in 2002 as 36
years. He claimed thathe and others went to the place of occurrence on
getting information that his brother Sanjay Kumar was assaulted by
Ramesh Kumar (Complainant). He brought his brother to Police Station
and lodged a report. As noticed by trial court, parties are involved in civil
                                                                                 c
as well as criminal litigation from before. High Court has noted that
appellant, as per custody certificate, is not involved in any other case. In
such circumstances it is not deemed necessary to send the appellant
immediately to Jail custody after about 19 years of the occurrence when
he appears to be 50 years of age and fully settled in life.                       D
      8. In view of aforesaid, in our view the ends of justice would be
met by granting benefit of Probation of Offenders Act to the appellant.
We order accordingly and direct that the appellant be released on
executing.appropriate bond before the trial court to appear and receive
sentence ofrigorous imprisonment for !(one) year when called upon to              E
do so and in the me~ntime to keep the peace and be of good behaviour.
      9. With the aforesaid modification in conviction and sentence the
appeal is allowed in part.
Devika Gujral                                           Appeal partly allowed.
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