JUDGMENT K.N. Ojha, J.
1. Instant appeal has been preferred against order of conviction and sentence dated 27-5-1981 passed by Shri R. S. Nigam, VIth Additional Sessions Judge, Agra in Session trial No. 516 of 1980 by which the appellant Ashok has been convicted under Section 307 read with Section 34 I. P. C. and has been sentenced to undergo Rigorous Imprisonment for five years and also has been imposed a fine of Rs. 500/- and in default of payment of fine to further undergo Rigorous Imprisonment of three months.
2. After the appeal was filed by Shri B. N. Srivastava, learned counsel for the appellant, the appellant was enlarged on bail. Since then, he is absconding. Letter was sent to Chief Judicial Magistrate, Agra to issue coercive process to procure the attendance of the appellant Ashok. The Chief Judicial Magistrate issued non-bailable warrant and later on process under Section 82 and 83 of Criminal Procedure Code. It was reported that Ashok had disposed of his property and left the address given in the memorandum of Appeal and he was not available at his address. Efforts for procuring the presence of Ashok having failed, the argument of learned AGA has been heard and the judgment is being delivered on merits.
3. According to prosecution, complainant Ram Babu carried a shop of general merchandize at the crossing of Bhogipura city, Agra in the year 1980. The accused Ashok used to purchase articles from his shop sometime on cash and sometime on credit. Therefore, the appellant accused was known to Ram Babu since before the occurrence. On 28-5-1980 at about 7.30 p.m. Ram Babu was busy at his shop. The appellant Ashok along with his three associates reached his shop and demanded Rs. 50/-on credit. Ram Babu expressed his unwillingness to advance the sum but the appellant insisted. On this Ram Babu said that he was demanding the money as if his father had kept it in his shop. On hearing this reply, the appellant and his other three associates became infuriated and said that the victim was using his father's name and as such they said "MAR DO SALEY KO - BAAP TAK PAUHANCHTA HAI". At this, Ashok struck knife in the stomach of the complainant and the two companions of the accused also inflicted injuries with their respective knives and the third companion struck iron rod which was lying near the 'bhatti' of the adjacent Halwai shop. After causing injuries, accused ran away towards Rai, Ki Mandi. Ram Babu got the F. I. R. Ex. Ka. 4 scribed by Ram Kumar and lodged it on the same day at about 7.45 p.m. at P. S. Shahganj. Place of occurrence was at a distance of half furlong from the police station. Ram Babu was medically examined by Dr. S. P. Mishra on 28-5-1980 at 8-15 p.m. at the District Hospital, Agra. After the investigation, the appellant was charge sheeted under Section 307 read with 34 I. P. C. but rest were not charge sheeted.
4. After the case was committed to the Court of Session, charge under Section 307 read with Section 34 I. P. C. was framed against the appellants. The prosecution examined three other witnesses -- P. W. 3 Girdhari Lal, P. W. 4 Surendra and P. W. 5 complainant and victim Ram Babu.
5. P. W. 1 Dr. S. P. Mishra medically examined the complainant on 28-5-1980 at 8-15 p.m. in District Hospital, Agra and found the following injuries on his body. :---
1. Incised wound 3/4" x 2/10" x 2/10" on the left side fore head 1/4" above the left eye brow nearly transverse. Margins were clear cut, both edges were acute.
2. Contusion 1-1/2" front on left side face just below left eye. Surrounded with swelling 21/2" x 2" area.
3. Incised wound 3/4" x 2/10" x 2/10'' on the right side chest 6" below posterior auxiliary fold right side. Obliquely vertical. Rest same as in injury No. 1.
4. Incised wound 3/4" x 2/10" x 2/10" on the back lower part at its mid line 1-11/2" above the last piece of coxcer vertebrae obliquely transverse. Rest same as in injury No. 1.
5. Incised wound 3/4" x 2/10" on the left side front of chest 2" below left clavicle inner third obliquely vertical. Rest same as in injury No. l.
6. Incised wound 3/4" x 2/10" on the front of right side chest 3/4" below and inner to right nipple. Transverse. Rest as in injury No. 1.
6. In the opinion of the doctor, injuries were simple in nature. All the injuries, except injury No. 2 were caused by some sharp edged weapon like knife and injury No. 2 was caused by iron rod. It was further stated by the doctor that these injuries could be caused on 28-5-1980 at about 7.30 p.m. The doctor also stated that these injuries could not be self inflicted.
7. P. W. 2 constable Sudan Singh has deposed that he was posted as constable clerk at P. S. Shahganj, District Agra on 28-5-1980 and on the basis of the written F.I.R. Ex. Ka. 4 he had prepared the chick F. I. R.
8. P. W. 6 R. C. Sharma, station officer made investigation of the case, visited the spot and found the shop of the victim closed, hence he could not make inspection. He interrogated the victim in the District Hospital and also interrogated P. W. 4 the same day. He further took the clothes of the complainant into custody and Ex. Ka. 5 was prepared. He also prepared the site plan. At the time of inspection, he found the electric bulb and tube light in the shop of the complainant in working order. He arrested Ashok, appellant from the Durgah Kamal Khan. The accused denied his participation in the crime. No witness was examined by him. Only statement of P. W. 3 Girdhari under Section 161 was got proved by the accused which was marked as Ex. Kha-1. The accused alleged that he was tenant of the complainant. He insisted that receipt of rent be issued to him but the victim declined to do so. When he again insisted, he was falsely involved in the case.
9. After appreciating evidence of prosecution and the defence case, learned Additional Sessions Judge arrived at the conclusion that the appellant was known to the victim since before the occurrence. When he along with three others armed with weapons went to his shop in the evening of 28-5-1980 and demanded Rs. 50/-, some conversation did take place. The appellant became infuriated. There was electric bulb and rod in the shop of the victim/ complainant. When the complainant refused to give Rs. 50/- and said that the accused was insisting as if his father had kept it in his shop, the accused became infuriated. Appellant and his two associates caused five injuries with knives and third associate caused one injury with iron rod. Thus, the victim and other two witnesses who had been examined in this case had opportunity to recognize as to who was the accused, who was making demand of Rs. 50/- and became infuriated, made exhortation and caused injuries. The doctor has stated that these injuries were caused on vital part of the body, on forehead, left side face, right side chest etc. and these injuries could not be self inflicted. F. I. R. was promptly lodged by them against the appellant and injuries of the victim were examined within one hour after the occurrence. The presence of other two witnesses was natural on the spot because one was employed at the shop of the victim and the other was employed at the shop of the brother of the complainant. The shop of the brother of the complainant was just adjacent to the shop of the victim. Thus, the statement of the eyewitnesses supported with the statement of the doctor, nature of injuries, prompt F.I.R., source of light etc. fully proved the charge under Section 307 read with Section 34 I. P. C. against the appellant. In this case, it may be said that no independent witness was examined to prove the prosecution story. P. W. 5 Ram Babu has stated that appellant Ashok was his tenant two years before. When he had vacated his accommodation, there arises no question of falsely implicating the appellant two years after the appellant ceased to be the tenant of the victim. The witness Ram Babu has also stated that when the appellant was his tenant, any how, he used to take articles from his shop of general merchandize on cash and some time on credit. Thus, when the appellant vacated the house of the victim, grievance was to the appellant and not to the victim. Therefore, it cannot be said that these injuries were self inflicted by the victim, in order to falsely involve the appellant in the crime.
10. Besides the appellant, two witnesses P. W. 3 Girdhari Lal and P. W. 4 Surendra were examined by the prosecution. Girdhari Lal has fully corroborated the statement of the victim Ram Babu and has supported the prosecution story. He deposed that he was servant at the shop of the victim at the time of occurrence. P. W. 4 Surendra has also fully corroborated the statement of the victim and P. W. 3 Girdhari Lal and deposed that he was servant at the shop of sweet of Gopal Das, brother of the victim Babu Lal but he had left his job since five or six months before. He made statement before the learned Additional Sessions Judge. So was the position of P. W. 3 Girdhari Lal. Thus, at the time of statement of P. W. 3 Girdhari Lal and P. W. 4 Surendra, they were not servants of the victim Ram Babu or his brother Gopal Das. Therefore, these are independent witnesses and if witnesses of the locality are not being examined, on this basis, the statement of the victim and his two witnesses cannot be disbelieved. Their statement is consistent and natural and there is no infirmity in their statement. The victim also did not become unconscious immediately. He became unconscious at the police station. Therefore, it was within his knowledge as to how the occurrence took place and, therefore, vivid description of the occurrence made by the complainant victim deserves to be believed. Girdhari Lal has stated that he was present at the shop. Shopkeepers of the locality reached the shop when the accused persons already had caused injuries. It is not expected of a shopkeeper carrying on business in the same locality to remain always present at his neighboring shop. Therefore, if these witnesses were not examined, because according to them, they reached when the accused persons including appellants had caused injuries. The prosecution story cannot be disbelieved.
11. In view of the above circumstances, this Court fully subscribes the findings of conviction and sentence made by learned VIth Additional Sessions Judge, Agra holding the appellant Ashok guilty under Section 307 read with 34 I. P. C., passing order of conviction thereunder and imposing sentence of rigorous imprisonment of five years and to pay a fine of Rs. 500/- and in default of payment of fine, to undergo further imprisonment of three months.
12. In the instant case, the sentence cannot be said to be severe because for no fault of victim Ram Babu, injuries were paused to him. Injuries were caused by appellant and his three associates, two out of which were armed with knife. As many as five incised wounds were caused on vital parts of the body which shows the intention of the appellant to commit murder of Ram Babu. Merely because these injuries are stated to be simple in nature, it cannot be inferred that intention of the appellant was not to commit murder. The intention of the appellant and his associates was to create terror in the mind of the victim, to commit his murder and also to show in the society that anyone who refuses to give them money, had to face consequences. Evidence adduced in this case shows that the appellant was committing misconduct and that was the reason that the complainant asked him to vacate his house. Thus, considering the circumstances, the nature of weapon and injuries etc. the appellant does not deserve any punishment less than that awarded by VIth Additional Sessions Judge, Agra and it deserves to be confirmed, as it does not call for any interference by this Court. The sentence awarded is proportionate to the role of the appellant and circumstances of the case.
13. Therefore, the appeal deserves to be dismissed.
14. The appeal is dismissed and the order of conviction and sentence of the appellant Ashok passed by VIth Additional Sessions Judge, Agra under Section 307 read with Section 34 I. P. C. is confirmed. The appellant is absconding. He be arrested and sent to jail to serve out the sentence. The appellant is allowed sixty days time to deposit Rs. 500/- and in default of payment of fine, he has to undergo further imprisonment of three months as is awarded by VIth Additional Sessions Judge, Agra. Learned VIth Additional Sessions Judge will ensure that Ashok is arrested and is lodged in jail to serve out the sentence.