Appellant HIGH COURT OF CHHATTISGARH AT BILASPUR SB: HON'BLE SHRI R.N. CHANDRAKAR., J Criminal Appeal No. 282^f2Q01 Mahasingh \ Respondent Vs. The State of Chhattisgarh. POSTFORPRONOUNCEMENTOF JUDGMENT Sd/- -12-2009 ..-_--.-.L Sd/- R.N. Chandrakar Judge J:l •; r':Sg»'»ya .>^ *!'a«E»;-s'!' HIGH COURTOF CHHARTTISGARH AT BILASPUR Sinale Bench:- Appellant Hon'ble Shri Justice R.N. Chandrakar Criminal Appeal No. 282 of 2001 •Mahasingh, S/o Nakul by caste-Gond, Resident of Kallutola, Police Station .Chhuriya, District Rajnandgaon (CG). Versus Respondent Th%'State of Chhattisgarh through the District Magistrate, Rajnandgaon (Criminal Appeal under Section 374 (2) of Cr.P.C.) Present: Shri Sarfraj Khan, counsel for the appellant. Shri Akhil Agrawal, Panel Lawyer for the State. JUDGMENT (Delivered on thisS.t^i- day of Deceriiber, 2009) 1. The appellant has preferred this appeal being aggrieved by the judgment of conviction and order of sentence dated 28-2-2001 passed by the Sessions Judge, Rajnandgaon, in Sessions Trial No. 190 of 2000, whereby he has been convicted under Section 307 of the IPC and sentenced to undergo rigorous imprisonment for five years. 2. The case ofthe prosecution, in brief, is that the complainant Kasiram had two houses in villageKallutola. On 29-5-2000 at about 10.00 p.m., when complainant Kasiram (PW/1), after having his dinner, was going to sleep in his another house where his cattle were kept, the appellant met him on the way and started abusing by filthy language. When the complainant Kasiram (PW/1) protested, the appellant being enraged assaulted him by iron rod as a result of which the complainant sustained injuries on various parts of his body. The incidentwas witnessed by .'^ft^wf: i /-r;:''?^-^?& 'ir"^ 23> Chetanlal (PW/2) and Kamta who were present at boring well on the spot. This act of the appellant was an outeome of his anger ashe was ostracized by "Gond" comhiunity for the reason that he had remarried to anotherwoman. 3. On 30-5-2000 the complainant Kasiram (PW/1) reported the matter to Police Station on the basls of which FIR (Ex.P/1) was registered. Complainant Kasirani (PW/1) was sent to Government Hospital, Chhuriya vide Ex.P/4-Awhere DoptorA.K. Bansod (PW/6) examined him vide Ex.P/4 and referred him to Distt. Hospital, Rajnandgaon where Doctor B.C. Jain (PW/14) examined him as out-door patient vide Ex.P/12 and got done his x-ray vide Ex.P/11, thereafter, he gave treatment to complainant as indoor patient vide Ex. P/14. During investigation, the Police seized plain and blood smeared soil vide Ex.P/3, iron rod vide Ex.P/8 and prepared spot map vide Ex.P/7. The seized articles were sent for chemical examinatibn to Forensic Science Laboratory, Raipur vide Ex.P/9. 4, After completion of usual investigation, charge sheet was filed in the court of Chief Judicial Magistrate, Rajnandgaon, who in turn committed the case to the Sessions Court. During trial the learned Sessions Judge, framed the charges under Sections 294 & 307 of the IPC. The accused/appel'ant abjured the guilt. After recording the evidence of witnesses, the statement of the accused/appellant Vi/as recorded under Section 313 of the Cr.P.C, in which he denied the Gircumstances appearing againsthim and pleaded his innocence and false implication. After due trial, the learned Sessions Judge, convicted and sentenced the accused/appellant as mentioned in para 1 ofthejudgment. 5. Learned counsel appearing for the-appeilant submits that the judgment of conviction and order of sentence passed by the trial court are bad in the eyes of law as the trial court has not appreciated the prosecution "8;-? '®^i. ;'"T.7 '^-'./<-/ ;a^ff'"" ^ evidence properly. The trial Court also failed to prove its case beyond all reasonable doubt as there are material contradictions and omissions in the testimonies of the witnesses. There was no intention of the accused/appellant to cause death of the complainant as all the injuries were of simple in nature. Thus, considering all the facts and circumstances of the case, the judgment of conviction and order of sentence passed by the trial Court be set aside and the accused/appellant be acquitted ofthe charge. In the alternative, learned counsel submits that inview of the in]uries sustained by the complainant, coriviction under Section 307 may be altered into under Section 323 or 324ofthetPC. 6. Per contra, learned counsel appearing for the respondent/State argued the matter in support of the impugned judgment of the trial Court. 7. Having heard tearned counsel for the parties, 1 have perused the records of the trial Court and also the impugned judgment. In order to prove the guilt against the accused/appellant, the prosecution examined 14 witnesses. On perusal of the record, it is clear that conviction of the appellant is mainly based on the testimonies of Kasiram (PW/1) and Chetanlal (PW/2). 8. PW/1, complainant Kasiram stated in his deposition that he was having two houses in the village. On the date of incident at about 8-9 p.m., after taking his dinner in one house, when he was going to sleep in his other house, the appellant met him on the way near boring-well where Chetanlal (PW/2) and Kamta (not examined) were also present. On seeing them, he sat there. The appellant was hurling filthy abuses to which the complainant objected and asked the appellant not to use such type of filthy language. On this, the appellant enraged, therefore, the complainant stood up and when he was going to. his house, the ,!l;^'^ ,>""•<» 1 '"II ii. appellant assaulted on his head with iron rod from the back sideas a result of which he felt unconsciousness and fell down there. At the time of attack made by the appellant, he cried loudly for help whereupon the villagers came there to rescue him. Thereafter, he was taken to Chhuriya. The FIR (Ex.P/1) was read over and explained to him and he admitted the contents of FlR, except "A to A" portion which relates to enmity. He further stated that, he was sent to Chhuriya Hospital for medical examination from yvhere he was referred to Distt. Hospital, Rajnandgaon, and hospitalized .there.for two days where his x-ray was done. He admitted the spot map (Ex.P/2) prepared by Patwari and also stated that due to unconsciousness he could not sign the FIR in Police Station and put his thumb impression. In his cross examination though he admitted the darkness on the spot and the person sitting at a distance of 2 - 3 steps could not be identified, he himself stated that he identified Chetanlal, theappellant and Kamta whowere sitting there. He further denied the suggestion that he could not identify the assailant due to darkness and lodge the report against the appellant on the basis of doubt. He himself stated that he was assaulted by the appellant. The witness was confronted with his diary statement but no material contradiction or omission could be elicited by the defense by which his testimony can be held unreliable or untrustworthy. 9. PW/2 Chetanlal stated in his deposition that on the date of incident when he along with Kamta was sitting near boring, the accused/appellant came there and enquired about his son. At the same time, complainant Kasiram also came there and asked us "who were sitting there". On this, we told him about ourselves on which he identified us. Thereafter, appellant Mahasingh also tried to say something to the complainant who did not heed his words and said that hewas going to sleep. On this, the accused/appellant became furious and started chasing the complainant E£33?-« ESK?.3S=S=^!@^is@WESS3 ^ ;):\,, ;ii^, "^ 1 g 1;- ^d^ •,^:s."^'" holding an iron rod and we fled away from the spot. He further stated that they fled away from the spot due to fear when the appellant started assaulting the complainantwith the same iron rod. He admitted the spot map(Ex.P/2) prepared by Parwari. In his cross examination he was confronted with his diary statement Ex.D/2 but he remained consistent to his version. He denied the'suggestion that he did not see the incident due to darkness. He further denied the suggestion that neither the appellant came to the spot nor he' witnessed the incident. This witness was cross examined at length but nothing could be pointed out by the defence which makes the evidence of this witness untrustworthy or unreliable. 10. PW/3 Parmeshwar, nephew of the complainant deposed that on the date of incident at about 10 to 10-30 p.m., in his house and heard the noise of abusing. After some time, one Satru residing in the same village came to him and stated that accused/appellant Mahasingh was assaulting Kasiram. On this, he and his father Mansaram (PW/5) reached the place of occurrence where they found the complainant Kasiram in injured condition and when they asked the complainant, they were told that he was assaulted by the appellant with iron rod. Thereafter, the complainant was taken to police station-Chhuriya by his father along with some other villagers. In his cross-examination this witness remained consistent and unrebutted and categorically stated to see the complainant along with his father in injured condition. His version is also corroborated by his fat her Manasaram (PW/5) that when he was intimated about the.incident by his son Parmeshwar (PW/3), they went to the spot where they found the complainant Kasiram lying in injured condition. He also stated that after reaching the spot, when he saw in the light of torch he found that the appellant was having a rod and on seeing the light of torch the appellant started feeling from the ^::7-^'33i"SAni@Ka'";h^>®?!n>s-C;':;3:=S/..5;:.;!^B^^^t,s spot. He further stated that after some time the Kotwar and Sarpanch also came to the spot and being enquired by them the complainant stated that he was assaulted by the appellant. In his cross examination he denied the suggestion that when he reached the appellant was not there. Thus, on evaluation of the evidence of PW/3 and PW/5, it is clear that when they reached the spot they found the complainant in injured condition who told them that he was assaulted by the appellant. 11. PW/6 Dr. A.K. Bansod (PW/6) 'stated in his deposition that on 30-5-2000 he examined the complainant.Kagiram and found the following injuries vide Ex.P/4. 1) Three lacerated injuries of various size on right temporal region just behind the ear :- (a) 2 cm x 0.5 cm x 0.5 cm. (b) 1 cm x 0.5 cm x 0.5 cm (c) 0.5 cm x 0.5 cm x 0.5 cm. 2) One lacerated injury ori right middle and extensor aspect of arm in the size of 0.5 cm x 0.5 cm x 0.5 cm. 3) One lacerated injury on left leg on anterior aspect and middle of shuft ih thesize of 3 cm x 0.5 cm x 0.5 cm. 4) One swelling, stiffness and tenderness on right mexillo mandibular region in the size of5 cm x 4 cm. He opined that all the injuries were caused within 12 hours from his examination. The injury No.1 could be caused by hard and pointed weapon, injuryNos. 2-4 could be caused by hard and blunt object. He referred the injured to District Hospital, Rajnandgaon for expert opinion. On replying the query put by the Investigating Officer vide Ex.P/.5, he opined that the death of the complainant was possible due to the injuries sustained by him in absence of immediate medical aid and the head where the grievous injuries were caused just behind the ear was a vital part. He also examined the seized pipe vide Ex.P/6 and opined that the aforesaid injuries could be caused by the same. X- ray of the complainant was done by Doctor Y.K. Tiwari (PW/12) who gave his report vide Ex.P/11 and found no fracture on the body of complainant. Doctor B.C. Jain (PW/14) who along with Doctor t,. ,•' "-1. :i! ii'£.'s^^afc "••>.a^^ Diwakar, the Surgical Specialist, examined the complainant on 30-05- 2000 referred to them by Doctor A.K. Bansod (PW/6) deposed that all the injuries sustained b^ the complainant were simple in nature which were not sufficient to cause death in ordinary course of nature. 12. Thus, it is clear that the medical evidence regarding the injuries are contradictory and in such condition the opinion of the Specialist shall prevail and as per the X-ray report and opinion of the Specialist, the injuries sustained by the complainant were simple in nature which were not sufficient to cause his death.in ordjnary course of nature. 13. On re-appraisal of the evidence and on going through the record, it is clear that the statements of the witnesses are consistent and reliable despite there being some contradictions and omissions. The prosecution has been able to establish the guilt against the appellant beyond all reasonable doubt. So'far as the offence u/S. 307 of the IPC is concerned, the accused/appellant can be convicted on the basis of sole testimony of the complainant and his testimony is not required to be corroborated by any eye-witness but in the instant case, all the injuries sustained by the complainant were simple in nature which were not sufficient to cause death of the complainant in ordinary course of nature. Thus, considering the medical evidence, it would not be appropriate to convict the appellant under Section 307 of the IPC but keeping in view the nature of offence, weapon of offence and number of injuries caused by the appellant, he can be convicted under Section 324 ofthe IPC. 14. For the foregoing reasons and in view of the nature of injuries sustained by the complainant, 1 am of the considered opinion thatthe offence is not one under Section 307 of IPC, but Section 324 of IPC. His conviction under Section 307 of IPC is conveFted into under Section 324 of IPC. His sentence offive years' rigorous imprisonment is reduced to three years' rigorous. imprisonment. •'wa.vc^vl^y- *. •<;. :''8.a, <i -•i^^ ^ •>&. ^ ^c-;" :~:WffF-: 15. In the result, subject to the modifications in the conviction and sentence ofthe appellant as stated above, the appeal is partly allowed. Sd/- R.N. Chandrakar Judge •a~ss^i#sssSSSS: