SSBi" IN THE HIGH CCO&T OF MADHTAyffiADESH AT JABALKIR Cr. Appeal Ko. 79V1994 •V Appellants Re spcndeHb ^ 1. H.ip Sai S/o Ra-ghunath Panika aged 23 years. 2. Pharharo Bai w/o &»p Sai 'Panika, aged 25 years. , 5. Ghamba Bai widow of Ohasidas Panika aged 45 ysars, r/o Batwahi thana Anbikaiur distt Sarguja (M). - Ver^as— ;. The State ofN.P. through B.H.O. Aatiikapur distt '• Sarsija. -APPEAI.LUNffiR SEC'IIOH -574(2) Gr.F^C, •«»- HIGH COURT OF CHHATTISSARH AT BILASPUR Singie Bench : Hon bie rtr. Justice Pritinkar Crimino! Apoeal No. 794 of 1994 Rup So.i <S. others. RESPONDENT Stcte of Mcdhya Pradssh (now Chhcttisgarh) AAr. V.K. Pandey, counsel for the appeliants. AAr. Vivek Sharma. PL for the State/respondent. CRIMINAL APPEAL UNOER SECTION 374 (2) OF THE CObi OF- CRIWINAL PROCEDURE JU_D 6_M EJMT This appeai is directed against the impugp.ed judgment & order dated 5.8.1994 passed by First Additional Se-ssions Judge, Sarguja, AmbiRapur in Sessions Triai No. 3/1988 convicting the accused/appellants under Section 307 of the Indian Penal Code imd sentencipg each of thsm to undergo rigorous imprisonment for 5 years, cmd to pay fine of Rs.1,000/-, in defauit of payment of fine to furt-he" undergo rigorous imprisonment for three months. 2. During the pendency of the appeal,.the accused/appeilaRt No. 1 Rup Sai has expired and, therefore, present appeal confines only in respect of accused/appellant No. 2 Pharharo Bai &, appeilant No. 3 Chamba Bai. . / - ' 3^. Brief facts of the case are that on the basis of entry in N-o. Rojnamcha^ Sanha dated 16.5.1987, F.I.ft. (un-exhibited) dated :23.6.t987 was register'ed agairist the accused persons namely Rup Sai, Pha"har.o Bai, Ghamba Bai <& ft*ioula Bakhsha. It 'is dt!eged that on 16.5.1987 al! the accused persons have '•'assau|ted_theyictim namely Kar'lG Bai (PW-1) by means of club ^: ^ —^ .^issPesv. /F'^v^ ^ ;At-^®^1 and blunt side of the axe as a result of which she sustainedsix injuries including one fractur-e on her head. It is further alleged that Victim Kamla Bai (PW-1) was cssaulted with an intention to kii.i her so that the service land of victim Kamla 8ai (Kotwar) would be given to the accused persons. 4. So as to hoid ths accused/appellants guiity, prosecu+ion has examined as many as 11 witnesses in support of it-s case. Statements of the accused/appellcsnts were also recorded under Section 313 of the Code of Criminal Procedure in which they denied the charge teveited agaihst them and pleaded their innocence and false implication in the case. Apart from this, witnesses namely Dhaniram (DW-1) <& basrQi (DW-2) have a!so been examined by the deferice in support of its case. 5. After hearing the parties the trial court has convicted and sentenced the occused persons for the offence as mentioned abbve. Hence this appeal. 6. Counse! for the'appetlaits submits that the appellaits No. 2 & 3 are o!d ladies and it is literally impossible for them to assouit the yictim Kamlc Bai (PW-1) and they have been falsely impticated. He submits that the main injury was caused by accused/appeHant No. 1 Rup Sai and as the said accused has 'expired, there remcins nothing ogainst the accused/appellant .No. 2 and 3. .Alternatively, it has been argued that the incident took place in the year 198^the appellants No. 2 i& 3 are the o(d iadiesand, therefore, they may not be sent behind the bar. 7. On the dthsr hand, it has been stated by the State Counsel that the manner in which the victim was brutally .glssaylted" by the accused persons spesks everything. He •^^s^ w t -..:.-/'• submits that first injury was caused by the deceased/accused Run Sai and, thereafter, appellants No. 2 <S 3 have aiso assaulted the victim by means of club and blunt side of the axe as a result of wh.ich she sustained six injuries. He furthe" submits that the victim was unconscious fo" about one week and the Doctor has coEtegoricatly opined that if the yictim would not have been treat'ed promptly, she would have died. 8. I have heard counse!' for the par-ties and perused the materia] avaiiable on record including iudgment impugned. 9. Victim Kamla Bai (PVs/-l) in her couri' statement has stated that she was working as a Kotwar in the viltage and on the date of incident when she was cooking food in her house, accused persons who w/ere her neighbours reached there cmd they were carrying'weapons in the'r hands. She has stated that accused Moula Bakhsha had asked her as to why she is working as Kotwar and they wili kiil her so that service lcmd can be giyen to them. She has stated th.at first th.e deceased/accused Rup Sai assaulted her with the help of club and thereafter, accused/appe!!<2it Np. 3 Chamba Bai gaye a lathi b!ow on her head and then other accused/appeilant No. 2 Pharharo Bai assaulted on her heo.d by the blunt side of the axe and, jjiereafter, the accused .ou\a Bakhsha took a club from the hand of deceased/accused Rup Sai and he too had assaulted her on hrf" hip. She has further stated thct on account of the injuries sustaiRed by 'J^er, she fel! down and became 'unconscTou.s. She has further stated tho.t after about 5 days she regained some consdousness but she became futly conscious OTter about 8 days. In cross-examinotion, this wi.triess stood firm to the statement made by her in the examination-in-chief. Different suggestions were given by the defence counsel but all of them have been msted out by this witness by clearly supporting her case. Statement of the victim has been duly confirmed by Thorioram (PW-4), he has stated in paTa9rGph 2 of his statement that when he had gone to the house of th.e victim, he saw the accused/appetlants Pharharo Bai, Rup Sai and Champa Bci making assculton Kamia Bai. Later on this witness was though deciared hostils but before that he has categorically sta+ed the entire incident. 10. Dhansai (PW-5) has also supported the prosecution case and has stated thot he saw the accused Run Sai assau!ting the victim Kamta Bai (PW-1) and likewise his mother-in-law had aiso assaulted her. Statemen+s of these witnssses have been dufy supported by Dr; M.K. Jain (PW-9) and Dr. P.S. Sengar (PW-10). Dr. P.S. Sengar (PW-10) who had medically examined the victim and had given his report- Ex.P-8 had found as many as six injuries on the person of the victim inciuding five injuries on her head. In pa^agraph 2 of his statement, this witness has categorically stated that injunessustained byvictim Kamla Bai were fatal in nature and had the prompt treatment would have not been given to her, she would have died. He has further stated that victim was referred for the X-ray and he found fracture on her skull. Dr. AA.K. Jain (PW-9)- Radiologist has stated thdt he tookX-ray of the sku!l of the complainaint and hqd found fracture on 'The same and his reporf- is Ex.P-7. '•Heerdsai (PW-11) - Investigating Officer has supported the prosecution case. 11. ^inute examination of the witnesses mokes it clear :;that on the 'date of incident victim Kamla Bai was brutalty assauited by the accused persons. Cons'derlna the nature of evidence as adduced by the pr'osecutior' and the medica! report' of the victim Kamia Bai, the convictio" of the accused/appeilants under Section 307 of the Indian Penai Code appears to be just and proper and, therefore, the same is maintained. 12. Of course, looking to the nature of injury caused to the victim and material available on record, court' beiow appears to be fuily justified in awarding the jai! sentence of 5 years rigorous imprisonment to the accused/appeilants No. 2 A 3 but keeping in view the fact that from the date of incident, a sufficient long period of 23 years has rolie.d by and that th.e accused/appeilants No.2 d 3 are old ladies ond a!so being mind full of the peculiar facts. & circumstances of the case, this Court is of considered opinion that it would be in the interest of justice if the jail sentence awarded to the appeilwits No. 2 <& 3 is reduced from that of five years to two years. , 13. In view of aboye, the appeal is partly allowed. Conviction parl' of the impughed judgment is maintained. However, Jail sentence awarded to the appeliants No. 2 and 3 is reduced from that of five years to two yeans. 14. Appeal thus part-y succeeds. Sd/- pritinker Oiwaker Jadge