^^ APPELLANT HIQH COURT OF CHHATTI8GARH AT BILASPUR C».A.No.962/2007 Bhupendra Dewaiigaa S/o Chhagaa Lal Dewaagaa Occupation Paachayat Secretaxy, Aged about 35 years, R/o Village Amali P.S. Sihawa, Distt. Dhamtari (C.G.). VERSUS RESPONDENT The State of Chhattisgarh through P.S. Sihawa Distt, Dhamtari (C.G.). CRIMINAL APPBAL U/S 374(2) OF THB CODE OF CRIMINAL PROCEDURE.1973. (SB :Hon'ble Mr. T.P.Sharma, J.) Present: Shri D.N. Prajapati, Advocate for the appellant. Shri Ashish Gupta, P.L. for the State/respondent. ORAL- ORDBR (Passed on 15/09/2008) 1. This petition is directed agaiast tihie judgment of conviction aad order of sentence dated 21/9/2007 passed by fhe Special Judge, Dhamtan m Special Case No. 01/2006 whereby leamed Special Judge after holdiag the appeUaat guilly causiag voluntgiiy siiaple hurt coavicted under Section 323 of fhe Indian Penal Code and sentenced ngorous iaiprisonment for 4 days (period ateady undergone) and fine of Rs. 1,000/-. 2 , The judgment is chaUenged on fhe ground fhat leamed Special Judge has convicted aad sentenced fhe appeUant on fhe basis of unreUable contradictory evidence. 3. Shri D.N. Prajapati, Advocate for the appeUaat aiid Shri Ashfeh Gupta, P.L. for the State/respondent are heard, 4, The case ofprosecution is in brief fhat on 27/12/2005 at about 9 p,in. coniplaiaaat Maltibai who was iaside fhe house at village AmaU her husbaad Dauwarani was not present ni fhe house. Accused came iaside her house aad he caught hold her haads. He iasulted by using filthy lao^guage aad he puHed aad took her out fpom her house aad assaulted by hao.ds aad fits, Her husband lodged written coinplaiat vide Ex. P-1. He was exaimned by the doctor vide Ex, P-4, Her caste certificate vide Ex, P-6 was seized vide Ex. P-2. On the basis of preliioinary enquiiy First Information Report was registered vide Ex. P-7, Sport niap was prepajrcd vide Ex. P-8, After coxnpletion of iavest^ation chai^e-sheet was filed. Judicial Magistrate Pirst Class, Dhamtari who in tura committed fhe case of Special Judge received fhe case on traasfer, 5. In order to prove the guUt of fhe appellaiit/accused prosecution exammed as maoy as 11 witaesses. The statement of the appeBaat rccorded under Section 313 of the Code of Crimiaal Pxocedurc, 1973 where he denied fhe circumstaaces appeadng agaiast him, mnocence aad false impUcation is pleased, He has also taken fhe defence fhat coniplamaat Maltibai her husbaad Dauwaraoi and fheir ofher associates belongs to Stxivsena aad used to demaiid the Chanda and used to quarrel on fhe ground of recoveiy of Chanda, They have been falsely iDapUcated fhe accused he has also adduced fhe defence evidence ofRoopdhaDlal aod Amarsiagh Dhruve who have stated fhat appeUant has not cominitted any oflTence. He has been implicated falsely on fhe basis ofdemaad of ChandcL Leamed counsel for fhe appeUaat ftirther argued fhat statement of the complainaat has not been supported by her husband, son aad other witnesses, Conxplaiaant has lodged fhe false report on ftxe basis ofdemaad of Chanda. Appellaat is a Panchayat Secretaiy aad pubUc ^ervaat if fbe conviction is maintained then benefit of probation of OflTender Act be given to him. Reliaace has been placed ia fhe inatter of Rttjbtr v. State of ^ '-^" ^SBSS^^ ^^ Harx^ l___reported in AIR 1985 SC 1278 in which it has held fhat accused was a Govt, servaat and parties to assault close relatives ia case of conviction under Section 323 of fhe Indiaa Penal Code, fhe benefit of probation of Offender Act inay be extended to fheia. 6, In order to connect the appellaat ia crune i& question prosecution has adduced oral evidence, PW2 Maltibai has stated fhat at the time of iacident she was alone in her house. Appellant entered iaside her house and after iasulting her he pulled out froni her house emd assaulted, Her blouse was toni and baagles were broken same was seized vide Ex» P-3, who was examiaed by doctor. PW1 Dauwaram husbaad of fhe MaltBbai has stated fhat when he came from fhe betel shop after taldng betel to his house he saw fhat appellaat was beating his wife fhen he mtenreiied, He lodged the report vide Ex. P-1. PW3 Sahdeoram Sahu aad PW4 Hemlal Kosre and PW8 Chhamaalal Halwa son of fhe complaiaant have stated that appeUant aad Maltibai were quarrelmg aad they iatervened. The Seizure of toraed blouse, and broken bangles were supported by PW6 Paanalal Kosre aad PW7 Ratanlal Kosre. PW5- Dr, Arun Kumar Netam has stated on 28/12/2005 he has examined Maltibai. She complaiat paui over both forearm. aiid bofh ktiee but no visible iojuiy was found vide Ex, P-14, 7, DW1 Roopdhaalal who is a brofher of Maltibai has stated that ftiere was a quarrcl between husbaad of Maltibai and €^)peBaat. Maltibai was not present at fhe time of iacident AppeMant has not assaulted Maltibai. DW2 Amarsmgh stated that Dauwaram, Maltibai aad ofhers used to deinaad Chanda froin others aad fhey also used to harass the persons for demaad of Chaada. He has also stated that Maltibai has lodged the report agaiast appeUaat BIiupendra on the ground of alleged 1AER 1985 SC 1278 ';^ Chaada. In his cross-examuiation he has admitted fliat when they reached poUce station fhey caiae to know fhat Maltibai aad Dauwaram has akeady lodged tiie report. Maltibai has spect&cally stated ia her cross examiaation that she was puUed out from her house aad beatea by appellaat, Her husbaad Dauwaraia has admitted ia his eross-examiaation tih.at no iacident took place before him. Defence has not suggested to fhe Maltibai that she has lodged false report agaiast the appellaxxt on fhe basis of soine Chaada or fronx aay ofher ground. 8. This is a case of sioiple hurt. Complainant PW2 Maltibai has categorically supported the case. Other witoo^esses have also supportel fhe case briefly. DW1 Roopdhaalal has stated fhat Maltibai was not there and appeUaat has not committed aay offence. He has been Msely impUcated on fhe basis of demaad of Chcmda but same has not beeti suggested by fhe appUcaat to fhe Maltibai to discrcdit her testimony, Her testuiiony is supported by fhe ofher witaesses sufficient for drawiag iaference ftiat appeUaat has assaulted. In case of assault by haad and leg no exteraal iajury is necessary aad in absence of any extemal injiiiy no adverse iaference can be drawn, The statement of Maltibai is sufficient for drawiag inference fhat appeUaat has assaulted herwifhout any propriety. Leamed Special Judge has convicted fhe appellant under Section 323 offh-e Indiaa Penal Code. Conviction is based on credible evidence. 9, As regard fhe question of sentence is coaceraed it is argued on behalf of the appellant fhat appeUaat has Paachayat Secretary aad public sen^aat, Accoxdiag to the statenient of Maltibai, appeUaat puUed out her fi"om her house aad assaulted when she was alone iii her house at about 9 p,m. These facts disentities fhe appeUant fix>m the benefit of probation of OfiTenders Act, AppeUaat has already suffered rigorous imprisonment Ibr 4 ...^^^s^ ^^: ~~^.' vv ^^. -s- "^; days, The sentence of4 days aad fine ofRs. 1,000/- is neifher excessive nor unjust I do not fiad aay ground for interference, Consequently, fhe appeal beiag devoid of merits it is liable to be dismissed and hereby dismissed, Sd/- T.P. Sharma Judge <.A