é? BEFOREM THE HON'BLE HIGH COURT OF CHHATTISGARH AT rlw ‘ $§§§ BILASPUR CRIMINALAPPEAL No. 0V5 /2007 APPELLANT SANDEEP RAI 5/0 Sudar'shan Rai, (In jailsince aged about 26 years, by casTe — \y. ’ 13.11.07) Kalar, R/o village - Bagr‘ar‘, P.5. Marwahi, Dish‘icT: Bflaspur (6.6.). vgksus $TATE OF CHHATTISGARH Through ~ Police S’raflon — Marwahl Dis’rrlcf: Bilaspur (C.G.) RESPONDENT / CRIMINAL APPEAL UNDER 5ECTION 374 [2] OF CRIMINAL PROCEDURE CODE. H 3 : 1v. HIGH COURT OF CHHATTISGH AT BILASPUR (Hon. Mr. Justice Pritinker Diwaker) Criminal Appeal No. 1045 of 2007 Sandeep Rai APPELLANT VERSUS RESPONDENTS State of Chhattisgarh. Shri Arun Kochar counsel for the appellant. Shri Akhil Mishra Dy. Government Advocate for the respondents/State. i CRIMINAL APPEAL UNDER SECTION 374 (2) OF THE CODE OF CRIMINAL PROCEDURE J U D G M E N T (10.09.2009) This appeal is directed against the judgment dated 1 3.1 1 .2007 passed by the Additional Sessions Judge, Pendra Road, District Bilaspur, in Sessions Trial No. 126/2006 ’ convicting the accused/appellant under Sections 307 and 324 of the Indian Penal Code and sentencing him to undergo rigorous imprisonment for seven years and pay fine of Rs. 200 under section 307 and to undergo rigorous imprisonment for three years under section 324 of the lndian Penal Code, with default stipulations. 2. Case of the prosecution in brief is that on 2.10.2005 when the accused/appellant was cutting a tree standing on the feld of the complainant complainant namely Mangal Rai (PW—1) went to the ‘ spot along With his Wife Rambal (PW-2) and asked him not to cut the tree On refusal of complainant the accused climbed down the tree picked up the axe with which tree was being out and dealt an axe biow on his neck as a result of which bleeding started. Not only this, the accused/applicant also assaulted the wife of the complainant i namely Rambai (PW-2) on the occipital region of her head. Wound 1 f started bleeding profusely; she became unconscious and feil down. $he was taken to the hospital where Dr. Sheela Saha (PW-12) ‘ i medicauy examined her and noticed following injuries vide medical report Ex. P-12: incised wound on the left occipital region of head with profuse bleeding in the size of 3" x .5x1” Abrasion in the size of .5 x .5” in the forearm Both the injuries were caused by hard and sharp object. Thereafter, FIR (Ex. P-l) was lodged by complainant Mangal Prasad Rai (PW-1) on the same day at about 5.30 p.m. After recording the statements of the witnesses and completion of investigation the charge sheet was filed. 3. In order to prove the guilt of the accused/appellant e prosecution has examined as many as 17 witnesses. Statement of the accused/appellant was also recorded under section 313 of the Code of Criminal Procedure in which he has denied the charges levelled against him and pleaded his false implication in the case due to some iand dispute. 4. After affording due opportunity of hearing to the parties, learned Additional Sessions Judge, has convicted and sentenced the accused/appellant as mentioned above. Hence this appeal. 5. Heard counsel for the parties and perused the material available on record including the judgment impugned. 6. Counsel for the accused/appellant submitted that even if the entire case of the prosecution is taken as it is, at best the offence under section 324 IPC can be i made out against the accused/appellant. According to him Dr. Sheela Saha (PW-12) who medical examined the injured Rambai has categorically stated in paragraphs 2 and 3 of her evidence that injury No. 1 caused on the occipital region of her head was simple in nature whereas in respect of injury No.2 caused in the left wrist no definite opinion could be given and therefore she was advised for radiological examination. e submits that though in the radiological examination the fracture th H @ has been found on the occipital bone of her head, that injury was also simple in nature. He further submits that there are discrepancies in the medical report and the application sent by the police as in the application it has been mentioned that Rambai has sustained iniury on the left wrist whereas in the medical report the fracture has been found in the right wrist. He also submits that CT scan has been done byxa private doctor but he has not been examined by the prosecution and therefore it cannot be said that victim Rambai had sustained any fracutre. Main contention of the counsel for the appellant is that the main injury caused on the head of Rambai has been shown to be simple in’nature and therefore the appellant can not be convicted for an offence punishable under Section 307 IPC. ln support of his submission, he placed reliance on the'decisions of the Supreme Court in the matter of Pashora $inqh and another v. State of Punjab reported in AIR 1993 sc 1256. 7. On the other hand learned counsel for the State supports the impugned judgment and submits that the injury sustained by the victim is immaterial for convicting the accused under section 307 IPC. He submits that the intention of the accused, part of the body and the weapon with which the injury has been caused is sufficient for conviction under section 807 IPC. He further submits that so far as the minor discrepancy pointed out by the counsel for the appellant in respect of hand injury is concerned, it is cf no help to the accused. According to him Dr. G.S. Kanwar (PW-17) has categorically stated in her evidence that Ram Bai had suffered fracture on the occipital bone of her head and also in the right wrist. As regards the submission of the counsel for the appellant that CT scan has been done by a private doctor, it has been argued by the State counsel that in those days the Government Hospitals had no such facility of CT scan» and therefore Rambai was referred to the ; private doctor for that purpose and therefore the report of CT scan given by the private doctor cannot be disbelieved. He further submits that on the basis of the evidence of Dr. G.S. Kanwar (PW-17) it is clear that Rambai had suffered fracture on the occipital bone and in 312@ Q2 the right wrist. He submits that looking to the nature of injuries, the part of the body and~the weapon with which the injuries have been caused, it can very weil be said that the appellant was having the intention to commit the murder of Rambai and therefore he has rightly been convicted under section 307 IPC. In support of his contention reliance is placed on the decision of the Supreme Court in the matter of State of M:P. v. Kashiram and others reported in Am 2009 sc 1642. ' 8. As regards the first contention of the‘counsel for the appellant that the offence committed by the accused/appellant would not fall under section 307 IPC, it seems to be wholly misconceived as provisions of section 307 unambiguously speak as under: ‘Whoever does any act with such intention of knowledge, and under such circumstances that, if he by that act, caused death, he would be guilty of murder, shall be punished with imprisonment of either description for a tem which may extend to ten years, and shall also be liable to line; and if hurt is caused to any person by such act, the offender shall be liable to imprisonment for life, or to such punishment as i hereinbefore mentioned. " A bare reading of the provision will reveal that it is sufficient to justify the conviction under Section 307 IPC if there is present an intent coupled with some overt act in execution thereof. lt is not essential j that bodily injury capable of causing death should have been i inflicted. The section makes a distinction between the act of the accused and its result, if any. The Court has to see whether the act, irrespective of its result, was donewith the intention or knowledge and under circumstances mentioned in the section. Therefore, an accused charged under Section 307, IPC cannot be acquitted merely because the injuries inflicted on the victim were in the nature of a simple hurt. 9. ln the present case it is clear from the evidence available on record that appellant assaulted Rambai with axe and injuries were s @ caused on head and other parts of her body. It is also clear that Rambai had suffered fracture on the occipital bone of her head which is a vital part of the body. Merely on the basis of report of the doctor where he has stated that head injury was simple in nature, it cannot be said that the offence under section 307 IPC is not made out. The weapon used by the accused/appellant and part of the body i.e.> head of the victim where injury was caused clearly establishes the intention of the accused/appellant to commit the murder of Rambai. lt is not necessary that the injury inflicted should in itself be sufficient in the ordinary course of nature to cause death, and that this section will apply even if no hurt is caused. Causing of hurt is merely an aggravating circumstance. All that is necessary to be established that intention with which the act is done and if once the intention is established, the nature of the act will be immaterial. For the purpose of this section what is material is the intention or knowledge, not the consequences of the actual act done for the purpose of carrying out the intention. Intention should be gathered from the circumstances and not the consequences. The nature of weapon used, the manner in which it is used, motive for the crime, severity of the blow, the part of the body where the injury is inflicted are some of the factors that may be taken into consideration to determine the intention. The attempt need not be a penultimate act. 10. Other contention of the counsel for the accused/appellant regarding discrepancy in the hand injury has no force because x-ray plate Ex. P-10 and x-report Ex. P-19 of Rambai in respect of the hand injury is there and the doctorl(PW-12) who examined Rambai has categorically described the injuries sustained by her. As regards the contention regarding trustworthiness of CT scan having been done by a private doctor, is without any substance for the reason ‘ that in those days there was no such facility in the Government ‘ Hospitals and therefore veracity of the CT scan done by the private doctor cannot be disbelieved merely on the ground that the doctor . s m warmmmggmw ”34 who has performed CT scan has not been examined by the prosecution. Thus the decision of the Supreme Court relied upon by the counsel for the appellant is of no help because in that case there were two appellants and the point as to who had inflicted the injury on the head of the deceased has been considered. The present is a case where the injury has been caused on the head which is a vital part of the body and the weapon used was axe. 11. in View of the aforesaid threadbare discussion this Court is of the view that the conviction of the appellant under section 307 and 324 IPC is just and proper and no interference therewith is called for. Thus the conviction part of the impugned judgment is maintained. 12. As regards sentence part of the impugned judgment, as the incident took place between the relatives on account of sudden provocation and that the parties are having good relations, this Court is of the opinion that a lenient view, if taken, would give a substantial respite to the accused/appellant. Accordingly, the sentence awarded to the accused/appellant is reduced to rigorous imprisonment for four years from that of 7 years. However, in place of Rs. 200, the sentence of tine is enhanced to Rs. 2000. 13. In the result, the appeal is partly allowed. / i /