s'* B'J1 K K 3M-.i Sf ^i'ih' j:l& !..-lliP - h'illl :W !;:Bt(l Itl iliiy'^^ ^>;"J^" IH THE HIGH COURT OF OTJDICASURE &T JABALPUR Cr.appeal No.' \ 5'^~^0£ 1999 (Hemoraadum of &ppeal under section 374 of Cr.E.C.) APPELUU^T BESPONDENT s Suko Lal Behra S/o Hars.Lngh.,,,. Behra»aged. 41, years<>i P<<> ^iil Ub-rq p.S.'TO'm 'wv OI'ST-I- Rau/^-t+i , Versus .;: State of Hadhya Pradesh, through the Oistrict Magistrate Baigarh (I'SP). ./•' I-lEl.iQBMDUM OP APPEAL UNDER SECTION 374 OF er.P.C, If "^i l' VilmS SltN ;ti 1 B i; ;.;( !!!i 1 ] Si! iij:-; t ;'i; 111 ili:j!'t 11;'; !• Mi1 S^W!':! w Wiiii jKlii! HIGH COURT OF CHHATTISGARH AT BILASPUR (Hon. Mr. Justice Pritinker Diwaker) Criminal Appeal No.1522 of 1999 Appellant Suko Lal Behra vers'us Respond_ent State of Madhya Pradesh (now Chhattisgarh) Shri Awadh Tripathi,' counsel for the appellant. Shri Ajit Singh, Panel Lawyer for the State/respondent. Cnminal AjiBeal^nder Section 374 of the Code of Criminal Procedyre JUDGIVIENT (30-11-2009) This appeal is directed against the impugned judgment dated 8-4-1999 passed by 1 Additional Sessions Judge, Raigarh in Sessions Trial No.184/1996 convicting the appellant/accused for the offence punishable under Section 326 of the Indian Penal Code and sentencing him to undergo rigorous imprisonment for 3 years. 2. Case of the prosecution, in brief, is that F.1.R. (Ex.P-1) was lodged by Kaliram (P.W.-1) on 16-8-1996 alleging in it that on the said date at about 11:30 A.M. when he was coming from the schoot side, the appellant/accused Suko 4al chased and caught hold of him and at that point of time, the other accused persons Manglu and Ankur came there. It is alleged that the appellant/accused was carrying (angi' in his hand and gave 2 blows with the said tangi on his head and also caused injury on. his right hand. Kaliram (P.W.-1) was sent for medical examination vide Ex.P-11 and was examined by Dr. D.K.Toppo (P.W.-9). »r ^' •4il.-'<% '!R,i?*!t 0 2-- 3. In support of its case the prosecution has examined as many as 9 witnesses including the victim Kaliram. 2 defence witnesses have also been examined by the accused persons. Statement of the appellanVaccused was also'recorded under Section 313 Cr.P.C. in which he denied the charge levelled against him and pleaded his innocence. After heari.ng counsel for the parties, the trial Court has convicted and sentenced the appellant/accused as mentioned above. By the impugned judgment the trial Court has acquitted the two other accused Manglu and Ankur. Hence this appeal. 4. Learned counsel for the appellanVaccused submits that the present is a case where the appellanVaccused was also assaulted by Kaliram (P.W.-1) and in self-defence, certain injuries were caused by the appellanVaccused Suko Lal to Kaliram (P.W.-1). He further submits that in his Court statement, Kaliram (P.W.-1) has admitted the fact in paragraph 5 that he was carrying only basket and spade. He further submits that it is thus clear that the appellant/accused was not carrying tangi in his hand. He further submits that in Court statement Kaliram (P.W.-1) has stated that 3 blows were given with the tangi whereas in the F.1.R. he has said only about infliction of 2 blows. He ^ also submits that memoranduin witnesses Premsingh (P.W.-5) and Jujharsingh (P.W.-6) have not supported the prosecution case. He further submits that from the statement of defence witness Panikram it is clear that the incident had taken place when the appellanVaccused was assaulted first.by the victim.Kaliram (P.W.-1). He submits that there is material contradiction in the statements of eye-witnesses. Lastly, it has been argued by learned counsel for the W^ l3 *.,. .yj 'yto.a'''^!'' ^vw's£"i -2,- appellant/accused that looking to the nature of injuries caused to the victim Kaliram (P.W.-1), at best the offence under Section 324 IPC is made out against the sippellant/accused and not the offence under Section 326 IPC. 5. On the other hand, supporting the impugned judgment, learned counsel for the State/respondent has argued that Kaliram (P.W.-1) has categorically stated in his examination-in-chief and cross-examination that the appellant/accused had given 3 blows on his head with the tangi. However, as one blow was not given with force, in the F.1.R. he had said about sustaining only 2 blows of tangi. He further submits that the entire incident was witnessed by Uttam (P.W.-4), who has categorically supported the statement of Kaliram (P.W.-1). He has further referred the statement of Naresh (P.W.-3) and Dr. D.K.Toppo (P.W.-9). It has been argued ^by learned counsel for the State/respondent that looking to the nature of injuries and the manner in which the victim Kaliram (P.W.-1) was assaulted by the appellant/accused, the offence under Section 326 IPC is made out. 6. 1 have heard learned counsel for the parties and perused the material available on record including the impugned judgment with ^ utmost circumspection. From pie statement of Kaliram (P.W.-1) it is apparent that on the date of incident, he was assaulted by the appellant/accused Suko Lal and on his head 3 blows were given with the tangi. The statement of Kaliram (P.W.-1) has been duly supported by Abhimanyu (P.W.-2), Naresh (P.W.-3) and Uttam (P.W.-4). Merely on the basis of minor contradictions in the statements of some of the eye-witnesses, the statement of Kaliram (P.W.-1) will not lose its ^ ^ credibility especially when the same has been duly supported by Dr. D.K.Toppo (P.W.-9). Dr. D.K.Toppo (P.W.-9) found the following injuries on the head and below right elbowjoint of Kaliram (P.W.-1) and gave the report Ex.P-11A: (i) Incised wound over middle of scalp 3cmx0.5cmx0.3cm, fresh red in colour blood was oozing from it - caused by hard and sharp cutting object. (ii) Lacerated wound 5cmx0.5cmx0.3cm over left side of first wound and 1 cm anterior to the first wound. Both are interconnected. Fresh red in colour blood was oozing from the wound - caused by hard and blunt obj'ect. (iii) Lacerated wound semicircular about 4cmx0.5cmx0.5cm above left eyebrow - fresh red blood was oozing from the wound - caused by hard and blunt object. (iv) No external injury seen. Swelling about 4cmx3cm over posterior lateral part of right hand 10 cm below right elbow joint - caused by hard and blunt object 7. In his medical report (Ex.P-11A) Dr. D.K.Toppo (P.W.-9) has further stated that all the 3 injuries caused on the head of the victim Kaliram (P.W.-1) were grievous in nature as the same were present on fr the head, which is the vital 6rgan of the body. In his query report (Ex.P-16A), the doctor has further clarified that the injuries sustained by Kaliram (P.W.-1) could be caused by the seized weapon tangi. 8. From the statement of defence witness Panikram it appears that the victim Kaliram was chasing his cow and had asked the appellant/accused Suko Lal to stop it and when he failed to do so, the '^ '\ -^? y- appellanVaccused was assaulted by the victim Kaliram. It also appears that other than this incident there was some dispute between Suko Lal and Kaliram, as a result of which Kaliram was assaulted by the appellant/accused Suko Lal and other accused persons Manglu and Ankur. From the record it also appears that the appellant/accused had also lodged a report viae Ex.D-1C (Rojnamcha Sanha) against the yictim Kaliram but there appears to be no action on the basis of this report. Thus, from the evidence, it emerges that it may not be a case of self-defence on the part of the appellant/accused but in the present case there is evidence of case and cross report. 9. I find no substance in the argument advanced by learned counsel for the appellanVaccused that present is a case where on account of self-defence the appellant/accused had caused injuries to Kaliram (P.W.-1). No counter case whatsoever was initiated against the victim Kaliram (P.W.-1) except that the Head Constable Ghasiram Rathiya has stated that in the Sanha the entry was made against the victim Kaliram (P.W.-1). Be that as it may, from the evidence, it is clear that even if it was a case of self-defence, though it is not proved, the appellanVaccused has exceeded his right in his self-defence. Moreover, to establish the case of^self-defence, it was the duty of the appellant/accused to bring all ffie facts before the trial Court but he failed to do so. Though Dr. D.K.Toppo (P.W.-9) has stated that the injuries sustained by Kaliram (P.W.-1) were grievous in nature, admittedly no fracture whatsoever has been sustained by Kaliram (P.W.-1) and the nature of injury'sustained by him does not come within the ambit of Section 320 IPC as defined. Rurther, Dr. D.K.Toppo ''^., !s"». @ ""11 •^'./ -6— (P.W.-9) has categorically stated that the injuries sustained by the victim Kaliram (P.W.-l)were curable within 7-10 days. 10. I findsubstance in the argument of learned counsel for the appellant/accused that the offence under Section 326 IPC is not made out and the offence under Section 324 IPC is made out against the appellant/accused. 11. Considering the totality; of the facts, the conviction of the appellanfaccused is altered from Section 326 IPC to Section 324 IPC. The incident had taken place in the year 1996. During trial, the appellant/accused was on bail and in the present appeal also he was granted bail by this Court on 21-6-1999. He has also remained in jail for about 2% months and, therefore, ends ofjustice would be served if the appellant/accused is sentenced to pay fine of Rs.15,000/-. Accordingly, the appellanVaccused is sentenced to pay fine of Rs.15,000/-, in default of payment of fine he shall undergo rigorous imprisonment for 6 months. OutoftheamountoffineofRs.15,000/-, if recovered from the appellant, Rs.12,000/- be given to the victim Kaliram. In the result, the criminal appeal is partly allowed^ Sd/- Pritinker Diwaker f Judge Gopal luljlilR'I llJf?-i l' Bt' II