HIGH COURT OF CHHATTISGARH, BILASPUR SINGLE BENCH: HON’BLE SHRI R. L. JHANWAR J. E; Criminal Appeal No. 990/ 1993 APPELLANT. Basant Kumar Versus State of M.P.(now C.G. ) RESPONDENT JUDGMENT PR Sd/- R.L. Jhanwar Judge ‘ 8 /11/2d6§7 POST ON yg NOVEMBER, 2009 i Smt. Renu Kochar, counsel for the appellant. Shri Arvind Shukla, Panel Lawyer for the State. J U D G M E N T (Delivered on [3.1 1.2009) " 1. This crmil appeal is directed against the judgment of conviction and order of sentence dated 29m‘September, 1993 passed in S.T. No.90/ 1992, whereby the learned 7th Additional Sessions udge, Bilaspur has convicted the appellant under r Section 324 of the IPC and Sentenced him to undergo RI. for 1 / 1/2 year for causi grievous inuy to his father—Bisahulal. 2. Prosecution story in brief is hat on 25.11.1991 when complainat Bisahulal was quaeling with his wife, at the same time, the appellant (son of Bisahulal) came there and assaulted on th head of comlainant with crowbar. The incident was witnessed by complainant’s friends namely Sunil and Raju. The report of the incident Ex. P 5A‘ was lodged 0n the same day. The injured/complainant was sent for medical examination. Memorandum statement EX.P~7 of the appellant - was recorded and at the instance of the appellant one crowbar, pon of offence and shirt were recovered from him vide seizure memo of EX-. During investigation, statements under Section 161 Cr.P.C. were recrded. After completion of investigation, charge sheet was filed before the Judicial HIGH COURT OF CHHATTISGARH AT BILASPUR SB: HONBLE SHRI RAJESHWAR LAL JHANWAR J. ’ Criminal Appeal No. 990/ 1993 Appeal U/s 374[2) of the Cr.P.C. Appearance: ina J ng jr t n rr e p wea P6 o APPELLANT Basant Kumar, aged 22 years, son of Accused Bisahulal Agrawal, resident of Power House Road, Korba, District Bilaspur, M.P. (now C.G.) Versus RESPONDENT State of Madhya Pradesh (now CG.) r?‘<"‘ Magistrate First Class, Korba. In due course the case was committed to the Sessions Judge, Bilaspur. 3. The learned SessiOns Judge made over the case to the 7m Additional Sessions Judge, Bilaspur for trial. The learned Additional Sessions Judge has framed charge under Section 307 of the IPC against the appellant. Charge was read over and was explained to the appellant. The appellant abjuredt the guilt and pleaded innocence and his defence was that he has been falsely implicated in the offence. 4. The learned Additional Sessions Judge has, after evaluating the evidence available on record and hearing the counsel for respective parties, while acquitting the appellant under Section 307 of the IPC convicting him for committing the offence punishable under Section 324 of the IPC and sentenced him, as mentioned above. Learned counsel for the appellant submits that the offence committed by the appellant falls under Section 323 of the IPC, instead of Section 324 of the IPC as the injuries found by the doctor over the person of the complainant were not incised. She further submits that the dispute is between real father and son i.e the complainant and accused/appellant in this case. The appellant is the first offender, therefore, considering the facts & circumstances of the case, the appellant may be sentenced to the period of imprisonment which he has already » undergone. . On the other hand learned counsel for the respondent/State opposed the prayer and supported the impugned judgment. 7. I have heard learned counsel appearing for both the parties at length and also perused the material available on record. 8. It is evident from the statement of complainant-Bisahulal (P.W.5) father of the appellant, that at the time ofl‘incident he was talking with his friends Sunil 8L Raju in the house. At that time the appellant came there and abused him. Thereafter .after some time he assaulted him on his head with crowbar and as a result of which, he sustained grievous injuries on his ¢ head. In his cross— examination he stated that the appellant is his son and he has furnished bail bond for releasing him from jail. . Dr. Anand Ram Porte (P.W.3), who medically examined the complainant found the injury to be lacerated which was present over the body of the complainant. He opined that due to injuries present over the complainant the death was not possible in ordinary course of nature. 10. After seeing the medical report of the injured/complainant it is clear that lacerated wound was found by the doctor. No incised wound was present over the body of the complainant. Therefore, considering the facts and circumstances of the case, I am of the opinion that the offence committed by the appellant falls under Section 323 of the IPC and not under Section 324 of the IPC. The learned trial Court has erred in convicting the appellant under Section 324 of the IPC instead of Section 323 of the IPC. The appellant has been in jail from 26.11.1991 to 3.12.1991 ll. i.e for 7 days and the dispute in the case is between father and son i.e. the complainant and the accused/appellant in this case. The appellant is the first offender and it would be very harsh t0 send him back to jail again. I am inclined to accept the submission of learned counsel for the appellant; 12. For the foregoing reasons, I am of the considered opinion that the sentence already undergone by the appellant will meet the requirement ofjustice. 13. Accordingly, this appeal is partly allowed. The conviction of the appellant is altered from Section 324 of the IPC to Section 323 of the IPC and he is sentenced to the period of imprisonment which he has already undergone. He shall be set at liberty forthwith, if not required in any other case. I M Sdl- R.L. Jhanwalf Judge t