-^^-— '^^1^^ '; vt c;,..,l- IS_3SS HISH SOURT OF J0B3C2AT08E *T JABAI.PUK. x Griminal Appeal No.\a t5"2~-/l999 APPEI.LANT: S-tW1^IL- <tv"i, l^T^.^y .-^•^, ..»«',sf' VS. Santoa @ Saakraa son of Bodri Kewa'fe d about 5B years. r/o village Cfaandli, P.S.GiaandeE-pur, Distr.i.ct Bilaspur.(M.P.) State ef M.P. throagl* its poliee Stafeiaa Shanderpur, Blstt.Janjgir Cfaapa, Bistt.a eRWXNAl. APPBAl. BNDER SEGTI8N 374/2 OF THES C©BE QF SRIMINAI, PROefilDBRE. 1973, RESPQNDEIiT! hiliini^'ianasesi" ff^"y HIGH COURTOF CHHATTISGARM AT BILASPUR (Hon. Mr. Justice Pritinker Diwaker) Criminal AppealNo. 1052 of 1999 APPELLANT RESPONDENT VERSUS Santoo alias Santram State of Madhya Pradesh Smt. Indira Tripathi counsel for the appellant. Shri Ashish Gupta PL fcr the respondent/Sfate. CRIIVIINAL APPEAL UNDER SECTION 374 OF THE CODE OF CRIMINAL PROCEDURE. JUDGMENT (07.02.2011) This appeal is directed against the judgment and order dated 5.3..1999 passed by the Additional Sessions Judge, Sakti in Sessions Trial No. 90/1998 convicting the accused/appellant under Section 307 of the Indian Penal Code and sentencing him to undergo rigorous imprisonment for five years and pay fine of Rs. 2000 in default of payment of fine to undergo rigorous imprisonment for one year. 2. Case ofthe prosecution in brief is that on 25.11.1997 at about 11.25 a.m. FIR Ex. P-19 was lodged by Shila Bai (PW-13) - the sister-in-law of the victim Rajaram (PW-11) alleging that on that day at about 10.30 a.m., accused/appellant assaulted the victim at the instigation and with the help of oth&r accused persons bver some land dispute. Based on this FIR, challan was filed by the police on 25.12.1997 against five persons namely Santu alias Santram (the appellant herein), Gyanmati, Sonmati, Son Kunwarand Raj Kumar. > 3. So as to hold the accused persons guilty, prosecution has examined. 23 witnesses in support of'its case. Statements of the accused persons were also recorded undersection 313 ofthe Code of Criminal Procedure in which they denied the charges levelled against them and pleaded their innocence andfalse implieation in the case. ^ '®« -.2- 4. After hearing the parties the trial Court has acquitted the other four accused persons of the charges levelled against them but convicted and sentenced fhe accused/appellant as mentioned above. 5. Heard counsel for the parties and perused the material available on record including thejudgment impugned. 6. Counsel for the accused/appellant submits that the appellant has been falsely implicated ih the case because of some internal land dispute. She submits that the accused/appellant had also suffered injury which goes to show that he was not the aggressor but it was the victim Rajaram himself who was responsible for the incident. She submits that even if the entire medical report is taken as it is, offence under Section 307 IPC is not made out against the accused/appellant. Lastly she submits that when on the same set of evidence the other four accused persons have been acquitted by the trial Court, the present appellant is also entitled for the same relief. 7. On the other hand counsel for the respondent/State supports the judgment impugned and submits that looking to the injuries sustained by the victim, the findings recorded by the Court below are just and proper and do not call for any interference in this appeal. 8. Gorakhnath (PW-1) though has been declared hostile, has stated that on the date of incident when he and other villagers had gone to the filed for harvesting jhe paddy crop, accused/appellant herein came there and asked the victim as to why he was harvesting the paddy and saying so he started assaulting him with sickle as a result of which he sustained injury on his left hand and when the victim also tried to assault the accused/appellant he ran away from the spot. Mannulal (PW-2) another eyewitness to the incident has also been declared hostile but he has categorically stated that the accused/appellant assaulted the victim as a result of which he sustained injury on his neck and head. Sufi Aftar (PW-3) has not sypported the case of the prosecution and has been declared hostile. Duryodhan (PW-4) - the witness to seizure '&f the artides made under Ex. P-4 and also of the arrest memo Ex. P-5 has not ''?' ^-N supported the case of the prosecution and has been declared hostile. Indraraj Ali (PW-5) - another important witness has also not supported the case of the prosecution and has been declared hostile. Tekram (PW-6) has stated that on the date of incident wife of the accused/appellant was shouting saying that victim Rajaram along with 8-10 villagers was coming to harvest the field. Though this witness had not been to the place of incident, he has stated that there was some dispute between the accused/appellant and the victim. This witness has also been declared hostile. Malikram (PW- 7) - the witness to the seizure of clothes and sickle made under Ex. P-10 P-11 and Ex. P-12 has partially supported the case of the prosecution. Rameshwar Sihar (PW-8) is the Patwari who had prepared spot map Ex. P-13. Tikeshwar Singh (PW-9) is the Tehsildar who had recorded statement of the victim Ex. P-14. Constable Vijay Kumar Thakur (PW-10) is the witness who has taken part in the investigation. Rajaram (PW-11) is the injured witness who has stated that his land and the land of one Anandram - brother of the accused/appellant were adjacent to each other. According to this witness, he had gone to one Punnilal to inform him to keep a watch on the paddy crop and send a word to him when it was ready for being harvested. According to this witness, when Punnilal came to inform him that the paddy crop was ready for being harvested, he along with Basantibai, Shilabai and Kiranbai went to the field and when they were busy in harvesting the crop, accused persons reached there out of whom some were armed with clubs. One Sonsariha exhorted accused Santu to behead.rhim with the sickle held by accused Raj Kumar. Thereafter, accused/appellant assaulted him on his neck with the sickle. According to him, while he was trying to evade the other blow, he sustained injury on his left palm as a result of which his little 'finger got shortened and then he became unconscious and therefore he was not aware as to who had lodged the report. Though there appear to be certain contradictions in the evidence of this witness if compared to the case diary statement, they are not of much significance. Basanti Bai (PW-12) wife of the victim has supported the case of the .prosecution describing the manner in which the incident had taken place: She -^— has stated that her husband was assaulted by the accused/appellant on left hand with the help pf sickle and other accused persons were exhorting him saying "maro maro". According to this witness after sustaining injuries, her husband fell down on the ground and was shifted to the hospital at Raigarh. Leaving aside certain minor contradictions in cross exannination, this witness has supported the case of the prosecution on material particulars. Shila Bai (PW-13) - the lodger of the FIR Ex. P-19 and Kiranmati (PW-14) the daughter of the victim, both havestated almost the same thing as has been stated by Basanti Bai (PW-12). Puniram (PW-15) - another eyewitness to the incident has also supported the case of the prosecution stating as to in what manner the accused/appellant assaulted the victim. In the statement of this witness also though minor contradictions are there, being not that much significant they are to be ignored. Patteram Uraon (PW-16) - the witness to the memorandum of seizure Ex. P-12 and that of arrest Ex. P-21, has duly supported the case of the prosecution. Suklal (PW-17) - yet another eyewitness to the incident has also supported the case of the prosecution. ASI Atiullah Sheikh (PW-18) is the witness who had done part of the investigation. Station House Officer namely K.S. Dhruv (PW-19) had also done part of the investigation and he too has supported the case of the prosecution. Dr. M.M. Wase (PW-22) who had medically examined the victim and given his report Ex. P- 29, has stated that the victim had sustained the following injuries on his body: (i) Incised wound on the'left wrist in the size of 4 x 1", muscles were cut and the veins ruptured. (ii) Incised wound on the right side of the neck extending to the back side in the size of5x 1 x 1" upto muscle deep. (iii) Incised wound on the left hand in the size of 3x1" (iv) Incised wound below injury No.3 in the size of %" upto muscle deep. (v) Incised wound in the little finger in the size of 3.1 x2x1/4" All the injuries were caused by hard and sharp edged weapon and were dangerous to life in the ordinary course of nature. At --s~ "•SVt the time of admission, the condition of the victim was precarious. Dr. N.P. Mishra (PW-23) is the witness who had examined the accused/appellant and given his report Ex. P-32 has found three injuries on his left and right fingers. 9. Having thus gone through the evidence of the victim and other important witnesses, it is clear that the victim was brutally assaulted by the accused/appellant.., Record further shows that the accused/appellant was exhorted by one Sonsariha to chop off the neck of the victim. Moreover, looking to the part of the body where injury was caused by the accused/appellant with the help of sickle it can be said that he was predetermined to finish him. From the record it also appears that in the scuffle the accused/appellant had also suffered some injuries. Record however does not make it clear that the said injury to the accused/appellant wascaused by the victim himself. Possibility of accused/appellant sustaining injurywhile assaulting the victim can not be rul$d out. More so, nature of injury has been categorically described by the doctor that it was dangerous to life in the ordinary course of nature. 10. In view of the aforesaid discussion on facts in the light of the evidence adduced by the prosecution and keeping in mind the manner in which the victim has been assaulted by the accused/appellant with sickle, this Court is of the considered opinion that the findings recorded by the court below convicting the accused/appellant under Section 307 IPC are just and proper. Conviction part of the judgment is thus maintained. 11. As regards sentence, keeping in mind the peculiar facts and circumstances of the case and that the incident had taken place in the year 1997, this Court is ofthe considered opinion that itwould be in the interest ofjustice ifthe sentence imposed on him is reduced to imprisonment for. three years . from that of five years. Order accordingly. 12. Appeal thus partly succeeds. Accused/appellant is on bail. His bail bonds stand cancelled. He be sent tojail forthwittL..-, \prittakerQiv'akar Judge fTt