HIEH COURT OF CHHATTISGAkH BILASPUR Crimina! Appeal No‘671 of 2002 APPELLANT: Pardeshi Versus RESPONDENT: Sfufe of Chha‘l‘fisgur'h Pas? far- pronouncemenf of judqmerw an Q February, 2009 Sd/- T. P. Sharma Judge HIGH COURT OF CHHATTISéARI—l BILASPUR Criminal Apgeal Nc,6?1 of 2002 APPELLANT: Pardeshi, S/o Guhadas Panka, aged 23 (In Jaii) year's, R/o Jam, P’S’ Sumgaon, Disf‘r. Janjgir-Champa (CC-l) Versus RESPONDENT: 5mm of Chhaf‘fisgarh, Through RS. Sumgaon. {Criminal appea! under Section 374 (2) of The Code of Criminal Procedure, 1973} Presen'i': None for The appelianth Mr. sameer' Behar, Panel Lawyer for ‘rhe SmTe/responden‘r. Single Bench: Hon‘bie Mr. T.P. Shawna. J JUbGMENT (Delivered on 00) February, 2009) 1. By fhis upped ‘Hae appeHam has chaiienged iegaii‘iy 3,: propriety of fh judgmen? of conviction & order of sen‘rence daied 13w February, 2002 passed by ihe Addi‘i’ionai Sessions Judge, Janjgir in Sessions Trial No.117/2000, whereby learned Addifionai Sessions Judge after holding ihe acaused/appeilan+ guil’ry for commission of offence under Secfions 307 <3: 354 of The LRC. senfenced him f0 undergo RI. for 10 years <34 pay fine of Rs.100/—, in defaul‘r of paymenf of fine +0 fur'l’her undergo RI. for one mon‘ih (i: To undergo RI. for one year, respectively. Learned Addh‘ionol Sessions Q Jud9e direcied rho? bo+h The senfences shail run concurrenTlv. I 2. Judgment of convicfion is choilenged on fhe ground firm? wifhou‘l any reiioble & ciinching evidence, fhe Cour? below has convici'ed ($4 senfenced z‘he appellanf in fhe aforesaid manner. 3. Case of The prosecufion, in brief, is “rho? on 7-1—2000 when vicfi'm Kuml Shivkumari (PW—7), aged abouf 15 years, was coming from school after examinofion along wh‘h her friend Kum. Dhan Kunwar and passing near The b /rq canal, The accused/appellani’ who was hiding himself suddenly came 1’0 her \ e whm infers? to oufrage her modes'ry and caughf hold of hem and fried To fwisf her hands, when she resisfed, ha mok out 'Hna knife from his pocke+ and wi‘rh infen'r To kili her, he made repeafed assauh‘s on her over her abdomen. 5hivkumari fe“ down“ Her “friend Dhcm Kunwar, who has seen the incidem, came 1‘0 the viilage, <11" That +ime, she was weeping ahd she narrafea 'rhe incidem‘ To ”rhe villager-s <3; mofher of Shivkumari. The villagers wem‘ fa We spa? and brcugh'r fhe vicfim Te +he viHaQe and finaJiy fhey wok her to The hospifai. Fafher of Shivkumari iodged fhe FIR. vide EXP-5 Shivkumar‘i was shiffed 'ro The hospi'mi where she was examined by Dr. V.K. Agrawal (PW—4) vide EXP-7 and found foilowing nine injuries: - (i) Incised wound on upper par‘i of abdomen over righf auxiliary line in fhe size of 2 cms. x 1 cm. (ii) Incised wound on nigh? side of abdomen Jusf below ches’r in The size of 2.5 cms. x 1 cm. (iii) Incised wound below injury No.(ii) in The size of 2.5 cms. x 1 cm. (iv) Incised wound on righ? side of abdomen jusf above ‘i’he umbilicus in 'ihe size of 2.5 cms. x 1 cmi (v) Incised wound on lef‘l’ side of lower chesf in ‘rhe size. of 3.5 ems. x 1.5 cms. (vi) Puncfured wound oi lef‘? auxiliary line below injury NOJIV) area abdomen in fhe size of 3.5 ems. x 1.5 ems. (vii) Punc+urecl wound on lef‘i Side of abdomen above umbilicus in The size of 3 cms. x 2 cms. (viii) Punc‘iured wound on lefi' pelvic regionbe‘iween umbilicus oi hip join? in ihe size of 3 cms. x 2 cm. and (ix) Incised wound on righi palm over base of lif‘rle finger (Ki ring finger in fhe size of 5 cms. x 1 cm. x skin deep. 4. The accused was Taken info ousfody. He made diselosure s‘iaiemen'i” vide EXP—1 relaiing 1'0 knife and ins‘rance of fhe accused, fhe weapon of Offence knife was seized vide ExiP—Z. Bloodsfained soil 8i plain soil were recovered vide EXP-3. Bloodsfained sando banian é; full pam‘ were seized from The accused vide EXP—4. Spo‘i map Ex.P—6 was prepared by fhe Pafwario Cermin queries were pui‘ To fhe docfor and cloi‘hes & knife were i / " senf for examina‘rion. The docfar opined Tha‘l’ ‘Hne injuries inflicted ovar' ‘i'he body of 5hivkumari (nigh? hava beam caused by The knifz recovar'ed a‘r the §ns¢ance of ‘fhe accused. The inju:~ed/vic1’im was admM’ed in The hospim! and her bed head Tickef is Ex.P—12. Bioodsmined clo+hs of The prosecu'rrix were recovered vide EXP-15. Recovared arficles were serif for chemica! zxamina‘l'ion Vida EXP—16 fa The Forensic 5aience LaboraTor'y, sugar. Presence of blond over knife, blood smined soil, c§ofhes of The prosecufr'ix & clothes of The accused was confirmed vide F‘SL. repor1' ExsP—IB & P—19. $Ta+emen+s of fhe wi'messes were recorded under Section 161 of ‘rhe Cr'.P.C. » 5. Affer- complefing +he inves‘riga‘tion, charge shee‘? was filed before The Cour-l of Judicial Magisfm‘i‘e Firs? £loss, Janjgir, who in Tum, commif‘ied fhe case. fo' The Cour-1‘ of 5essions Judge, Bilaspur, from where learned Addiiioml Sessions Judge, Janjgir, received 'i'he case on fransfer for Trial. 6. In order To prove ihe guiH’ of ‘E'he accused/appellant the prosecu‘rion has examined as many as eighfeen wifnesses. Sra'remenf of ”the accused was recorded under Section 313 of The Cr.P.C. in which he denied The circumsfances appearing againsi him, pleaded innocence <31 false implication. 7. Afier affording oppor‘iuniiy of hearing +0 ihe par'iies, Couri‘ below has convicted & seni‘enced The appelian‘r as aforementioned. 8. The appeilan? is in cusfody since 9-1-2000 and he has comple‘l’ed more fhan nine years of The jail sen’l’ence. When The case is called ou‘i for finai hearing, no one is presen’r on behalf of fhe appellant No representation is made. t 9. I have heard learned counsel appearing on behalf of fhe Sfa‘re/respondeni and perused fhe imougned judgment as also ihe record of The Trial Court . The appellani has Taken +he ground in fhis appeal fhai' fhe Cour'l' beiow has noi‘ apprecia‘ied ihe evidence available on record and has based ifs judgmen‘r on conjecfures ée. surmises. The Courf has wrongly placed reliance upon *ihe evidence of Kunmi Dhan Kunwar who has n01“ fuily supporfed The case of the prosecufion. Motive has no‘l’ been proved. The f? xk‘,‘ prosecu‘rion has aiso failea To grove The offence. punishabiz under Section 354 of fhe IP‘C, Tha appellam‘ has aiso Taken The groumi Thaw The sanmnces awarded 1’0 fha appeHanf are excessive. 11. Learned counsa! appearing on behalf of The $1'afe/r‘esponder1? suppormd The judgman? and submiffed *hcn' fhe evidence adduced on behaif of fhe prosecu+ion is sufficien'l' fur drawing inference The? fhe accused is “fhe person who has cemmWTed The offence under Seci'ions 307 & 354 of The I.P.C. and ‘g‘he Courf hekvw has righfly canvic‘i‘ed 6:, sen‘renced 'rhe appeHaM. .In order To appreciaTe The conTenTions of The parTies and To connecT The appelianf wi-H'I 'fhe crime in quesrricn, I have examined ‘rhe evidence of The wifmesses adduced on behalf of fhe prosecufion. .The accused has noT subsTanTially dispuTed The injuries found over The body of victim Shivkurmri which efherwise aisc sfand proved by The evidence of Dr. VWK. Agrawai (PW-4). 14. Chaifram (PW—2) - fa'rher of Jrhe vicfim, Mongfu (PW—5), Dnan Kunwar (PW-6), who was presen? a‘r ‘rhe spot ?uni Bai (PW~9), Radheshyam (PW— 10) & Gmreiai (PW—12) have sia‘red iha'l’ (1f ihe Time of inciden'l' Kum. Shivkumari was assauii'ed and injuries were found oven her body. Dr. V.K. Agrowai (PW-4)] who has examined fhe vici'im, has s‘m‘fed 'i’ho‘f on 7-1—2000 he has examined +he vicfim and found nine injuries over her body vide Ex.P—?. Dr, RK Chandra {PW/‘16) has s'i'nied Thai“ he has conducTed surgicol TreaTmenT of $hivkumari and found a whoie over The periToneum and her inTernal organs were oiso injured. Nine injuries were found over The body‘of §hivi<umari ouT of which mosT of The injuries were found over abdomen d chest Size of The injuries shows ThaT The injuries were dangerous in ifs cumuiaTive effec? and eyen They ore sufficient for causing deoTh of The person. 15. As regards oompiiciTy of The accused in The crime in question, vicTim Kum. Shivkumari (PW-7) has specifically, deposed ThaT when she was coming from The school and passing Through The field, The accused/appellanT was sTanding There, he direcTed her To fhrow The wriTing pad, on her refusai @ ‘rhe accused siapped her, and took cu? The knife from his pockef and repea‘l'edly assuuifed over her abdoman and caused nine injuries. She fell down and became uhconscious. She has fur‘i‘her s’rm'ed ihaf wi‘i‘h a View To commi‘r WE W The accused caugh’r hoid of her and on her resismnce from daing so he assauii'ed hzr. Dhcm Kunwar was presen‘r on ’rhc spo’r, she has scan +he inciden? and mn away inward$ ‘l'he villagz‘ Af'rer' some i'ime, Dhdn Kunwar along wi‘rh ofhar persons come f0 The spo’r and wok her, she harm‘a‘ed ihe incidenf ~i'o fhe persons~ They Took her- To The hospi’ml. Chaifmm (3°W-2) — fwher of +he vicfim, has smfed iha'r he heard abou‘r The incidem‘ when he was a? Viiiage Kosmanda whereupon he wen? To The hospi‘iai where fhe vicTim (her daughter) has Told him fha‘i The accused has asseui‘i'ed her wifh knife and he has lodged The repor‘r vide EXP—5‘ Dhen Kunwcir (PW—6) has cafegoriceiiy stafed ‘rhcd' whiie Shivkumuri was coming wifh hev from The school The accused caugh‘i hold of Shivkumar-i and direcfed her +0 Throw The wri‘ring pad' on her refusal ‘ihe accused dragged her and repea‘redly assaul‘ied her wifh knife. She apprehended and ran away from 'lhe spot and Told The incidenf +0 ihe villagers, on which persons of The village came To 'the spof and Took Shivkumari for ireafmen'r. Puni Bai (PW-9) (Si Radheshyam (PW—10) have supper-Ted fhe version of Dhan Kunwar (PW-6). There is some confradicfion in ‘ihe evidence of Kum. shivkumari {PW—7) and her stafemen‘i recorded under Secfion 161 of The Cr.P.C. (Ex‘iD-l}, which is Trifle in naTure. She has denied The suggesTion ThaT The accused has noT assaulTed her and false reporT has been lodged againsT The QCCU$€$ Dhan Kunwar (PW—6) has been cross—examined by The defence, buT defence has noT been able To eliciT anyThing in her cross-examinaTion To discrediT her TesTimony. She has corroborated The evidence of Kum. Shivkumari (PW-7). Defence has cross-examined This wiTness also, buT iT has noT been able To eliciT anyThing To discrediT her TesTimony or able To show any cause for false implicaTion of The accused. Evidence of Dhan 0 Kunwar (PW-6), Kum. Shivkumari (PW—7), Puni Bai (PW—9) & Radheshyam i 16. 1'7. 18. 19. am: 59 (PW-10) is suppor‘red by medical evidence, i+ inspires confidence and ihe same is frus'rwor‘rhy. 20.In View of 1’he above evidence, inference can be drawn Thai The accused has caused nine injuries over 'i'he body of Shivkumari‘ Injuries found over The body 0f Shivkumari were dangerous in its cumulative effecf and sufficien'r for convicfing ihe appellant under Seciion 307 of the I.P.C. 21. As regards convicfion of ‘H‘Ie appellanf under Secfion 354 of We I.P.C., according To fhe evidence of Shivkumari (PW—7) (Si Dhan Kunwar (PW—6) ‘ihe accused/appellan‘i has direc‘i’ed fhe vicfim to Throw The wrifing pad and on her refusal he repea‘iedly assaulfed her over her abdomen & chest Bu‘r boil: fhese Two wifnesses have nof siai’ed any‘rhing To show fha‘i fhe accused has Tried To oufrage 1he modesi'y of 5hivkumari or fried ’ro snafch or remove her cloThes‘ The prosecution is required to establish its case beyond all reasonable doubts and conviction cannot be based on surmises dt conjectures, The prosecution has not adduced any evidence to the effect that the appellant has used criminal force with intent to outrage the modesty of Shivkumari, but the Court below has convicted 64 sentenced the appellant under Section 354 of the I.P.C. also. Conviction & sentence imposed upon the appellant under Section 354 of the I.P.C‘ is not sustainable under the law. 22.The learned Additional Sessions Judge has rightly convicted the appellant under Section 307 of the I.P.Ci As regards the question of Sentence under Section 307 of the I‘PnC. although the accused has assaulted nine injuries with knife and as per the seizure memo EXP-Z length of sharp part of the knife is 4 inches, it appears that it is a vegetable cutting knife and the injuries are dangerous in its cumulative effect. Taking into consideration the evidence adduced on behalf of the prosecution and the injuries found over the body of the Victim, sentence awarded to the appellant under Section 307 of the I.P.C. is disproportionate to the part played by the appellant. \\ 23.For the foregoing reasons, the appeal is partly allowed. Conviction di Fe sentence imposed upon the appeliant under Section 354 of the I‘P.C. are 7 se‘f aside and he is acquiffed of me said charge. Convicfien of the appellanf under 5ec1’ion 307 of fhe I.P.C. is mainmined, however, senfence of fen years & fine of Rs.100/— imposed upon him under Sec‘rion 307 of The I.P.C. is reduced fo RI. for 8 years & fine of Rs.100/-. If is sfa‘fed Thu? The appellant has complefed eighf years of RI. Therefore, he be released forfhwifh, if no? required in any ofher case. Sdl— T. P. Sharma Soma