HIGH COURT OF CHHATTiSGARH AT BILASPUR SB: HQN'BLE SHRI R.N.CHANDRAKAR.. J Criminal Appeal No. 216 of2003 ADpellants Chandaroo @ Chandra Prakash. Respondent Vs. The State of Chhattisgarh. POST FOR PRONOUNCEMENT OF JUDGMENT Sd/- JUDGE ^ -10-2009 Sd/- R.N. Chandrakar Judge t--' Appellant: HIGH COURT OF CHHATTISGARH AT BILASPUR Criminal Appeal No. 216 of 2003 Chandaroo @ Chandra Prakash, S/o. Bhola aged 35 years, r/o. Baghamar, P.S. Kunda at present Police Station Mungeli,Dist. Bilaspur, CG. Versus Respondent: State of Chhattisgarh. (Criminat appeal u/S 374 ofthe Code of Criminal Procedure 1973) SB: Hon'ble Shri R.N. Chandrakar, J. Present: Mr. Abhay Tiwari, counsel for the appellant. Mr. A.V. Sridhar, Panel Lawyer for the State. JUDGMENT (Delivered on this^+k day of October,2009) 1. This appeal is directed againsf the judgment of conviction and order of sentence dated 22-1-2003 passed by the Additional Sessions Judge, Mungeli, Dist. Bilaspur in Sessions Trial No. 153 of 2002 convicting the accused/appellant for the offence under Section 308 of the I.P.C. and sentencing him fo undergo R.l. for two years and to pay fine of Rs.500/-, in default of payment of fine to undergo further S.l. for4 months. 2 The factual matrix lies in a narrow compass that the complainant Agandas had sown paddy crops in his field where the accused/appetlant was grazing his cattle on 16-10-2002 at 7.00 a.m. The complainant raised objection to the said act of the appellant. On this, the appellant gave lathi blow on the head of the complainant Agandas (PW/5) as result of which he sustained injuries and became unconscious and thereafter on the same day, Bisali (PW/4) nephew of the complainant lodged first information report (Ex.P/12) against the accused/appellant in Police Iti Station Kunda, District Kawardha. During investigation, complainant was sent for medical examination to the Primary Health Center, Kunda. 3. After completion of investigation, charge sheet was filed in the competent court which in turn committed the case to the Court of Sessions from where the case was received by the trial Court on transfer. The trial Court framed charge punishable under Section 307 of IPC against the accused/ appellant. The accused abjured the guilt and requested for trial. The learned trial Court after due trial, convicted and sentenced the accused/appellant as mentioned inpara 1 ofthe judgment. 4. Learned counsel appearing for the appellant submits that there is no definite evidence against the appellant to prove the offence under Section 308 of the IPC beyond all reasonable doubt. The trial Judge failed to cpnsider the statements of the witnesses which are not in corroboration with the material particular of the case. The statements of the prosecution witnesses are completely contradictory to each other by which the prosecution story appears to be concocted. Learned counsel further submits that the trial Court completely failed to see that on the basis of the material available on record, the appellant cannot be convicted. Thus, the impugned conviction andsentence passedagainst the appellant is bad in law and the same deserves to be set aside and the appellant be acquitted ofthecharge. 5. Per contra, learned counsel appearing for the respondent/State argued the case in support ofthe impugned judgment ofthe trial court. 6. Having heard learned counsel for the parties, 1 have perused the records ofthe trial Court and also the impugned judgment. 7. The prosecution in order to prove the guilt agairist the accused/appellant, examined 9 witnesses. 8. PW/5 Agan the complainant identified the appellant and stated in his deposition that on the date of incident at about 8.00 a.m. the appellant 'sy was grazing his cattle in the field of this witness where he had sown paddy crops. This was objected by him whereupon the appeilant assaulted this witness on his head with lathi as a result of which he became unconscious (the witness touched the right side of his head). Thereafter hedid not know what happened. He further stated that after lathi blow given by the appellant he did not know how many blows were given by the appellant. He further stated that still the injuries sustained by him due to that assault, were not cured and his eye-sight was also affected. He was hospitalized for nine days and his wife was present on the spot at the time of incident. In his cross examination he categorically stated that during his hospitalization the police recorded hisstatements in which also he told the police that he was assaulted by the appellant. He denied the suggestion that he did not see the appellant grazing the cattle in his field. He further stated that he himself saw the appellant was grazing the cattle in his field. He further denied almost all the suggestions given by the defence that he went to the house of the appellant, abused his wife and started releasing the cattle which was objected by the wife of the appellant (Kanti Bai (DW/1) whereupon he assaulted her. He further denied the suggestion that he sustained injuries because at the time of assaulting Kanti Bai, his legs got slipped and he fell down. He also denied thesuggestion that he lodged a fatse report against the appellant after lodging the reportby Kanti Bai against him. This witness remained consistent and unrebutted on material points. 9. PW/6 Soorja Bai, the wife of the complainant also corroborated the version of the complainant PW/5 and stated that she sent the information ofincident to Bisali (PW/4) and when he came narrated the incident to him. Thereafter, the comptainant was taken to Police Station. In the cross examination she was also given the same suggestions which were \...._. given to the complainant but thedefence was unable to pointout any substance by which this witness can be held unreliable. 10. PW/4 Bisali, the nephew of the comptainant deposed that on the date of incident in the morning while he was working in his field, one Janak came and informed about the incident. On this, when he came to the house his uncle Agan (PW/5) was lying on a cot in the courtyard and he was informed by his Aunt (wife of the complainant) that his uncle was assaulted by the appellant. Thereafter hewent to the Police Station and lodged the FIR (Ex.P/12). He admitting his thumb impression in the FIR (Ex.P/12), corroborated the story and also proved the seizure memo Ex.P/13 whereby one gamcha ofthe complainant was seized. In his cross examination this witness remained consistent and unrebutted. 11. PW/3 Arvind Singh is the witness of memorandum Ex.P/9 and seizure of the club (Ex.P/10). He identified the accused and stated that one club was seized from the field of sugarcane being produced by the appellant. He admitted his signature in memorandum Ex.P/9 and seizure memo of the club Ex.P/10. He also admitted his signature in arrest memo of the appellant Ex.P/11.. In his cross examination he admitted that the appellant was taken to the place by the Police, where the club was concealed and he denied the suggestion that no club was seized from the appellant before him. 12. PW/7 Narendra Kumar Bental, the Investigating Officer has stated in his deposition that on 16-8-2001 he registered the FIR (Ex.P/12) on the basis of oral report given by Bisali (PW/4), sent the complainant for medical examination vide Ex.P/1 and seized one gamcha vide Ex.P/13. He further stated that on 17-8-2001 he recorded memorandum statement of the appellant vide Ex.P/9 and seized one bamboo club vide Ex.P/14 in presence of witnesses. He also prepared a spot map vide Ex.P/15 and recorded the statements of the witnesses. He further stated that the seized gamcha and bamboo club were sent for chemical examination vide Ex.P/16 and obtained report thereof vide Ex.P/17. 13.PW/1 Dr. P.L Kurre, stated in his deposition thaton 16-8-2001, he examined the complainant Agandas (PW/5) and found one lacerated wound at righttemporal region in the size of2x 1/4' upto bone deep which was caused with hard and blunt object. The injury was caused within 12 hours from the examination. He admitted his report Ex.P/2 whereby the complainant was referred to District Hospital, Bilaspur for x-ray and further treatment. He also stated to examine the seized lathi and gamcha and advised to send the same for chemical examination. After examination of the seized lathi he opined that the injury sustained by the complainant could be caused by the said lathi. He gave his report (Ex.P/4) regarding examination of lathi. On perusal of the report of FSL (Ex.P/17, P/18), It is clear that bloodwas found on the seized gamcha. 14. The appellant took the defence that he has been implicated in a false case by the complainant in order to screen himself from legal punishment for committing marpit with the wife of the appellant. He examined his wife Kanti Bai (DW/1) in his defence. Kanti Bai stated in her deposition that on the date of incident at about 6.00 a.m. the complainant came to her house, abused her and started releasing her cattle to which she objected whereupon the complainant assaulted her with lathi and in this process the legs of the complainant got slipped and he fell down on the "Kotna" (stonepot used for feeding cattle) due to which he sustained head injuries. She further stated that at that time her husband, the appellant was applying "Manjan" at some distance. She further stated that after the incident she made outcry whereupon the appellant came to the spot and took the complainant to his house and narrated the story to his wife Soorja Bai (PW/6). She also stated that she lodged the report of the incident at Police Station KUnda at 11.00 a.m. and she was sent for medical ^ examination. She also stated that the complainant went to lodge the report against her husband inthe evening who was seen by her in Police Station. 15. On perusal of Ex.D/1 whereby this witness was sent for medical examination it is clear that she was given the intimation of non-cognizable offence as held by the trial Court in para 12. It is also clear from the deposition of this witness that after the intimation of non-cognizable offence given by the Police she did not file any complaint against the complainant in any court of law which makes her statement untrustworthy and the same cannot be relied upon. Thus, it cannot be said that the appellant has been falsely implicated by the complainant. 16. So far as the intention of the appellant is concerned, it is clear from the deposition of Kanti Bai (DW/1) that after the incident the complainantwas taken to his house by the appellantwhich also finds corroboration with the admission made by Soorja Bai (PW/6) in para 4 of her cross examination that her husband (complainant) was brought to the house by the appellant. With this, it is clear that the appellant had not any intention to cause death of the complainant but it appears that the incident took place in a heat of passion due to sudden and grave provocation as is also clear from the medical evidence that only single injury was foundon the body of the complainant. 17. In view of the aforesaid, it is clear that the statement of the complainant is fully corroborated by his wife (PW/6) who was the eye-witness to the incident as also by Bisali (PW/4) who lodged the FIR and to whom the incident was narrated immediately after the incident. In the light of the medical report of the appellant ( Ex.P/2), it is clear that the prosecution has clearly proved the offence against the appellant beyond all reasonable doubt. 1:C-- is.For the foregoing reasons and taking into consideration the entire evidence available on record, 1 amofthe considered opinion thatthe trial Court rightly convicted the appellant under Section 308 of the IPC in place of 307 of the IPC. The judgment of the trial Court does not suffer from any illegality or irregularity warranting interference in appeal. l9.Accordingly, the appeal being devoidof substance is liable to be dismissed and it is accordingly dismissed. Sd/- R.N. Chandrakar Judge Raju