SHRAWAN STATE OF CHHATTISGARH SHANKAR 65 ONE ANOTHER STATE OF CHHATTISGARH Post for; 18.05.2007 Sd/- SunilKumarSinha Judge SHRAWAN SON OF ITWARI GOND, AGE 22 YEARS, RESIDENT OF VILLAGE KUTHREL, P.S. GUNDERDEHI, DISTRICT DURG (CHHATTISGARH) STATE OF CHHATTISGARH 1. SHANKAR SON OF PUNIT GOND, AGED ABOUT - 20 YEARS, RESIDENT OF KUTHREL (P.S. RANCHIRAI), DISTRICT DURG (CHHAmSGARH) 2. BAIGA ALIAS YUWRAJ SAHU, SON OF BUDHRAM, AGE - 25 YEARS, R/0 ARMAR! KALA, P.S. GURUR, DISTT. DURG (C.G.) STATE OP CHHATTISGARH (Appeals ander Section 374(21 ofCr.P.C.l Shri S.P. Agrawal aud Neelkaath. Malviya, Advocates for the appeUants. Shri Sandeep Yadav, Dy. Govt. Advocate for fhe State. [1| Being aggrieved with fhe judginent ofconvictioa and order of sentences dated 28.3.2002 passed in Sessions Trial No. 144/2001 toy the Frrst Additional Sessions Judge, Durg, whereby the said Court, after holduig fhe appellants guilt}' of offence punishable u/ss 341 & 307 r/ws. 34 I.P.C., sentenced fhein to undergo R.I. for 1 year and R.I. for 10 years & to pay a fm.e of Rs. 500/-, ia. default of payiaent of fine to fiu-tlier ?~ Crimlnal Appeals No. 991/2002 & 389/2002 undergo R.I. for 6 inonths respectively, tlie appeUants have prefeiTed these appeals under Section 374 (2) Cr.P.C. |2] The biief factsare fhat the victim namely Ku. Doineshwsji aad appeUaut- Shi'awaii, botli were students of Class 11th aiid were studyiag ia High School, Batrel. Prior to fhe date of. iacident, appellaiit-Shrawaa had teased and assaulted tlie victiia, on which, soaie report was laade by fhe nctun and tliis appellaiit was taken iato custody by fhe police aad later 011, he \vas released. The case ofthe pi-osecution is that on 15.3.2001 at about 2.00 p.m.., Doinesliwari (P.W.-l) was retuming froin her School to village- Gatapar. She was on her bicycle and was accoinpaaied by her fhree friends uaniely- Yamuna, Ku. Jageshwari (P.W.-2) and Nityaaand (P.W.-3), who were also on fheir bicycles. On the way, when fhey reached near fhe forest nursery, on accouat of previous animosity, appellant-SIu-awaii and bis two associates caine on fhe road aiid Shi-awan caught the haiidle of the bicycle of Domeshwari (P.W.-1), due to which, she feU down on fhe ground aad fbereafter, he gave her inultiple krufe blows oa her head, neck, stomach aad other vital parts of the body. The ofher hvo appeUaats also assaulted the victim. wifh fhe knife. In tlie m.eanwhile, a public tous cam.e over there, seeiug which, fhe appeUailts ran away from. the seen of occurrence. The victim became seiai uncouscious. This message was sent to her fafher naniely- Khumaii (P.W.-9), who imiaediately reached to fhe spot aad took fhe victim. to Dr. Saldauram. (P.W.-6) ia vitlage Batrel, who after giving tfae first add to her, advised to take her to Dhamtari Hospital, ou which, she was taken to Dhamtari Hospital. In Dhamtari Hospital, tlie victim was medicaUy examined by Dr. N.B. Singh and Dr. (Smt.) Vina Chatterjee (P.W.-13) aad medical report Ex.-P/25 was prepared. The contents of tlie report would show fhat flie foUowiag iiijuries were noticed by the Doctors : 1) An incised wound on the front portion of head admeasuriug 6 cm. x % cm.. x l cm; 2) An. iacised wound 6n fhe left side of the head adiueasiu-iiig 7 ciu. x !/2 cin, x 1 ciu; Crimmal Appeals No. 991/2002 & 389/2002 3) An iacised wound on the back side of fhe head adineasuring 12 cm.. x Vt CID.. x l cia.; 4) An iacised wound on fhe back side of neck adiaeasuriiig 10 CBI. x Va cui. x 2 cni.; 5) Aa iacised wound on the lower pordon ofthe neck adineasuring 12 cm.. x /i cin. x 3 cin.; 6) An incised wound on fhe stoiaacli adiiieasuruig Va cm., x 1 cia. x 1 cin.; 7) Aa iacised wound on fhe lower portion of the stoiaach adineasuruig Vi cin. x 1 cm.. x 1 cm..; 8) Aa iiicised wound on the buttock adnieasuriug 'A cm.. x 1 cia. x 1 cui.; aad 9) Another incised woirad just above buttock admeasuring 'ih cm. x 1 em. x 1 cm. Except injuries No. 1 & 2, aB fhe iajuries were sunple iil nature. Later on, fhe victun was adinitted to the hospital on 15.3.2001, where she reinaiaed upto 26.3.2001. Duriag fhis period, a Dehati Nalishiwaa recorded on 15.3.2001 at about 20.30 hours vide Ex.-P/ 1 aiid her dyiiig declaration was also recorded by fhe Executive Magistrate at about 8.10 p.in. on the sauie day vide Ex.-P/2. Based on Dehati Ifalishi, F.I.R. (Ex. P/17) was registered. (3) Duruig the course of iavestigation, fhe appeUaats were arrested under Ex.-P/ 18 to Ex.-P/20 aad appeUaiits, Shaakar Ss Baiga @ Yuwraj were put to identification on 1.4.2001 aad were duly identified by Jageshwari (P.W.-2) aad Nityaiiand (P.W.-3). The identification lueino is Ex.-P/5, In fui-fher iavestigation, fhe laem.oraD.dums of appeIlaats-Yuwraj, Shaiikar & Shrawaa were recorded under Ex.-P/9, Ex.-P/lO & Ex.-P/ll aad three knifes were seized, in consequences of fhese meinoraiiduins. The bed- bead-ticket of the victim (Ex.-P/26) and X-ray Plate (Ex.-P/27) were also seized-and after recordiiie 161 Cr.P.C. stateinents of witaesses aad furiher at'ter coiapletion of usual iavestigation, a charge-sheet under the aforesaid Sections ofI.P.C. was filed. (4j At the tnal, the Sessions Judge recorded a finding that ftie iiijuries sustaiaed by the yictim were fatal to her life aad fhe I^ Criminal Appeals No. 991/2002 & 389/2002 v death inay have been caused as a consequence oftliese injuries. He also recorded a finding fhat aB these appellaiits had participated in causing injuries to the victim, therefore, fhey all were guilty ofoffence u/s 307/34 I.P.C. along ivith Section 341 I.P.C. (5) Leamed counsel for the appellaats argued that fhe iujuries sustained by the victim were not sufficient to cause deafh ui fhe ordiaarily course of nature, therefore, it is not a case of attempt to Ufe and an offence u/s 307/34 I.P.C. would not be inade out against appeUaat-Shrawan.. F'or 2 ofher appeUsuits, th.cy argued fhat their participation is doubtful, therefore, they raay be given beuefit of doubt. Alteraatively, fhey also argued that fhe sentences iiaposed against the appeUants are too harsh, which may be reduced to fhe miaimiun., preferably to fhe period already undergone. They subniitted fhat appellant-Shi'awan is ia jail siace 20.3.2001 and he has completed inoie fhan 6 years aad 2 lapnths aad ofb.er 2 appellants have also undergone for a period of about 1 yeai' and (6) On fhe ofher hand, learued counsel for fhe State opposed these arguiuents. He supported fhe judgt&ent of coavictiou aiid order ofsentences passed by the Sessions Court. i7) I bave heard Uie learued counsel for the parties at leugth aud have also perused fhe recoi-ds offhe sessions ti-ial. (8| First of aU. this to be seen as to whefher aa offence u/ s 307/34 I.P.C. is m.ade out or not, aiid in case, it is m.ade out, who are tlie culprits ? |91 Sa fai- as constitution of offence under Section 307 of IPC is concemed, it has been held by ftie Apex Court in the matter of SwfuPretsacl -Vs- State ofBihar, AIR 1965 S.C. 843, tiaat ia order to bring the offence hoine to accused, the prosecution laust establish fhat his io.tcD.tion was one of fhe fhree Idnds nientioned in Section 300 I.P.C. The state ofiuiad offhe accused r>. Criminal Aopeals No. 991/2002 & 389/2002 has to be deduced from. surroundiug circumstauces and motive would be a relevaut circuinstance aad wfaere the evidence is not sufficient to estabUsh wifh certauity, existeace of requisite intention or knowledge ofaccused, fh.e accused can be convicted onlv under Section 324 and not under Section 307 of IPC. ilOl In ttie matter of Hari Ktshan & Stute of Barucm.a -7s- SufchMr Sinflh and others AJR 1988 S.C. 2127, the Apex Court furtlier held fhat under Section 307 IPC, what fhe Court has to see is, whether fh.e act uTespecti.ve of its residt, was done with the intention or kaowledge and under circumstaD.ces mentioned in that section. The iatention or knowledge of the accused inust be such as is necessary to constitute inurder. Wifhout fhis i&gredient being established, there can be no offence of "atteinpt to xnurder." Under Section 307 fhe -intention precedes fhe act attributed to accused. Therefore, the iatention is to be gathered fixim. atl circuinstaaces, and not inerely fi'oin the consequences fhat ensue. The nature of the weapon used, m.anner ia which it is used, motive fi>r the ci-mie, severity of fhe blow, fhe part of the body where fhe iiiji-u^" is iuflicted are some of fhe factors that inay be taken iuto consideration to determine the i&tention. [11] Ifwe look iato fhe evidence ofP.W.-l Ku. Domeshwari, she deposed that when she was returaiag from school along wifh. her fiiends iiamely Yamuna, Ku. Jageshwari (P.W.-2) aad Nityaaaiid (P.W.-3), 3 boys came out from the side of the nurseiy. Shrawan has been named by her. She deposed fhat Shrawan caught her bicycle, abused her aad he gave two knife blows in her stomacb, thereafter lie also gave knife blows towards her left eye, neck aad on the back portion of fhe neck and on her head eto. She specifically -deposed tbat tbe repeated blows were made on her head and maay blows were made on the left ann and left thigh, and also on her back. She fell down, when her fi-iends mtervened for rescue, fhen, the assailants raa away fi-om fhe place of occiirrence. In 3rd paragraph of her evidence, she Criminal Appeals No. 991/2002 & 389/2002 3^ deposed fhat firstiy Shrawaa had assault oa ber stoinach by knife, thereatter, ofher 2 persons had assaulted by kaife and a!l 3 persons had participated in assault. This witaess has not named the 2 ofher assailants. The version ofthis witness is ftilly corroborated toy inedical evidence, as her inedical report (Ex.- P/25) would show that she received as niaiiy as 9 iiicised wounds, which were adineasuriag froin 12 cm...to 1 cin. having soine depth aad Dr (Siat.) Vina Chatterjee (P.W.-13) has opiiied fhat out of 9 mjuries, iajuri.es No. 3 to 9 were of siniple m. nature, whereas iajuries No. 1 8s 2 were ofgrievous in nature. In para-7, she deposed tbat iffhe victiia would not have been given niedical assistance ia. tirae, then, she would tiave died out of iiijuries sustaiaed by her. The bed-head-ticket (Ex.-P/26) would further show that fhe victiiu was adinitted iu the hospital froin 15.3.2001 to 26.3.2001 and she was brought unconscious and was vomitm.g at fhe time of ber adiuission. The weapons of tlie offence (Knives) which were used by the appeUaat Shrawaa aad ofher 2 assailants were having long length (15 cm.. to 9 V2 cm..) and breadfh of fheir sharp edges was 1 'A cin. (12) P.W.-2 Ku. Jageshwari has tumed hostile but P.W.-3 Nityaaaiid has supported the evidence of P.W.-l Domeshwan and bas clearly deposed fhat she was maialy assaulted by appelkuit Shi-awan by kufe aad when she fell do\vn, the 2 otber assailants had assaulted her by knife. Accordiag to P.W.-l Doineshwari, prior to fhis incident, on some small matter, an assault was raade to her iu fhe school itself, for wliich, she has reported fhe matter to fhe Head Master, who thought it better to take the poUce intervention aud at fhe iustance of fhis giii, appeUaat Shi~awan, who was her class niate, was taken iiito custody atid was, Jater on, released. (13] The out come of all these evidence would show fhat the deadly weapons were used aad Uie accused persons had am.bushed at fhe place chosen by fhem., which was a lonely place and fhere was a niotive for fhe criine wifh accused/ appellant Shrawan because he was not happy ivitli the '<' •A.cr /v-'-, !^ Crimmai Appeals No. 991/2002 & 389/2802 L\ -£> conduct of fhe girl on account of fhe above lastaace and fhe accused persons have severely given blows to fhe victun aiid fhey had -chosen the vital parts of the body of the victua like liead, neck aad stoiaach ete., therefore, tfa.e iiiteiition and knowledge of the assailants, particularly appellant Shrawaa is writ large on record fhat he wanted to atteinpt fhe life of 'tlie girl, wbich has preceded fhe act attributed to him. aiid iii the facts and circuiastances offhe case, an offence u/s 307 I.P.C. would be inade out in fhis niatter. (14) Now question arises as to who wei-e ftie assailaats ? On t±iebasis of above evidence i.e. evidence ofP.W.-l Domeshwari and P.W.-3 Nityaaand, it is estabUsbed beyond reasonable doubt fliat appeUant Shrawan was one of the assailaats, who actively participated iu coiuiaission ofcnme and m.ost oftlie fatal blows, pardculariy causing injuiies No. 1 3s 2 were inflicted by him and Tas was responsible for coiamission of fhe said offence along with other 2 assailants. About participation ofttie otlier 2 appeUants, Shankar and Baiga @ Yuwraj, (as 2 of the ofher assailaats) t]ie evidence is shakey. Adniittedly, 2 other assailaats were not kaown to the victun or witnesses, tlierefore, they have not been named by them. The first-haad information regardm^ commission of crime was Dehati NaKshi dated 15.3.2001 fEx.- P/1$, wtdch was recorded on the mformation of the victim herself. In this document, the names of these appeUants are xiot fliere. Later on, m fhe dyiag declaration also, fheir names have aot been mentioned and even iii tbis document, the victim has not attributed auy role to 2 other assailaats. The contents of the dying declaration woiild show that the victim had made allegations against appeUant Shrawau only a&d even flie participation ofotlier 2 assailaats has not been meutioned in it. In ttie dyiiig declaration, statement regardiag manner ofinjuries received is vital toecause according to the dymg declaration, only one person (Shrawaa) had assaulted the victim, who alone had participated ia commission ofcrime. After tlie arrest, the other 2 assaaants were put to ideatification aiid flie content of flie ) Crimmal Appeals No. 991/2002 & 389/2002 --a identification nieiao would show fhat fhev were dulv identitied by P.W.2 Jageshwari and P.W.-3 Nityaasmd. Why flie identi&catiou was not conducted by victim, has not beea explauied by ffae prosecution. The victiia was the best witaess to identily fhe assailants. This identification was conducted on 1.4.2001 at about 12.30 u.ia. Adinittedly, fhe victim was/;i *! f '-\ hospitaUzed from 15.3.2001 to 26.3.2001, therefore, she was • ordinarily available wifh tlie police on 1.4.2001 aiid she could have been caUed by the Magistrate to identify fhe other 2 assailants, which has not been done. Moreover, as stated above, P.W.-2 Jageshwari has tumed hostile and she has not supported the case of prosecution. In one liae, she has stated that she had identified the accused persous. P.W.-3 Nityanaud has stated tliat he had put his signature on identification nieiao, at fhe tiiae of ideutification of accused persons. In the cross exauaiaation para-13, he has deposed that tbey had gone to jail for three tiines for the pui-pose of identification but two tunes T.I. parade was not conducted for soine reason aiid 3rd titne, it was conducted, he had ideatified tlie appellaats. [151 Ifwe evaluate the evidence of identilication on the face of evideuce of P.W.-1/victim Domeshwari, pardcularty wifh reference to her dyiag declaration, soine doubt is created, as the victim has uot stated in tiie dyiag declaration that 2 ofher persons were also iavolved ia assaultiag her and she has oaly said about one participaut naming fhe appeUaut Shrawaa. Whea fhe oinission was put to her ia her cross exainiaation, she stated vide para-12 that she has told about 3 persons. On the basis of her dying declaration, the actual involveinent of 2 other persons becoines suspicious - aild in light of above, the evidence of identification, cannot be given inuch weightage asd a shadow of doubt is created as to whether 3 persons had actually participated or not and if participated, whether the other 2 appeUaiits wei^ ftie same persons. Therefore, these 2 appellaiits namely ShaiLkar aiid Baiga @ Yuwraj are entifled for benefit of doubt and in consequences acquittal. Criminal Appeals No. 991/2002 <& 389/2002 (16) Coming to the quantum of sentences against appeBaat Shrawan, lookiag to fhe peculiar facts and circumstaaces of the case fhat fhe victim. and fhis appellaat, both were studyiag in fhe saiue institution ia Class 11th and on soiue siaall dispute, fhis appeUaat was taken iato custody at fhe instaace of fhe victim aad furfber looking to his age, which was 20 years at the tmie of incident and also fhat he is continuously in. jait since 20.3.2001 fhereby he has ah-eady uadergoue for a penod of 6 years & 2 inonths, I deem. it proper to i^duce his sentence to R.I. for 7 vears. (l?j In the result, Cr.A. No. 991/2002 is partly aUowed. The convic'tion awarded to appellant Shrawaa u/ss 341 8s 307/34 I.P.C. are niaintauied. Sentence u/s 341 is also m.aiataiaed. However, fhe jail sentence u/s 307/34 I.P.C. is reduced to 7 years ia place of 10 years. Cr.A. No. 389/2002 is aUowed in fuU. The conviction and sentences awarded to fhe appellants Shaxikar and Baiga @ Yuwraj are set aside giving fhein benelit bf doubt. They are acqiiitted for fhe charges fi-amed agam.st. tlieni. Sd/- Sunil Kumar Sinha Judge vatti