:7, E‘x \u ark U. " 5.; CF0000063038 IN THE HIGH COURT, OF ‘JUDICATURE AT JA‘BALPUR 3 Criminal Appeal uo.‘€3) of 2000 SnsQve CRIMNAL APPEAL UNDER SECTION 374(2) OF CODE OF CRIMINAL PéOCEDURE,‘ 1973. Premlal, aged 29'years S/c Bhukhanlal Occupation- Agricultufist,Resident of Village Khairjhiti, Tahsil Kurud, District - Dhamtari (M.P..) VERSUS; // s RESPONDENT : 7 State of Madhya Pradesh, Through - Police Station Magarload, District — Dhamtari (M.P.); CONVI c'rl ON : ~ SENTENCE; r Uhdef section 307 I.P.C. Rigorous Imprisenment of five years and fine csf Rs.500/—.w’in aefault of. 'fine further Righrons Imprisonment / for 2tmonths.‘ '\\ THE HIGH COUPLT OF CHHATTISGARH AT BILAsPUR CRIMINAL APPEAL No.1697/2'oo Premlal ' pv- , State cf Madhya Pradesh JUDGMENT (12—04-2001) .a ‘ Being aggrieved by the' judgment dated 28-6n2000 passed ihVSes‘si'ons ‘TfialiNo.S4’/I99'9' by the learned Additional Sessions Judge, Dhamtari, convicting the apnellant u/s 307 IPC and sentencing hm he mergo for 5 years and paya fine of Rs~.500/~, In default ‘ of payment. of fine to' undergo furgher R.I. for \two months, the appeuant’has mea eh'ia‘appeal. (2) ¥ _ The prosecutionrcase in br/ief is that on' 31 2.10-1998 when the victim Shivnand Sahu was coming back from the river siée the present appellant causea him Injuries by means of an Axe on the head. The said Shivnand Sahu after suffering the injuries fell on the spot. 7 P W 1 Lekhan was informed of the incident who immediately rushed to the spot, took his father to the Police Station, the First Information Report was lodged and immedia te 1y thereaf ter , the no lice pro ceeded With the investigation. 0n completion of the investigan tion the Police filed the challan.As the accused denied commission of offence, he was put to ‘trial.L/,‘2/ i ' o -2- 3) ’ After rerording the evidence and hearing the parties. the learned trial Caurt conv1cted the anpellant and sentenced him as referred to above. (4 f ‘ Shri R.’3.P”atel, learned couneel for the appellant after taking me through the statemehts of E W 1 Lekhanran. son of victam Sluvanand (P W 2), Ramesh (F w 4) and RaJu (P m7) sutmits that fran ’ the statements of these witnesses, it would clearly appear that'the appellant has teen falsely implicated. \\ Inrthe alternative. he suhnits that from the statements of Dr.1$.K.Som' (F‘.W.8) it would clearly appear that the injuries suftered by the victim were ¢’ eimple’in natizre, therefore, an offence u/s 307 IEC is net made 'OUte ‘ (5) On the other hand, Shri Gautan Bhaduri, learned counsel for the State submits that the manner 1n whieh a wooden logl hit thrice on the head of the victJm would clearly show wet the intention of the present appellant. According to him, in a case l alling under section 367 IPC, the gravity (Jr-grievous— ness of an injury is not material. bit the’Court must see as to whet was the intention behind the alleged act. _ He submits that the Court below was justified in convicting the appellant; 7(6) r . p.w.2 shivanand the victim has turned hostile. e has not mpported the prosecution and has stated t hat somebody had hit on his head from back side, - t herefore. he 1.5 unable to identify the miscreants. P W 1 Lekhanran, son of the Victim undieputedly reached the spot after receiving the information that somebody had hit hie fatheit» mwA Rams?” tE‘e ( f H _ “3- nephéw of 1>-.w.2 and,y.w.7 Raju have: clearly staged that the present appellant'was the a’‘uthor efx injury. Eaeh of than clearly stated that the appellant was armed. with a pointed wcoden log. came from behind the victJm and hit vwy on his head thnce. P W 1 Lekhan in relation to the motive has stated that the present. appellant was appréhending somé ¢itdxncraft on the part of the/victim ‘against the slster 0f the accused, therefore, to teach a lesson oz chastise the vlotm Shivanand, he hau caused q 5 him -injur1es. , Fmm the statement 0f PJIYA Ranesa anci P.#I.7 «Raju it would clearly eppear that the applicant céxne fran behind ami hit the 'victiim on his head. The motive suggested by P‘.W.l cannot be taken to be‘a false stand. It does not appear from the statements oi: the witnesses that the appellant knew that the viotgfm’ would come from a, particular side. It has also, notxccme in _ the evidence that the aptellant was sitting for the prey end finding the best opportunity a hit the victim on his head“ The manner in which the injuries were caused and the victim was hit, can be said to be the result i of the feeling” developed by the present appellant in his mind that becaxse of witchcraft played by the victim, his sister was suffering to some extent. From the evidence it does, not appear that the accused really intended to cause death of the Victim or‘made an attempt on the life of the victim. The oftence committed by the appellant would not fall within the purview of sect‘oon 36a of IPC hm in fact would fall within the purView of section 308 IPC that is an attempt to commit culpable homlcide not mount-mg to murder. I will be holding so in View of the act of the appel] ant that he used a log, {selected the head for hitting and caused one after the . r A thg ‘-4— other as many 'as 3 injuries. i will nat be unjustifiéd in presuming that while doing the said act, the appéllant {f atleast had the knowledge that by his act the $§c§£n Was ¥ y L E likely to die. (7) Taking into consideration t=he totality I‘ acquit the accused ‘of ihe charges punishable u/s '307 wc. to him u/s 307 IPC ate set aside; S‘f. convicted u/s 308‘ IPC Taking mte considerat Jon the - nature of injuries which ars said to be simple. hat of- the cixc'umst ance’s. 'The sentence awarded The appellant is 1 ’ kare caused on the head of the victim I awam 1;: yea£s 2. ‘ sentencefto the appellant.. The appeal to the extent indicéted abové is' alloed. , " Sd/— R.S. Garg ' Judge ‘ /Rao/ ; W Q W w " /w ‘ :