<•-. i---4?(nc? -^^fc CF0000061581 ^?e Bench (Cs'siu,,^ AB WSfC IN THE UIGH COURT OF JupICATUEiE: AT .JABftLPUR ii!.P. Cr.A. No. 1 00&/1997 APPELUfiT 'f} "fc^-^ S oh it lym, S/ o S ah^s ram 44ai aged 47 yssrs, B/o village Bandhakhar,, P'.S. Pauli, Uistt. BUaspur i'l.P, Vs, RESPOUOEMT l Stats of ta.P. J-amiNAL hPKhL UNOER SECTIOH 374(2) Cr.P.C. -"^'.<j issN HIGH COURT OF CHHATTISGARH AT BILASPUR Hon'ble Mr. Justice Pritinker Diwaker Criminal Appeal No. 1008/1997 APPELLANT Soh'itram Versus RESPONDENT State of Madhya Pradesh Shri B.N. Pandey counsel for the appellant. Shri Akhil Mishra Dy. GA PL for the State. CRINIINAL APPEAL UNDER SECTION 374 (1)OF THE CODE OF CRIMINAL PROCEDURE JUDGMENT -(27.04.2011) This appeal is directed against the judgment and order dated 25.4.1997 passed by Additional Sessions Judge, Bilaspur in Sessions Trial No. 258/1994 convicting the accused/appellant for the offence punishable under Section 307 IPC and sentencing him to undergo rigorous impiisonment for four years and pay fine of Rs. 500/-, in default of payment of fine to further undergo rigorous imprisonment for two months. 2. Facts of the case in brief are that on 9.5.1994 FIR Ex. P-6 was lodged by complainant namely Rajaram (PW-3) alleging that on that day at about 12.30 afternoon therewas some altercation between him and the accused/appellant over his not attending some marriage ceremony which led to assault on his neck by the accused/appellant with battle axe. Based on this FIR, offence under Section 307 IPC was registered against the accused/appeljant and after CQ,mpletion of investigation challan was -filed by the polic^ on 30.6.1994. 3. So as to hold the accused/appellant guilty, prosecution has examined 08 witnesses in support of'its case. Statement of the accused/appellant.yvas also recorded under Section 313 of the Code of Criminal Procedure in wMich he denied the charges levelled against him and pleaded his innocence and false implication in the case. 4. After hearing the parties, the trial Court has convicted and sentenced the accused/appellant as mentioned above in paragraph No.1 of this judgment. 5. Counsel for the accused/appellant submits that even if the entire case ofthe prosecution is taken.as it is, the accused/appellantcannot be convicted under Section 307 and at best the offence alleged against him would fall under Section 325 IPC because.nowhere it has been stated by the doctor examining the victim that injury sustained by him was dangerous to life. According to the counsel for the appellant, there is no evidence on record to show that the appellant was pre-determined to cause such injuries to the victim which would be sufficient to cause death in the ordinary course of nature. He submits that in the FIR it has been alleged by the complainant that the dispute arose over the complainant's not attending some marriage ceremony whereas according to his Court statement an altogether different version has been given by him that as there was some dispute between the accused/appellant and his wife and in that course, while chasing his wife, the accused came across him and assaulted him with.the battle axe saying that he had not offered him respect though had come there a day before thereto. He submits that as the appellant has already remained in jail for about five and half months and that the incident had taken place in the year 1994, the sentence imposed on him may be reduced to the period already undergone by him. 6. On the other hand, counsel for the respondenVState supports the judgment impugned and submits that looking to the assault made by the accused/appellant on the neck of the victim it is clear that he was pre- determined to kill the victim and the.refore the conviction under Section 307 IPC is just gn(t proper. 7. Complainant - Rajaram (PW-3) has stated in his evidence that in relation, .the accused/appellant happens to be his uncle and that on the date of incident he .was in the house of Johitram - the brother of the accused/appellant and when entire family was busy in bundling the tendu leaves, he was also helping them. He has stated that houses of the accused/appellant and Johitram are adjacent to each other and that on ;ia'*ifei 7.- the date of incident there was some dispute between the appellant and his wife. He has stated that as the wife of the appellant who happens to be his aunt (mother's sister), came running towards the house ofJohitram where he was sitting along with other family members as the accused/appellant was chasing her carrying battle axe in his hand. He has further stated that thinking that his wife had entered the house of Johitram, the accused/appellant started abusing him saying that this witness had not offered respect to him thoUgh he had come there a day prior thereto and assaulted him with the battle axe carried by him as a result of which he sustained injuries on his neck. When this witness tried to ward off the attack, he sustained injury on his thumb. Statement of this witness has been duly supported by Mohitram (PW-4). Dr. V.N. Dubey (PW-1) who had medically examined the victim and given his report Ex. P-1 found following injuries on his body: (i) Incised wound on his neck situated over left clevical which is 4 c.m. x 1 ^ c.m. in size (up to trachea) blood present over the injury, margins are regular (ii) Incised wound on his left palm situated on the root of thumb at dorsal side which is 1 c.m. x 1 c.m. in size. According to this witness, injury No.1 was grievous in nature and that general condition of the victim was normal and that he could not tell as to whether the injury was sufficient to cause death in the ordinary course of nature as he had not examined the same properly. He has further sated that a query was put to him whether the injury could be caused with the weapon seized by the prosecution and he has given the answer thereto in positive. A / ' Bhavan Singh (PW-2) is the witness to seizure of certain articles and arrest of the accused/appellant vide Ex. P-3 to P-5. Ram Agrawal Pandey (PW-5) - Assistant Sub Inspector is the investigating officer who has supported the case of the prosecution. Phuleshwar Prasad (PW-6) is the witness to seizure made under Ex. P-7. Ganesh Ram (PW-7) has not supported the case of the prosecution and has been declared hostile. Inspector'- N.R. Arya (PW-8) has done part of the investigation. ISa'ti -^ 8. Minute examination of the material available on record shows that on the date of incident the victim was assaulted by the accused/appellant with battle axe as a result of which he sustained aforementioned two injuries. Dr. V.N. Dubey (PW-1) has stated that injury No.1 was inflicted to the victim was of grievous nature. However, this witness has not stated whether the said injury was sufficient to cause death in the ordinary course of nature. Evidence further reflects that when the accused/appellant was chasing his wife, al.rof sudden he met the victim and started assaulting hm. As the evidence does not reflect that there was any prior intention on the part of the accused/appellant to kill the victim, conviction under Section 307 IPC does not come in the picture and looking to the injuries sustained by the victim at the most the appellant can be convicted under Section 325 IPC. 9. Thus, the appeal succeeds in part. Appellant is acquitted of the charge under Section 307 IPC but convicted under Section 325 IPC. As the incident had taken place in the year 1994, that the appellant has already remained in jail for about five and a half months and by now the appellant must be aged about 62 years, this Court is of the considered opinion that it would be in the interest of justice if the appellant is sentenced to the period already undergone by him subject to imposition of certain fine. Accordingly, keeping all these things in mind, the appellant is sentenced to the period already undergone by him. However, the appellant shall deposit a sum of Rs. 5000 in the trial Court within a period of six months from today to be paid to the victim. Failure in doing so shall make the appellant to remain in jail for a period of six months. 10. Appeal thus sycceeds in part. Sd/- ~" Pritinker Diwakar Judge