^^. '^y. '^•^^s^ -<-^^^:.:j.^:. '.^ii^ m^m^w, 9S» \" -.^.; ^ yj;;^1.':%'':.II?SiB;IR; 'w ^^w^ K^ ]i ^j^,i- i2^i3ii^^^i^!:' uiiui^^itysg^^.,^:.'.;^., ^^si^^&'. lliilluiiii^i^i^^;,', ^li^%^^?:^'^:;S.%^^:^^€7E^lii;^ ^^•^••^^^. KiS^ B!%! iS ^I^^'X^-?-^ ^^^"s'^S^-9^ s"^^ft^^'-\-v^ 'S^isiilSS^^ .8£/8SOOI?POdO x ^M^. mm^^^ f^. fflGH COURT OF CIfflATTISGARH AT BILASPUR S.B: Hon'ble Shri Prashant Kumar Mishra APPELLANT RESPONDENT CrimmalADDealNo. 1234/1992 : Vitti Versus : State of Madhya Pradesh Appearance: Shri Anand Gupta, counsel for the appellant. Shri Vivek Sharma, Panel Lawyer for the State. CmMINAL APPEAL UNDER SECTION 374 (2\ Cr.P.C. ORAL ORDER (21.01.2011) This appeal has been preferred by the appellant challenging his conviction under Section 307 of IPC and sentence for 3 years rigorous imprisonlnent and fine ofRs.500/-. (2) The case of the prosecution, in short, was that at about 2:30 p.m. on 16/09/1987 the appellant caused grievous injuries to PW-6, Bodhram by means of farsa. The injured received inJuries on his chest measuring 5x2.5"x intraperitonial deep. He also received simple injuries on his left hand. The appellant caused another injury which was prevented at tfae intervention of PW-1 Ahibaran Singh, PW-2 Prem Sai, PW-8 Pancho Bai (wife of the injured) also mtervened and at fhe time ofincident the injured somehow saved him by mnning away to the house ofone Raghuveer. ^(3) FIR Ex.P-4 was lodged by Pancho Bai wife of injured (Bodhram. The injured was taken to Primary Health Center, where he r" ^^iSl ^- » was administered first aid, however looking to the seriousness ofthe injuries he was referred to District Hospital, Sarguja. The medical report ofthe Doctor at the Primary Health Center is Ex.P-5 and the report ofthe Doctor in the District Hospital is Ex.P-7. (4) After completion of investigation, the charge sheet was filed and appellant wastried for offence under section 307 IPC. (5) The prosecution examined as many as 9 witnesses to bring honae the charges and the appellant examined 4 witnesses in his defence. In his examination under section 313 of Cr.P.C. the appellant stated tihat he has been falsely implicated and that he has not committed any offence. He has also stated that infact the injured had assaulted him, however no action was taken on his report. (6) Leamed counsel for the appellant would submit that the injured and his family members are interested witnesses, therefore their statement cannot be believed. He would fiirther submit tfiat the two independent witnesses namely PW-1 Ahibaran Singh, PW-2 Prem Sai whose presence on the spot were found in course of investigation have not supported the case of the prosecution in as much as they have denied to have witnessed the incident. He would also submit that seizure of farsa is not proved and taking into consideration the totality ofthe evidence put forth by fhe prosecution, the offence has not been proved. (7) On the other hand, leamed State counsel has argued that the prosecution has proved its case beyond all reasonable doubt. He ti.«^ i;BK B§^ :^ ^n^^ /.-• '^^-.-. would submit that the injured Bodhram has been examined as PW-6 andhas fiilly supported the case ofthe prosecution. Pancho Bai, wife ofBodhram has also been examined as PW-8 and has proved the FIR Ex.P-4 which was lodged by her. PW-9 Balmukund son of injured Bodhram has also supported the case ofthe prosecution. (8) On scrutiny of the statement of prosecution witness it would )pear that PW-1 Ahibaran Singh who isan independent witness has fully supported the case ofthe prosecution. (9) Though this witness has been declared hostile but in para 3 and 4 ofthe examination-m-chiefhe has stated that at tiie time ofincident he came out of his house and witnessed that appellant and injured were fighting with each other and Bodhram had received injuries on his abdomen and was severely bleeding. He himself had taken the injured to Govemment Hospital, Chirmiri. Thus in his exammation- in-chief he has supported the case of the prosecution, therefore the contention of leamed counsel for the appellant that PW-1 Ahibaran Singh has not supported the case of the prosecution is not bome out from the record. It is settled law that evidence of witness who has been declared hostile is not to be discarded as a whole aad such part ofhis statement which corroborates and supports his earlier statement can be relied upon. (10) The injudes sustained by the injured was e?^mined by Dr. R.R. Gajbhiye (PW-7) who was posted at Primary Health Center, Chirmiri at the relevant point oftime. He has stated that the injury on the lKlS^^BSfiS^^,—-:' .^^t3-^, ^ &^s^ s @ ^ abdomen of the injured was grievous and was dangerous to life. During his examination he found fhat the intestine had come out of the abdomen from the injured portion and fhe omentum had also come out. This witness has also stated that injury was deep into the intraperitonial region and was caused by a sharp edged weapon. According to this witness ifthe injured had not been administered immediate treatment, his condition would have been dangerous and fatal and that because of this he was immediately referred to the District Hospital. (11) Dr. A.K. Sharma (PW-5) is the Surgeon at District Hospital, Ambikapur who had treated the injured when he was brought to the District Hospital. This witness had also described injuries in similar manner as has been stated by Dr. Gajbhiye. (12) From the above discussion it is found that the prosecution has established its case that the appellant had caused grievous injuries to the injured Bodhram which was dangerous to his life. At this stage leamed counsel for the appellant would submit that there is no evidence regarding the motive and there was no intention to commit murder ofthe injured and in any case the appellant had no faiowledge that injuries caused by him would cause death ofthe injured. (13) As regards the motive for committmg crime or the intention to cause death, the prosecution has put forth evidence that there was dispute between the appellant and Balmukund S/o Bodhram (PW-9) and becauseofthis the appellant came to the house ofinjyred and -s /-s -1..-.- caused injuries. Thus, the motive committing the crime is available in the record. From the evidence on record it is also established that the appellant had caused the injuries with intention and fcnowledge that the injuries ^used by him would cause death ofthe injured. (14) The appellant, after causing injuries from a sharp edged weapon and cutting abdomen ofthe injured up to the intraperitonial area ofthe body, made attempt to cause another injury by assaulting the injured for the second time. Thus, the present is not a case of causing a single injury by fits of moment or by accident. Causing such a grievous injury on abdomen whereby the intestme and omentum had come out of the abdomen definitely proves the intention of the appellant to cause murder. The prosecution has thus proved its case under section 307 of IPC beyond all reasonable doubts. (15) At this stage leamed counsel for the appellant would submrt that the appellant had already remained in jail for more than two years as he was confined in custody from 22nd September, 1987 to 9/02/1989 near about 1 year and 5 months during trial, andthereafter from 5/08/2000 until the end ofApril 2001, nearby 9 months and further that the appellant was working in the Colliery of South Eastem Coal Field Ltd. and had no previous criminal record, „ therefore the sentence itnposed upon him be made undergone and be v ] reduced to that extent. ^ ^- /' <-- (16) It has also been submitted that at the time ofincident he was 45 years'ofage in September, 1987 and thus his present age is about 68 years and also during pendency of this appeal the matter was compromised and fhe parties have developed amicable relation after paymenf^FRs.5000/- by the appellant to the injured. (17) Though the receipt of payment is not proved, yet at 1he same time it is also true that the appellant is aged about 68 years and was a public servant having no previous criminal record. Taking in to consideration the entire gamut of circumstance, this court considers that the present is a fit case for reducing the sentence to the period already undergone. (18) Thus, while maintaining the conviction of the appellant under section 307 ofIPC,tfae sentence imposed upon him is reduced to tihe period already undergone, however since payment ofRs.5000/- to the injured have not been established, the appellant is directed to pay Rs.5000/- to the injured Bodhram within a period of three months from today, failing which the original sentence imposed upon the appellant would be executed against him and he shall be arrested for serving remainder ofthe sentence. (19) The appeal is partly allowed in the above terms. Sd/- Prashant Kumar Mishra Judge CY^