@ HIGH COURT OF CIH-IATTlsGARI-I, BILASPUR Criminal Appeal No.46 of 2005 {Criminal appeal under Section 374 (2) of the Code‘ of Criminal Procedure, 1973} r Present: Mr? Prafull Bharat, counsel for the appellant. Mr. Rajendra Tripathi, Panel Lawyer for the State/respondent. £ SingleruBonch: Hon’ble Mr. T.P; Shanna, J ORAL JUDGMENT (2-7—2009) 1. By this appeal the appellant has challenged legality 85 propriety of the judgment of conviction & order of sentence dated 21‘12-2004 passed by the 3rd Additional Sessions Judge, Bastar at Jagdalpur ‘ in Sessions Trial No.2 12/2004, whereby learned Additional Sessions Judge after holding the appellant guilty for commission of offence punishable under Section 307 of the I.P.C., sentenced him to undergo R.I. for seven years & pay fine of Rs.1,000/-, in default of payment of fine to further undergo imprisonment for six months. U 2. Judgment is challenged on the ground that without any iota of evidence tn prove intention of the appellant to attempt to commit the murder, the Court below has convicted & sentenced him and thereby committed illegality. . Case of the prosecution, in brief, is that on 19—3-2004 at about ’6.30 p.m. at Neg'guda Para, Police Station 'Nagamar, Distt. Bastar, the appellant‘who Was in drunken condition was abusing and assaulted Fagnu with axe over his head & legs and caused five injuries. F.I.R. rEx.P-l was lodged, spot map EXP-2 was prepared'and plain soil 8s bloodstained soil were recovered h‘om the place of occurrence vide Ex.P—3. At the instance of the APPELLANT: Rajaram Sethiya, S/o Ghasiram (In Custody) Sethiya, aged about 35 years, R/o Negiguda Para, P.S. Nagarnar, Distt. Bastar (C.G.) Versus RESPONDENT: State of Chhattisgarh, Through the 4 District Mag'strate, Distt. Bastar (C.G.) appellant Vida EXP-4 axe was seized vide EXP-5. The ‘injumd was examined vide EXP-6 and admitted: in the hospitai for treatment vide Ex.P- l 3. 4. After completion of mvestigation, charge sheet was med befom the Judicial Magistrate First‘Class; Jagdalpur who in tum committed the case to the Court of Sessions, Jagdalpur, dam: where learned Additional Sessions Judge received the case on transfer for trial. 5. In order to prove the case against the appellant the prosecution has examined as many as ten Witnesses. Statement of the appellant was recorded under S‘ection 313 of the Cr.P.C. in which he denied the circumstances appearing against him, pleaded innocm‘ce and false implication. *6. Aiter ah‘ording opportunity of hearing, Court below has convicted & senten’ced the appellant in the aforesaid manner. 7. I have heard learned counsel for the parties and perused the impugned judgment as also record of the trial Court; 8. Learned counsel for the appellant submits that injuries found over the body of injured Fagnu were not dangerous or fatal and no boné injury was found. Fashion in which the injuries were iniIiCted shows that the injuries were notinuicted within intentto commit murder or attempt to commit the murder of Fagnu. Therefore, conviction & sentence under Section 307 of the I.P.C. are not sustainable. Learned counsel further submits that the present appellant is in custody since 22-3-2004 and has completed about more than 5 years 3 months in jail which is sufficient sentence for the aforesaid oifence. 9. On the other hand, learned counsel for the State/respondent r supported the impugied judgment. 10.1njuries found over the body of complainant Fagnu are not disputed and otherwise proved by the evidence of Fagin (PW— I), Sukman (PW-2), Chamra (PW—3), Dr. Sujit Vishwas (PW-6), Dr. J.‘C. Meshram '(PW- 10), Exs.P-6 & P—»13. According to the medical report EXP-6, uve injuries were found over the body of Fagin and out of five, three were over face & temporal region, one over right leg and one upon sole of light leg. attempt to murder of Faglu, Fagm (PW 1) has deposed that the appellant came m hJm andassaulted over hls head, face & both the legs as a result of which he became unconscious. His evidence is corroborated by Sukman (PW-2), Chamra (PW—3) and the promptly lodged F.I.R. Ex.P—1. He was examined by the doctor and: five aforesaid injuries were noticed vide EXP—6. He was admitted in therhospital on 20—3-2004 and was discharged at his own will on 12—4—2004. This shows that he remained admitted in the hospital for more than 22 days. His sole was cut. Although no bone injury or fatal injury was found over vital part of the body, but number of injuries; the weapon used, and the fashion: in which it was used and inflicted over diEerent parts of the body show intention of the appellant‘to attempt to commit the murder§of Fagnu. 12.After‘ appreciating the evidence available on record, learned Additional Sessions Judge has convicted d5 sentenced the appellant under Section 307 of the I.P.C. The Additional Sessions Judge has not committed any illegality in convicting the appellant. 13.As regards the question of sentenceimposed upon the appellant, the. appellant has been sentenced to undergo R.I. for seven years 85 pay fine of Rs. l,000/-, in default of payment of tine to further undergo imprisonment for six months. Taking- into consideration ‘ the absence of bone injury or fatal injury, the sentence awarded to the appellant is not in consonance with the oEence committed by him; The’appellant has served more than 5 years 3 months of jail sentence. .Senteneesuifered by the-appellant i.e. more than 5 years 3 months is sufdcient sentence in the-present case. 14,Consequently, the appeal is partly allowed. Conviction of the appellant under Section 307 of the I.P.C. is maintained, however, sentence of 7 years R.I. & nne of Rs.‘1,000/— is reduced to sentence of 5years 3 months (already undergone). The appellant be set at liberty forthwnh if not required m any other case ‘ Sdl- Y Shari” \ it“ ~M Soma \ L ?