Sir.n^ iiiiy3' IN THE HIGH COURT OF JUDICATURE AT BILASPUR fC.0.1 CRIMINAL APPEAL N0. (C>'5-( /2004 fS.B.1 CRIMINAL APPEAL U/S 374 F2"] OF CRIMINAL PROCEDURE CODE APPELLANTS ACCUSED [IN JAIL] ^f&^- '^^" "^^w ..i< og?^ RESPONDENT 1] Hemkuinar aged 28 years S/o Muniwar Sahu, 2] B. Kumar aged 30 years S/o Muniwar Sahu. Both R/o village R.B. Pipmen, P.S. Basna, Distt. Mahasamund [C.G.] VERSUS State of Chhattisgarh Through:- S.H.O. Basna, Distt. Mahasamund [C.G.] fT} .T<:":£3S; ^, HIGH COURT OF CHHATTIS6ARH AT BILASPUR Pritinker Criminai Appeai No. 1051 of 2004 APPELLANT Hemkumar and another VERSUS RESPONDENT State of Chhattisgarh Shrt Vinod Deshmukh, counsel for the appeltants. Smt. Smfta Ghai,.P.L. for the State Criminal Apoeal No. 1063 of 2004 Shiv Kumar and another VERSUS RESPONDENT State of Chhattlsgarh Shri Manoj Paranjpe, counsei for the appellants Smt. Smita Ghai, P.L. for the State CRIMINALAPPEALS UNDER SECTION374 f2K OF THE CODE OF CRIMINAL PROCEDURE. J U D©ME NT Since the aforementioned two appeals arise out of the sape judgment dated 7th December, 2004 passed by Second Additional Sessions Judge, Mahasamund !n Sessions Trial No. 286/200^, both are disposed of by this common judgment. 2. The appellants Shiv Kumar and Upendra Kumar have been convicted under Section 307, 307/34 of IPC and sentenced each of them to undergo rlgorous Imprisonment for five years and pay fine of Rs.5,000, In default of payment of fine to further undergo rigorous imprisonment for one year whereas appellants Hemkumar and B. Kumar have been "^ •-.T- '<3-^ -2- convicted under Sectlon 323/34 of IPC and sentenced each of them to undergo rlgorous imprisonment for six months and pay fine of Rs. 500, in default of payment of flne to further undergo rigorous imprisonment for one month. 3. Facts of the case in brief are that on the basis of Dehati Nalishi Ex. P-4 dated 12,02.2004 lodged by the vlctlm Gadda Rai (PW-6), FIR Ex.P-7 was registered on 12.02.2004 for the offence under Sections 307, 294, 5068/34 IPC against the accused persons. It is alleged that on 12.02.2004 at about 11 a.m. appellant B. Kumar came to the house of the victtm and told him that his brother Shiv Kumar was caltlng him, When the victim reached the house of Shiv Kumar, the appeltants Hem Kumar and B. Kumar tied him up with rope and abused him. It is further alieged that after some time the appeltante Shiv Kumar and Upendra Kumar came there and forcibly took him on a motor cycle to a place known as Chain Dlpa. In front of Khub Chand's cycle shop they caused him to get down from the motor-cycle and abused him by saylng that he got his daughtereloped, therefore they would kill him, Thereafter appeltant Shiv Kumar assautted on his head and chopped up hls all toes atong with three fingers of each hand by axe. It is alleged when the injured was being assaulted by Shiv Kumar, the appellant Upendra Kumar was holding htm. fifter investigatjon challan was filed on 07.05.2004 against the four accused/appellants under Sections 307, 294, 506B, 367 and 120B of IPC whereas the Court below framed charge against them under Section 307/34 of IPC. 4. So as to hoid the accused/appellants guilty, prosecution has examined 13 witnesses In support of Its case. Statements of the accused/appeiiants were also recorded under ^ction 313 of the Code of Criminat Procedure in which they denied the charges levelled againa them and pleaded their Innocence and false implicatjon in the case. Apart from this, .four witnesses namety Nityanand (DW-l),Suwetal Chouhan (DW- 2), Shiv Kumar (DW-3) and Upenctra (DW-4) have also been examined by the defence in support Qf Its case, 5. After hearing the parties the trial Court has convicted and sentenced gll the accused/appeltants as mentloned in paragraph-2 of thjs judgment. 6. Contention of Shri Vlnod Deshmukh, learned counsel for the appeltants Hem kumar and B, Kumar is that he is not pressing this appeal as far as it relates to convictlon part of the impugned judgment and would confine his argument to the sentence part thereof onty. According to him, the appellant B. Kumar has served the entire sentence imposed on him whereas the appellant Mem Kumar has already remained in jail for more than three months and it would be in the interest of justice if the sentence imposed on him is reduced to the perlod already undergone by him. 7. In respect of appellants Shiv Kumar and Upendra Kumar It has been argued by Shri Manoj Paranjpe that these two appellants have been falsety implicated in this case. Me submits that even if the entire case is taken as it is the offence under Section 307 of IPC is not made out agalnst them. 8. On the other hand supporting the impugned judgment it has been argued by the leamed counsel for the State that the bruta! act of the appellants shows their crimlnal mentaiity, therefore they do not deserve any lenlency, She submits that the manner in which they chopped up the toes and three flngers of each hand of the injured shows the gravity of offence and therefore the judgment Impugned is strictly in accQrQLao£g_with_taw^ndjtherejsno infirmity in the same. ^. -u- 9, Heard counsel for the parties and perused ttie material available on record includlng the judgment impugned. 10. Gadda Rai (PW-6), the victim in his court statement has stated that on the date of incident, appellant B, Kumar came to his house and asked him that hls brother Shiv Kumar was catling him. After an hour when he went to the house of appellant Shiv Kumar, the appetlants B> Kumar and Mem Kumar tied him up wlth rope and told him that the daughter of Shlv Kumar had eloped and he knew about e same. Me has stated that after about an hour the appeflants Shiv Kumar and Upendra came there and forclbly took h)m on a motorcycle to the vitlage Chain Dlpa. While he was taking to the village Chain Dipa, the appellant Shiv Kumar used to press his neck whenever any person met on the way. At Chaln Dipa the appellant Shiv KUmar flrst assaulted him on hls head by axe and thereafter chopped up his all toes and three fingers on each hand. He has further stated that tha appellant Upendra also assaulted him by axe and thereafter t?oth the appellants fled way from the spot. Jn cross- examination this wltness stood very firm and has reltarated what is stated fn his examination-in-chlef. Lalslng (PW-1) has stated that on the date of incUent white he was returnlng from the market he saw the in^ured Gadda Rai lying along theroad and his toes and flngers were chopped up. Khub Chand (PW-2) has stated that he heard that the victim was assaulted by some persons, Subetal Chouhan (PW-3) is a seizure witness of soit colleted form the spot vide Ex. P-2. Netro (PW-4) has not stated anytlting against the appettants. Sanat Kumar (PW-5), Mahadev (FW- 7}- the village Kotwar and TeJ Prakash (PW-13) have not supported the prosecution case and they have been dedared hostile. Ram Manohar verma (PW-8), the Head Constable had fc .^ ^. —<.,'"— recorded the FIR Ex. P-7. Sajan Das (PW-9), the Head Constable who had recorded Dehati Naiishi Ex. P-4. Dlllp Kumar Mishra (PW-lO) is the patwari who had prepared the spot map vide Ex.P-8. The Investigating Offioer D. S. Rajput (PW-ll) has supported the prosecution case. Dr. Jayshree Sahu (PW-12) who tiad medically examined tr»evietim Gadda Rai has found foltowing injuries vide Ex, P-9: 1) Multiple Incised wounds on the head caused by sharp edged object and all were grievous in nature. O Index; Middle and ring fingers of right hand were chopped up. 3) Index, Middte and ring fingers of teft hand were chopped 4) All the toes of teft and right teg were chopped up. 5) Multiple incised wounds on right knee caused by hard and blunt object and ali were grievous in nature. 11. Minute examination of the evidence in particular victim Gadda Rai makes it clear that on the date of incident he was brutaily assaulted by the accused/appellants Shiv Kumar and Upendra Kumar and his statement is duly corroborated by his medical report Ex.P-9A where the doctor has opined that three fingers of each hand and ail the toes of the victim were chopped up and multlpte injuries sustained on his head and right knee were grievous in nature. According to the doctor, if prompt treatment was not given to him, the injurtes sustained by him were suffident to cause his death. On the basis of the evtdence as adduced by the prosecution, conviction of the appellants as has been recorded by the trial court is just and proper and neects no interferenee. As the accused/appellant Mem Kumar is on bail, hls bail bonds stand cancetled and he is directed to be sent back to jail forthwfth to serve out the remainlng part of the jall sentence whereas —.^.^L^. ..'^\ ^0 -6- accused/appel^ants B. Kumar, Shiv Kumar and Upendra Kumar have aiready undergone the entire sentence imposed on them by the Court below and therefore they are not required to be sent back tojail. Sd/- Pritinker Diwaker Judge