H8GH COURT OF CHHATTISGARH AT BILASPUR SB: HON'BLE SHRI R.N. CHANDRAKARJ. J Criminal Appeal No. 59 of 2003 Appeilant Respondent Vs. Gajendra Rai, son of Shri Ramji Satnami, aged about 20 years, residence of viiiage Bharuawagunda, Police Station Mungeli, Distt. Biiaspur, Chhattisgarh. State of Chhattisgarh POST FOR PRONOUNCE]\/IENT OF JUDGMENT .Sd/- JUDGE '^-7-2009 Sd/- R.N. Chandrakar Judge ^^^ Appellant: HIGH COURT OF CHHATTISGARH AT BILASPUR Criminal Appeal No. 59 of 2003 Gajendra Rai, son of Shri Ramji Satnami, aged about 20 years, residence of village Bharuawagunda, Police Station Mungeli, Distt. Bilaspur, Chhattisgarh. Versus Respondent: State of Chhattisgarh through Police Station Mungeli, Distt. Bilaspur (Chhattisgarh). (Criminal appeal U/s 374 (2) ofthe Code ofCriminal Procedure 1973) SB: Hon'ble Shri R.N. Chandrakar, J. Present: Mr. A.N. B hakta, counsel for the appellant. Mr. A.V. Shridhar, Panel Lawyer for the State. JUDGMENT (Delivered on this Q, dayofJuly,, 2009) 1. This appeal is directed against the judgment of conviction and order of sentence dated 20-12-2002 passed by the Additional Sessions Judge, Mungeli, in Sessions Trial No. 85 of 2002, whereby the accused/appellant has been convicted under Section 307 of the IPC and Section 25 of the Arms Act sentenced to undergo R.l. for three years and to pay a fine of Rs.1000/-, in default of payment of fine to further undergo Rl for six months and to undergo R.l. for one year and to pay a fine of Rs.500/-, in default of payment of fine to undergo 8.1. for one month respectiveiy. 2. The caseof the prosecution, in brief, is that on 13-11-2001, the date of incident the prosecutrix (complainant) Madhu Banjare had gone to tuition and while she was returning from there, the accused called her to which she refused. On refusal of the prosecutrix, the accused became furious and caused her grievous injuries by giving her knife blows on her head and abdomen. After FIR was lodged by Lala Mistri (Masson), the prosecutrix was sent for medical examination from where looking to her serious condition, she was referred to Bilaspur Hospital, where the prosecutrix regained consciousness after 3-4 days. Thereafter, the accused was interrogated, the weapon was seized from the place of incident. Prima facie, the offence under Section 307 of the IPC and Section 25 of the Arms Act was found to be committed by the accused. 3. After completing the investigation, charge sheet was filed against the accused/appellant. During trial the learned Additional Sessions Judge, Mungeli, framed the charges under Section 307 ofthe IPC and Section 25 of the Arms Act and after conducting trial, the learned Additional Se'ssions Judge, convicted and sentenced the accused/appellant as aforementioned in para 1 the judgment. 4. The accused abjured his guilt and pleaded innocence. After completion of evidence of the witnesses, the statement of the accused/appellant wa's recorded under Section 313 ofthe Cr.P.C., in which he denied the circumstances appearing against him and pleaded his innocence and false implication. He stated that on 12-11-2001, he was in the house of his uncle at village Dhobnikala. He did not get any witness examined in his defence. 5. Learned counsel appearing for the appellant submits that according to arrest memo, the age of the accused was mentioned as 19 years, but in the judgment papers, the age of the accused was shown 20 years.. Looking to the age of accused, the sentence of R.l should have not been passed by the trial Court. Learned counsel further submits that the Doctor, who conducted the MLC did not give any opinion regarding "'^^^^' grievousness of injury. The MLC report did not contain the identification marks of injured, which is also doubtful on the part of prosecution. Moreover, he did not disclose that the said injury was sufficient to cause the death in ordinary course of nature, therefore, prima facie, case under Section 307 of the IPC is not sustainabte in the eye of law. He further submits that according to the prosecution, the child witness Rajesh Kumar (PW/11) is one of the material witnesses, but during the trial, Rajesh Kumar was unable to identify the injured Kumari Madhu. MoFeover, the statement recorded regarding the place of incident as narrated by Rajesh and Madhu is contrary, which creates doubt over the prosecution story. Learned counsel further submits that the statement of Madhu recorded by the Police under Section 161 of the Cr.P.C., and the'statement given in the court are not matching. Learned counsel further submits that the learned trial Court has already made observation in para 16 of the judgment that the Doctor did not give any opinion regarding nature of injury which might be caused death of any persori in ordinary course of nature. His next contention is that the trial Court failed to see the statement of material witness Smt. Shraddha Soni, where Madhu used to go for tuition but, on the date of incident she did not teech as she was out of station. The weapon in question was seized from open place in the memorandum, it was not according to law, the'refore, on this basis, the accused could not be convicted. Accordihg to the prosecution, near the place of incident, there is number of shops and houses of neighbours but none of them was cited as prosecution witness. The trial Court further failed to consider the requirehnent of standard of evidence to convict any accused person and bnly on the basis of presumption laid down in its owh view cannot be sustained. Learned counsel further submits that sirice the age of the accused/appellant, at the time of incident, was 19 years, the benefit of Section 6 of the Probation of Offenders Act, 1958 should be given to the accused/appellant. Learned counsel lastly submits that considering all the facts and circumstances of the case, the judgment of the court below be set aside and the accused/appellant be acquitted of the charges. 6. Per contra, learned couns61 appearing for the respondent/State argued the matter in support of the impugned judgment of the lower Court. 7. Having heard learned counsel for the parties, 1 have perused the records of the trial Court and also the impugned judgment. s. In drder to prove the guilt of the accused/appellant, the prosecution has examined as many as 1 1 witnesses and produced 27 documents on record. 9. Madhu Banjare (PW/1), the prosecutrix identified the accused present in ;t'he court and deposed in her statement that the incident occurred on 13-11-2001 at about 10.00 pm and on that day while she was returning hortie from the house;of Shradha Didi after taking tuition, Gajendra met her near Girls High School. He called her near, to which she refused. On: this, the accused:: Gajendra gave knife blow on her head due to which she fell down, fhereafter the accused again gave two knife blows on her abdomen. She further stated that the accused was saying" 1 was defamed because of you" while he was attacking her. Due to the injuries sustained by her and hemorrhage, she became unconscious. She was admitted in Appollo Hospital, Bilaspur, where she was operated. The blood smeared clothes worn by her in which wholes were caused due to a'ttack of knife, were seized from Appollo Hospital, Bilaspur. She had admitted her signature from "A to A" part of the seizure memo. At the place of incident, the accused/appellant Gajendra also stated her that her maternal uncle had committed < "marpeet", coming to his house. The prosecutrix told the name of her ^{^S,^^ ..^r maternal uncle to be Ajit. In her cross examination, the prosecutrix denied almost all the suggestions given by the defence side. io. Dr. Akhilewshwar Uraon (PW/4) deposed that since 1999 he had been posted as Medical Officer in Community Health Center, Mungeli. On 13-11-2001, he conducted medical examination of the injured Madhu being brought by Constabte No. 213 Yashwant Singh, Police Station, Mungeli along with application (Ex.P/3) for medical examination. On medical examination ofthe prosecutrix, he found the following injuries. (i) one incised wound in the size of m14 cm x 3 cmx 1.5 cm at the middle of head. (ii) One punctured wound in the size of 2.5 cm x 1 cm x 10 cm on abdomen, 3 cm above the umbilicus. (iii) One punctured would in the size of 1 cm x 0.5 cm x 10 cm on abdomen in which situated 4 cm above from ' injuryNo.^." ../: r" li. The Doctor opined that the aforesaid injuries could be caused by sharp edged and pointed weapon. He further opined that the injuries were of grievous in nature and stated that the same to be caused within 3-4 hours from his examination. He advised to get done X-ray of the injuries and referred the prosecutrix to District Hospital, Bilaspur, after giving her treatment, He gave his report (Ex. P/4) regarding medical examination of Ku. Madhu and admitted signature from its "A to A" part. On 27-11-2001 he also examined the clothesseized from Madhu vide application (Ex.P/5) and found blood stains over it. hle also examined the blood stainedknife and opined that the injuries sustained by the prosecutrix could be caused with the same. He further opined that the injuries were sufficient in the ordinary course of nature to cause death of the prosecutrix. 12. Lala Mistri (Masson) (PW/6) identified the accused present in the court and deposed that he knew Madhu also. On 13-11-2001 at about 9-10 a,m, while he was constructing the house of Dr. Baghel as Masson, Nanka Banjara and Nilesh Banjara came there and informed him that Madhu was lying unconscious in injured condition under the bridge near Girls School. They also stated that Madhu had sustained injuries on her head and abdomen. On this he along with Sanatan and Kuldeep proceeded to the place of incident where they saw Madhu lying unconscious in a pool of blood and she had sustained injuries on her head and abdomen. Thereafter, they brought Madhu to the Govt. Hospital and this witness lodged the report in the Police Station. He also admitted his signature on A to A part of the Fir (Ex. P/14) and on th6 spot map Ex.P/15. He further stated that he was told by the people of the locality that the prosecutrix was teased by the accused/appellant on'the previous day. He also came to know from the persons of the locality that the prosecutrix was assaulted by Gajendra. 13. Rajesh Kumar (PW/11) , who is the child witness aged about 12 years, hsis categorically supported the prosecution story and identified the accused in the courtfhough he did not know the nameofthe accused. He deposed that atthe time of incident, he was collecting cow dung near hiscourtyard (badi) which was near to the Girls School. He further stated that one boy ahd one girl were sitting near "Besharam" shrubs. This child witness pbinting towards the accused stated that this was the boy who was sitting with the girl. He further stated that the boy picked out the knife and attacked on the head and abdomen of the girl due to wh'ich bleeding started. Seeing the blood, the child flew away due to fear. This child witness, who was the eye witness, was cross examined at length and denied almost all the suggestion given by the defence side. 14. So far as the maih submission of learned counsel for the appellant that the Doctor namely Akhileshwar Uraon (PW/4) has not given any opinion €^\ ff^s" regarding grievousness of injuries. It is crystal clear from the MLC report given by the Doctor (Ex.P/4) that the injuries were of grievous in nature and as also from para 2 of his deposition. The Doctor has specifically answered the question put by the court in para 5 of his deposition that whether the injuries sustained by Madhu were sufficient to cause her death in^ordinary course of nature, in affirmative. Therefore, the submissionof learned counsel for the appellant that the Doctor has not given any opinion regarding grievousness of theinjuries is baseless. 15. Hon'ble the Supreme Court in the matter of State of M.P. vs. Kedar Yadav , 2007 (1) Vidhi Bhaswar 265 (Supreme Court) observed as urider: ? "14. It is to' be noted that the alleged offence was of very serious nature. Section 307 relates to attempt to murder. It reads as follows: f "Whoever does any act with such intention or knowledge, and under such circumstances that, if he by that act caused death, he would be guilty of murder, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; and, if hurt is caused to any person by such act, the offender shall be liable either to imprisonment for life, or to such punishment as.is hereinbefore mentioned." 15. To justify a conviction under this section, it is not essential that bodily injury capable of causing death should have been inflicted. Although the nature of injury caused may often give considerable assistance in coming to a finding as to the intention of the accused, such intention may also be deducted from other circumstances, and may even, in some cases, be ascertained without any reference at all to actual wounds; The section makes a distinction between an act of the accused and its result, if any. Such an act may not be attended by any result so far as the person assaulted is concerned, but still there may be cases in which the culprit would be liable under this section. It is not necessary that the injury actually caused to the victim of the assault should be sufficient under ordinary circumstances to cause the death of the person assaulted. What the couri: has to see is whether the act, irrespective of its result, was done with the intention or knpwledge and under circumstances mentioned in the section.:VAn attempt in order to be criminal need not to be the penultimate act. It is sufficient in law, if there is present an intent coupled with some overt act in execution thereof. 16. It is sufficient to justify a conviction under Section 307 if there is present an intent coupled with some overt act in execution thereof. It is not essential that bodily injury capable of causing death should have been inflicted. The section makes a distinction between the act of the accused and is result, if any. The Court has to see whether the act, irrespective of its result, was done with the intention or knowledge and under circumstances mentioned in the section. Therefore, an accused charged under section 307 IPC cannot be acquitted merely because the injuries inflicted on the victim were in the nature of a simple hurt." 16. Section 6 (1) of the Probation of Offenders Act, 1958 provides that "When any person under 21 years of age is found guilty of having committed an offence punishable with imprisonment (but not with ! S • imprisonment for life), the court by which the person is found guilty shall not sentence him to imprisonment unless it is satisfied that, having regard to the circurtistances of the case including the nature of the offence and the character of the offender, it would not be desirable to deal with him under Section 3 or 4, and if the court passes any sehtence of imprisoriment on the offender, it shall record its reasons for doing so." 17. In the instant case, the offence committed by the appellant is punishable with imprisonment for life, therefore, the benefit of Section 6 ofthe Act, 1958 canhot be given to the accused/appellant. 18. Ho'n'ble the Supreme't^ourt in the matter of State of M.P. v. Saleem @ Chamaru and anotfier, reported in 2006 (1) Vidhi Bhaswar 14 (Supreme Court), observed as under: "6. Undue sympathy to impose inadequate sentence would do more harm to the justice system to undermine the public confidence in .the efficiency of law and society could not long endure under such serious threats. It isj therefore, the duty of every Court to award proper sentence having regard to the nature of the offence ana the manner in which it was executed or committed, etc. This position was illuminatingly stated by this Court in Sevaka Perumal v. State of T.N. (AIR 1991 SC 1463). 7. After giving due consideration to the facts and circumstances of each case, for deciding just and appropriate sentence fo be awarded for an offence, the aggravating and mitigating factors and circumstances in which a crime has been committed are to be delicately balanced on the basis of really relevant circumstances in a dispassionate manner by the Court. Such act of balancing is indeed a difficult task. It has been very aptly indicated in Dennis Councle McGautha v. State of California (402 US 183 = 28 L Ed. 2d 711 (1971) that no formula of a foolproof nature is possible that would provide a reasonable criterion in determining a just and appropriate punishment in the infinite variety of circumstances that may affect the gravity of the crime. In the absence of any foolproof formula which may provide any basis for reasonable criteria to correctly assess various circumstances germane to the consideration of gravity of crime, the discretionary judgment may be equitably distinguished." 19. So far as the other;submission made by the learned counsel for the appellant regarding:place of incident is concerned, it is pertinent to mention here that fhe prosecutrix Madhu PW/1 and the child witness Rajesh Kumar PW/11 both have deposed that the incident occurred nearthe Girls High School, so the infirmity/difference occurred in their statements are not, so important that can defeat the case of the prosecution. Moreover, it is clearly proved from the medical report of Appolo Hospital, Bilaspur, and the injuries report given by Doctor Akhilesh Uraon (PW?4) that the injuries sustained by the prosecutrix Madhu were grievous in nature and sufficient to cause her death in the ordinary course of naiwe. Therefore, the difference occurred between the statements of the prosecutrix Madhu PW/1 and the child witness Rajesh Kumar PW/11 are not material to throw out the whole case of the prosecution. 20. For the reasons mehlioned hereinabove and in the light of all the facts and circumstances of the case, 1 am of the considered opinion that the judgment of the trial Court does not suffer from any illegality, infirmity, ^x^\ i 'i 10 'y or irregularity warranting interference in appeal. The court below has rightly placed reliance on the statement of the witnesses while convicting and sentencing the accused/appellant as mentioned above. 21. Accordingly, the appeal being devoid of merit deserves to be dismissed and is accordingly dismissed. —— Sd/- R.N. Chandrakar Judge raju t l^