..yi;;:d;-;^BUi-u^a«ts ^ HIGH COURT OF CHHATTISGARH, BILASPUR Criminal Apoeal No.l63of 1992 APPELLANT/: (Accused) RESPONDENT: -lagmohan, S/o Makhan Sahu, aged about 28 years, R/o Parsada, P.S. Mandi Hashour, Distt. Raipyr. Versus State of Madhya Pradesh (now Chhattisgarh) ; {Crirninal appeal under Section 374 (2) of the Code of Criminal Procedure, 1973} Present: Mr. Atul Pandey, counsel forthe appellant. Mr. Akhil Mishra, Deputy Govt. Advocate for the State/ respondent. Sinale Bench: Hon'ble Mr. T.P. Sharma, 3 ORAL JUDGMENT (2-9-2009) 1. This appeal is directed against the judgment of convictiQn & order of sentencedated 22-1-1992 passed by the 5 Additional Sessions Judge, Raipur inSessiQnsTrialNo.294/88 whereby & whereynder learned Additional Sessions Judge after holding the appellant guilty for commission of offence under Section 308 of the I.P.C. sentenced him to undergo R.I. for two years. 2. Judgment is challenged on the ground that without any iota of evidence of attempt to commit' culpabie homicide not amounting to murder learned Additional Sessions Judge has convicted & sentenced the appellant in the aforesaid manner and thereby committed illegality. ^ 3. Case of the prosecution, in brief, is that on 2-9-88 at about 7.30 p.m. two bullpcks'of complainant Adhar (PW-1) were takenaway by fatheroffh^appellantnamelY, Makhan and the bullockswere lodged in the cattle pond. The complainant made complaintto father ofthe appellant, at that time,: suddenly the appellant came with small .spade.and assaultedover the head & waist of the Gomplainant as a result of which the complainant fell down. The complainant went to - ^ same day at 0.15 hours (mid night) and Ibriged F.I.R. vide Ex.P-13. Blood stained cloth was seized from the ^'CQmplainant^videEx.P-2. The complainant was sent for medical ffi examination and tie was examined by Dr. P.L. Yadu (PW-7) vide Ex.P-3 who found one incised wound over fronto parietal region in the size of8 cms. x 2 cms., one linear.scratch of 1 cm. x 1 cm. over wrist and one contusion of2 cms. x 1 cm. over right buttock. On the basis of discloser statement Ex.P-7 of the accused/appellant one smallspade was recovered vide Ex.P-8. Register of the cattle pond & receipt were recovered vide Ex.P-9. Statements of thewitnesses were recorded under Secl.ion 161 ofthe Cr.P.C. andaftercQmpletion pf ihyestigation, charge sheet was filed before the Chief Judiciat Magistrate, Raipur who in turn, committedthe case to the Court of Sessions, Raipur, from where learned Additional Sessions Judge received the case on transfer for trial. 4.1n order to prove the guilt of the accused/appellant the prosecution has examined as many as twelve witnesses. Statements of the accused persons were recorded under Section 313 ofthe Cr.P.C. in which they denied the circumstances appearing against them and pleadey innocence & false jmplicatiQn. 5. After affording opportunity of hearing to the parties, learned Additional Sessions Judge convicted & sentenced the appellant as aforementioned. 6. I bave heard learned counsel for the parties and perused the judgment impugned as also the record of the trial Court. 7. Learned counsel for the appellant argued that the prosecution has not proyed the case beyond all reasonabte doubts. Atthe time of incident, the complainant has not identified the assailant in absence oflight and the injuries found on the person ofthe complainantwere also not dangerous orgrievous in nature, therefore, atthe most, the appellant may be convicted under Section 324ofthe I.P.C. 8. On the Ather hand, learned State counsel supported the judgment 'and submitted that the prosecution has proved the case beyond all ^ reasonable doubts. . 9. In order to appreciafe the contentions of the parties, I have . examined the evidence adduced on behalf of the prosecution. ^tQ.Adl-iar'(PW-l), the complainant, has deposed in his evidence that '• ^'when'lhe cpmplained the.matter to the father of the appellant, the . appetlant'came from backside and assaulted him over his headas a :gi;il Hifi .^^'•-•c1"^. 'i58Sh.' 1 .>."u'a~<® 1 ;K ^-.^''/ ''s'<te srf°" SOma result Of which he fell down, other persons came and took him to the Police Station where he lodged the report. Buchu @ Punit (PW-2) has corroborated the version of the complainant. Baratu (PW-3) has deposed that father of the appellant & the complainant were quarrelling and all of a sudden the complainant fell down, the appellant was standing with stick, then he took the complainant to his house. Bharat (PW-4} has deposed that during the course of quarrel, the complainant assaulted father of the appeilant on which the appellant came and as'saulted the complainanf. The complainant was examined by Dr. P.L. Yadu (PW-7) who found the aforesaid three injuries vide Ex.P-3. Dr. P.L'. Yadu (PW-7) has deposed that injui-y over the fronto parietal region was 8 cms. x 2 cms., depth of the injury was not possible to ascerfain before surgery. But the prosecution has not adduced any evidence of surgery of the complainant. ll.In absence of other medical evidence it is difficult to tiold that the injuriesfound over the body of the complainant were grievous or dangerous in nature, however, injury No.l reveals that the said injury was caused by some sharp edged weapon. In absence of any evidence of gravity of injury and the circumstances especially that the complainant firstly assaulted father of the appellant on which the appellant came and suddenly assaulted the complainant which the complainant has admitted in para 6 of his evidence, it is difficult to hold that the appellant has caused injury to the complainant with intention fo commit culpable homicide not amounting to murderi.e. the offence under Section 308 of the I.P.C. t2.As regards the question of sentence, the incident took place in the year 1988 and after lapse of21 years there is no property in sending the/appeal to custody. 13.Forthe foregojng reasons, fhe appeal is partly allowed. Judgment of conviction "&• order of sentence is modified. Insteadof conviction • under Section 308 of the 'Etf'.C, the appellant is convicted under Sectipn 324 of the I.P.C; and instead of sentence of R.I. for two years, he is sentenced to pay fine of Rs.3,000/-, in default of payment of fine he shallyndergo R.I. for one year. The appellant is djrected to deposlt the fine amountwithin one month from today. Sd/- T.P.Sharma Judge