HIGH COURT OF CHHATTISGARH : BILASPUR Single Bench : Hon’bie Shri Pritinker Diwaker, J. -' Cr.Appea! No.29§ of 1398 ARPELLANTS Manharan Yadav and two others.- (injail) ‘ VERSUS NON-APPLICANT, : 'State of MP. (now State ofe Vi. Chhattisgarh) CRWHNAL APPEAL UNDER $ECT!ON 374 g2i OF THE CODE OF CRWHNAL ’ PROCEDURE Shh Mano} Mishra counsel for the appeiiants. Ms: Sunita Jain, P.L. for the State. DRAL JUDGMENT \ (29.04201 1) > This appeal E$ directed against the impugned judgment and order : dated 2S 01 1998 passed by 5‘“ Additionaf Sessions Judge Biiaspur in ‘ Sesswns Triai No 431/1995 whereby the Additional Sesswns Judge convicted *he accusediappeiiant — Manharan Yadav under Section 30? 325/34 and 323/34 of the i P C and sentenced him to undergo R i fot fve years With fine of Rs SOOOI- under Section 3OI of the i P C to undergo i Ri tor three years With f‘ne of Rs 2000I- under Section 325/34 of the l P C and to underoo R i for 6 months With fine of Rs 200l- unde; Section 323/34 of the i P C Similarly, the Additionai Sessmns Judge comricted the acoused/aopeiiant - Manendra Yadav under Section 325 07/34 and 323 34 of the IP C and sentenced him to undergo R ‘ for three years With fine of Rs 2 000/- under Section 325 of the i P C to unoe go R i for five‘ years wrth fine of Rs 5 000/- under Section 307/34 of tne i P C ano to undergo Rt for Six months With fine of Rs 200/- LikeWise ' the Court \ beiow also Conwcted the accused/appei'ant — Viiay Yaday under Section 30?/34 325134 and 323/34 of the IPC and sentenced him to undergo R or five years With fine of Rs5000/- under Section 397/34 of the ; ' i P C to undergo R i for three years With fine of Rs 2 OOO!— under Section 325/34 of the tPC and to undero R! for Six months under Section t g u ‘ $23934 ef the LPCE. In case of defauit o?‘ fine amountx a“ the three‘ ‘ écqused/appenant§ shall undergo further RJ. for 6 months on each couni. 2. Brief facts cf the prosecution case a¥e that on 15051995 Qomamchasanah (un exhibited) was recorded according to which on 1505 1995 rtself at about 630 a m when the accused/pereons were makmq some mega! conetructaon they were prevented by comptamants — b o Nark (P W 2) and Vtkas Nark (PW4) as a result ot which some / disoute arose between two groups It ls aileged that accused/appellants Vessauttect comptamants With clubs and battle axe and caused mjurles to them ahcl when Vtmal Nam (PW 1) Intervened he too was assaulted by the amused/appellants Based on the Romamcnasanah F i R tx P 4 “A" was reolsteteol aoamst the accused/appellants under bectlcn 325/34 ofv the t P b After completlon of Investigation challan was med on 19 6 1995 under Section 307134 ot l P C ‘ l 3;; KO as to hotot the accusedlappe'lants guilty prosecution has examined as manv as 6 Witnesses m support of its case otatements of ‘ the aceused/appellants were atso recorded under Section 313 at the Lode of Lhmmat Procedure in whlch they denied the charges ievelieol against the’n and pleaded their innocence and false implication in crime in question. ‘ ' 4 After nearing the parties the trial Court has conwcted and sentenced the accusediappeliants as aforementioned in paragraph 1 of this judgment b. (mntentiori of Shri Manoj Mishra, counsel for the appellants; is thatj euen‘ it the entire case of the prosecution is taken as it is ' the offence under section 30? and 307/34 ot the l P C is not made out against the accused/appellants because medical report of none of the injured has been exhibited by the prosecution He further submitted that query report Ex P 8 given by Dr Raini Kant Verma (P W 6) cannot be used against the I appellants because the said doctor has not examined nor treated the iniured persons and he had given the said query report merely on the basis of medical reports available on record He also submitted that one counter case was also registered against Vimal Naik (P.W.1) under ; \- g$e¢tion 325 of LPL‘. and this fact has been admitted by Vimaf Nam ' . E(F’.W.1) and ihvgstigating omcer HA Kerke‘rta (P.W.5) and a\joint ma! was éconducted. Lastly, he submitted that as the appeitants remained m jai! for 'about 3 ‘72 months and the incident took place about 16 years bcck therefore their Jan centence may be reduced to tte period already r undergone by them v i8. Oh *he athev harwd suppomng the impugned Judgment Ms aimlta xJam ccunsel for the State argued that the manner In whruh Vrma! Nark a . (P.W.1), u. .Nark (P.W.2) and Vrkas Natk (P.W.4) were assauited by the :accused/appeltants itself seeaks the act ef the accused/appenahts. She Iturther submitted that Vimal Natk (P.W.1) had suffered ‘7 injuries whereas :SJSNaik (RW2) had suffered 3 injuries including two fractures and iiikewise‘ Vikas Naik (Rm/.4) had aiso suffered two injuries. Hewever, she ifarriy admits that the medical reports of the injured persons have not been ed by the orosecutron Lastly she argued that Ex P 3 and Ex P 4 ‘X-ray reports of S.S.Naik (P.W.2) are there confirming the fractures of his ‘both hands and this has been proved bv Dr. R.K.Jitpure (P.W.3). 7. l have heard learned counsei tor the parties at iength and oerused the Judgment lmpugned Including record of the trial Court i8. Vima Nark (P W 1) in his Court statement has stated that on the date of rncrdent re 15‘“ May, 1995 at 630 a m the amused/appellants were rarsrng Illegal construction where a temple is Situated just nearer to his house and they were ciosing the door of the temple and when his father SSlNaik (P.W.2) objected, the accused/appeiiants started hurling abuses to his father. He has further deposed that thereafter on hearing ihue and cry, his brother Vikas Natk (P.W.4) went to the spot and the accused/appellants raised their voice loudly and then he went to the spot lAt that time appeilant Manharan Yadav was holding spade While , lManendra and Vuay Yadav were hordmo clubs As soon as he reached to ;the spot, herwas assaulted by appellant Manharan Yadav With ctub and gother appellants -— Vijay and Manendra also assaulted him with ciub. As a 3result of such assauit, he feli down and then became unconscious and V' :sutfered severa! injuries. in cross-examination, this witness is very firm ‘ lfld has not stated any such thing which may help the accused/appellants. $3$.Naik (P.W.2) whne making aimost same Statement as has been made w Vimai Naik (PW?!) has Stated that on the date of incident he and his t mo sons te. Vimal NaiK and Vikas‘Naik were as‘sauited by the accused hersens with ctubs and spade; Simitarly, Vikas Naik {Rt/VA) has aise made his statement supporting the case of the prosecution. ‘ 85 Dr R KJitpure (P.W.3), who is Radioiogist, had taken X-rays of inJured persons According to him he had taken X-rays of “$Naik (P W 2) Vtde Ex P 3 and Ex P 4 and had found fracture en 5’“ metacarpal ‘ «0t iett hand and anothet fracture on tight forearm and there was aiso‘ disiocation omtna bone or right hand. Hr Kerketta (Vinita), investigating officer, has atso supported the prosecution case, however, even this: witness has not proved the medical reports of injured persons ie. Vimatr Naik (awn, s.s.Naik (P.w.2) and Vikas Naik (Rx/v.4). Dr. aajnikant; Verma (P.W.6) had answered the query report vide Ex.P.8. According toE him, injuw No.1 sustained by Vimal Naik (PWJ) was grievous in nature; r whereas injury No.2 sustained by him was dangerous to his life if he would: not have given proper treatment. This witness has, however, categorically: deposed that he had not treated Vimal Naik (P.W.1) nor he had medicaHy examined him He has statecHhat though Vimal Naik (P.W.1) was treated by some junior doctor on 15 O5 1995 out he had answered query report on the basts of indoor ticket and X—ray report of the patient 10. Minute examination of the ewdence adduced by the prosecution makes it clear that on the date of incident, all the three aocused/appeliants have made assauit on Vimai Naik (P.W.1), S.S.Naik (Pm/.2) and Vikas' Naik {P.WA), as a resuit of whioh, Vimal Naik (RUM) had suffered 7 injuries, S.$.Naik (P.W.2) had sutfered 5 injuries inoiuding fractures whereas Vikas Naik (PA/VA) had suffered 2 injuries. As per the report of Dr R KJitpure (P W 3), three fractures Were found on the person of $3 Naik (F’Wz) Although whiie answering query report it has been deposed by Dr Rainikant Verma (PW b) that the injuries sustained by¥ ‘ Vimai Naik (F’ W i) were grievous in nature and dangerous to his life but admittedly he had not examined nor treated Vimal Naik (PM/‘1) and has answered to the query report solely on the basis of documents. Further, a «)1 triere is no evidence on reccrd that the victims were assaulted by accused/appenants: with an intention to cause iheir‘ death or‘ they had Khow!edge that their act would iead to the death ef ihe victime, Fmm the eVidence it appears that incident tcok place ali of sudden and the intention of the accusediappeiiants was to asaauit the Victims and cause ihem iniuries lhus, it Wm not be sate tor this bouit to maintain conViction ‘ of the appeiiants under Section 30? and 307134 of the LRC‘ and accordinglythey are acquitted for the said offences.‘ Though medicai; goons of the victims have not been exhibited by the prosecution but€ Ex P 3 and Ex P 4 X—reports of S Q Naik (P W 2) make it ctear that he had suffered fractures on both hands and taking the cumutative effect of the iniuries sustained by the Victims the weapons used in the moident convrction of the appeiiants under $ectior .525 325/34 325/d4 “23/34 323/54 and 323/34 of the IP C appears to be weit founoed and accordingly the same is maintained 11 So tar as the sentence part is concerned on the basis of report Iodded by Matti Bai Wife of appetlant No 2 on to Ob 1995 a counter case was atso registered against Vimai Naik (P.W.1) and others Vide Sessrons i Trial No. 226/1 §§6 under Section 325 of the LPL‘. and this fact has been i admitted by the investigating officer H Kerketta (P W 5) Further considering the facts that the inCident took place about 1t: years the appellants have already remained in jail for three and half months and also the fact that incident took place all of sudden, it Will be too harsh to send the accused/appellants back to jail at this stage, and therefore, theiri jail sentence is reduced to the period aiready undergone by them. However, each appellant is directed to pay additional fine ambunt' of’ RSBUOOI— (total Rs.15,000/—), which would be payable to Vimal Naik (P W 1) and S S Naik (P W 2) The‘appellants are directed to deposit the said amount betore trial Court Within 6 montns from the date of receipt of copy of this order failing which they shall undergo one year sentence l-ine amount of Rs.15,000l— so deposned shall be apportioned by R‘s.7,500/- between Vimal Naik (P.W.1) and Sis. Naik (P.W.2). ‘ 12. The appeat is allowed partly to the extent indicated above t Sdl- Pritinker Diwaker Judge .