THE HIGHCOURT OF CHHATTISGARH AT BILASPUR CriminalAppeat No. 886/1989 APPELLANTS (In Jail) RESPONDENT 1. Shivsahai, aged 35 years, son of Girdhari, 2. Girdhari, aged 55 yeare, s/o Dular Bottt resident of Nawapara, Police Strtlon Jhilmili, Dsstt. Surguja O^.P.) Vereus State of Madhya f^adesh (Now Chhattisgarh) Present: Shri Vinod Tekam, Advocate for the appellant. Shri Ajay Dwrivedi, Dy. Govt Advocate for the State. (ABBeaLunderSection 374 (2) ofthe Code of Criminal Procedure) Singje Bench: Hon'ble Mr.J'.P, Sharma,J. (ORAUORDER (Delivered on29ul July, 2008) This appeat is directed against the judgmart of convictron and orcler of sentence dated 16.9.1989 passed by the 1st Addttional Sessions Judge Ambikapur, Sarguja in Sessions Trial No.34/1986 whereby leamed Additional Sessions Judge after holding the accusedteppellante guiHy for commi^ion of offence punishable under Sections 307 & 2Q6 of the Indian Pwial Code, sentenced each of the accused/appellants to undergo rigorous imprisonment for 5 years and to undergo rigorous imprisonmentfor 3 years, respectively. 2. The judgment of the trial Court is challenged on the ground that wiftout ttiere being any credlbie and sufHcient evidenee the appellants have been convicted and sentenced as aforesaid. / 3. . Heard counsel for the parties and perused the impugned judgment as welt as the materiat available on record. 4. According to the record of the trial Court appellant No.1 Shivsatai is the brother of Nagina, who is the flrst wife of complainant Sahasram and appetlant YOGENDRA SINGH KANWAR Digitally signed by YOGENDRA SINGH KANWAR Date: 2025.02.21 12:09:25 +0530 No.2 Girdhari is the father of Nagina. On fte fateful day i.e. 18.8.1985 when the complainant Sahasram was retuming after attending the marriage at about 8 p.m. and when ttiey reached near the house of appellant No.2, Girdhari, appellant Shwsahai came with Baluwa (Tabbal) and assaulted Sahasram over his neck. Sahasram fell down and became unconscious. Another complsdnant naraely, Rigdi Bai was assaulted by appellant No.2 Girdhari. First Information Report was lodged by both the complainants i.e. Sahasram (P.W-9) and Rigdi Bai (P.W-7) on 19.8.1985 at about 10 A.M. Complainants namely, Sahasram & R^di Bal were sent for Medicat examination to Primary Health Centre, Bhaiyathan. Ptain soil and blood stained soil were seized under Ex.P-9. One Balua/Tabbal was seized from appetlant No.1 Shivsahai under Ex.P-10 and one Balua/Tabbal was seized from appetlant No.2 Girdhari under Ex.P-10. 5. Appellant No. 1 Shivsahai (P.W.9) made a disclosure statement rdating to Balua/Tabbal, which was recovered at his instance under Ex.P-10 and appellant No. 2 Girdhari madea disclosure statement relating to Balua which was recovered at his instance under Ex.P-10 under Ex.P-10. Seized artlcles were sent for chemical analysis. Presence of blood was confirmed in the TabbaUBalua. 6. Injured Sahasram was examined by Dr.Sunil Singh (P.W -.1) and found foltowing injuries: "incised wound on the lateral left side of neck, and because of thte injury (1) splenious Captis, (2) Trapeious, (3) Levator Scapulae, (4) Sterno Ctemostile, with deep muscles cut, (5). Jugular Vein witti associate nerve was atso cut." The size of this injury was 4"X3"X4". Haemorrhage with excessive bleeding from the neck." Injured Rigdi Bai (P.W.7) was also examined by Dr.Sunil Singh (P.W.-1) and found following injuries: "There was an incised wound, on ttie teft arm with compound frgdure of the left humerus bone. The duration of the injury was wthin 12 houre. 1 also advise forthe X-ray ofthe above injury." *-~. 7.' After investigatton, charge sheet was filed. In order to establish guilt of the appellants, the prosecuUon has examined 15 witnesses. Statement of the appellantwas also recorded under SecUon 313 ofthe Code of Criminal Procedure in vrtiich ttiey denied the materiat appearing against them and had taken a detence ttiat they have not assaulted the complainant but he was assaulted by Nagina, wrife oftheSahasram 8. I have heard Shri Vinod Tekam, counset for the appellantsand Shri Ajay Dhwedi, Dy. Govt. Advocate for the State/respondent. 9. Grievous injury over the neck of the complainant namely, Sahasram is not disputed by the appellants/accused persons. They have stated that grievous injury over the neck of Sahasram was caused by Nageena wife of the Sahasram, Moreover, also established from the statement of P.W.1 Dr. Sunil Sir^h, who has stated that on 19.8.85 he examined Sahasram vide Ex.P-1 and opined that injury was caused by sharp cutting object i.e. Tabbal or tangi, and the same was grievous and dangerous to life. 10. Injury of comptainant Rigdi Bai is also not disputed and appellants have stated that injury of Rigdi Bai was inflicted by Nageena, who is wife of complainant Sahasram. Moreover, it is also estabtished from the statement of P.W. 1 Dr. Sunil Singh who has deposed thaton 19.8.1985, he has examined Rigdi Bai vide Ex.P-4 and found one incised wound, on the teft arm with the compound fractureof the left humerus bone. Comptainant P.W. 7 Rigdi Bai has stated thatshe was altaulted by appellant No. 2 Girdhari by iabbat. 11. As regard the complicity of the appellants In crime in question the case of prosecuUon is based on oral and medical evidence. 12. The statement of P.W.-1 Dr. Sunit Singh who has stated that humerous bone of teft arms was fractured and report is under Ex.P-6. The medical ewdence is established by P.W.-7, who has stated that she was assaulted over her hand. Ocular evidence is supported by P.W.-2 Ramphal, P.W.-3- Jairam and ottier witnesses and Dr. Sunil Singh has stated that the injuries received by comptainante n?mely, Sahasram & Rigdi Bai is dangerous to IH®. 13. So far as the complicity onhe appetlant is concerned, appellant has denied the charge and specifically taken a defence that complainants were Injured by Nageena who is the wife of complainant Sahasram and relative (daughter-in-law) of Rigdi Baiand they have not assaulted the complainants. 14. In order to appreciate the contenUon of the parties, Perused the statements of witnesses. Sahasram (P.W.-9) has specifically stated ttiat he married with Vijay Kunwar by Bandhwa custom. After marriage, while he was retuming, when he reached near the house of Girdhari (appellant No.2 herein), Shivsahai (appellant No.2) attacked on her neck thereaflsr he fell down and became unconscious. The witnesses namely, Ramadheen, Dharmjeet, Ramphal, Lalman and Kewal were also coming with him. He was taken to police station, where he lodged F.I.R. vide Ex.P-16. His clothes were seized. P.W. 7 Rigdi Bai, has deposed that she was also coming with Sahasram after marriage of Sahasram. When they reached near the house of appellantNo.2-Girdhari, appellant Shivsahai attacked with Tabbal over the neck of Sahasram and Girdhari attacked by Tabbal to her over hand. After causing injury, appellants went inside their house, her clothes were seized. P.W.-2 Ramphal, P.W.3- Jairam, who were accompanying the complainant has supported the version of complainant. P.W. 9 Sahasram has denied the suggestion made by the defence that he was not in a position to identify the person who had inflicted injury to him. P.W. 7 Rigdl Bai injured witness has also denied the suggestion made by defence that due to darkness she was not in a position to identify the actual culprits. 15. Patiram (DM.2 ) had deposed that when Sahasram and others were coming after marriage, Nageena was hiding herseif. When Sahasram and Rigdi Bai were passing near the house of Girdhari, Nageena assaulted the complainants namely, Sahasram & Rigdi Bai with the help of tangi and she ran away; but he has not stated the facts that Nageena assaulted to Sahasram & Rigdi Bai, to any other pereon including appellants, it had also not been explained by appellants that how they came to know that Patfram (D.W.-2) is fte eye witness of the ineident. 16. D.W.-1 Datsai has slated that he heard from the persons thatNageena assaulted to Sahasram & Rigdi Bai and he has also seen injuries. According to his statement he has not seen the tncident, if we scrutinized the statement of D.W. 1 Dalsai and Pati.pam then it was foundthat D.W. 1 Datsai have not seen any incident. D.V&.-^ Patiram's statement does not inspire confldence of the Court on the ground that knowing well thafrappellants facing trial and he has not narrated the story that what hie has seen to any peraon including appellants. tt appears that these witnesses have deposed only with a view to support the defence to save him from conviction. Statements of comptainant P.W.7-Rigdi Bai and P.W.9 Sahasram is con-oborated by P.W.S-Bahwant, P.W.IO-Dharmjeet, P.W.11-Smt. Vijay Kunwar, P.W.12-Ramadheen, who were aecompanying the complainants and whose ;"3 tsaiy presence are naturat. Defence has not been abte to eiicltanyttiing in the cross examination of these witnesses to discredit their testimony. These witnesses are natural and their presence has been admitted even by the defence vritness D.W.1 Dalsai is supported by the medicat evidence is trustworthy. After appreciation of the evidence of atoresaid witnesses, leamed trial Court has convicted fte appellants and sentenced aforementioned. 17. Finding of the trial Court is based on cogent and retiable evidence sufflcient for convicting the appeltants for Uie olfence punishable under Sections 307 &326 of the I.P.C. and the same is not tiable to be set aside. 18. As regard the question of sentence, tt is argued on behatf of the appellants ttiat there is mitigating cireumstances that complainant Sahasram, who is husband of Nageena and Nageena is the sister of appellant Shivsahai and daughter of appellant Girdhari, contracted second marriage during the life time of Nageena, therefore, incident took place in a heat of passion, therefore, he prays for lenient wew. According to the case of prosecution when the complainante were comlng after performing the marriage, they were assaulted with the means of tabbal_& fangi. There was no occasion to cause grievous and dangerous injuries to Uie comptainants by deadly weapon. 19. Appellant Sahasram has been sentenced to underto rigorous imprisonment for 5 years for the offence punishable under Section 307 of the I.P.C. and appeltant Girdhari has been sentenced to undergo 3 years rigorous impnsonment for the offence punishable under Section 326 of I.P.C. Sentences awarded are adequate andnot disproportionate. Therefore, no further leniency is required. 20. ConsequenUy, the appeal being devoid of merit is liable to be dismissed and it is hereby dismissed. The appellants are on bail. Their bail bonds are cancetled and they are directed to surrender before the triat Court immediately for serving out the Eemaining sentences imposed upon them. ^ ^ .y7- Sd/- T. P. Sharma Judge