cs^ :^/1 HIGH COURT OF CHHATTISGARH AT BILASPUR CMMINAL APPEAL N0. 479 OF 2007 APPELLANT (In JaUl RESPONDENTS VERSUS Shrawan Kumar. State of Chhattisgarh Post for uronouncement of order on 31/8/2009. Sd/- T.RSharma Judge VtgseSatss^Si ::'?"'" -'•^-^•^i-:£^f-?^). HIGH COURT OF CHHATTISGARH AT BILASPUR APPELLANT (In Jail) RESPONDENTS CRIMINAL APPEAL N0. 479 OF 2007 Shrawan Kumar, Son of Nirgud Ram Dhruv aged about 34 years, resident of village Telinsattani, P.S. Arjuni District Dhamtari, Chhattisgarh. VERSUS State of Chhattisgarh through Police Station Arjuni, District Dhamtari, Chhattisgarh. MEMORANDUM OF CRIMINAL APPEAL UNDER SECTION 374 (21 OF CR.P.C. (SB :Hon'ble Mr. T.P.Sharma, J.) Present:- Mr. Vishnu Koshta, Advocate for the appellant. Mr. Sushil Dubey, G.A. for the State/respondent. JUDGMENT (Passed on 31/8/2009) This appeal is directed against thejudgment ofconviction and order ofsentence dated 24/1/07 passed by Additional Sessions Judge, Dhamtari in Sessions Trial No. 44/2006 whereby and where under leamed Additional Sessions Judge after 'holding the appellant guilty for the offence punishable under Sections 307 & 323 of the Indian Penal Code and sentenced rigorous imprisonment for 7 years and fine of Rs. 200/- in default of fine amount additional imprisonment for 1 month and rigorous imprisonment for 4 months. Judgment of conviction and order of sentence is challenged on the ground that without any iota of evidence leamed Additional Sessions Judge has convicted and sentenced the appellant aforementioned and thereby committed an illegality. Prosecution case in brief:- on 28/4/05 at about 3.30 P.M. at village Telinsatti police Station Arjuni District Dhamtari injured Rekhabai was standing near shop. Accused came with axe and on the ground of some previous dispute accused ^;1'^ (i "afiSi'fe " •"fssies <a•^ ^..^f'^ \F"L<i«:' ^. Q^ assauited Rekhabai over her skull, right hand, and also assaulted to Rakesh over the fingers of foot and hands. Dehatinalshi was recorded vide Ex. P-3. Injured were sent for medical examination vide P-4. Four injuries were found (i) one abrasion 2 c.m. x Vi c. m. over back ofleft elbow. (ii) one linear abrasion of 3. c.m. meliolus over left. (iii) Abrasion Vt c.m. x '/2 c.m. left little finger. (iv) Diffiised swelling over the left hand in the body ofthe Rakesh Vide P-4. 4. Injured Rekhabai also examined by PW15 Dr. Marish Graham vide P-9 and ^llowing injuries were found: (i) -one lacerated wound over scalp and face with corresponding fracture offrontal bone of 11 c.m. x 3.5 c.m. (ii)- Lacerated wound over right arm 6 c. m. x3. c.m. x 0.5 c. m. (iii)- Subconjunctival hemorrhage in right eye. The injury over the head was grievous. 5. Plain and blood stained soil were recovered vide Ex. P-2. Cloths ofthe Rekhabai was recovered vide Ex. P-1. Dehati Nalsi was lodged vide P-3. First Information Report Ex. P-5 was registered on the basis of Dehatinalsi Ex. P-3. Spot map was prepared vide P-5. One axe was recovered from the accused vide Ex. P-5 on the basis ofdiscloser statement ofVide Ex. P-6. Patwari prepaied map vide Ex. P-8. Articles were sent for examination to State Forensic Science Laboratory, Raipur . and presence of blood over the cloths of injured, axe recovered from the accused and blood stand soil was confirmed vide report P-16. Statement ofthe witnesses were recorded under Section 161 of the Code of Criminal Procedure, 1973 (in short the Code). 6. After completion of the investigation charge sheet was filed before the Chief Judicial Magistrate, Dhamtari who in tum committed to the case of Sessions leamed Additional Sessions Judge received the case on transfer. '"% g '-—•':j' -7- 7. In order to prove the guilty ofthe appellant prosecution examined as well as 17 witnesses. Examination ofthe accused was conducted under Section 313 ofthe Code where he denied the circumstances appearing against him innocency and false implication is claimed. 8. After affording the opportunity of hearing to the parties learned Additional Sessions Judge, convicted and sentenced the appellant as aforementioned. 9. Learned counsel for the parties are heard and judgment impugned and records of courts below pemsed. 10. Leamed counsel for the appellant argued that in the light ofthe evidence adduced on behalf of the prosecution he is not disputing the conviction but wants to argue on the question of sentence and argued that according to the case of the prosecution on the ground of dispute alleged offence has been committed and considering the mitigating circumstances the sentence requires reconsideration. 11. Leamed counsel for the appellant placed reliance in the matter of Ramesh, Appellant v. State of U.P., Respondent in which conviction under Section 307 ofthe Indian Penal Code was altered into under Section 324 ofthe Indian Penal Code and sentenced was reduced already undergone and fine ofRs. 3,000/-. 12. Leamed counsel for the appellant further placed reliance in the matter of Moti Lal, Appellant v. State of M.P. Respondent^ in which appellant were sentenced under Section 307 of the Indian Penal Code and sentenced to imprisonment already undergone. 13. On the other hand, leamed counsel for the State/ respondent opposed the appeal and submits that prosecution has proved its case beyond all shadow of doubts appellant has caused injures to the women does not deserve any sympathy. AIR 1992 SC. 664 ' AIR 2001 SC 3210 '!•• 4 14. In 01-4er to appreciate the contention of the parties, I have examined the evidence available on record defence has not disputed the injures and complicity of the appellant with crime in question otherwise also established by the statement of PW2 Rekhabai, PW3 Anandram, PW4 Rakesh, PW15 Dr. Marish Graham who has examined the complainant Rekhabai vide P-9. PW16 Dr. A. R. Thakur who has examined Rakesh vide P-4, PW7 Hariram PW 17 T.R. Mhilane Sub Inspector Dehatinalshi Ex. P-3. First infoniiation Report Ex. P-15. These evidence are siifficient to establish the fact that present appellant has caused grievous hurt over the head ofthe Rekhabai and also caused 4 simple injuries to the injured Rakesh. Injuries over the head of the Rekhabai resulted into fracture of frontal bone was grievous in nature. Accused has caused repeated injury to Rekhabai and 4 simple injuries to Rakesh shows his intention. Leamed Additional Sessions Judge, has rightly convicted the appellant under Section 307 & 323 ofthe Indian Penal Code. 15. As regard the question of sentence is concerned, in case of Moti Lal CSupra) the • conviction was altered and sentence was reduced into the period already undergone but what was actual sentence suffered by the appellant has not been mentioned although it appears that appellant were in custody prior to 1998. In case of Ramesh (Swra) the conviction was altered under Section 324 of the Indian Penal Code on the facts and circumstances ofthe case. In the present case injury of Rekhabai is grievous in nature and has caused over the head. The case ofMoti Lal and Ramesh (Supra) are distinguishable on the ground of facts. 16. In the present case accused/appellant has been sentenced Rigorous imprisonment for 7 years with fine ofRs. 200/- for the offence punishable under Section 307 of the Indian Penal Code and Rigorous Imprisonment for 4 months under Section 323 ofthe Indian Penal Code. ?c/ v^ -^ 17. Taking into consideration the injuries ofRekhabai and its nature and the fact that only one injury of Rekhabai was found grievous in nature and of the mitigating circumstances i.e. previous dispute for the commission ofthe offence the sentence requires reconsi4eration. 18. For the foregoing reason, appeal is partly allowed. Conyiction and sentence ofthe appellant awarded under Section 323 of the Indian Penal Code is maintained conviction of the appellant for the commission of the offence punishable under Section 307of the Indian PenaL Code is also maintained, but the sentence of Rigorous Imprisonment for 7 years and fine of Rs. 200/- is reduced into the Rigorous Imprisonment for 5 years and fine of Rs. 200/- in default additional rigorous imprisonment for 1 month. T.P, Sharma Judge •n..