HIGH COURT OF CHHATTISGARH AT BILASPUR Sinftle Bench : Hpn'ble Shri Rajeshwarlal Jhanwar, J. Criminal Appeat No. 949 of 1999 Shank,ar Markam @ Dau 'versus State of Madhya Pradesh (now C.G.) JUDGMENT s' • "-•• Post for pronouncement of Judgment ^o -11-2009 Sd/- R.L. Jhanwar Judge HIGH COURT OF CHHATTISGARH AT BILASPUR Cr. Ano. No. 949 / 1999 SBi Hon'ble Shri Justice R.L. Jhanwar fj.Sff^ saa APPELLANT (injail) RESPONDENT Shankar Markam -@ Dau, Son of Shri Ganganath Markam, aged about 25 years, r/o Dewarpara, Basantpur, Rajnandgaon, Thana and Distt. Rajnandgaon (M.P.) Versus • State of Madhya Pradesh - Through Police of Police Station, Rajnandgaon, Distt. Rajnandgaon, (M.P.) Aep^arance: Smt. Kiran Jain, counsel for the appellant. Shri Pradeep Singh, P.L. for the State. JU D G M E N T (Delivered on ga. 11.2009) This Criminal Appeal is directed against the judgment dated 31.03.1999 delivered in Sessions Case No. 45/1997 whereby the leamed 1st Additional Sessions Judge, Rajnandgaon has convicted the appellarit under Section 307 of the I.P.C. and sentenced to rigorous imprisonment for 7 years and fine of Rs.500/- and in default of fine, to further undergo siinple imprisonment for three months. (2) It is not disputed that prior to incident the appellant and the complainant were well known to each other and were in talking terms. (3) Briefly stated the prosecution story is that complainant was working as Technician in Science College, Rajnandgaon. On the date incident i.e. 10.06.1996 at noon the complainant went to the house of his friend Sevaram Markam, situate at Basantpur, where the appellant was present. All three of theni were chatting each other and during this period the appellant offered the complaint a piece of fried meat, which the appellant has brought from his house, whereupon the complainant refused to have that piece of mutton saying that it was of pork (meat of pig) and had given 2-3 slaps. On the evening of incident, the complainant again inet with Sevakram Markam at Sharda Mandir and narrated the stoiy of incident and at the same time the appellant came with sword and threatened Prakash that since he has beaten him, he would kill him and inflicted injuries by 'sword on his neck and due to that sudden assault by sword the Complainant fell down and thereafter again the appellant attempted to assault the complainant, he shifted a little as a result of which the sword caused him injury on the side of the chest and then he lifted his leg and also received injury due to sword. Because of assault by the appellant he raised hue and cry and became unconscious. The appellant fled from the spot. Sevaram Markam, who intercepted the incident, admitted the complainant in the hospital with the aid of Nandu. Sevaram Markam lodged Dehati Nalishi vide' Ex.P.10. Investigation took place. Statements ofwitnesses were recorded under Section 161 of the Cr.P.C. On the memorandum Ex.P.7 of the appellant, the sword was seized vide Ex.P.8. Clothes of the appellant and the complaint were also seized vide Ex.P.2 and Ex.P.9 and were sent to Forensic Science Laboratory for its chemical exaraination. The complainant was referred to medical examination and upon examination, Dr.Sanjay Bakshi found five injuries over the body of the complainant, which are as follows: 1. Incised wound on left side neck measuring 6" x 3.5" muscle deep. 2. Incised wound on left side chest measuring 2" x 1" muscle deep. 3. Incised wound near auxiliary fossil measuring 3.5" x 1" muscle deep. 4. Incised wound of post lateral side of chest vertically placed size 2 l/a" x 1" 5. Incised would over left leg size 3.5" x l". BSIIIIi'l' Dr. Sanjay Bakshi opined that the injuries sustained by the complainant could be caused hard and sharp edged weapon and endangering to life. (4) After completion of the investigation, charge sheet was filed before the Chief Judicial Magistrate, Rajnandgaon who in due course committed it to Sessions Judge, Rajnandgaon. The leamed Sessions Judge made over the case to First Additional Sessions Judge who framed charge against the appellant under Section 307 of the I.P.C. The charge was read over and explained to the accused appellant, who abjured the guilt and pleaded innocence. (4) The learned 1st Additional Sessions Judge has, after appreciation of the evidence available on record and hearing counsel for both the parties, convicted and sentenced the appellant as above. (5) I have heard learned counsel for the parties at length and have also perused the record. ^ (6) In this case, out of 15 witnesses examined by the prosecution, eye witnesses Nandu Markam P.W.4, Sushila Bai P.W.5, Sevaram P.W.9, Atul Pande P.W.10, Tukaram P.W.l, Rajendra Kumar P.W.12 and Khemlal P.W.13 who witnessed the incident have thereafter tumed hostile since they did not support the prosecution version. Tulsi Das P.W.l prepared the map Ex.P.l and Poshan Singh P.W.2 stated that clothes were seized vide Ex.P.2. (7) Thus, the only evidence which remains to be considered is of the complainant Prakash Singh P.W.7, Dilip Singh Bhadoria P.W.8, I.H. Khan P.W.14 Town Inspector and Dr. Sanjay Bakshi. The complainant P.W.7 stated that on 10.01.1996 he came to the house of Sevaram P.W.9 where the appellant was also present and the appellant offered him a piece of pork (meat of pig) and thereafter insisted him to taste the same and the complainant SQSl .^'''.y-s4,'^: ^Bi -,./-° refused the offer and started scooter towards his house and at the time the appellant also accompanied him. On way, the appellant apologized for the incident. Thereafter, on the same date at evening the complainant was going to the house of Sevaram, the appellant carae to him arined with sword and assaulted from behind, as a result of which, he fell down from the scooter. The appellant again assaulted hirn and then he shifted a little and the sword hit on his left shoulder. He also received injury on his left leg. He further stated that 4ue to assault he raised alarm for securing himself from the appellant whereupon the appellant fled away from the spot. He further deposed that Sevaram and Nandu taken him to Rajnandgaon Hospital where he became unconscious and when he regained conscious he found stitehes on his neck, shoulder and leg. In his cross-examination he stated that prior to incident, there was no animosity between hiin and the appellant and Dilip Bhadoria, Tukaram, Rajendra Kumar, Atul Pandey, Nandu, Sushila and Sevaram were present and witnessed the incident. He also denied that on the date of incident he was in ^ drunken condition and roaming here and there with sword. (8) Dilip Singh Bhadoria P.W. 8 stated that he knew the complainant Prakash Singh. His father came to him and stated that Prakash Singh did not come to home whereupon he enquired and upon enquiry he came to kaow that Prakash Singh got injuries by sword and was in hospital. He visited hospital to see the condition of Prakash Singh. This witness also stated that the appellant Shankar Markam has given a memorandum and on the basis of which sword was seized. (9) Dr./Sanjay Bakshi P.W.15 who examined the complainant found 5 injuries over the person of Prakash Singh, opined that the injuries could be caused by hard and blunt object and also grievous in nature. (10) I.H.Khan P.W.14 who is investigating officer stated that memorandum was taken from the appellant and on his meniorandum sword was seized. He also stated that Dehati Nalishi was lodged by Sevaram Markam P.W.9 and on the basis of Dehati Nalishi, F.I.R. Ex.P.10 was registered by Sevaram Markam. (11) It is clear from the evidence of complainant and also the evidence of Dilip Singh Bhadoria, who visited the hospital to see the condition of the complainanfralso found injuries sustained by the complainant. Thus, the evidenee of the complainant and Dilip Singh Bhadoria that the complainant received injuries was corroborated by the medical report of Dr. Sanjay Bakshi P.W. 14 who examined the complainant. The appellant has also not been able to put forth his argument that if the complainant is his friend, then why the complainant would have implicated him. Therefore, the fact that Prakash Singh P.W.7 was assaulted by the appellant with sword was proved by the prosecution. The seizure of sword on the memorandum of the appellant by investigating officer I.H.Khan ^ was also proved by the prosecution. Moreover, the F.S.L. vide its report Ex.P.17 confirmed the bloodstains on sword and clothes to be human blood. (12) The argument of learned counsel for the appellant that Dr.Sanjay Bakhsi has not opined that because of injuries the death of the complainant could be taken place. The learned counsel for the appellant also argued that offence would not fall Section 307 of the I.P.C. and falls under Section 326 of the I.P.C. and the conviction of the appellant under Section 307 I.P.C.by the learned lower Court is bad in law. It was lastly urged that the appellant is first offender and has already suffered mental agony of a criminal trial since 1996 and has further undergone sentence from the date ofjudgment i.e. 31.03.1999 till being released on bail pursuant to order dated 11.02.2002 and it would be very harsh to send him back jail again. On these grounds, it was prayed that the sentence awarded to the appellant be reduced to the sentence already undergone by him. (13) On the other hand, leamed Panel Lawyer for the State opposed prayer and argued in support of the judgment. (14) The contention put forth by the learned counsel that because of injuries sustained by the complainant, the death of the complainant could be occurred is unacceptable since Dr. Sanjay Bakshi opined that the injuries were grievous in nature and were endangering to life. The learhed counsel court has rightly found the appellant guilty under Section 307 ofthe I.P.C. (15) So far as the sentence of the appellant is concerned, in view of the fact that the appellant has almost undergone sentence of more than three years, as evident from the repart of Superintendent of Jail, Central Jai, Rajnandgaon. Therefore, I am of the view that sentence already undergone by the appellant will meet the requirement ofjustice. ^ (16) In the result, the appeal is party allowed. The conviction of the appellant under Section 307 ofthe I.P.C. is affinned. However, the sentence awarded by the trial Court is reduced to three years which the appellant has already undergone. Thus, the appellant is sentenced to the period already undergone. He shall be set at liberty forthwith, if not required in any other case. ___,_——-— Sd/- R.L. Jhanwar Judge '-TS.^-