IGH COURT OF CHHATTISGARH AT BILASPUR _S_§: Hon'ble Shri Justice Radhe Shxam Sharma Criminal Aweal No.34l1 996 Devlal alias Devnath Versus State of Madhya Pradesh (Now State of Chhattisgarh) . JUDGMENT @, Post for 01 -1 2-2011 Sd/- R.S. Shanna. Judge ' a H @j - HIGH COURT OF CHHATTISGARH AT BILASPUR SINGLE BENCH:Hon’ble Shri Radhe Shyam Sharma, J Criminal Appeal No. 34/1996 &ppellant Devlal alias Devnath S/o Shn Shlvlal Kewat aged 26 years R/o Village ParaSI P S Marwahl Distt Bllaspur (M P) (Now State of Chhattisgarh) Vs. i (DeIiVered on 0) December, 201 1) x t Tnis appeal is directed against judgment dated 19*“ December 1995 .passed Jby 5‘“ Additional Sessmns Judge Billaspur in Sessions trial No140/$5 By the impugned Judgment accused/appellant Devlal @ Devnath! has been convicted under Section 307 of IPC and sentenced to undergoi R.l. for four years. 2r Catse of the prosecution in brief is as under;- q x t > t On 03.11.94 at about 6.45 p.m. complainant Bisahan (PW-1) ‘ad gone to the house of Balram Singh (PW-2) for taking money. (When ttie complainant was‘asiting for money from Balram Singh (PW-2), the appefllant came there and‘assaulted the complainant _with a tangi (axe). The corn‘plainant sustained injuries on his head and fell down. Thereafter E t e l he appllant fled from there. Bisahan (PW-1) lodged First Information 1:3‘ 1 State of Chhattisgarh) u . (Criminal Agpeal under Section 374 (ZLof the Cr P C) Present! §hri Rakesh Pandey, counsel forthe appellant” Shn Ravmdra Agrawal Panel Lawyer for the State J U D’G M E N T Report ‘(Ex—P/5) in Police Station, Marwahi. The complainant was sent for medica‘ examination to Govt. Hospital, Marwahi vide Ex-P/4. Dr. Sagar Shukia (PW-6) examined the comptainant and gave his report vide Ex—P/9. In the report (Ex-P/Q), he found one incised wound 3" x 1" x 1/2" ‘on the right vfrontai r§egion of the head of the complainant and the injury was caused by sharp cutting object. The doctor opined that the injury was grievous in nature. I i in further investigation, plain soil and blood stained soil F were seized vide Ex—P/2. Shirt and full pant were seized from complainant Bisahan (PW-1) vide Fx—PH and tangi was seized from the appellant vide EXP/3. Bed-head ticket of the complainant was seized vide Ex—P/6. Seized tangi was sent for examination vide Ex—P/7 and Dr. Sagar Shukla (PW-6) Vn gave his report vide Ex-PI1 0. After completion of the investigation, charge sheet was filed in the Court of Judicial Magistrate, First Class, Pendra Road, who, in turn, committed the case tothe Court of Session, Bilaspur, from where, 5‘“ Additional Sessions Judge, Bilaspur received the case on transfer and conducted the trial, convicted and sentenced the appeliant as mentioned above, 3. Shri Rakesh Pandey, learned counsel appearing for the» appellant argued that the evidence of complainant Bisahan (PW-1) is full of - contradictions. The First Information Report (Ex-P/5) was lodged at a belated stage. Statement of prosecution witnesses are contrary to each other. Seized tangi was not sent for chemical examination and FSL report ..;_-.§\\was not submitted by the prosecution. Therefore, conviction recorded by \ the !earr?ed 5t“ Additional Sessions Judge is not sustainable in the eyes of iaw and Fhe appeHant deserves to be acquitted, 4" Sxri Ravindra Agrawal, Iearned Panel Lawyel’ appearing for the State/reepondent, supporting the impugned judgment of conviction and Vsentencel, submitted that the same does nOt warrant interference by this Coult. ] 5. I have heard learned counsel for the parties and perused the record. Conviction of the appellant is based on the evidence of Bisahan (PW-1), i Balram Singh (PW-2) and Nagendra Kumar (PW-3). l l l \f A .. 6. Bisahan (PW-1).deposed that when he had gone to the house of Balram Singh (PW—2) for taking money, the appellant came there and assaulted him with tangi. He sustained injuries on his head and fell down. Balram Singh (PW-2) deposed that Bisahan (PW—1) came to his house and‘ asked for money from him. When they were talking to each other, the appellant came there and he inflicted tangi blow on head of Bisahan (PW-1) and thereafter he fled from there. Bisahan (PW-1) sustained injuries on his head. Nagendra Kumar (PW-3) deposed that at about 8.00 p.m. when he was returning from the pond, Balram’s father told him thatvDevlal (appellant) U?‘ assaulted Bisahan (PW-1) with tangi. 7. Bisahan (PW-1) denied the defence version that the injury sustained by'him was due to his fall, He deposed that appellant Devlal assaulted him and fled from the place ofoccurrence. Balram (PW-2) deposed in cross ?\ \ examination in para 6 that Devlal (appellant) came near door of his house .x\ and assaulted Bisahan (PW-1) with axe. He further deposed that appellant @ Devlai after assaulting the complainant fled from there. He had chased the appellant, but he succeeded in fleeing. 8. Dr‘. Sager Shukla (PW-6) deposed that he examined injureduBisahan, S/o. Kodua and found an incised wound of 3" x 1” x V2" on the right frontal region of the head. Duration of the injury was within 24 hours and it was grievous? in nature, i i v l 9. The date and time of the incident'was on 03-1 1-94 at about 7.45 p.m. FIR (EX—W5) was lodged on the same day at about 9.30 p.m. The distance ibetween‘ the police‘station and village Parasi is 8.k.m. Complainant Bisahan (PW-1) deposed that after the assault by the appellant, he fell down and became unconscious for sometime. Balram Singh (PW-2) also deposed that Bisahan (PW-1) remained unconscious for about 1/2 hour after “the incident. The First information Report (Ex-P/5) was lodged on 03.1 1 .94 at 9.30 p.m., which is within two hours of the incident. Therefore, it cannot be said that the First information Report (Ex-P/5) was lodged belatedly. 10. l have carefully perused the evidence of Bisahan (PW-1) and Balram (PW-2). They specifically deposed that on the fateful day, the appellant assaulted Bisahan (PW-1) with tangi. Their evidence are corroborated by medical evidence. From the above, it is apparent that that ‘vtt the testimony of Bisahan (PW-1) and Balram (PW-2) are clinching and cogent. 11.’ Now, it is to be seen whether the offence of the appellant is punishable under Section 302x030. Shri Rakesh Pandey, learned counsel for the appellant argued that it is obvious from the statement of Bisahan _ \. (PW-1) itself that the appellant had .come to him all of a sudden and gave -H ‘ § fk x. @ q Av]; ww’é‘ him the tangi blow. The injured was sent for medical examination. The prosecu‘tion has not been able to prove that the injury sustained by the complai1hant was fatal to his life. Therefore, at the maximum, the offence is punishalble under Section $26 IPC. The appellant has been in jail for about 6 “/2 months. The ends of justice would be served if the appellant is sentended for the period already undergone by him. l 12. Shri Ravindra Agrawal, Learned Panel Lawyer for the l State/respondent opposed the above argument. a ‘ 13. Bisahan (PW-1) deposed that he and the appellant were going together towards the house of Balram Singh (PW-2). From” his deposition, it appears that both the appellant and the complainant had gone to the house of Balram (PW-2) together, and all of a sudden, the appellant assaulted the “complainant and only single blow was inflicted by him. Dr. Sagar Shukla (PW-6) did not mention in his report that the injury sustained by the complainant was fatal to his life and he deposed that he did not know if the complainant could not be treated immediately, his‘death was possible or not. \1 14. To constitute an offence under Section 307 IPC, two ingredients of the offence must be present— an intention of or knowledge relating to commission of murder; and (b) the doing of an act towards it. For the purpose of Section 307 IPC, wha't is material is the intention or the ,es _\:\\l\(nowledge and not the consequence of the actual act done for the purpose (a) yrs ' \ k of carrxing out the intention. The section clearly contempiates an act which is done with intention of causing death but which fails to bring about the intendeb consequence on account of intervening circumstances. The l lntentioh or knowledge of the accused must be such as is necessary to constitute murder. In the absence of intention or knowledge, which is the l necessary ingredient of Section 307 IPC, there can be no offence of attempt t to murder. l 15. In the case in hand, the prosecution has not~been able to prove that u. the appellant had intention or knowledge to commit murder of the complainant. The evidence on record reveals that the appellant gave only single axe blow on the right frontal region of the head of the complainant and the injury sustained by him was grievous in nature. Therefore, the offence falls within the purview of Section 326 IPC and not under Section tk 307 IPC. Therefore, the appellant is guilty of offence under Section 326 IPC. .. 16. From perusal of the record, it appears that the appellant has already suffered jail sentence for about 6 3/2 months. The offence was committed on 03.11 .94, the appellant was convicted and sentenced on 19.12.95 and the appeal is pending since 05.01 .1996. The case remained pending for more than 16 years. Looking to the circumstances, l am of the view that it would meet the ends of justice if the jail sentence awarded to the appellant is reduced to the period of imprisonment already undergone by him and sentence of some fine is alsoawarded. 17. In the result, the appeal is partly allowed. The conviction and 5 \\ \ sentence awarded to the appellant under‘ Section 307 of IPC is set aside. \ i lnstead~ thereof the appellant is convicted under Section 326 of the IPC and he Is sentenced to the period already undergone by him and to pay fine of Rs 1000/ In default thereof to undergo R l for two months Two months time is allowed to pay the amount of fine. Presently, he is on bail. His bail bonds are cancelled and surety stands discharged. Sd/-/ " R.S. Sharma Judge Binl