CFOooooebsS' r®"*- IN THS HIGH COIitO* OF WS>R1&.FRKuBSi_fGi_3fSSiS?V&. APr-SU-iASI' ^injo^L) RS sFONa'SBr: Cr.A. ^y]__y96 *• tl. ; Santosh DbankarT S/o Meltat-fc-ar -Stiankar, agsd about 22 years, cul+-ivator, resident of w^Elagn Devrapara, Si^olabhata, Pdlic" Station Mohannagar, Dis'trtct Durg -Versus. he otate of M.P S£±M£S;i&-M:£l^-!MSiL^iSI£IL12AiZLj::amINM;-^a2^^ CO NVICT ION ®3N£E =S HIGH COURT OF CHHATTISGARH AT BILASPUR (Hon. h/lr. Justice Pritinker Diwaker) Criminal Appeal No. 707 of 1996 APPELLANT RESPONDENT VERSUS Santosh Dhankar State of Madhya Pradesh Shri Pankaj Agrawal counsel for the appellant. Shri Neeraj Mehta PL for respondenVState. CRIIVIINAL APPEAL UNDER SECTION 374 (2) OF THE CODE OF CRIMINAL PROCEDURE. JUDGMENT (15.07.2010) This appeal is directed against the judgment and order dated 29.03.1996 passed by Additional Sessions Judge, Durg, in Sessions Trial No. 332/1992 convicting the accused/appellant under Section 307 IPC and sentencing him to undergo rigorous imprisonment for four years and pay fine of Rs. 2500, in default of payment of fine to further undergo rigorous imprisonment for six months. 2. Case of the prosecution in brief is that on 29.8.1992 at about 8.10 p.m. FIR Ex. P-5 was lodged by Arun Joshi (PW-5) alleging that on that day at about 7.45 p.m. while he was going home, the accused/appellant stopped him and assaulted him with knife on account of old enmity saying that his mother was abusing him. It is the further case of the prosecution that after assaulting him, the accused/appellant threw the knife and went away. After investigation, challan was filed under sections 341, 324, 506-B and 307 IPC. However, the Court below framed the charge against him under Sections 341 and 307 IPC only. 3. So as to hold the accused/appellant guilty, prosecution has examined as many as 08 witnesses in support of its case. Statement of the accused/appellant was also recorded under section 313 of the Code of Criminal Procedure in which he denied the charge levelled against him and pleaded his innocence and false implication in the case. P ! ! '^> A&.wSSsi-. 3 fl "^"'=•;•• -2.— 4. After hearing the parties the trial Court has acquitted the accused/appellant of the charge under Section 341 IPC but convicted and sentenced him as mentioned above. 5. Heard counsel for the parties and perused the material available on record including thejudgment impugned. 6. Counsel for the accused/appellant submits that present is a case of false implication where on account ofold enmity the accused/appellant has been made accused. He submits that the injury sustained by the complainant was simple in nature and therefore even if the entire case of the prosecution is taken as it is, he cannot be convicted under Section 307 IPC and at best the act attributed to him would fail within the ambit of Section 324 IPC. 7. Supporting the judgment impugned counsel for the respondent/State submits that looking to the manner in which the complainant was assaulted by the accused/appellant, it is clear that he was predetermined to kill him. He submits that even though Dr. B.S. Baghel (PW-1) who had medically examined the complainant has opined that the injury caused to him was simple in nature yet from the statement of Dr. P.R. Patro (PW-3) it is clear that the left lung of the complainant was damaged. 8. Arun Kumar Joshi (PW-5) has stated in his evidence that on the fateful day when he was returning home, accused/appellant met him and said that he was being abused by his mother but ignoring the same he went ahead. Then the accused/appellant stopped him and threatening to kill him gave knife blow on left side of his chest but as he was wearing shirt he did not receive any major injury. According to him when he tried to save himself from the attack by the accused/appellant, he sustained injury on his left palm also. In cross-examination this witness has stated that he had no previous enmity with the accused/appellant and if it is mentioned in the FIR he cannot tell the reason therefor. He has denied the fact that the injuries sustained by him were self inflicted. Statement of this witness also corroborated by Radhiabai (PW-6) and Kamlabai (PW-7) - the mother of the complainant. Dr. V. S. Baghel who had first examined the complainant has found following injuries on his body:- 3_ i) One incised wound 1 x %" muscle deep, in lower side of neck. ii) One incised wound 1/2 x 1/4" tender deep. iii) One incised wound 1/4 x 1/8" skin deep in right side of the chest. iv) One abrasion in the size of 1 x 1" on right shoulder. ^ This witness has stated that the injuries were not sufficient to cause death in the ordinary course of nature. From the report Ex. P-1 it is clear that the injuries sustained by the complainant were simple in nature. Dr. P.R. Patro (PW-3) who subsequently gave medical treatment to the complainant has stated that his left lung was damaged on account of Pneumathorax i.e. undue pressure of air. However, this witness has not opined as to the nature of the injuries. Moreover, the Investigating Officer has also not been examined in this case. 9. Reading of injuries sustained by the complainant would indicate that though as per the statement of Dr. P.R. Patro (PW-3) the left lung of the complainant was damaged, there was no categorical statement that the injuries were in fact dangerous to life or not. It is doubtful as to whether it was deliberate omission or oversight but whatever it may be, benefit must accrue to the accused particularly when Dr. V. S. Baghel (PW-1) has categorically stated that injuries sustained by the complainant were simple i.n nature. Statement of the.complainant that he was assaulted by the accused/appellant has to be believed because the same has been suppori:ed by the medical report and two eye witnesses. However, looking to the M.L.C. report of the complainant this Court of the considered opinion that the act attributed to the accused/appellant would not fall within the ambit of 307 IPC but it would fall under section 324 IPC. 10. In view of above, the appeal is partly allowed. Conviction of the accused/appellant under section 307 IPC is set aside and the accused/appellant is convicted undersection 324 IPC. It is reported that the appellant has already remained in jail for 8 months and 4 days. Thus, the appellant is sentenced to the period already undergone by him. However, as provided under section 357 of the Code of Criminal ^ Uf ^ -</- Procedure he shall pay a sum of Rs. 10,000 as compensation to the complainant/victim in addition to the fine as awarded by the Court below. Sd/- P'-itinker Diwaker '/ !313