A» ^t A?r </2 &. }-^ -M -^CT 8" o U1 ^ '% ^==^ Q~ m(•+ 3' : 1 *""^, M i' o y O ui Tl s="^ C§:(AH Q, ^ <Q c !?:i ~m a. ' a. -^ ft«* .< 7; <-C5 S?<P tp' § •i ! t 8'l'i » ("^ <t o rt) 3 ^ '.^t (»' S 3? s ra '^ ? a gr ra '1 ^ w fs •.[Jt I'Bn- 3- ff ^i J'' s "' 1& S 3- Si! 1 ^.i tr^ >•'' 9 '^ i^~^ >s ^^'^1 '^ B S,'SS'c,'^f^S^:f~s.. IDi'^i,^l©BB^^efo,^ CRIMIMAL APPEAL Ko. 641/90 iS-a^.n 26 '''•ears. &°/©=WSlls^S ^I^^SlSslIii P0 l--%lt?^<s'-» .a-^slS*i^ jiJ»^5»n.a ®t^tfs@f Cfeliattt^i^^^fe .^. *KS^,^^?±n1d^^* St^,t-'a G^ C'fe.^^ttl^^a.'^iy. ^^?'' ^(£» TJT^..<.?f^J,^ vs'^^S '^^t-T^, a'ik^^aA wrwSif *h»Ad&^ *• <iu».<uiaA£»jt',tbML**» ^.ai'^tLiAAJLi ih^aC^ay •M» stava. J. S,^^^^L^^0^B ^- Moi'it^lT^CTl,. »/o.Ra'uidas Saa«i, 2.6 vears, ,;.,, ?,^. ...?<,3^^,n^^^, js^,^^~^,^,Va_ A"jf'^« VS.S.&vSi^Cf iva.wssS^t^t.iut.^ ;T1<5^«?1/T^^.^^ .&*&» ArfrAififii-B awihUi&Al Mr. C.R. Sahu, Counsel for the appeBant in Criiniaal Appeal No.641/90 aitd respondent in Ciiaiiiial Appeal No.280/9i. Mr, Asliisli Sliukla,, Additional Puhllc Prosecutor for thc appeUQiit^ Qtei.'iL£. ID. d'iu.uji.iol App££u. No,2SO/ 9X siiu- resDondent/State ia CriDimal Aooeal No.641/90 ^'y •2- IInd Additional Sessions Judge, Rajnandgaon vide judgiaent of conviction aad order of sentence passed on 23/06/1990 in Sessions Trial No.35/90 acquitted the accused Moujurain for offence punishable under Section 307 offhe I.P.C., aad held him guilty for conuiutting offence puiiishable under Section 323 of the IPC aad seutenced hini to undergo rigorous imprisorunent for one year. Beiug aggrieved by the said order of acquittal, State has preferred fhe appeal and agauist the convictiou and sentence accused has also preferred fhe appeal. Since both these appeaJs arise out of same judginent of conviction and sentence, they are heard analogously aad are being disposed of by this coinnion judginent. y' 2) Prosecution stoiy, in brief compass, is fhat Indravati Bai a widow was living alone ia village Moldiali aad was doin^ fhe work of labour for her livelihood. She had devektped fflicit relation wifh the accused aad consequently conceived. After 4-5 nionths of pregaaacy, she apprised the fact to accused who proposed her to get herself aborted by accoinpaaying T)im to Rajaandgaa. She e^reed to his proposal and on 30/06/ 1989 she along with accused sitting on carrier sest of fhe cycle driven by accused was going to Rajnaadgaon. On way when they reached near a brook accused conipeUed her to lay down and thereafter by a pointed naU stabbed her on frout aud back of chest, back of neck, aad haad. She received various injuries as a resi.ilt of that she was profusely bleediag. Wlieu sbe was ciyiiig to save herself, one wonian saw the iacident, ou seeing this, fhe accused left her ia iajured conditiou aad ran away froni the spot on his cycle. She <3!) came to viUage Mokhali and infomied to soiae of the woinan residents of that viUage about the iacident aad fhereafter lodged first information report ia Police Station Lalbag. 3) After recording the first infonnation report Police investigated the crime. During investigation Indravati Bai was got examined by fhe Medical Officer. On the laeiaoraadiun of accused, weapon used iu iaflictuig fhe iujuries on fhe body of Indravati Bai, was rccovered aad seized. It was also got exanuned by fhe Medical Officer Dr.S.K. Agrawal. Blood stauied blouse oflndravati Bai was also seized froin her. On niedical examination various iajuries on fhe front side aad back side of the chest, iajiuy over the bridge of nose and right shoulder, were foiuid. It was also found that Indravati Bai was pregnaat of 4 -5 inonths. Afiber examiaiag the weapon, the Medical oiSEcer also gave opiaion that the injuries received by Indravati Bai could be caused by the seized weapon. The witaesses were examiaed under Sectioa 161 of the Cr.P.C. After conipletion of the iavestigation the charge sheet was led ui the Court of Chief ijudicial Magistrate, Rajnandgaon, who coinniitted fhe case to the Court of Sessions for trial. 4) Chai^e uiider Sectioa 307 of the IPC was framed agaiust fhe appellaat which was read over and explamed to him, who abjured his guilt and pleaded fhat he is innocent. 5) Leamed trial Court, afier appreciating fhe evideace on record, held fhat prosecutioa failed to estebUsh the offence under Section 307 of the I.P.C., beyond reasonable doubt, however, proved fhat accused voluntarily caused simple hurt to Indravati Bai, therefore, leamed trial Court convicted aud sentenced the accused under Section 323 ofthe I.P.C. 6) Bofh the parties are heard aad record of Court below perused. 7 Doctor S.K. Agrawal (PW/10) ia his stateinent has deposed that on 30/06/1989 on examiaiag Indravati. Bai foBowia^ injuri.es were found on her body. 'l) 3 lacerated injuries (siab iryuries) over back ofchest intrascapular region left side sfee 1 cm x % cm each. The depth of ihe wound f could not be measured. 2) 4 lacerated wounds onfront ofchest and left side (stab injuries) size 1 cm. x % cm depth of the injury could not be measured. 3) One lacerated injury over fhe bridge ofnose 1 cm x % cm. •'f) Two la-cerated wounds on forearm right near wrisf size of 1 l/i cm x % cm. Bleeding from fhe ivounds present. Froin his cross-exainination nofhiag inaterial has been brought to discredit his evidence. Therefore, his evidence is credible and accordiag to his evidence, it was proved fhat ia the front and back side of chest various stab iajiuies were found on -^ 5- fhe body of Indravati Bai aad other injuries were on nose and forearm. 8) Indravati Bai (PW/7) in her steteinent has deposed that she developed iUicit relation with accused Moujuram aad conceived fhereby. She was pregaant and when she appraised the accused fhat she was carrying 4-5 inonths pregnancy, accused suggested her to accompany him to Rajnandgaon where he wfll get herself properly treated. Therefore, she along wifh accused sittini on the carrier of bicycle of accused proceeded for Rajnandgaon. On way near Bothipara culvert, accused asked her to lay down. Being denied, the accused lifted an.il took her near Kumhalouri where he led her down and inflicted various iajuries on her chest, aeck aad hand by aa iron rod. When the accused assaulted her, she cried out and, fherefore, accused left her there aad ran-away on his bicycle. Although a leagthy cross examination has been done, but, so far as causing of injuries by accused on the body of Indravati Bai is concemed, nothing has been brought iu her cross- exainination so as to discredit her evidence. 9) Sukhitraiu (P/W/3) a resident of Klimlialouri, in his stateinent has deposed that ia the inonfh of Asadh, a woinaa resident of Mokhali canie to his shop in iajured conditioa. When accused was brought she identified fhe accused and stated fhat he was the person who wielded iajuries on her body. He was confronted witti his stateiuent recorded under Section 161 of the Cr.P.C. Certamly ia Ex.D/1 it has not been stated in. detail that accused was brought aad the victun identified the accused, but in that stateiaent it has been specificaUy inentioned that accused was ':'. i ~'>, ?-'- (^. -6- takiag Indravati Bai for abortion and on way near Nala, had assaulted her. There is no contradiction on substantial fact as also in the cross-examination aofhiug substantiat has been brought to discredit his version. 10) Preiabai (PW/8) ia her stateinent has deposed that Indravati Bai came to her village Kunhalouri in injured condition and froin her injuries blood was ooziag who appraised her that a inan of her viUage Mokhali while takmg her to vfllage Bodena on a bicycle near Nala assaulted her by an iroa nafl. Although she was coD&onted wifh her statenient recorded under Section 161 offhe Cr.P.C., but could not bring aay substantial contradiction as also in rest of her cross exaiaination nothing has been brought to disbeUeve her. 11) Ex.P/5 is the first iirfonnatton lodged by ludravati Bai (PW/7) aad has been proved by Indravati Bai (PW/7) aad G.P. Mishra (PW/9). The report was lodged withiu fhree hours of fhe incident aud fhe report was niade against fhe accused whereiu Indravati Bai has clearly alleged that accused by a pointed uail wielded various iajuries on front aad back side of her chest and haad. 12) Froin Ex.P/6-A the inedical report, it is apparent fhat soon afljer the iucident, Indravati Bai was exainined, who had various stab injuries on front aud back side of her chest. Froiu the oral evideuce of Indiavati Bai which is duly CQrroborated wifh the statement of Suhhitram (PW/3) and Prembati (PW/8) and corroborated by dociunents, Ex.P/5, fi%t iaformattoit report, -f- Ex.P/6-A inedical report aad laedical evidence ofDr. S.K. Agrawal (PW/10), it is clearly proved fhat aU the injuries found on fhe body oflndravati Bai have been caused by the accused. 13) Ex.P/ 1 is the iiieniorandum statem.ent ofaccused and Ex.P/2 is fhe seizure nieino vide which an iron rod has been seized froui the accused. Froin the oral evidence of Chensingh (PW/4) and Dasruram (PW/5), it is estabUshed that accused took fhese persons and police ofiEicials near Dhodga and froni bush one iron rod was recovered and seized. Ex.P/1 and P/2 have been proved by the evidence of Chensiagh (PW/4, Dasrurani (PW/5) and G.P. Misnra (PW/9). G.P. Mishra (PW/9) also deposed that after seizure the said iron rod was seat to xaedical officer vide letter Ex.P/9 for his opiaion. Dr. S.K. Agrawal (PW/ 10) in his stateinent deposed £hathe examiaed the iron rod aad opined fhat the iajuries found on fhe body of Indravati Bai coiild have been caused by this weapon. His report is Ex.P/9A. It is clear that on fhe nienioranduin of accused one iron rod having pointed one side, was seized aad on examiaation it was opitied by inedical oiBcer that fhe injuries found on the body of Indravati Bai could have been caused by it. Therefore, it is estabUshed that fhe injuries have been caused by iron rod having one teniiinal pointed. 14) Leamed trial Court after appreciating the evidence on record held that all fhe injuries described in inedical report (Ex.P/6-A) by Dr. S.K. Agrawal (PW/ 10) which were found on the body of Indravati Bai were caused by iroa rod which was recovered and seized on the inibnnation given by the accused. Learaed trial 8i)!RNIaiis®B Court only on the grouiid fhat fhe depth of injuries have not been nieasured and m.edial of&cer failed to opiae the natlire of iajuries aad to give aay opiaion regarding gravity of fhe mjuries held the accused guUty only for committuig ofFence of voluntarily causing simple hurt. 15) Hon'ble the Apex Court rendering judgnieiit in Sttlte of Metharashtra Vs. Kashirao and others, reported in. AIS 2003 SC 3901 and m Parsurcun Pcmdey Vs. Steite sf Bihar, reperted in 3005 Supreme Court Cases (Cri.) 113 has observed the ingredients required for offence uader Section 307 ofthe I.P.C. Relevaat portion of para 20 of the judgment in State of Mahdrashtra (supra) is reproduced below: '20. The essential ingredients required to be proved in the case ofan offence under Section 307 are; (i) that the death of a hu.man ^ being ivas attempted; (ii) that such death was attempted to be caused by or in consequence of the acf of the accused; (iii) thai such act was done with the intention of causing such bodily injury as: (a) the accused knew to be likely to caiise death; or (b) was suffiaent in ihe ordinary course of nature to cccuse death, OT ihai the accused attempted to cause deafh by doing an act knoiun to him to be so irmninently dangerovs ^'%] -9" that it must in all probability caiise (a) death, w (b) such bodily iryuiy as is likely to cause death, the accazsed having no excuse for incumng the risk of causing such death or iryury . 16) Relevaut pordon of para 15 of the judginent Pandey (supra) is reproduced below: "1S. To constitute an offence under Section 307 two ingredients of fhe offenoe mvst be present (a) an iniention of or knawledge relating io conunission of murder, cmd. (b) the doing of an act towards it. For ihe purpose of Section 307 what is material is the inteniion OT ihe kruovjledge and not the consequence of fhe actual act donefor the purpose ofcanying out the intention. Tke section dearly contemplates an act which is done with intention of causing death but whichfails to bring about the intendef} consequence on account of intervening circumstances. The infention or knowledge of the accused rrwst be such as is necessary to constitiite murder. In the absence of intention or 10. -w yi. knoivledge which is the necessary ingredient of Secfion 307, there can be no offence 'of attempt to murder'^. Intent ivhich is a state of mind cannot be proved by precise direct evidence, as a fdcf it can only be detected or inferred from other facfors. Some of the relevant considerations nwy be the nature of the weapon used, the pldoe ivhere injuries were inflicted, the nature of the injuries and the drcumstances in which ihe inddent took place". 17) In fhe instaat case, accused inflicted injuries by pointed iron rod i.e., 1 I4 feet and actuatly pierced wifh the said rod in the front and back side ofthe chest oflndravati Bai, which are vital parts. The weapon used clearly shows fhat by inflicting injuries on huuian vital parts, it iiiay cause deafh. Accused not only caused a single blow, but caused various stab iajuries aad out of those iajuries, three were in the front side of the chest. It is also clear fhat as she cried out while she was beiag stabbed by the accused &r her rescue, the accused left her and ran away, otherwise, it was clear that accused was not leaviag her alive on the spot. Evidence of Medical Officer Dr. S.K. Agrawal (PW/10) clearly states that the iajuries have depfh, fherefore, coiild be nieasured only by Surgical speciaUst and to nieasure injiuy fhat inight have been dangerous for fhe patient. It clearly indicates that fhe stab iDJuries caysed to Indravati Bai were such which M- ^ Raju were daugerous for fhe life of Indravati Bai. In oflFence under Section 307 of the IPC only factor is not the injury or its nature, but a number offaetors circuiastaaces, nature ofiujury, weapon used, iatemiption etc., are required to be taken iato considei-ation. Here, in fhe instantcase, it is established ttiat on way accused led her down, thereafter accused who was cariyiag the weapon with him briftaUy pierced in the body of Indravajti Bai arid caused nuinber of stab injuries on her vital parts who on raising voice for rescue by the victun left and raa away, aB cleariy shows fhe intention of accused to kiU her and atl | fhat these circuDistaaces when taken together estabHsh that the a<scused attenipted inurder of Indravati Bai and fhis is not a case of ordy causing voluntarily simple hurt to Indravati Bai. 18) On the basis of aforeinentioaed reasons and h^viag considered fhe facts aad ciipcunisteiiee of the case, we are pjFfhe ' -I 1::';' • • :• •>'.' ::^'i- ppinion that the appeal preferred by fhe accused being dcvc^id of snerits fails aad ttie appeat prcferred by fhe State deservesj 1)o be aUowed. We, fherefore, lleld the aecused Moujiu-am guflily of offence puiushable under Section 307 ofthe I.P.C. Por heartELg the accused ou sentence to be imposed on him, fhe judgnient is ) . : . . ^ • _ postponed for a whBe at fhis stege. \-^—'—— Sd/- Fakhruddin Judge Sd/- V.K-Shrivastava Judge Later on Heard on senteriGe. BFT' Raju w Although fhe accused is ftie first offender and the appeal is old one, but these factors are not suiBicient to show aay lenieacy towards accused who brutally inflicted uyuries on a ·woin.an. over her chest with a pointed weapon. Taking into consideratibn aU the facts jand circuiustaaces of fhe case, the appeUant is sentenced under Section 307 of the I.P.C., to uodergp R.I. for fiye years aud toipay fine of Rs. 1,000/-,ia defaiilt ofpaynient offiiie to further und^rgo R.I. for five months. Set oSis aUowed in accordjance wiffl Secjtioa 428 ofthe Cr.P.C. Sd/- Pakhruddin Judge Sd/- V.K.Shrivastava Judge ll/yuua-